Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining

• Author: Peter A. Joy & Rodney J. Uphoff
• Position: Henry Hitchcock Professor of Law, Washington University School of Law/Elwood Thomas Missouri Endowed Professor of Law, University of Missouri School of Law
• Pages: 2103-2130

2103

Systemic Barriers to Effective Assistance of

Counsel in Plea Bargaining

Peter A. Joy & Rodney J. Uphoff 

INTRODUCTION .................................................................................... 2104

I. COMPETENT REPRESENTATION DURING PLEA BARGAINING ................ 2107

II. THE LIMITED ASSISTANCE OF COUNSEL............................................... 2112

III. WAIVERS OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ............... 2117

A. CASE LAW ON WAIVERS OF INEFFECTIVE ASSISTANCE OF COUNSEL

CLAIMS .......................................................................................... 2117

B. THE ETHICS OF WAIVERS OF INEFFECTIVE ASSISTANCE OF COUNSEL

CLAIMS .......................................................................................... 2124

CONCLUSION ....................................................................................... 2128

 Henry Hitchcock Professor of Law, Washington University School of Law.

 Elwood Thomas Missouri Endowed Professor of Law, University of Missouri School of Law.

We thank James Tomkovicz for inviting us to participate in the Iowa Law School

Symposium, for which this Essay was written, and the Iowa Law Review editors and staff for

organizing and hosting the Symposium. We also thank Kevin McMunigal, with whom Peter has

explored some of these issues for an ethics column in ABA Criminal Justice, and the pa rticipants

at the University of Denver Sturm College of Law Faculty Workshop for their helpful comments

on an earlier draft of this essay.

2104 IOWA LAW REVIEW [Vol. 99:2103

INTRODUCTION

In a trio of recent cases, Padilla v. Kentucky,1 Missouri v. Frye,2 and Lafler

v. Cooper,3 the U.S. Supreme Court focused its attention on defense counsel’s

pivotal role during the plea bargaining process. The Court recognized long

ago that a criminal defendant was entitled to effective assistance of counsel

at the plea stage.4 Prior to Cooper, however, the Court had not found that

defense counsel’s advice to turn down a plea bargain could constitute

ineffective assistance.5 Likewise, prior to Padilla, the Court had not

overturned a guilty plea because defense counsel failed to alert a defendant

to a significant consequence—deportation—that followed from that plea.6

Before Frye, it had never declared that “defense counsel did not render the

effective assistance the Constitution requires” because defense counsel had

neglected to communicate an earlier favorable plea offer.7

To Justice Scalia, the decision in Cooper “elevates plea bargaining from a

necessary evil to a constitutional entitlement,” “upends decades of our

cases,” “and opens a whole new boutique of constitutional jurisprudence.”8

Cooper, Frye, and Padilla, however, do not portend major changes in the

nation’s criminal justice systems. Rather, these cases largely represent a

rejection of Scalia’s unduly narrow view of defense counsel’s role and his

belief that a voluntary guilty plea or a decision to reject a plea offer should

be immune from an ineffective assistance claim, even when the defendant’s

decision was based on counsel’s professionally deficient advice. Given that

“the negotiation of a plea bargain, rather than the unfolding of a trial, is

almost always the critical point for a defendant,”9 the Court’s willingness

under certain circumstances to find that a defense counsel’s professionally

unsound plea bargaining performance constitutes ineffective assistance of

counsel is hardly remarkable.

Indeed, few commentators see these decisions as signaling a major shift

in the Court’s general reluctance to find that a criminal defense lawyer’s

representation was both professionally unreasonable and prejudicial.10 This

1. Padilla v. Kentucky, 559 U.S. 356 (2010).

2. Missouri v. Frye, 132 S. Ct. 1399 (2012).

3. Lafler v. Cooper, 132 S. Ct. 1376 (2012).

4. McMann v. Richardson, 397 U.S. 759, 772 (1970) (holding that a guilty plea is not

“subject to collateral attack . . . unless the defendant was incompetently advised by his

attorney”); see also Hill v. Lockhart, 474 U.S. 52, 57 (1985) (holding that the same test for

determining ineffective assistance of counsel at trial “seems to us applicable to inef fective-

assistance claims arising out of the plea process”).

5. Cooper, 132 S. Ct. at 1384–91.

6. Padilla, 559 U.S. at 365–66.

7. Frye, 132 S. Ct. at 1408.

8. Cooper, 132 S. Ct. at 1397–98 (Scalia, J., dissenting).

9. Frye, 132 S. Ct. at 1407.

10. See, e.g., Bruce A. Green, The Right to Plea Bargain with Competent Counsel After Cooper

and Frye: Is the Supreme Court Making t he Ordinary Criminal Process “Too Long, Too Expensive, and