The prosecutor's turn.

Author:Capers, I. Bennett
Position:Plea Bargaining Regulation: The Next Criminal Procedure Frontier


In a term that included cases about witness identification testimony, (1) the applicability of the Confrontation Clause to expert testimony, (2) and imposing mandatory life-without-parole sentences on juveniles, (3) many criminal justice advocates heralded Lafler v. Cooper (4) and Missouri v. Frye (5) as game changers. A policy advisor for the Brennan Center for Justice described Lafler and Frye as "the term's decisions with the greatest, everyday impact on the criminal justice system." (6) Professor Wesley Oliver called the two cases "the single greatest revolution in the criminal process since Gideon u. Wainwright provided indigents the right to counsel." (7) Professor Ronald Wright added, "I can't think of another decision that's had any bigger impact than these two are going to have over the next few years." (8) The press, too, praised the decisions. The New York Times applauded the decisions for "vastly expanding] judges' supervision of the criminal justice system." (9) Even detractors recognized the cases' impact. Justice Scalia, writing for the dissent in both cases, lamented that the cases would open "a whole new boutique of constitutional jurisprudence (plea-bargaining law)." (10) Given this response, it is not surprising that Lafler and Frye have generated extensive scholarly consideration. The Yale Law Journal devoted a series of essays in its online forum to the impact of the decisions, (11) and the Duquesne Law Review devoted a print issue to the cases. (12) And of course, there is this William & Mary Law Review Symposium.

The primary goal of this Article is not to weigh in on the significance of Lafler and Frye, or to question the attention they have received, although the Article does a little of both. Rather, the primary goal is to shift the focus somewhat. Lafler and Frye certainly signal increased attention to the regulation of defense counsel in criminal cases, as did an earlier case, Padilla v. Kentucky. (13) But what about prosecutors? For the most part, prosecutors remain underexamined and underregulated. Put differently, the problem brought to the fore in Lafler and Frye--the failure of defense counsel to properly advise their clients of plea offers--is not the only problem in this new, old world of negotiated pleas. With Lafler and Frye, there will now be more judicial oversight of defense counsel when it comes to plea negotiations. But if judges are watching defense counsel, who is watching prosecutors?

This Article argues for more regulation of prosecutors during the plea bargaining stage. Part I begins by first offering some modest criticisms of Lafler and Frye, with particular attention paid to possible collateral consequences. Part II turns the attention to prosecutors, who are notoriously underregulated, and to the outsized role they play in plea negotiations. Part III suggests that the next goal of "plea bargaining" law should be to remedy this lack of oversight and offers the Due Process Clause, and to a lesser extent internal and external regulation, as one possible route for getting there.


    The conventional wisdom is that Lafler and Frye broke new ground. (14) Of course, the Court had long ago read the Sixth Amendment, despite its seeming emphasis on rights at trial, as extending the right to the assistance of counsel beyond trial to plea negotiations. As the Court observed in United States v. Wade, the right to assistance of counsel extends to "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." (15) That assistance has to be effective, the Court made clear in Strickland v. Washington, (16) and thus it followed quite naturally that the right to effective assistance would extend to plea negotiations, as the Court held in Hill u. Lockhart (17) and Padilla v. Kentucky. (18) However, both Hill and Padilla involved the issue of whether the defendants were denied effective assistance of counsel when counsels' faulty advice caused them to accept a plea. It was held ineffective. The next step of Lafler and Frye was applying this requirement to situations in which counsels' advice caused defendants to reject a plea. Though this was new ground, the takeaway from Lafler and Frye is essentially straightforward: effective assistance of counsel during plea negotiations includes timely communicating plea offers to the client and effectively advising the client about the merits vel non of accepting the plea offer.

    New ground, though not quite terra firma. Indeed, much has been made of Lafler and Frye and the complications that will ensue with respect to proving the making and communication of offers, and with respect to fashioning remedies. The Court essentially punted on these issues, leaving lower courts to figure out fact-finding and to fashion appropriate remedies. (19) But the bigger story, beyond these complications, is the Court's acknowledgement of the reality that scholars have long observed (20): given that approximately 97 percent of cases are disposed of by plea, (21) the Court acknowledged that plea bargaining "is the criminal justice system." (22) And more significant still by several multiples is this: the Court moved to provide more constitutional oversight to the 97 percent of the criminal justice system that, for the most part, had remained in the shadows.

    Perhaps it is too early to know what long-term effect the two decisions will have on the ground and in the trenches. According to at least one practitioner, there has already been an increase in "Lafler claims" alleging ineffective assistance during plea negotiations. (23) In some jurisdictions, prosecutors have requested in-court plea colloquies to memorialize the communication of plea offers on the record. (24) Even in the absence of colloquies, some prosecutors are still hoping to make a factual record. At least one District Attorney's Office has announced that it will make a practice of announcing on the record in the defendant's presence the making of plea offers and any rejection of the same. (25)

    But beyond this, it is too early to know what effects, especially collateral effects, Lafler and Frye will have. Indeed, precisely because it is early, it is useful to repeat some concerns already raised by other scholars and to surface additional concerns. First, allow me to second the concern Judge Jed Rakoff of the Southern District of New York raised about the likely perverse effect of Lafler and Frye. Judge Rakoff writes:

    Frye and Lafler could push defense attorneys toward urging their clients to take the first plea offered, even if counsel felt there was a realistic chance that a better deal might later be obtained; for otherwise, the defense attorney would risk facing a charge of ineffectiveness of counsel if the later plea bargain--or sentence after trial--proved more onerous than the initial offer. But the corollary of this result is that both the prosecutor and the defense counsel will be negotiating their deal at a time when neither fully understands the strengths or weaknesses of the case: a recipe for injustice. (26) In short, rather than facilitating the "pursuit of perfect justice," (27) Lafler and Frye could instead frustrate that pursuit by indirectly encouraging both the making of early pleas on the part of the prosecutor (who will know that the defense lawyer will now be obligated to convey the early offer and even push for it or risk an ineffective assistance of counsel claim), and the acceptance of early pleas by defendants. Indeed, on the defense side, there may be a double-whammy of risk aversion: the defendant who is afraid that the plea offer will be withdrawn, and the defense attorney who is afraid of being hit with an ineffective assistance claim. Again, a recipe for injustice. (28)

    My concerns dovetail Judge Rakoff's and go a step further. The critic in me wonders if Lafler and Frye are little more than a token gesture, giving the outward appearance of judicial oversight, of checks and balances, of real reform, and indeed of justice, while really maintaining the status quo. The mere fact that I can already imagine prosecutors applauding the decisions gives cause for some concern. Consider the skepticism of Judge Gerald Lynch of the Second Circuit. As Judge Lynch points out, it is unlikely that Lafler and Frye will result in many findings of ineffective assistance. (29) After all, the burden on the defendant claiming ineffective assistance is a substantial one. (30) Albert Alschuler is even more critical, noting the structural barriers that frustrate effective legal representation--barriers that Lafler and Frye leave untouched. (31) Rare is the type of blatant malfeasance evidence available in Lafler and Frye; instead, a court deciding a LaflerlFrye claim must engage in speculation about would-haves and should-haves. In short, absent the kind of "easy cases" (32) presented by Lafler and Frye, courts will continue to take "a fairly hard line against after-the-fact criticism of anything that can be characterized as a matter of tactical decision." (33)

    And this is just the beginning of possible shortcomings. Lafler and Frye will likely do very little to disrupt a system that is now parasitical on plea bargaining. It is beyond dispute that our current system of criminal justice could not survive without pleas. (34) The Court acknowledged as much in Santobello v. New York, a 1971 decision. (35) As the Court stated then:

    The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the...

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