Court Greatly Expands Rights of Accused in Cases that Involve Plea Bargains –
It is difficult to figure the direction of the US Supreme Court, particularly in light of a controversial ruling this week that allows those arrested even for very minor crimes to be strip searched. However, one area where the Supreme Court actually expanded the rights of the accused was during a recent ruling on the right to effective counsel during plea bargain negotiations.
Justice Anthony Kennedy has become the power in the middle, deciding which side the court swings on critical issues with an ideological divide. More often he joins the more conservative wing.
In two cases here, he sides with the more liberal wing of the Court, to greatly expand judicial supervision of the justice system.
As Justice Kennedy notes while the petitioner argues, “A fair trial wipes clean any deficient performance by defense counsel during plea bargaining,” the reality is different.
“That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Kennedy writes. “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”
Therefore, he argues, “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”
As the New York Times recently wrote: “The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.”
Justice Kennedy explains, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.”
He adds, “Because ours ‘is for the most part a system of pleas, not a system of trials,’ it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.”
He notes, “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
The implications for this ruling, however, are unclear.
As Justice Antonin Scalia notes in his dissents in both cases, “The court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”
He writes, “Today’s decision upends decades of our cases, violates a federal statute, and opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’) without even specifying the remedies the boutique offers.”
He continued, “Released felon Anthony Cooper, who shot repeatedly and gravely injured a woman named Kali Mundy, was tried and convicted for his crimes by a jury of his peers, and given a punishment that Michigan’s elected representatives have deemed appropriate. Nothing about that result is unfair or unconstitutional. To the contrary, it is wonderfully just, and infinitely superior to the trial-by-bargain that today’s opinion affords constitutional status. I respectfully dissent.”
But Justice Scalia misses the fundamental point, the fairness of a judicial proceeding is not determined by its outcome, but rather its process. The defendant is entitled under the law to have effective and competent counsel, advising him and advocating for his rights and best interests, even if the defendant is as guilty as sin.
In the case that Justice Scalia cites, the prosecution offered to dismiss two of the charges and recommend a 51-to-85-month sentence on the other two, in exchange for a guilty plea.
The defendant admitted his guilt and expressed a willingness to accept the offer, “But he rejected the offer, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist.”
He would be convicted at trial and receive a much longer 185 to 360 month sentence.
The Sixth Circuit court ruled that “counsel had provided deficient performance by advising respondent of an incorrect legal rule, and that respondent suffered prejudice because he lost the opportunity to take the more favorable sentence offered in the plea.”
They held, “Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”
“I suspect that the court’s squeamishness in fashioning a remedy, and the incoherence of what it comes up with, is attributable to its realization, deep down, that there is no real constitutional violation here anyway,” Justice Scalia wrote. “The defendant has been fairly tried, lawfully convicted and properly sentenced, and any ‘remedy’ provided for this will do nothing but undo the just results of a fair adversarial process.”
The New York Times writes, “Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.”
The second case involved a man who was driving without a license. The prosecution offered a guilty plea in exchange for a 90-day jail sentence. However, the attorney at the time failed to inform his client of the offer.
After it expired, the defendant pled guilty without the plea bargain and received a three-year prison sentence.
Wesley Oliver, law professor at Widener University, told the New York Times, “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.”
Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining, told the Times, “The decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship.”
“It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”
Justice Scalia made another interesting point that brings up something Yolo County Public Defender Tracie Olson said at last year’s Vanguard Dinner and Awards Ceremony.
He writes, “In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often – perhaps usually – results in a sentence well below what the law prescribes for the actual crime.”
He adds, “But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”
Justice Scalia then notes, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, ‘it is the criminal justice system.’ “
Justice Scalia’s remarks here are remarkably prescient, even as he ignores the flaws in the plea bargain system that he is basically rubber stamping.
You will recall, Yolo County Public Defender Tracie Olson posed the argument that, in her view, a frequent cause of wrongful convictions in our local system is from the plea bargain process.
She told the audience at that the time, “You might think, how could plea bargaining result in wrongful convictions? Isn’t that what defense attorneys are for – to make sure not only that a defendant doesn’t get CONVICTED of a crime he didn’t commit but surely to make sure a defendant doesn’t PLEAD to a crime he didn’t commit!”
“Ideally, yes,” she said. “But OUR criminal justice system is not ideal. Our system is FLAWED.”
She gave the example of the Alford Plea, known because Henry Alford was accused of murder and faced the death penalty, where enough evidence existed that could possibly have been enough to cause a jury to convict him.
“The evidence was strong but Henry said he was innocent. Henry, however, pled guilty to a charge of 2nd degree murder in order to avoid the death penalty,” she said. “Of course, I don’t know as I stand here today whether or not Henry was actually innocent. However, I’ve been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry’s.”
She said, “Just because the system allows the innocent to plead guilty doesn’t mean that we should tolerate a system that makes it easy to do so… And that’s the type of system we currently have.”
—David M. Greenwald reporting
[quote]t is difficult to figure the direction of the US Supreme Court, particularly in light of a controversial ruling this week that allows those arrested even for very minor crimes to be strip searched.[/quote]
Yes, I saw this on the news, and cringed. Do folks realize they can now be strip-searched (including body cavity searches) for failure to pay a fine? I find this extremely worrisome…
The problem with this ruling IMO is that it seems to only get at cases where ineffective counsel resulted in someone getting the sentence they justly deserved, rather than a lesser sentence they could have bargained for but chose not to. It doesn’t really get at the basic unfairness of the plea bargaining system that tends to coerce even innocent people to plead guilty rather than risk going to trial with only the sometimes poorly prepared and overworked public defender as an advocate, rather than some high priced high powered defense team. I doubt this case will result in any more fairness/real reform being brought to the plea bargaining system. Instead my guess is it will just bring more gamesmanship/unnecessary litigation to the process…
We’ll have to devote the strip search issue to its own. It strikes me how much power a 5-4 majority can wield.
In terms of this ruling. I agree with your points Elaine. What I think is most significant is that for the first time we are looking into the issue of the plea bargain which is the usual arrangement in the legal system, as opposed to the trial which has been the focus probably of most case law.
As you suggest, there are a lot of problems that need to be fixed.
It’s terrifying to consider siding with Justice Scalia, but…. While failing to pass along critical information to a client (a plea offer) seems clearly “inadequate counsel,” including the Cooper situation broadens the concept to include picking a strategy after considering an attorney’s best advice–one that works out with higher penalties than the offer.
Lots of
“But Justice Scalia misses the fundamental point, the fairness of a judicial proceeding is not determined by its outcome, but rather its process. The defendant is entitled under the law to have effective and competent counsel, advising him and advocating for his rights and best interests, even if the defendant is as guilty as sin.”
The fundamental point of the justice system is to avoid punishing the innocent. Therefore, the outcome IS key there. The Constitution guarantees the right to a trial, as fair a one as possible. A faultless process would be great–and we should keep improving–but it’s hard to see a guilty person freed because his fair trial resulted in a longer sentence than he would have gotten if he’d pleaded guilty.
This broad decision is well-intentioned, but seems destined to lead to weird changes. Why would DAs offer pleas if a subquent trial could be overturned ala Cooper–every guilty plea deal is better than its guilty trial alternative. A guilty person’s best choice of attorney will become one who advises that a trial is winnable–win you’re fine, lose you get another shot because you must have had “inadequate” counsel.
Whether something is a Constitutional issue–or whether some action is Constitutional–would seem to be more clearcut than these 5-4 decisions suggest. When such important issues seem to rely on the politics the Justices held before they were appointed, it’s hard to have a very high confidence level in the validity of the decisions.
But, it’s been this way before. And, it’s understandable what with both parties campaigning on giving their side better representation on the Court. Would we rather have activism that moves when it sees changes in medicine or changes in the legal system? Pick Door #1 and we’ll get new fetal Constitutional rights; select #2 and we’ll get new criminal rights.