The Age of Plea is now official. Not that it wasn’t real before, but Justice Anthony Kennedy put it in writing.
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. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “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.”
This is not merely an acknowledgement of reality, but a tacit condemnation of what we’ve allowed the system to become. That there is anything controversial about demanding (not merely aspirationally expecting) effective assistance of counsel throughout the process is absurd. That it subverts the idea of challenging the government by putting it to its proof, a favorite of late among scholars, is obvious. That it’s a necessary evil is similarly obvious, reflecting again how the quest for doctrinal purity by scholars demonstrates their inability to grasp or appreciate the real dynamic of the criminal justice system.
Whether this is seminal or the death knell of the system is a matter of where you stand. It’s not as if the questions surround plea bargaining haven’t been beaten to death over the years. That there is any controversy about criminal defense lawyers being competent from start to finish is like poking a hot dagger in my eye. That Justice Kennedy arrived at the curious split-the-baby remedy of discretionary relief in order to make the “windfall” problem more pallatable is just silly.
But this is all a bunch of silliness, if you step back and take a look at it from a distance. Not silliness in the funny clown sense, but silliness from the very hard, cold perspective of people’s lives at stake. We should never have needed a Supreme Court decision to tell criminal defense lawyers not to be incompetent. It is inexcusable that a lawyer fails to convey a plea offer to his client.
Short of his falling dead of a heart attack on his way to tell the defendant of the deal, it just can’t happen. Ever. Under any circumstances. Absolutes tend to make for poor positions, but I’m going out on a limb here. Never, ever, ever, can this be excused.
The fact that the system has developed into a huge plea bargaining machine, with between 97% in federal court and 94% in state court (see Laffler at 11) of cases resulting in negotiated pleas, is the culmination of a multitude of mistakes made in the effort to achieve whatever the prevailing sense of justice may be at any given moment. What we learn from a distance is that we’ve created a monster that everybody hates and nobody thinks works very well. Even the Supreme Court now concedes that a system devised to try cases has been reduced to a system designed to coerce almost every criminal defendant to accept some form of plea and sentence rather than take a chance and pay the price.
The Supreme Court has officially recognized the trial tax as well. The court noted that the prosecutor, by offering a plea to a reduced charge with a similarly reduced sentence, acknowledged the lower sentence to be sufficient for the crime. And yet,
In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.
With Justice Kennedy’s eyes shut tight, the final nail in the coffin isn’t struck. If the sentence offered in the plea bargain was sufficient, in the eyes of the prosecution, to satisfy the legitimate purposes of sentencing, then the sentence after trial (“3½ times more severe”) was excessive. Want to rid ourselves of the ugliness of plea bargaining? Does this not suggest a way out?
And that’s why the Laffler/Frye decisions are silly. They’re stopgap decisions, a half-hearted attempt to fix problems that should never exist. On the one hand, the criminal defense lawyers have no excuse for being incompetent at any stage of the proceedings. On the other hand, a system that coerces nearly all defendants to cop a plea rather than risk the trial tax has turned an adversary system into horse trading, even when the evidence stinks, constitutional rights have been mangled and/or the defendant is innocent.
To put a cap on the silliness, I would be remiss not to mention the “headline” offered by Stephanos Bibas doing his best Doug Berman impression :
Wowza! Oh boy! Court Fryes prosecutors, gives defendants the last Lafler.
If so, why is there so little about any of this that I find pleasing.
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Please, Please Me. Feeeelings. Fear of Flying. Who’s the Boss? No Way Out.
I love every reference to an old song, show, book or movie from the 60’s, 70’s or 80’s. They assure me I am not an old geezer with no relevance to today, even if that is what my children tell me. Because at least I get the references. Even if they come from another old geezer.
I think of my professors in law school – during the 2000s no less – who still made references to old L.A. Law episodes.
I try to include as many as possible, just to see if anyone notices. Most of the time, no one does and I just feel awkward. By the way, my email address is SHGLaw. Can you guess when I came up with that brainstorm?
I agree that it would be a good thing if all defense attorneys were competent. If that was all that was involved why was it a 5 to 4 decision?
The rest is comprised at the collateral issues generated to fix the central issues. A million little tweaks rather than two big ones.
Sir, from a victim of the system’s point of view – it’s the silliest crapola I’ve ever heard. Going public reminding / telling lawyers to play the game or else. Wasn’t it the Supreme Court that initiated the Play-Bargain games in the 70s? One would think that someone took time to create some rules by now.
Any real CDL worth his/her salt already passes it on (only once) & leaves it up to the client. *Hopefully one of the “tweaks” of our future will be to address the relief due to rampant plea bargain abuse where convictions are obtained via deception & eliminate the unqualified from being able to (play) take felony cases to trial. I’m told a fellow can dream, even if it’s a nightmare.
Returning to the holding tank 4 times during lunch recess is inexcusable, yet goes undocumented & no one cares. When the court allows the 5th attempt to include; mind blowing bombshells like -“take the plea, you’re going to prison just for being arrested while on probation, regardless of the jury verdict”, no one’s the wiser because it’s not documented. The defendant believes every word, the rest of the tank laughs, the jury is released, the Not Guilty plea is simply crossed out & No Contest is penned in under it (Nolo Contendere if they can spell it), he / she is walked over to the judge’s chambers to sign and led away but documented as conducted in Open Court.
Surely, I can’t be the only one calling bullshit on the game-makers, gamers & enablers. Thanks for allowing & for the lesson just the same.
Perhaps the percentages are a little high, but doesn’t it make sense that a solid majority of criminal cases would be pled out? Isn’t it the case that most criminal defendants ultimately don’t have a surefire defense, so it’s advisable to try to wrangle the best possible plea?
Isn’t it analagous to the fact that most civil cases also end before trial? Assuming most complaints filed – in civil or criminal court – are not frivolous, the defendant in particular is taking a big risk in going to trial. And of course, so is the plaintiff.
I guess I don’t understand why the fact that the vast majority of cases being pled out is an indication of something wrong with the system. It seems intuitive that it would be that way.
You’ve answered your own question:
So the burden is on the defendant to have a surefire defense. If not, then it’s off to prison, with the only question being for how long, even if he’s innocent or his rights were violated.
It is unprofessional conduct to fail to take ANY offer to a client even outside of criminal practice, but most stringently in criminal defense. Even if a client gives an order to an attorney, “don’t bring me back any ‘garbage’ offers/pleas”, the professional practice is to irritate the client by bringing back the offer/plea proposal dutifully and to document having fulfilled the duty to irritate. One doesn’t want the last words from the client to be, “I might of taken THAT but you never told me.”
Bar discipline is rightfully severe on attorneys who defalcate or otherwise misuse client funds from escrow, but what is more important to a criminal defendant: his money in escrow or his life measured in months or years? It’s arguably a marker of institutional class bias that the money of a client, deposited in escrow, is of such disproportionately greater “ethical” concern to the Bar and the ABA than the much scarcer resource of defendants’ time alive measured in years or months in jail or out. Sloppily spend $80 from escrow and cannot explain why 18 months later? Maybe you lose your law license indefinitely and maybe you should lose it. Steal or recklessly destroy 24 months from Defendant X because you were too lazy to pick up the phone or walk down to holding to convey the offer? Bar Counsel probably isn’t so fired up about this depravedly indifferent attitude to the ultimate property of the client: his life.
Thank you, Capt. Obvious. You have learned the lesson of the first day of Professional Responsibility very well.
Obvious to you and me, less so apparently to disciplinary authorities.
Crud! I should have read your post before titling mine. Well, we can be geezers together.
We were so close. Sooo close.
Of course the burden isn’t on the defendant; I never meant to imply otherwise. The point is it’s sensible that most defendants might not want to risk trial, assuming a decent plea offer is on the table (which is what one of these cases was all about; the defendant claimed he would have taken a good offer had it been communicated to him). And if the defendant’s rights have arguably been violated, that can be dealt with by a pre-trial motion. Failing that, the defendant has some hard decisions to make.
Obviously it’s sensible. That’s why so many do it. But that wasn’t your original point, which was that it’s not an indication that there is a problem with the system. My response is that it’s sensible because there is a problem with the system.
Point taken.
Sir, can you verify if the lesson Mr. G. just learned regarding Professional Responsibility includes documenting each time Defense goes back to the holding cell with plea offers?
Does it (fulfillment of duty to irritate documentation) become part of the case file or is it nothing more than hand written notes that are put into the attorney’s personal client file, that’s shredded after three years? Thanks.
I’m not entirely clear what you’re asking, Thomas, but I don’t think anyone is saying that you have to document in writing the conveyance of offers or the number of times someone goes into the holding cell. The duty is to transmit the offer, not document that you did so, or document it (if it should be documented) in any particular way.
So, lawyers can just lie and say they did. What a joke.
Well, yeah. Communications between lawyer and client aren’t documented, like a medical patient’s chart. For the most part, it’s not an issue, as there is little motivation for a lawyer not to convey a plea offer, and even moderately ethical lawyers will do so. It’s usually in everyone’s interest.
But if the unethical or incompetent lawyer wants to lie and say he did when he didn’t, there would be little way to prove otherwise. Then again, even if it was documented, it wouldn’t necessarily be true. Just as a physician can write something false in the chart, a lawyer could write something false in the file. If someone is inclined to lie, documentation isn’t likely to stop him.
Agreed. And the burden is on the defendant to prove all this stuff happened in any action under this new ruling. So, this case is not much of a boon to anyone. It just serves to enable the powers that be to expend intellectual energies discussing this case decision as if there isn’t a full blown crisis in criminal justice to deal with.
Re pleas – maybe it is a good thing for clients to request in writing that lawyer do certain things in writing and defendant sign off on them.
Like deals offered, accepting deals, etc.
Settlements in civil cases are notorious for this where clients say they had no idea their cases were settled or that they had agreed very different terms. Best for client to initial draft settlements.
Sir, sorry about the confusion. Sadly, I think I get it now?
There’s ‘No’ Rule in place regarding plea bargaining that mandates the documention of a vital portion of a legal transaction (Attorney to Client plea reccomendation(s) or Prosecutor to Defendant offer). Keepping it verbal – like it never even happend.
I still can’t fully understand how the law allows the unqualified to dabble in Criminal Defense and doesn’t require documentation regarding how 90 plus percent of criminal cases are disposed of. Combined, this explains the mystery as to why everyone’s on the tap out wagon. Now that’s a race to the bottom. Thanks.