How Strong is the Right to Counsel During the Plea Bargaining Stage?

by Nicole Flatow

The vast majority of criminal cases end in plea bargains, yet the scope of a defendant’s constitutional right to counsel during the plea bargaining stage remains uncertain, with two cases before the Supreme Court today addressing this issue.

The Court’s decisions in those two cases, Lafler v. Cooper and Missouri v. Frye, "could go a long way to ensuring that the right to counsel is meaningful during plea negotiations,” write The Constitution Project’s Mary Schmid Mergler and Christopher Durocher in an ACSblog guest post previewing these and other right-to-counsel cases this term.

“Today, nearly 95 percent of criminal cases are resolved through pleas rather than trial, making the effective assistance of counsel during plea negotiations essential,” they write.

In Lafler v. Cooper, Anthony Cooper’s lawyer provided the inaccurate advice that Cooper would not be convicted of assault with intent to murder because the four shots he fired hit the culprit below the waist. Relying on that information, Cooper opted not to take a plea bargain and was convicted. In Missouri v. Frye, Galin Frye’s attorney failed to notify him about a plea bargain that had expired. (For more background on these cases, see this SCOTUSblog preview).

“While the court has already clarified in previous cases that the right to counsel attaches during plea negotiations,” Schmid and Durocher explain, these cases raise question of whether a defendant is prejudiced by his lawyer’s failure to properly negotiate the plea bargaining phase.

“The question is of surpassing importance” given that most cases settle during the plea bargaining phase, writes Adam Liptak writes in a New York Times preview of the cases.

And given the prominent role the plea bargain now plays in all criminal cases, excluding plea bargains from full constitutional protection is not an option, American University law professor Jenny Roberts told Liptak.

“We have a constitutional standard. It says a lawyer has to be effective. That would have no meaning at all if the court steps out of the area entirely,” Roberts said.

Today’s cases are just two of a number of right-to-counsel cases in what some have termed the “Right -to-Counsel Term.”

Like today’s plea bargain cases, all of these cases present an opportunity for the Supreme Court to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21^st century criminal justice system,” Schmid and Durocher write in their American Constitution Society Issue Brief, “The ‘Right to Counsel Term.’”

In a comprehensive preview of the cases, the authors explain how post-conviction proceedings, plea negotiations and other aspects of the modern criminal justice process have fallen through the right-to-counsel cracks.

During the American Constitution Society’s Supreme Court Preview, the University of Maryland’s Sherrilyn Ifill explained that the “landscape doesn’t seem great for these cases,” but that the Supreme Court’s decision to take so many cases this term “seems particularly important.”

Read the ACS Issue Brief here and watch video of Ifill below. Video of the full Supreme Court preview is available here.