What Do We Lose When 95% of Criminal Convictions are the
Result of Plea Bargains? The takeaway
from Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper,
132 S.Ct. 1376 (2012).
In Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler
v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court of the United States
ensured that the right to effective assistance of counsel covers the plea
negotiation process. In Frye, the
defendant was never made aware of a plea offer more favorable to the one he ultimately
accepted. In Lafler, the
defendant rejected a plea offer because his lawyer gave him woefully inaccurate
advice. The sentence after a guilty
verdict at trial was significantly greater than the one offered in the change
of plea. In both cases, the defendant
was permitted to get a good old fashioned do-over due to counsel’s errors. I charge you to put aside opinion as to
whether this is a “good” or “bad” approach and just consider the magnitude of
the Court’s conclusion which is to affirm, without much concern, the current
criminal justice system in which roughly 95% of defendants change their plea
rather than face trial. This is a
tragedy for American democracy.
Here is the proclamation from the Sixth Amendment to the
United States Constitution:
In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence.
If we really care about having a living, breathing
Constitution, then we need to start with the language and unpack the
meaning. The original concept was to
ensure that all federal criminal prosecutions, and all federal defendants, be
treated equally. The Framers could not
have imagined the Fourteenth Amendment and the net it cast to include the Sixth
Amendment’s guarantee to state prosecutions as well. But, it’s fair to say that even the small
government guys would aspire for the rights inherent in the Constitution to
apply to all. I am guessing that even
today’s Tea Party folks want the rights of the individual, when facing the
broad power of the state, to pertain to everyone equally. This may be evidenced by the lack of outrage
by conservatives and the failure to accuse the Court of overreaching when it
decided McDonald v. Chicago, 561 U.S. 3025 (2010), the first case
applying the Second Amendment to the states through the Fourteenth Amendment. So, putting aside the fact that there were
only 21 federal crimes in 1791 when the nation ratified the Sixth Amendment,
and not many more by the time the Fourteenth Amendment became the law of the
land, the rights described in the Sixth Amendment do apply to all equally, in
state and federal court.
That means that in all criminal prosecutions, the accused
shall enjoy a speedy and public trial
by an impartial jury. And, yet only 5%
of the accused actually do enjoy this
fundamental right. Everyone enjoys
freedom of speech, religion and assembly, everyone enjoys the right to be free
from unreasonable searches and seizures, everyone has the right to have a gun
in his home, but only 5% of those accused of criminal offenses and who face a
loss of life, liberty and the pursuit of happiness - by the hand of their own
government - have the opportunity to the rights guaranteed to them by the
Constitution. The very same section of
the document also ensures the right to the assistance of counsel. The Court seemed to affirm that of the Sixth
Amendment Rights, the assistance of counsel reigns supreme and the others can,
therefore, fade away; but at what cost to democracy?
The elegance and simplicity of the Sixth Amendment establish
checks on two of the three branches of government by the people who elect
them. Given the requirement of a fair
cross section of the community and the prohibition of exclusion of identifiable
classes of people from the jury pool, juries weigh not only credibility of
witnesses but the fairness of the law.
We say that jurors are the judges of the facts, but they are more than
that: they are the keepers of the trust societies build to enhance a sense of
ordered liberty. Query the bizarre
current system where we need juries to keep us honest but we deprive jurors of
their right and obligation to serve when we resort to pleading cases designed
to be tried.
To prove a criminal offense, the Executive branch must
have authority from the Legislative in the form of a criminal statute and then
the Executive Branch must, within the parameters of fairness, prove every single
element of that offense beyond a reasonable doubt to a group of citizens who
must agree unanimously on their verdict.
That difficult bar was, and is, intentional. The tremendous power of the state to deprive us
of our liberty, perhaps the most astounding of the freedoms we enjoy, is so
profound that the system is designed to wield that power judiciously with the
assent of people from the community.
What does it say about us, as a society, that we no
longer feel we have the time or energy or money to engage in that magnificent exercise
of democracy? What does it mean when our highest court
capitulates the jury trial and the role of the juror in criminal justice? And, what does it say about who we are as a
people drunk with our own lofty ideals of freedom, democracy, individualism,
and honor if we can spend trillions on wars in foreign lands but we cannot
fairly try all of our neighbors accused of criminal offenses? Who are we if we can ask our fellow citizens
to give their lives for everything we profess to believe when we are unwilling
to ensure the protections of the Constitution by providing the means for trials
by jury for all who stand accused? With
fewer trials, we have fewer experienced trial attorneys. With fewer experienced trial attorneys, we
will certainly have even fewer trials.
The ramifications of Frye and Lafler will,
undoubtedly, be discussed, debated, and understood only through time. Because the system relies on the efficacy of
plea negotiations, it is unlikely that the government will stop making offers. But, prosecutors will live with a new fear
that if a plea is rejected, they will face the possibility that the defendant
will move to vacate a trial verdict due to ineffective assistance of counsel
solely based upon the plea offer.
Because the government cannot, at any time, interfere with the
attorney-client relationship, there is no mechanism in place to pre-empt the
situation in Lafler; for the identical reason, the government cannot
directly present the defendant with the plea offer and so the government cannot
prevent the situation in Frye. Perhaps
this will lead to more careful work on the part of defense attorneys, but it is
more likely that it will lead to even more pleas for fear of making a mistake. And, hence, more mistakenly pleaded
cases. The end result is that there will
be fewer eyes on the criminal justice system to ensure its fairness. That alone is a tragedy of epic proportions.
Some reports stated that in Frye and Lafler
the Court extended greater rights to defendants in plea negotiations. I
challenge that idea. Defendants’ rights have not changed; the
Constitution ensures that every single person accused of a crime will,
with the
assistance of counsel, face an impartial jury in a public trial within a
reasonable period of time. The cases
were no more about defendants’ rights than they were about an impartial
jury;
the cases were about lawyers. As the
Court explained in both decisions, the notion of effective assistance of
counsel has included pretrial, trial and post-conviction practice for a
significant period of time (but we are still a little wobbly on the
exact
moment the right to counsel attaches) and it therefore definitively
includes
plea negotiations.
With the vast number of cases resolved short of trial,
there are fewer, not more, protections; the cases did not expand anyone’s
fundamental rights. Can a prosecutor
offer a one-time-only plea, even before all of the discovery has been
produced? What about on the day of
trial? Does everything – or anything –
need to be in writing? What must a
defense attorney do to ensure that s/he was “effective” in counseling a
potential change of plea? Must there be
a recording of the discussion with the client about any plea offers? Will a case in which a similar circumstance
to either Frye or Lafler always hinge on the action or inaction
of the attorney, or will judges, influenced to some degree on the cost of trial
and the backlog of cases, aver that they would not have accepted the
negotiated, but inappropriately rejected, plea and thereby not find ineffective
assistance?
Although these cases, with a disconcerting nonchalance,
willingly accept a lack of democracy in jury trials where the Framers clearly
intended extraordinary democracy and do not lament criminal justice shrouded in
secret negotiations, they raise more questions than they answer about what
defense attorneys, prosecutors and courts must do to ensure fairness in the
unfair process of plea bargains.
