What Do We Lose When 95% of Criminal Convictions are the Result of Plea Bargains?

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.