Tuesday, April 23, 2013
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.