CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 18, 2013

Green on Lafler and Frye

Green bruceBruce A. Green (Fordham University School of Law) has posted The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process 'Too Long, Too Expensive, and Unpredictable . . . In Pursuit of Perfect Justice'? (Duquesne University Law Review, Vol. 51, No. 735, 2013( on SSRN. Here is the abstract:

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which . . . defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of Justice Scalia’s complaint.

First, it challenges Justice Scalia’s assumption that defendants take refuge in plea bargaining as an alternative to criminal trials because of the intricacies of constitutional criminal procedures. On the contrary, guilty pleas have become the ordinary means of resolving criminal cases, and defendants’ waivers of other constitutional rights have also become increasingly common, not because the Court is procedurally too demanding but because it has been under-protective; its decisions have constructed a system of waivers in which prosecutors may use harsh punishment as leverage to compel defendants to forgo procedural protections. Second, this essay raises doubts as to whether the two decisions to which Justice Scalia dissented either impose or invite new procedural burdens. Finally, this essay questions Justice Scalia’s premise that constitutional decisions in general burden the criminal process, and also questions the Justice’s attempt to support this premise by citing a 1965 by Judge Henry Friendly, who did not disparage procedural protections in criminal cases, but asserted that constitutional decision-making should leave room for state legislative innovation in this field.

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Why does the author refer to Lafler v. Cooper as "Cooper"? It seems deliberate, but virtually everyone else refers to these companion cases as Lafler and Frye, not Cooper and Frye (even the title of this blogpost refers to the case as Lafler) Yes, Cooper was the defendant/habeas petitioner (and thus not a "government official," Bluebook Rule 10.9(a)(i)), but Cooper is a far more common name than Lafler and Lafler is, after all, the first name in the case name. Why the insistence on calling the case Cooper?

Posted by: J.D. | Jun 19, 2013 10:49:27 AM

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