Negotiating Justice: The New Constitutional Spectrum of Plea Bargaining

The Supreme Court’s decisions in Missouri v. Frye and Lafler v. Cooper, and the upcoming appeal in Burt v. Titlow1, have put plea bargaining front and center on the national stage.2 As a result, they have divided practitioners and scholars into two camps: (1) those who consider the rulings to be a new statement in the law of plea bargaining and right to effective assistance of counsel; and (2) those who believe they are only a restatement of established principles.3 In any event, these cases have generated interest in the centrality and regulation of plea bargaining, the ethics and effectiveness of defense counsel as negotiator, the oversight of prosecutors regarding charging decisions, sentence recommendations and pre-trial discovery, and the scope of federal habeas corpus review and remedies.

This article collects high court opinions, scholarship and commentary regarding the themes addressed by the Supreme Court in Lafler and Frye as well as their implications for the administration of criminal justice.4


Boykin v. Alabama, 395 U.S. 238 (1969)
“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U.S. 220, 223. Admissibility of a confession must be based on a ‘reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.’ Jackson v. Denno, 378 U.S. 368, 387. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422.”

Hill v. Lockhart, 474 U.S. 52 (1985)
“We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, and McMann v. Richardson, supra. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Iowa v. Tovar, 541 U.S. 77 (2004)
“The Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process. Maine v. Moulton, 474 U.S. 159, 170 (1985); United States v. Wade, 388 U.S. 218, 224 (1967). The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a ‘critical stage’ at which the right to counsel adheres. Argersinger v. Hamlin, 407 U.S. 25, 34 (1972); White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam). Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.’ Brady v. United States, 397 U.S. 742, 748 (1970). This case concerns the extent to which a trial judge, before accepting a guilty plea from an uncounseled defendant, must elaborate on the right to representation.
Beyond affording the defendant the opportunity to consult with counsel prior to entry of a plea and to be assisted by counsel at the plea hearing, must the court, specifically: (1) advise the defendant that ‘waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked’; and (2) ‘admonis[h]’ the defendant ‘that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty’? 656 N.W.2d 112, 121 (Iowa 2003). The Iowa Supreme Court held both warnings essential to the ‘knowing and intelligent’ waiver of the Sixth Amendment right to the assistance of counsel. Ibid.
We hold that neither warning is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.”

Jones v. Barnes, 463 U.S. 745 (1983)
“In announcing a new per se rule that appellate counsel must raise every nonfrivolous issue requested by the client, the Court of Appeals relied primarily upon Anders v. California, supra. There is, of course, no constitutional right to an appeal, but in Griffin v. Illinois, 351 US 12, 18 (1956), and Douglas v. California, 372 US 353 (1963), the Court held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent. It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal, see Wainwright v. Sykes, 433 US 72, 93, n. 1 (1977) (BURGER, C. J., concurring); ABA Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980). In addition, we have held that, with some limitations, a defendant may elect to act as his or her own advocate, Faretta v. California, 422 US 806 (1975).”

Kimmelman v. Morrison, 477 U.S. 365 (1986)
“The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. E.g., Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. See, e. g., Strickland v. Washington, 466 U.S., at 686; United States v. Cronic, 466 U.S. 648, 655-657 (1984). In order to prevail, the defendant must show both that counsel’s representation fell below an objective standard of reasonableness, Strickland, 466 U.S., at 688, and that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id., at 694. Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent’s defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.”

Lafler v. Cooper, 132 S.Ct. 1376 (2012)5
“In this case, as in Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, ___ L.Ed.2d ___ (2012), also decided today, a criminal defendant seeks a remedy when inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome. In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the client but, on advice of counsel, was rejected. In Frye there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.”

Lockhart v. Fretwell, 506 U.S. 364 (1993)
“In this case we decide whether counsel’s failure to make an objection in a state criminal sentencing proceeding — an objection that would have been supported by a decision which subsequently was overruled — constitutes ‘prejudice’ within the meaning of our decision in Strickland v. Washington, 466 U.S. 668 (1984). Because the result of the sentencing proceeding in this case was rendered neither unreliable nor fundamentally unfair as a result of counsel’s failure to make the objection, we answer the question in the negative. To hold otherwise would grant criminal defendants a windfall to which they are not entitled.”

McMann v. Richardson, 397 U.S. 759 (1970)
“The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.”

Missouri v. Frye, 132 S.Ct. 1399 (2012)6
“The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This case arises in the context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later. The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance. Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today. See Lafler v. Cooper, ___ U.S. ___, ___-___, 132 S.Ct. 1376, ___ L.Ed.2d ___.”

Padilla v. Kentucky, 130 S.Ct. 1473 (2010)
“We granted certiorari, 555 U.S. ___, 129 S.Ct. 1317, 173 L.Ed.2d 582 (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.”

Premo v. Moore, 131 S.Ct. 733 (2011)
“This case calls for determinations parallel in some respects to those discussed in today’s opinion in Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, ___ L.Ed.2d ___, 2011 WL 148587. Here, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U.S.C. S 2254(d), the instruction that federal habeas corpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state court’s decision denying relief involves ‘an unreasonable application’ of ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ And, as in Richter, the relevant clearly established law derives from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counsel did not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed to have been improperly obtained.”

Santobello v. New York, 404 U.S. 257 (1971)
“On this record, petitioner ‘bargained’ and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.”

Strickland v. Washington, 466 U.S. 668 (1984)
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

Williams v. Taylor, 529 U.S. 362 (2000)
“In sum, the statute [28 U.S.C. S 2254] directs federal courts to attend to every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state court’s judgment, a federal court is convinced that a prisoner’s custody—or, as in this case, his sentence of death—violates the Constitution, that independent judgment should prevail. Otherwise the federal ‘law as determined by the Supreme Court of the United States’ might be applied by the federal courts one way in Virginia and another way in California. In light of the well-recognized interest in ensuring that federal courts interpret federal law in a uniform way, we are convinced that Congress did not intend the statute to produce such a result.”


ABA Model Rules of Professional Conduct (ABA 1983; updated 2011)7
“[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.” [Preamble]

ABA Standards for Criminal Justice: Pleas of Guilty (ABA 3rd ed. 1999)
“Outline of the Standards: Part I of these standards concerns the process of ‘receiving and acting upon the plea.’ Significantly, this Part includes, among other things, standards addressing the advice that must be given to the defendant by the court before accepting a guilty plea (Standard 14-1.4), the court’s inquiry to ensure that the defendant’s plea is voluntary (Standard14-1.5), and the steps to be taken by the court to ensure that there is a factual basis for the plea (Standard 14-1.6). Part II of these standards concerns the ‘withdrawal of the plea.’ This addresses the standards for the defendant’s withdrawal of a plea of guilty or nolo contendere, both before and after sentence, and the admissibility of statements made by the defendant in connection with proceedings on pleas that are later withdrawn. Part III of these standards concerns ‘plea discussions and plea agreements.’ This Part sets forth basic standards describing the proper role of the prosecutor (Standard 14-3.1), defense counsel (Standard 14-3.2) and the court (Standard 14-3.3) in the plea negotiation and review process. This Part also addresses admissibility questions concerning nolo contendere pleas and pleas that are not accepted by the court. Finally, the Third Edition contains a new Part IV, which approves the use of pretrial diversion programs, and sets forth some standards for the development of such programs.”

ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3rd. ed. 1993)
“Standard 4- 6.1 Duty to Explore Disposition Without Trial (a) Whenever the law, nature, and circumstances of the case permit, defense counsel should explore the possibility of an early diversion of the case from the criminal process through the use of other community agencies. (b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.
Standard 4- 6.2 Plea Discussions (a) Defense counsel should keep the accused advised of developments arising out of plea discussions conducted with the prosecutor. (b) Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor. (c) Defense counsel should not knowingly make false statements concerning the evidence in the course of plea discussions with the prosecutor. (d) Defense counsel should not seek concessions favorable to one client by any agreement which is detrimental to the legitimate interests of a client in another case. (e) Defense counsel representing two or more clients in the same or related cases should not participate in making an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved.”


Constitutional Law–The Plea-Bargaining Process–Mr. Counsel, Please Bargain Effectively for Your Client’s Sixth Amendment Rights, Otherwise the Trial Court Will Be Forced to Reoffer the Plea Deal and Then Exercise Discretion in Resentencing, 82 Miss. L.J. 731 (2013)
“The Supreme Court’s opinion in Lafler v. Cooper further elaborated on its decision in Missouri v. Frye, holding that the Constitution guarantees effective legal assistance in the plea-bargaining process, regardless of a fair trial. But more importantly, the Court established a remedy to cure violations of the Sixth Amendment’s guarantee to counsel. Dissenting Justices Scalia and Thomas, and Chief Justice Roberts, however, suggested the Supreme Court might have overstepped its boundaries while providing an ambiguous answer.”

Effective Plea Bargaining Counsel, 122 Yale L.J. 100 (2013)
“In this Essay, I [Jenny M. Roberts] 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.”

Embracing a New Era of Ineffective Assistance of Counsel, 14 U. Pa. J. Const. L. 1161 (2012)
“The recent decisions in Missouri v. Frye and Lafler v. Cooper represent a seismic shift in the Court’s right to counsel jurisprudence. No longer is the right to counsel limited to protecting the fairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue. This Article identifies the salient features of this new—non-trial oriented—conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law. Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event.”

Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers, SSRN (2013)
“This article proposes a post-sentencing appellate waiver system whereby the defendant and the government may bargain for a separate sentencing appellate waiver agreement after the completion of the sentencing hearing. During this post-sentencing bargaining, both parties will be fully informed about the sentencing hearing’s procedure and outcome, and thus will be able to appropriately value the defendant’s appellate rights and bargain efficiently. Because a sentencing appellate waiver will not be consummated (if at all) until after the sentencing hearing is complete, the sentencing judge will be incentivized to conduct a hearing that complies with all applicable sentencing law. And, because the government can withdraw the incremental benefit bartered in exchange for the defendant’s promise not to appeal, defendants will be disincentivized from breaching their sentencing appellate waiver agreements.”

Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150 (2012)
“Part I summarizes the facts and opinions in Lafler and Frye. The majority’s contemporary, functional analysis rested upon the dominance of plea bargaining today, while the dissenters’ formalistic logic idealized the historical jury trial as the Sixth Amendment’s exclusive concern. Part II is largely descriptive and predictive, explaining why judges are unlikely to overturn many convictions for violating Lafler and Frye. Though these decisions should apply retroactively even on federal habeas review, in practice courts will overturn few pleas, as defense lawyers’ bad advice is hard to prove and judges are understandably skeptical of postconviction appeals. Finally, Part III begins with prediction and analysis and ends with normative assessment of Lafler and Frye’s extrajudicial effects. It predicts that nonjudicial actors (especially prosecutors) will do much to solve plea bargaining’s problems prospectively, explains why they have the incentives to do so, describes how they can do it, and finally praises these developments. While courts can do little on their own, they can create incentives for other market participants to explain offers and shore up their bargains.”

Lafler and Frye: A New Constitutional Standard for Negotiation, 14 Cardozo J. Conflict Resol. 309 (2013)
“The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains. Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain. For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance. It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.”

Lafler’s Remedial Uncertainty: Why Prosecutors Can Rest Easy, Houston L. Rev. (forthcoming 2013)
“Some prosecutors are dismayed by the U.S. Supreme Court’s decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney’s incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve. In four pages, I explain why they should not worry. Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant’s case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain’s terms.”

Peeking Behind the Plea Bargaining Process, Loy. L.A. L. Rev. (forthcoming 2013)
“The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.”

Plea Bargain Crisis for Noncitizens in Misdemeanor Court, Cardozo L. Rev. (forthcoming 2013)
“This Article considers three factors affecting noncitizens charged with misdemeanors: (1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; (2) the integration of federal immigration enforcement programs intended to apprehend criminal noncitizens; and (3) the institutional norms in lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges.
The Article contends that the convergence of these factors generates convictions triggering deportation and other negative immigration consequences without reliably indicating guilt, undermining the integrity of both criminal justice and deportation systems. The Article also argues that, contrary to the Supreme Court’s assumption in Padilla v. Kentucky, longtime lawful permanent resident defendants are unlikely to be able to effectively negotiate for immigration-safe dispositions in the petty cases where the rift between the underlying criminal conduct and the deportation outcome is largest.
The Article’s analysis suggests that reforms at both federal and state levels remain critical to address the plea-bargain crisis for noncitizens in misdemeanor court and the disproportional immigration consequences of petty convictions.”

Plea Bargains that Waive Claims of Ineffective Assistance – Waiving Padilla and Frye, Duq. L. Rev. (forthcoming 2013)
“This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I [Nancy J. King] argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

Prosecutors’ Discovery and Disclosure Requirements After Lafler v. Cooper, 52 Washburn L.J. 97 (2012)
“This Article is intended to provide guidance to prosecutors so that they may avoid violating the various discovery requirements. Part II sets out constitutional and statutory disclosure requirements, with an emphasis on Kansas law. Part III explains why prosecutors should always err on the side of prompt and full disclosure because ethical obligations are broader than statutory requirements. Part IV shows that, in light of the decisions in Lafler and Frye, prosecutors should be mindful that the failure to promptly produce certain types of discovery could be a significant factor in future claims of ineffective assistance of counsel. These claims could arise because defense counsel was deprived of necessary information prior to advising a client to plead. Not only could these claims of ineffective assistance of counsel affect the plea agreement, but prosecutors could also face disciplinary action for their failure to produce discovery materials.”

Soothsaying With a Foggy Crystal Ball: A Critique of the U.S. Supreme Court’s Remedy for Ineffective Assistance of Counsel When a Criminal Defendant Rejects a Plea Bargain [Lafler v. Cooper, 132 S. Ct. 1376 (2012)], 52 Washburn L.J. 147 (2012)
“This Comment focuses on a just, workable remedy for a defendant who, after rejecting a plea bargain because of ineffective assistance of counsel, is convicted following a constitutionally-adequate trial. Part II of this Comment provides the factual background and procedural posture of Lafler. Part III discusses the development of ineffective assistance of counsel jurisprudence and how it relates to the increased use of plea bargaining; Part III also discusses how different state and federal courts resolve cases in which ineffective assistance causes defendants to reject plea bargains. Part IV explains the parties’ arguments and discusses both the majority and dissenting opinions in Lafler. Part V argues that the Court constructed a remedy that is both flawed in theory and unworkable in practice because it will often leave a defendant with no remedy. Ultimately, Part V concludes that when a defendant declines a plea bargain due to ineffective assistance, the defendant should receive specific performance of the original plea bargain.”

Toward a Common Law of Plea Bargaining, SSRN (2013)
“This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness. In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion. Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining. Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.”

Turning the Sixth Amendment Upon Itself: The Supreme Court in Lafler v. Cooper Diminished the Right to Jury Trial with the Right to Counsel, 12 Conn. Pub. Int. L.J. 101 (2012)
“This Article considers the consequences of Lafler’s novel perspective by first, in Part II, reviewing the legal context of ineffective counsel precedent in the arena of plea negotiations. Part III examines Lafler-its facts and the Court’s opinion. In Part IV, this Article assesses the implications of Lafler’s creation of a right to overturn a full and fair jury trial conviction on the basis of ineffective counsel during plea negotiations. The Court’s reasoning could cause the jury trial, an ideal of the criminal justice system’s ideal, to become a wrong that prejudices an individual’s right to counsel. Further, Lafler’s irregularities seem to be brought into relief by the Court’s curious and conflicting discussion of remedy in this case. Finally, the ruling in Lafler not only appeared to be an unnecessary violation of traditional Court restraint, but a decision inconsistent with the European approach to right to counsel.”

Two Rights to Counsel, Wash. & Lee L. Rev. (forthcoming 2013)
“This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain ‘creatively’ around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the ‘sound administration of criminal justice.’ In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.”


Being Honest About Chance: Mitigating Lafler v. Cooper’s Costs, 3 HLRe 61 (2013)
“What so vexes prosecutors about Lafler, then, is that Cooper will get to have his cake and eat it too—he got a shot at acquittal, then, that having failed, he will get the original plea offer the prosecutor designed, at least in part, to avoid that contingency.
The problem, then, is not one of resources (as Justice Alito contended), but of information. Cooper received a look behind the veil of uncertainty provided by the trial and did not like what he saw. Rather than an egg that cannot be unscrambled, this is a bell that cannot be unrung.
After Lafler, a prosecutor rightly worries, a defendant will be able to proceed to trial with the plea offer in his pocket, forcing specific performance when counsel’s advice to proceed turns out to be incorrect, as it must have been—he was, after all, convicted! Chief Justice Roberts himself noted this concern at oral argument: –[I]f you’re the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, oh by the way, I didn’t tell you about this, and he gets a whole new trial. As in other contexts, the defendant benefits from both his counsel’s successes (by getting a favorable result) and failures (by obtaining relief). The rational prosecutor might respond to Lafler, then, by eliminating plea offers altogether, or at least reducing them.”

Frye and Lafler: Bearers of Mixed Messages, 122 Yale L.J. Online 25 (2012)
“In two five-to-four decisions rendered on March 21, 2012—Missouri v. Frye and Lafler v. Cooper—the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to the plea-bargaining process. Viewed in a broader perspective, Frye and Lafler are but the latest reactions to the ever-more-punitive criminal penalties imposed by state and federal legislatures over the past half century. Beginning in the 1960s, and escalating thereafter, Congress and most state legislatures, largely in response to public pressure, decreed that those convicted of crimes would serve ever-longer prison sentences. In the federal system, for example, this trend took the form of mandatory minimum sentences, sentencing guidelines, and the abolition of parole. Faced with the knowledge that their clients, if convicted after trial, would be sentenced to very long periods of incarceration, prudent defense counsel increasingly sought to negotiate plea bargains that would allow their clients to obtain lower sentences by pleading guilty to lesser counts or narrower charges, or in exchange for other sentencing concessions. The direct result was to increase greatly the percentage of criminal cases resolved by guilty pleas; such pleas now account for ninety-seven percent of all federal criminal convictions and ninety-four percent of all state criminal convictions. The indirect results were to move primary responsibility for sentencing from the courts to the prosecutors and, concomitantly, to move the locus of the resolution of most criminal cases from the public forum of the courtroom to the private venue of the prosecutor’s office. This shift to a criminal justice system operating largely behind closed doors is both inconsistent with the traditions of a free society and an invitation for abuse.”

Frye and Lafler: Much Ado About What We Do — And What Prosecutors and Judges Should Not Do, Champion, Apr. 2012 at 7
“For practicing criminal defense lawyers, it is hardly news that the responsibility to provide effective representation to clients throughout the entire case is a constitutional mandate. But for some reason, many commentators viewed the recent decisions in Lafler and Frye as defining some wholly new right, or as Justice Scalia said in dissent, ‘the Court today opens a whole new field of constitutional law: plea bargaining law.’ It is doubtful that most practitioners would agree. For as long as plea offers have been a feature of criminal practice, responsible and competent lawyers have recognized a responsibility to tell their clients of the offer and do their best to accurately advise on the pros and cons. Indeed, professional standards have long recognized this duty.”

Frye and Lafler: No Big Deal, 122 Yale L.J. Online 39 (2012)
“The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that ‘plea bargaining’ is an integral part of our criminal justice system—indeed, I [Gerard E. Lynch] have argued at length that it is our criminal justice system—and that minimal competence of defense lawyers in dealing with that process is at least as important as competence in investigation or trial. Nor is there reason to believe that the decisions will present administrative problems for federal habeas courts. Most of the Circuits have recognized such claims for years, and the lower courts have experienced no more difficulty assessing plea-bargaining ineffective assistance of counsel claims than similar claims regarding trial performance.”

Ineffectiveness of Counsel and How Not to Be (Presentation Materials: 2012 Multi-Track Federal Criminal Defense Seminar– Paul Rashkind, Assistant Federal Defender, S.D. Fla.)
“Avoiding bad lawyering by identifying the duties of counsel, from arrest through Supreme Court review. Litigating inadequate lawyering to benefit the client. And, what to do when you are a witness in collateral review proceedings questioning your own representation.”

Lafler v. Cooper and AEDPA, 122 Yale L.J. Online 29 (2012)
“The Supreme Court in Missouri v. Frye and Lafler v. Cooper broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways.
Lafler presented the Supreme Court with an unusual opportunity to declare new doctrine on habeas review. First, the State had conceded that the performance of respondent Anthony Cooper’s lawyer was deficient under the first prong of Strickland v. Washington—a point not easily demonstrated in most habeas cases because of the deference afforded strategic decisions. Second, the Court managed to avoid what would have been a difficult hurdle for the petitioner to clear in seeking relief under S 2254(d)(1), the provision of the habeas statute that conditions relief upon a showing that the state decision was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ The state court’s vague wording allowed the Court to characterize the state decision as ‘contrary to’ Strickland and to bypass the issue of whether it was an ‘unreasonable application’ of Strickland.”

Plea Bargaining and Effective Assistance of Counsel After Lafler and Frye, Brennan Ctr. Just. Aug. 29, 2012
“This Supreme Court term had a number of important criminal justice decisions. Examples include decisions that: refused to apply due process standards to the admissibility of eyewitness identification testimony; applied retroactively the law reducing the crack/cocaine sentencing disparity to persons committing crack offenses before the law’s effective date but sentenced after that date; held that the Confrontation Clause did not bar an expert’s testimony referring to laboratory analyses she relied upon without testimony by the analysts that prepared them; and held that the Eighth Amendment barred mandatory life-without-parole sentences to juveniles convicted of murder. But Lafler v. Cooper and Missouri v. Frye, which clarify the scope of the Sixth Amendment right to effective assistance of counsel during plea bargaining, may be the term’s decisions with the greatest, everyday impact on the criminal justice system.”

Practice Advisory: Implications of Lafler v. Cooper on Retroactive Application of Padilla v. Kentucky, Nat’l Immigr. Proj., Apr. 4, 2012
“This advisory describes: (1) the Court’s decision in Lafler; (2) arguments that Lafler supports Padilla retroactivity; (3) steps that lawyers should take immediately in pending Padilla motions and appeals; and (4) how lawyers may use Lafler to support prejudice and other arguments under Strickland. The advisory assumes general familiarity with the Court’s decision in Padilla. For more general information about the Padilla decision, please see earlier advisories prepared by the Defending Immigrants Partnership.”

Restoration of Rights: A New End Game in Criminal Defense Representation, Champion, Nov., 2012, at 9
“When a client facing investigation or prosecution turns to a criminal defense lawyer, the ultimate objective will never change. The lawyer’s duty is to seek to avoid the criminal charges in the first instance, or if charges are inevitable, to defeat them if it is possible. Zealous advocacy to secure a client’s complete exoneration and challenge governmental excess is deeply engrained in the defense function. The fact is, however, that complete exoneration is often not a likely outcome. Practitioners, commentators and even, most recently, the U.S. Supreme Court have come to recognize that the American criminal justice system has become largely a vast plea-bargaining mill. It ‘is for the most part a system of pleas, not a system of trials.’ This is a lamentable development. There must be a concerted public policy reform effort to restore balance, and to limit the untrammeled prosecutorial power that drives the system to plea bargains through the manipulation of harsh mandatory minimum sentences. But until then, the plea bargaining system is a reality that cannot be ignored.”

Taming Negotiated Justice, 122 Yale L.J. Online 35 (2012)
“After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar. Writing in dissent, Justice Scalia argued that the majority’s opinion ‘opens a whole new boutique of constitutional jurisprudence (“plea-bargaining law”).’ To which I [Stephanos Bibas] say: it is about time the Court developed some plea-bargaining law. Justice Scalia’s objections might have carried more force half a century ago, before the Court itself blessed plea bargaining as a speedy, efficient way to clear congested dockets. But, having made jury trials too slow and intricate to function in all cases, the Court has long since given up on preserving trials as the norm. In a world where nineteen out of every twenty adjudicated criminal cases ends in a guilty plea, plea-bargaining law is hardly a ’boutique’ corner of criminal procedure; it should be central. Since even Justice Scalia countenances plea bargaining as a ‘necessary evil,’ it behooves us to regulate that evil.”


Commentary on Lafler v. Cooper and Missouri v. Frye (Federal Sentencing Reporter, Dec. 2012)
“The contributors to this issue address the legal ramifications of many of these changes in law and practice, especially the implications of the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper expanding defendants’ ability to seek redress for significant attorney errors committed during the plea negotiation process. The contributors also venture outside the halls of the Supreme Court and into the messiness of the day-to-day operations of the criminal justice system, exploring the ways in which ‘the guiding hand of counsel’ promised by Gideon is denied as a result of large-scale structural deficits in ways states appoint, monitor, and compensate defense counsel.” Editor’s Observations: Vindicating the Right to Counsel, 25 Fed. Sent. R. 87.

Sixth Annual Criminal Law Symposium: The Sixth Amendment (Texas Tech Law Review, Fall 2012)
“The Sixth Amendment is aptly described by Akhil Amar as the ‘heartland of constitutional criminal procedure.’ It is a major part of the Framers’ designed to ensure a fair trial and provides the opportunity for the accused to challenge the prosecution’s case and to demonstrate innocence. However, as woeful inadequate funding for indigent defense undercuts the reality of the constitutional right to counsel and as trials become more and more rare, a broader focus is needed.
In a time in which it is painfully obvious that we have limited resources available to meet public needs and a reticence to extend legal doctrines, those interested in progressive reform should look beyond developing new legal doctrine. The fundamental Sixth Amendment interest in fairness can be furthered by administrative mechanisms and aided by actors in the criminal justice system beyond defense attorneys. The victories may not be stirring or draw public note, but for the individuals not prosecuted or incarcerated erroneously, they can be extraordinarily significant and fulfill the basic promise of the Sixth Amendment.” [Keynote]


Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas, 10 A.L.R.4th 8
“This annotation collects and analyzes the modern state and (selected) federal decisions discussing and determining the adequacy, competency, or effectiveness of defense counsel’s representation of a criminal defendant regarding guilty and nolo contendere pleas.”

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Plea Bargaining, 8 A.L.R.4th 660
“This annotation collects and analyzes the modern state and (selected) federal decisions determining the adequacy, competency, or effectiveness of defense counsel’s representation of a criminal accused in connection with plea bargaining and negotiating.”

Construction and Application of Sixth Amendment Right to Counsel—Supreme Court Cases, 33 A.L.R. Fed. 2d 1
“This annotation collects and discusses all of the Supreme Court cases that have construed and applied the Sixth Amendment right to counsel. Cases decided solely on the basis of the Due Process or Equal Protection Clauses of the 14th Amendment are not set out herein. Also, cases decided on the basis of the Fifth Amendment right to counsel in custodial interrogations as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966), are not included herein. Likewise, cases deciding the extent of habeas corpus review or other procedural matters, or matters of standing associated with the assertion of Sixth Amendment rights, are not treated herein.”

Modern Status of Rules and Standards in State Courts as to Adequacy of Defense Counsel’s Representation of Criminal Client, 2 A.L.R.4th 27
“This annotation collects and analyzes representative modern state court decisions discussing and determining the applicability of the rules and tests governing defendants’ claims of inadequate representation by criminal defense attorneys.”


1 Burt v. Titlow, No. 12-414 (U.S. Sup. Ct. Pet. Granted Feb. 25, 2013)(“This case presents three questions involving. AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996), and Lafler v. Cooper, 132 S.Ct. 1376 (2012), this Court’s recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers: 1. Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence. 2. Whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea. 3. Whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to ‘remedy’ the violation of the defendant’s constitutional right.”).

2 See Argersinger v. Hamlin, 407 U.S. 25, 34 (1972)(“Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.”).

3 Compare Lawrence S. Goldman, Frye/Cooper Decisions Likely Not to be of Great Significance, White Collar Crime Prof Blog, April 5, 2012 with Adam Liptak, Justices’ Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, March 22, 2012, at A1.

4 See, e.g., Peter J. Tomao, DOJ’s Lafler/Frye Motion Goes Too Far, White Collar Crim. Prof. Blog, April 4, 2012 (“The Department of Justice, understandably and reasonably concerned in protecting convictions in pending cases headed for trial from later appellate and collateral attack on the grounds that a plea offer was not communicated or was rejected because of unsound advice, has responded, at least in one jurisdiction, with a motion to make a record of ‘plea negotiation activity.’ See here – Download Motion Pursuant to Lafler and Frye.”). See generally Plea Bargaining After Lafler and Frye Conference, Duquesne University, Feb. 28 – Mar. 1, 2013 (“These cases raise many more questions than they answer. Do they change the plea process? How does one go about evaluating whether a lawyer has been a constitutionally competent negotiator? What remedy should lower courts apply? Do these cases portend judicial limitations on prosecutors?”).

5 See Cooper v. Lafler, 2012 U.S. Dist. LEXIS 104162 ( E.D. Mich. July 26, 2012)(“Accordingly, IT IS HEREBY ORDERED that the Court’s decision in this case is vacated and the State is ORDERED to re-offer the plea agreement to Petitioner, consistent with the United States Supreme Court’s decision, within ninety days from the date of this order. If Petitioner accepts the offer, the trial court then can ‘exercise its discretion in determining whether to vacate the convictions and resentence [Petitioner] pursuant to the plea agreement, to vacate only some of the convictions and resentence [Petitioner] accordingly, or to leave the convictions and sentence from trial undisturbed.’ Cooper, U.S. at , 132 S.Ct. at 1391, U.S. at , 132 S.Ct. at 1391.”).

6 See Frye v. State, 2013 Mo. App. LEXIS 131 (Mo. Ct. App. Jan. 29, 2013)(“Because the motion court did not find whether Frye demonstrated a reasonable probability that the State would not have withdrawn the Offer and that the trial court would not have rejected a plea agreement based on the Offer, we are compelled by Rule 24.035(k) to reverse the motion court’s judgment and to remand this matter to the motion court. On remand, the motion court shall conduct such proceedings as are necessary to issue findings and conclusions as contemplated by Rule 24.035(j) on those points fairly presented by Frye’s Rule 24.035 Motion in light of Frye II and which have not already been determined as a matter of law.”).

7 See State Adoption of the ABA Model Rules of Professional Conduct (ABA)

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