Plea-Bargaining Law After Lafler and Frye

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court implied that defense attorneys violate a defendant’s Sixth Amendment right to counsel when they provide deficient advice that causes their clients to forgo plea offers to their detriment. The Court recognized bargaining as a critical stage of prosecution during which defendants are entitled to effective representation. Courts’ hands-off approach to plea negotiations, unchecked prosecutorial charging discretion, and compliant legislatures have created an unregulated justice system where defendants often do not receive the most important information needed to assess plea offers. Voluntariness and knowingness of pleas are ultimately due process concerns that should be subject to constitutional constraints. Since guilty pleas are effectively compelled by threat of potential enhanced punishment at trial and may be entered with little knowledge of evidence to be presented against them, defense attorneys must ensure that their clients’ pleas are as truly voluntary and intelligent as possible. Defendants must receive accurate and timely advice. Pursuant to Brady v. Maryland, exculpatory discovery materials should be disclosed to defendants before they plead guilty, and defense counsel’s failure to do should constitute prima facie ineffective assistance. The Court should place meaningful boundaries on prosecutorial coercion and measure defense counsel’s prejudice against the range of plea-bargaining outcomes.

“Lafler and Frye indicate the Court’s increasing abandonment of the concept of plea-bargaining as an uninhibited free-for-all in which prosecutors have carte blanche to offer criminal defendants whatever deals they think convenient to dispose of cases, and defendants must accept or reject those deals without a very good idea of the wisdom of doing so, or any real alternative to pleading guilty on the terms offered.” p. 600