The U.S. Supreme Court’s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye

This article discusses Lafler v. Cooper and Missouri v. Frye, where the Supreme Court held that defendants have a right to effective assistance of counsel during plea bargaining even when the defendant goes to trial and loses. The author argues that the holding from these cases will not lead to any significant change in the plea bargaining space because it fails to meaningfully address the larger systematic issues with plea bargaining.  Those larger systematic issues fall into three categories, which include the indigent defense structures, prosecutorial power structures, and legal framework structures. The indigent defense structures refer to the way legal services are provided to indigent defendants. The prosecutorial power structures refer to the broad powers prosecutors have which enable them to put great pressure on defendants to accept plea deals. The legal framework structures refer to the legal framework around plea bargaining and its impact on defendants. The author explores each of these larger systematic issues in turn, then concludes with an analysis of why Lafler and Frye will do little to effectuate the necessary change to move plea bargaining toward a more fundamentally fair process for defendants.

“To understand why the skeptics are right in expressing doubts about Lafler and Frye’s impact, it is important to examine the three structures underlying how plea bargaining works – indigent defense, prosecutorial power, and legal framework – to illustrate the limitations of the Lafler and Frye decisions, as well as the challenges for reforming plea bargaining more broadly. To make meaningful changes in plea bargaining, the criminal justice system must address the systemic problems that go beyond the idea that plea bargaining reform should focus simply on making sure defendants are better informed.” p. 576