Supreme Court Adopts Strickland Prejudice Standard for Rejected Plea Bargains

Supreme Court Adopts Strickland Prejudice Standard for Rejected Plea Bargains

By Derek Gilna

The U.S. Supreme Court, in a 5-4 ruling, has extended Strickland guarantees of effective legal representation to defendants entering into plea bargains.

According to Justice Anthony Kennedy, who delivered the majority opinion of the Court, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities… that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”

According to Justice Kennedy, “criminal justice today is for the most part of pleas, not a system of trials…. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” [See: PLN, Jan. 2013, p.20]. The two cases considered by the Supreme Court, Missouri v. Frye and Lafler v. Cooper, both involved claims in which all parties agreed that defense counsel had failed to properly represent their clients. 

In the case of Galin Frye, his attorney never advised him of a plea offer by Missouri prosecutors that would have resulted in ten days in jail for driving with a revoked license. Instead, he later pleaded guilty and was sentenced to three years in prison. The case of Anthony Cooper involved a charge of assault with intent to murder. Cooper was offered a deal of 51 to 85 months in prison in return for a guilty plea but turned it down when his counsel allegedly told him he could not be found guilty of the intent to murder charge because he had shot his victim below the waist. At trial, he was convicted and sentenced to 15 to 30 years.

In Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court had found that under the Sixth Amendment, criminal defendants have a constitutional right to competent counsel. Strickland specifically holds that the performance of defense counsel must not fall below an objective “standard of reasonableness.”

According to Justice Kennedy, to “establish Strickland prejudice, a defendant must ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ In the context of pleas, a defendant must show the outcome of the plea process would have been different with competent advice… here the ineffective advice led not to an offer’s acceptance but to its rejection…. In these circumstances, a defendant must show that but for the ineffective advice of counsel, there is a reasonable probability that the plea offer would have been presented to the court…” (internal citations omitted).

The Court cited United States v. Wade, 388 U.S. 218 (1967), requiring effective assistance of counsel at critical stages of a criminal proceeding, and Halbert v. Michigan, 545 U.S. 605 (2005) [PLN, Sept. 2005, p.28], requiring effective assistance of counsel on appeal. Additionally, Glover v. United States, 531 U.S. 198 (2001) extended the right to competent counsel during sentencing.

According to Justice Kennedy, the government’s main argument against extending the Strickland doctrine to the plea bargaining process was that “A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality [of] the criminal justice [system] today….”

Twenty-seven states submitted a brief urging the Supreme Court not to extend the constitutional guarantee of effective assistance of counsel to plea bargains. According to Connecticut Assistant State’s Attorney Michael J. Proto, “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.” Margaret Colgate Love, who helped write an American Bar Association brief that supported extending Strickland to plea bargains, noted, “What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process.”

In his dissent, Justice Scalia wrote that “Strickland stated a rule of thumb for measuring prejudice, which applied blindly and out of context, could support the Court’s holding today….” Interestingly, Scalia, the consummate advocate for the supremacy of the federal government’s role in many aspects of society, cited with favor the European practice of not utilizing plea-bargaining in many criminal cases. See: Lafler v. Cooper, 132 S. Ct. 1376 (2012).

Then again, Justice Scalia might just as well have noted that the United States has a higher incarceration rate than any other nation in the world, that U.S. prosecutors wield enormous power and that prison sentences in the U.S. tend to be much higher than in Europe – which may explain why plea bargaining has become such a significant issue in America’s criminal justice system.

For a detailed examination of how prisoners can potentially use Cooper and the Supreme Court’s related ruling in Missouri v. Frye, 132 S. Ct. 1399 (2012) in habeas petitions, see the Habeas Hints column in the Sept. 2012 issue of PLN.

(First published by Prison Legal News and used here by permission)