US Supreme Court places a check on plea bargains

“What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?”

In the United States, a small amount of cases actually go to trial. Instead, criminal cases are mainly disposed of when the defendants plead guilty. In fact, statistics prove that 97% of federal convictions and 94% of state convictions were the results of guilty pleas.  Under the US Constitution, criminal defendants have a right to effective counsel during plea negotiations. Recently, the Supreme Court [SC] has placed on check on plea bargains. Based on two recent cases that reached the SC, the Court concluded that defense counsel has not been giving defendants’ effective and adequate legal advice when their client should accept a “fair deal.” As a result, the SC held that new constraints must be in place during any plea negotiations in order to protect defendant’s 6th Amendment right to effective counsel. Essentially, this would stop defendants from receiving bad legal advice about favorable plea offers.

Why is the Supreme Court so interested in this practice that has always been kept out of the public’s eye?

Justice Kennedy wrote for the majority of the opinion that “criminal justice today is for the most part a system of pleas, not a system of trials.”

The opinion continues to state:

“Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations. “

Now, will appeals under the 6th Amendment ineffective counsel be common based on their attorney’s actions during plea bargaining? In this decision, the SC has expanded the meaning of the 6th amendment to include plea bargaining in 2012.

“Justice Scalia wrote that expanding constitutional protections to that realm ‘opens a whole new boutique of constitutional jurisprudence,’ calling it ‘plea-bargaining law.’”

If a defendant proves that their lawyer’s incompetence affected the outcome of the case, the defendant is entitled to a new trial. Further, lawyers are also required by the Supreme Court to offer competent advice “urging defendants to give up their right to a trial by accepting a guilty plea.”

Do you see any problematic results with this decision? The Court even recognized that “it is going to be tricky . . . and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

To avoid this problem, Justice Kennedy provides us with “measures to help ensure against late, frivolous or fabricated claims” which require that “plea offers be in writing or made in open court.”

What do you think will be the effect of this decision? What about in the larger context of our country’s history? Is the US the only country where its defendants plead guilty over 90%? Will this ruling have any effect in the local courts? Is this good for defense attorneys both here and abroad?



  1. My trial advocacy professor is considered an experienced trial attorney. He has only participated in 12 trials in his many more years than that practicing. He stated the first day of class that most trial attorney’s are lucky if they get one good trial a year. He stated this is because people plea bargain or settle most of the time. I also participate in the post conviction clinic at the law school and I have seen first hand how ineffective assistance of counsel can put innocent people in jail. Plea’s are a great thing for criminals if they are guilty, if they are wrongfully charged, people have two options; 1) take the plea and go to jail 2) fight for your innocence at trial but if you lose you will likely be incarcerated far longer than you would have been had you taken the plea. Often people take the plea because their chance at trial could be slim. I think it is interesting that the Supreme Court is recognizing the problem in this country with attorney’s suggesting and sometimes forcing a person to take a plea but does this mean it is not in their best interest? It will be interesting to see what the criteria will be to be able to bring this claim.

  2. There are arguments for and against applying Sixth Amendment right to effective counsel to plea bargains. As plea bargains increase, the right to effective counsel in the plea-bargaining process becomes more crucial. A plea bargain has just as much influence over a defendant’s life as does a guilty or not guilty verdict.
    On the other hand, defendants often file frivolous claims for ineffective assistance of counsel – using the constitutional protection as a means at a second-shot rather than a legitimate assertion of a constitutional right. Applying Sixth Amendment right to effective counsel to plea bargains will only increase the amount of frivolous claims.

  3. While it may seem a little extreme that over 90 % of cases are typically handled by plea bargaining, there are many strong arguments to be made for plea bargaining. The most obvious is that it is an incredible time saver for all involved and most especially for the courts. If the rate of plea bargains was cut down to around 50% of cases, the legal system would be overwhelmed and would have to spend a lot more money on new court houses, judges, and administrative personnel. Moreover, such practices benefit prosecution offices because they can save the time and costs of investigation which also reduces the government’s budget. As for its impact of defense work, the process is beneficial both to defendants and their lawyers because the defendants get less severe sentences and the trial lawyers can handle more cases if the majority of cases are likely to settle. In short, plea bargaining benefits all three major players in the court system.

    In looking at the Supreme Court decision referenced in this article, I think it is important to note that the issue is not with the plea bargaining itself but rather with the skill, or lack thereof, of the defense lawyers representing the defendants. While I think this holding results in a desirable rule, there is one thing I want to point out. The vast majority of the times, the prosecution offers a plea bargain because it saves time and work. After having to do a full trial, the whole logic behind the offering of a plea bargain is out the window. This leads to the question of whether or not prosecutors will be less willing to offer plea bargains or perhaps be less willing to offer “good” deals because they may end up having to go through all of the work anyway.

  4. I can understand why this has become a problem. The judicial system is totally saturated with pending and current litigation. Plea bargains offer the courts a reasonable means of disposing of much of this litigation in an efficient manner. While I believe that it is good policy to have a “plea bargain check” in place, I can’t imagine that it will have a dramatic effect on American jurisprudence. The defendant would likely carry I high burden of proof in demonstrating that he or she didn’t receive a fair bargain. As the article noted, an overwhelming percentage of cases are settled via plea bargains; an attorney would have to be completely negligent to divert from the established norms of their jurisdiction’s plea bargain rubric.

  5. I think that this decision helped to create a new right to effective counsel and this should prove to be very valuable for those that find themselves in the criminal justice system. This really expands the rights of the accused and can help ensure that people are receiving good advice at a time when they are most in need of it. During the plea bargain stage, the client really is at the mercy of the attorney. The client is in a compromising situation. And this could and has, ended very badly with people agreeing to take pleas that they really shouldnt have. However I am not sure that people really know how this new decision will effect the current system nor how it will impact people who already took plea bargains that they shouldnt have. Will they have claims under this new decision? How far back will the court be willing to go? 10 years? 15 years?

  6. The Supreme Court has stated that a defendant has a right to effective assistance of counsel during the plea bargain process. I agree with that decision because the reality is that the plea bargain process is the current essence of the criminal justice system. But the broader issue is not the new right the Supreme Court granted, but the fact that the plea bargain has so saturated the system. Undoubtedly, a small amount of people are agreeing to take plea bargains where they have not committed the crime. Furthermore, for some persons, it may make more sense to take their right to have a full trial. While most cases should be completed with a plea bargain, ninety percent is simply too high.

  7. Defendants not only have the right to effective counsel, they need that counsel to investigate the charges and determine the facts. In every case that I have witnessed, court appointed attorneys, immediately, enter into plea negotiations with the prosecutor with no more than an arrest report in their possession. I witnessed one such case where the police entered private property without a search warrant or without permission of any person that had control over said property, found pictures of child porn in what had allegedly, been a locked cabin and charged a person with possession of child pornography, even though they never actually saw those pictures in the hands of the accused. In fact he was in jail at the time!

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