Supreme Court makes Effective Assistance of Counsel Requirement Applicable to Plan Bargaining

by Jack E. Call
Professor of Criminal Justice
Radford University

            The articles I write for the Bulletin typically focus on cases addressing issues concerning police practices – searches, arrests, interrogations, and pretrial identification procedures.  This article focuses on two cases from the just-concluded term of the Supreme Court that do not affect police practices directly.  However, I believe they will have such a dramatic impact on the future of the criminal process that law enforcement officers will find them of interest.

            The two cases, Missouri v. Frye and Lafler v. Cooper, were both handed down by the Court on March 21, 2012.  Lawyers often refer to cases like these as “companion cases,” because they were decided the same day and addressed very similar issues.  In Frye, the prosecutor offered to reduce a charge for a third offense for driving with a revoked license (carrying a potential punishment of four years in prison) to a simple misdemeanor in return for a guilty plea.  Frye’s attorney failed to make Frye aware of the offer.  When Frye pleaded guilty some time later without the benefit of plea bargain (and after having been arrested yet again for driving with a revoked license), he was sentenced to three years in prison.

            In Lafler, the defendant was charged with (among other things) assault with intent to murder.  After shooting at the victim’s head and missing, Lafler pursued her and shot at her numerous times, wounding her in the hip, abdomen, and buttock.  The prosecution offered to drop two of the charges and recommend a sentence of 51 to 85 months in prison if Lafler pleaded guilty to the remaining charges.  Lafler’s attorney passed this offer on to his client.  However, he recommended that Lafler reject the offer because, in his view, “the prosecution would be unable to establish his intent to murder [the victim] because she had been shot below the waist.”  Based on this advice, Lafler rejected the prosecution’s offer and went to trial.  He was convicted of all charges and sentenced to 185 to 360 months in prison.  Because the government conceded on appeal that the defense attorney’s advice to Lafler was deficient, the issue was whether the Sixth Amendment right to counsel applied to this situation, and, if so, whether Lafler was prejudiced by the deficient advice he received.


            The Sixth Amendment to the Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right …. to have the Assistance of Counsel for his defence.”  Although this provision was proposed (in 1789) and ratified (in 1791) to protect individuals from the abuse of power by the newly-created federal government, the Supreme Court held in Gideon v. Wainwright1 that this right to counsel in criminal cases extends to state and local governments, as well as the federal government.  While Gideon is best known for its holding that the government must provide free lawyers to indigent defendants in felony cases, its holding that the right to counsel applies to the states was just as momentous.

            In 1984, the Court determined in Strickland v. Washington2 that the Sixth Amendment right to counsel means the right to effective assistance of counsel.  The Strickland test consists of a performance prong and a prejudice prong.  If defense counsel’s representation is unreasonable “under prevailing professional norms,” the performance prong is violated.  If the defendant establishes that the quality of representation received was below this performance standard, he must also demonstrate that he was prejudiced (i.e., harmed) by this inadequate performance.  In order to do that, the defendant must convince the court that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

            A year after deciding Strickland v. Washington, the Court applied the test created in that case to a situation where a defendant pleaded guilty after his lawyer gave him erroneous information about when he would be eligible for parole.  Although the Court ruled against the defendant in this case, Hill v. Lockhart,3 the case is significant because it applied the Strickland test to a conviction based on a guilty plea, rather than a trial verdict.

            Some observers might have assumed that the holding in Hill meant that defendants are entitled to effective assistance of counsel, under the Constitution, during plea negotiations.4  However, this conclusion was not absolutely clear from Hill.  Hill involved deficient legal advice that led to a guilty plea.  Lafler involved deficient legal advice that led to a not guilty plea and a trial.  Frye involved a failure of counsel to advise the defendant of a plea offer that resulted in a missed opportunity for the defendant to plead guilty under favorable circumstances; in Hill, the prosecutor’s plea offer had been communicated to the defendant.  The combined effect of Lafler and Frye is to make it clear that the Sixth Amendment right to effective assistance of counsel extends to plea negotiations.


            The Court held in Frye that the failure of defense counsel to inform the defendant of the prosecutor’s plea offer was inadequate assistance under the performance prong of Strickland.  As to whether the defendant had been harmed (the prejudice prong) by this failure, the Court ruled that “defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”  The Court returned the case to the lower court for a determination of whether the defendant had been harmed under this standard.

            The Court did not have to make a determination in Lafler as to whether the advice of defense counsel to reject the prosecution’s plea offer was inadequate assistance under the performance prong of Strickland because, as noted earlier, both the defense and the prosecution had agreed that it was.  In order to prove prejudice in a case where defense counsel’s advice about the plea offer was inadequate, the Court concluded that the “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 [trial] court …., that the court would have accepted its terms, and the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.”  The Court again sent the case back to the lower court so the prosecution could be ordered to re-offer the plea bargain it had offered previously.  The trial court would then have to determine whether the appropriate action, under the circumstances, would be to re-sentence the defendant or to leave the conviction and previous sentence undisturbed.


            Both Lafler and Frye were 5-4 decisions.  There were vigorous dissenting opinions written in both cases by Justice Scalia.  Scalia is noted for using biting language that is highly critical of the other side in a case in which he has written, and these cases are no exception (thus, as always, they make for interesting reading).  The arguments against the holdings in these cases are certainly respectable.  In addition, the holdings raise serious questions about the appropriate remedy in cases where it is concluded that the Strickland standard has been met by the defendant.

            As indicated previously, these two cases do not directly affect the way the police do their job.  They may, however, have a significant impact on cases that the police have investigated successfully and that have resulted in formal charges.  Like most landmark decisions, these cases raise more questions than they answer.  Justice Scalia is certainly correct in noting that these cases will create a new (and probably voluminous) body of plea bargaining law.

            Whether this is a good or bad thing is certainly subject to debate.  What is impossible to dispute, however, is that the overwhelming majority of criminal cases that proceed to a finding of guilt or innocence are disposed of by a guilty plea.  (The majority opinion in Lafler puts that percentage at well over 90%).  If Lafler and Frye had been decided differently, defendants would not be entitled to effective assistance of counsel (under the Constitution, at least) in the overwhelming majority of cases that result in a determination of guilt.  These two cases insure that federal courts will have an important role to play in insuring that defense attorneys are diligent in how they handle plea offers from prosecutors.

[1] 372 U.S. 335 (1963).

[2] 466 U.S. 668 (1984).

[3] 474 U.S. 52 (1985).

[4] States could always extend this right under state law.  However, if the right exists under the Constitution, the federal courts will play a much greater role in determining whether defendants have been deprived of the effective assistance of counsel.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.