High Court Establishes Right to Plea Bargain

"A state may choose to preclude the prosecution from withdrawing a plea offer once it has been accepted or perhaps to preclude a trial court from rejecting a plea bargain," Kennedy wrote. "In Missouri, it appears 'a plea offer once accepted by the defendant can be withdrawn without re­course' by the prosecution. The extent of the trial court's discretion in Missouri to reject a plea agreement appears to be in some doubt."

"In this case, given Frye's new of­fense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so," he added.

The court also vacated Lafler's appellate victory, it concluded that he had shown prejudice.

"The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney's deficient performance during plea bargaining," Kennedy wrote.

"In the end, petitioner's three arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system 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. As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences."

Lafler satisfied the standard for ineffective counsel, but the courts did not apply the right remedy, according to the court. Instead of ordering specific performance, the court should have ordered Michigan to reoffer the plea agreement.

A 13-page dissent to Lafler says that "the court opened a whole new field of constitutionalized criminal procedure: plea-bargaining law."

"Even if it were not foreclosed, the constitutional right to effective plea-bargainers that it establishes is at least a new rule of law, which does not undermine the Michigan Court of Appeals' decision and therefore cannot serve as the basis for habeas relief," Justice Antonin Scalia wrote. "And the remedy the court announces - namely, whatever the state trial court in its discretion prescribes, down to and including no remedy at all - is unheard-of and quite absurd for violation of a constitutional right."

Justice Clarence Thomas joined that dissent in full, but Chief Justice John Roberts joined all but the opinion's fourth section.

In that section, Scalia remarks that the new precedent "elevates plea bargaining from a necessary evil to a constitutional entitlement."

"I am less saddened by the outcome of this case than I am by what it says about this court's attitude toward criminal justice," Scalia wrote. "The court today embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player isexcluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the justices of the Supreme Court."

Justice Samuel Alito penned a separate dissent in Lafler that echoes the first two parts of Scalia's opinion.

"The lower court judges who must implement today's holding may - and I hope, will - do so in a way that miti­gates its potential to produce unjust results," Alito wrote. "But I would not depend on these judges to come to the rescue. The court's interpretation of the Sixth Amendment right to counsel is unsound, and I therefore respectfully dissent."

The same four justices dissented in Frye, but they supported Alito's opinion there in full.

"In this case and its companion, the court's sledge may require the reversal of perfectly valid, eminently just, convictions," Scalia wrote. "A legislature could solve the problems presented by these cases in a much more precise and efficient manner. It might begin, for example, by penalizing the attorneys who made such grievous errors. That type of sub­constitutional remedy is not available to the court, which is limited to penalizing (almost) everyone else by reversing valid convictions or sentences."

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