Sixth Amendment Right to Counsel Reflected in New Supreme Court Plea Bargain Guidelines

By Staff | March 21, 2012

The rights of the accused are bolstered in the a contentious 5-4 decision in the Supreme Court

From another 5-4 divided court, it was the liberal arm that this time came out on top redefining the 6th amendment right to counsel. The 6th amendment right to assistance of counsel ” is the right to effective assistance of counsel,” Justice Kennedy said on behalf of the majority.

Legal counsel is required under the rights enumerated in the 6th amendment to the constitution:

The accused shall enjoy the right to a speedy and public trial…and to have the Assistance of Counsel for his defence.

In this recent ruling, the Kennedy majority ruled that the proper “assistance of counsel” includes the duty of defense lawyers to competently advise and inform their clients of prosecutors’ offers of less prison time for convictions and guilty pleas — in other words, plea bargains.

From now on, criminal defense lawyers are required by law to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must provide their clients with sound advice on whether to accept a plea bargain at all stages of prosecution. If they don’t, Justice Kennedy said, they will run afoul of the Sixth Amendment right to assistance of counsel during criminal proceedings.

The two cases that propelled this issue to the Supreme Court are Missouri v. Frye and Lafler v. Cooper.

The NYTimes describes the cases:

In the cases before the court, Galin Edward Frye was never told by his lawyer about plea bargain offers from Missouri before he pleaded guilty to driving with a revoked license before his trial. In the second case, Anthony Cooper rejected a plea offer on the advice of his lawyer, and then was convicted of assault with intent to murder and other charges and sentenced after a jury trial in Michigan.

In both cases, Kennedy sent the convictions back down to the lower courts as a result of the actions of the lawyers. In Frye’s case specifically, Kennedy said Michigan prosecutors should offer Cooper his plea bargain for a prison term of around seven years again.

Justice Scalia on the minority side denounced the decision as “absurd” and warned that as a result courts would now be flooded with criminal appeals.

In his dissent, Justice Scalia argued:

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, serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated…I do not subscribe to that theory. No one should, least of all justices of the Supreme Court.

If nothing else, Justice Scalia’s concern about the flood of appeals is not unfounded. This decision does have the potential to affect thousands of criminal cases: the Justice Department reported that 97 percent of federal convictions and 94 percent of state convictions in 2009 were the result of a guilty plea.

Justice Scalia also joined Justice Alito’s separate dissent regarding the renewal of past plea bargains, as stipulated by Justice Kennedy in the Cooper case:

“In my view”, Justice Alito said, “requiring the prosecution to renew an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information about a defendant’s culpability comes to light after the offer was rejected, and second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources.”

Scalia concluded that “the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just convictions.”

Although kept low-profile, this is a landmark decision with regards to criminal justice proceedings, and the rights of the accused. We’ll be following to see whether Justice Scalia’s predictions come true, and whether there will be a fight-back from the losing side — from the court, from the defense, or as Justice Alito pointed out, from the prosecution.