Toward a Common Law of Plea Bargaining

Abstract

This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness. In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion. Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining. Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.