Today, the American criminal justice system is a system of pleas. Despite a traditional focus on trial-based protections for criminal defendants, most cases in our criminal justice system, at both the federal and state levels, result in pretrial plea bargains and eventual guilty pleas.
In spite of an increasing acceptance of guilty pleas as the standard method of adjudication, however, the protections offered to the accused during the crucial pleading stage remain relatively sparse in contrast to the broad and well-developed safeguards provided during trial.
The Supreme Court acknowledged as much in 2012 in Missouri v. Frye
and Lafler v. Cooper,
in which it examined claims of ineffective assistance of counsel at the pleading stage. Unlike in prior cases heard by the Court regarding effective counsel at the pleading stage,
in these cases the appellants sought not to vacate their guilty pleas but to instead accept plea agreements that had lapsed
or been rejected
due to ineffective counsel. In Frye and Lafler, the Court grounded its opinions in the overwhelming dominance of guilty pleas in our current criminal justice system and the resulting need for appropriate protections for defendants.
This Note examines Frye and Lafler’s application of ineffective assistance of counsel (IAC) doctrine to cases in which defendants allege that plea offers were refused or forgone due to incompetent defense counsel. By applying Strickland v. Washington’s prejudice prong
in this new context, the decisions posed new counterfactual questions regarding the hypothetical actions of courts and prosecutors, creating in turn new challenges and complications for courts. This Note assesses the potential approaches to these complications. To illuminate and inform the analysis, this Note looks to how select state courts have interpreted the malleable instructions left by the Supreme Court in Lafler and Frye and identifies two fundamental approaches used. The first approach, in which courts require a defendant to affirmatively prove that the prosecutor would have maintained an offered plea and that the trial court would have accepted it, is referred to as the “burden” approach. By contrast, courts using the “presumption” approach rely on the fact that most plea offers are neither revoked by offering prosecutors nor rejected by trial courts absent unusual circumstances and presume that the defendant would have successfully obtained an accepted plea agreement.
Part I traces the development of Sixth Amendment doctrine that led to the Frye and Lafler decisions. Section I.A provides a short history of Sixth Amendment jurisprudence and explores the contemporary IAC test established by Strickland.
Section I.B continues by looking at the initial application of IAC claims to the pleading context by the Supreme Court in Hill v. Lockhart,
Padilla v. Kentucky,
and then Frye and Lafler. Section I.C introduces the Court’s brief instructions regarding Strickland’s prejudice prong as applied in Frye and Lafler.
Part II considers the doctrinal changes brought about in Frye and Lafler and examines applications of the cases in state court systems. Section II.A focuses on the new counterfactual questions created in Frye and Lafler to determine prejudice for claims in which a defendant can show that inadequate counsel led to a forgone plea offer (with better terms) that the defendant would have otherwise accepted. The Supreme Court asked reviewing courts to assess (1) whether the court would have accepted a particular plea agreement and (2) whether the prosecutor would have revoked the deal prior to the plea’s entry.
This Note compares these new questions to the existing inquiry used in IAC claims at the pleading stage, in which courts considering vacating a guilty plea ask whether a defendant truly would not have pleaded guilty with effective counsel and would have instead proceeded to trial.
Section II.B then explores the two major potential approaches to the new questions: the “burden” approach and the “presumption” approach. Section II.C looks to a range of state court decisions made since Frye and Lafler and considers how the standard laid out by the Supreme Court has (or has not) influenced state jurisprudence. This section examines decisions that discuss these new prejudice questions across two major state jurisdictions—Georgia and Florida—and assesses whether a presumption or burden approach is utilized in each.
Part III then evaluates whether either the presumption or burden approach is better suited to be a general rule in such cases, noting the difficulties faced by defendants making IAC claims based on forgone guilty pleas. This Part argues that both a commonsense understanding of how offered plea agreements function and the asymmetry between information possessed by defendants and by prosecutors suggest that a presumption approach more accurately evaluates potential prejudice to a defendant. As a result, the presumption approach strikes a better balance between protecting a defendant’s constitutional right to effective counsel and avoiding windfalls of leniency to undeserving defendants.