Deal or No Deal: U.S. Supreme Court Finds Defense Counsel Ineffective for Advice on Plea Bargains

The United States Supreme Court has established a new constitutional remedy—to challenge the results of a plea bargain that was accepted or rejected because of bad legal advice. In a pair of cases from Missouri and Michigan, a divided Supreme Court ruled that when a lawyer representing a criminal defendant acts incompetently when advising whether to accept or reject a plea bargain, the accused’s constitutional rights have been violated. These decisions will have an important and immediate impact on the 95% of federal convictions and 94% of state convictions that stem from guilty pleas.

In the Missouri case, Missouri v. Frye, the defendant was charged with driving on a revoked license. Three previous convictions on the same charge meant he could be sentenced to up to four years in prison. Court records show he was not told about two pretrial plea bargain offers that would have reduced his jail time. A week before his preliminary hearing, the man was again arrested on the same offense. With no deal on the table, he subsequently plead guilty and received three years imprisonment.

Writing for the 5-4 majority, Justice Kennedy held that the Sixth Amendment’s constitutional protection against ineffective assistance of counsel applies during plea deal proceedings. Defense counsel must now relay plea bargain offers from the prosecution, regardless of whether the lawyer believes them to be proper.   Pennsylvania has always required lawyers to convey offers to their clients, but the change will be in the cases where a Pennsylvania Criminal Defense Attorney makes a mistake in recommending whether to accept a plea bargain.

In the related Michigan case, Lafler v. Cooper, the defendant was convicted of assault with intent to murder, among other charges, after shooting and seriously wounding a woman. The state twice offered to dismiss two of the charges, and recommended a reduced sentence in return for a guilty plea. The defendant claimed that he rejected the offers after his lawyer incompetently convinced him that the prosecution could not prove the most serious charge. The defendant was convicted and received 185 to 360 months behind bars.

In another 5-4 decision, the Supreme Court applied a “but-for” test to situations where a defendant claims his counsel’s ineffective advice led him to reject a plea offer and ultimately stand trial. That is, if the defendant can show “but-for” counsel’s ineffective advice, the accused would have accepted the plea bargain and the judge would have approved it, the judge has wide discretion as to how to proceed. This includes the possibility of directing prosecutors to reoffer the plea proposal in circumstances where it contemplated a plea to less serious counts than those on which the defendant was convicted at trial.

A plea bargain is a critical step in anyone’s criminal defense. These cases are yet other examples of why it is critical to hire an experienced criminal defense lawyer.