U.S. Supreme Court Finds That Right to Counsel Applies to the Plea-Bargaining Process


On March 21, 2012, the United States Supreme Court held in two cases, Missouri v. Frye and Lafler v. Cooper, that trial lawyers may be found ineffective in violation of the Sixth Amendment where the lawyer’s performance in the plea-bargaining process causes the defendant to forgo a plea agreement that would have resulted in a lesser sentence.

With well over 90% of federal and state convictions resulting from guilty pleas, the Court found that “[p]lea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process” and, as a result, defendants have a Sixth Amendment right to counsel that extends to the plea-bargaining process.

In Frye, the question was whether defense counsel was ineffective for failing to tell his client about a plea offer before it expired; the defendant then pleaded guilty to more serious charges that carried a more serious sentence. The Court held that when his lawyer allowed the offer to expire without advising Mr. Frye or allowing him to consider it, defense counsel performed deficiently. According to the Court, the Constitution requires defense counsel to communicate formal plea offers from the prosecution.

The Court found that Mr. Frye showed he would have accepted the earlier plea, but remanded the case to determine, as a matter of state law, whether the prosecutor had discretion to cancel the offer or whether the trial court could have refused the deal. If such discretion existed, Mr. Frye must show a reasonable probability that neither would have prevented acceptance or implementation of the offer in order to prove that he was prejudiced by counsel’s deficient performance.

In Lafler v. Cooper, all parties agreed that counsel’s performance was deficient when he advised Mr. Cooper to reject a plea offer on the grounds he could not be convicted at trial. Unlike Mr. Frye, who pleaded guilty under less favorable terms, Mr. Cooper went to trial, where he was convicted and received a sentence three and a half times more severe than the plea.

The Court rejected the State’s argument that Mr. Cooper’s conviction following a fair trial wiped clean any deficient performance by trial counsel during plea bargaining. Constitutional rights, the Court emphasized, do not belong solely to the innocent. That Mr. Cooper was found guilty at trial “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.”

“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.”

The Court held the correct remedy in Lafler is to order the State to reoffer the plea agreement.