In Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that plea bargaining, although controversial, has become a dominant feature of America’s criminal justice system and is here to stay. Both cases establish that a defendant has a Sixth Amendment right to effective assistance of counsel during plea bargaining. But neither delineates the minimum standards of attorney competence that will satisfy this newly identified right. This Article seeks to cure some of the uncertainty left in the opinions’ wake by proposing procedures for defense counsel, prosecutors, and courts that will safeguard a defendant’s Sixth Amendment rights. After exploring the history of plea bargaining in the United States, this Article turns to the two decisions, noting how the 5–4 split in each reflects the Court’s divided attitudes toward plea bargaining. This Article then outlines the basic responsibilities and best practices for defense lawyers, prosecutors, and judges as they relate to plea bargaining under Frye and Lafler. Finally, the Article concludes by arguing the right to a fair resolution of a case—the principal issue underlying both Frye and Lafler—must be protected not just by ensuring a fair plea bargaining process, but by reducing the total number of cases prosecuted.
Laurie L. Levenson,
Peeking Behind the Plea Bargaining Process: Missouri v. Frye & Lafler v. Cooper,
46 Loy. L.A. L. Rev. 457
Available at: https://digitalcommons.lmu.edu/llr/vol46/iss2/22