Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future
Lieb, Doug, The Yale Law Journal
A. Regulating Pleas in an Administrative System
The Supreme Court has recently come around to the view that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (128) The Court has consequently shown a greater inclination to regulate plea bargaining, (129) beyond the minimal requirements of the colloquy in which the trial judge formally ratifies the previously negotiated agreement. (130) In doing so, however, the Court has relied on a body of law treating pleas as the exception even as it now declares pleas the rule. As a result, recent developments in constitutional criminal procedure have only been able to regulate plea bargaining through indirect means.
As I explain below, the Court has crafted these new rules of criminal procedure on the assumption that there is something like a "standard" or "correct" plea offer that a defendant ought to receive. It has deployed this assumption to fairly modest effect, entitling a defendant to this "standard" deal if his lawyer fails to inform him when he has been offered it or properly advise him about whether he should accept it. But the Court has imposed no obligation directly on the prosecutor to offer the standard deal--or even something that remotely approximates it--in the first place. As I will go on to argue in Section II.B, however, the assumption of the "standard" offer could serve as the basis for a more robust rule that would constrain bad prosecutorial behavior and reduce excessive discretion.
The Court began its innovation in Sixth Amendment doctrine with its 2010 decision in Padilla v. Kentucky, (131) holding that a defendant was denied the effective assistance of counsel when his attorney failed to advise him that his plea would result in his removal from the United States. That holding broke new ground in making clear that a criminal defense attorney must attend to a conviction's collateral consequences to fulfill her obligations to her client. (132) But it also reflected a new willingness to tailor new procedural protections specifically to plea bargaining. (133)
The 2012 companion cases of Missouri v. Frye (134) and Lafler v. Cooper (135) went further in imposing procedural order on the bargaining process. In Frye, a defendant's attorney had failed to communicate plea offers that, if accepted, probably would have resulted in a lower sentence than the defendant ultimately received after accepting a later, harsher offer. (136) In Lafler, the defendant rejected a lenient plea offer on the faulty advice of his lawyer and ultimately received a much longer sentence after being convicted at trial. (137) In both, the Court held that the defendant's Sixth Amendment right to counsel had been violated and that the defendant was entitled at least to the possibility of resentencing and perhaps to the benefit of the earlier offer. (138)
Lafler and Frye rely on an implicit idea of a "standard" plea deal that a defendant who engaged in certain conduct ought to be offered. As a logical matter, it makes little sense to require that a defendant be given the benefit of an erroneously forgone plea offer unless he was, in some sense, "supposed" to receive that deal rather than the harsher one he ultimately got. The normative force of the claim that plea bargaining "is the criminal justice system" is that a typical plea made in the ordinary course of business--not the sentence imposed by a judge after a jury trial--is the true outcome that the system aims to produce. (139)
Indeed, both cases explicitly rely on an understanding that the normal, ordinary-course plea offer is the outcome that the defendant should receive. Frye held that, to establish that he had been denied the effective assistance of counsel, a defendant would need to show a reasonable probability that neither the prosecution nor the trial court would have later prevented him from accepting or entering the plea offer he never received. …