Academic journal article Fordham Urban Law Journal

Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations

Academic journal article Fordham Urban Law Journal

Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations

Article excerpt

ABSTRACT

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in right to counsel cases. Because the constitutional test under the Sixth Amendment is whether defense counsel's performance was "reasonable" under "prevailing professional norms," the standard of competence is necessarily an evolving one. The Supreme Court's decision in Padilla v. Kentucky underscores the defense bar's stake in participating in the ABA standard-setting process to guide the development of defense counsel's obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms. The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla. Two developments give this problem particular urgency: One is the proliferation of status-generated "collateral" penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court. The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons. Part I of this Article analyzes the Supreme Court's treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla. It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla's systemic effect.

TABLE OF CONTENTS

Abstract
Introduction
  I. The ABA Standards in the Supreme Court
 II. The ABA Standards Process
III. Evolving Standards of Reasonableness
     A. Current ABA Standards Relating to Representation
        in Plea Negotiations
     B. The Need for Revisions to the Standards Post-Padilla
Conclusion

INTRODUCTION

In cases applying the Sixth Amendment right to counsel, the Supreme Court has given credence (if not quite deference) to what the bar thinks a lawyer's duty to the client ought to be. As the leading organization of legal professionals in the United States, the American Bar Association (ABA) has been a constant source of received wisdom on the topic of lawyer competence. Through its ethics rules and standards, the ABA exerts a powerful influence over how American lawyers behave, largely because the courts are their willing enforcers. Accordingly, the defense community has an important stake in participating in the ABA standard-setting process if it is to have some control over defender obligations under the Constitution. This Article argues that defense lawyers, particularly public defenders, should participate in a more sustained way in the process of developing ABA Criminal Justice Standards.

Part I analyzes the Supreme Court's treatment of the ABA Standards in Sixth Amendment right to counsel cases. Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations and proposes their expansion in light of the new mandate given criminal defense lawyers by Padilla v. Kentucky. (1) This Article concludes by proposing that defender organizations should seize the opportunity presented by Padilla to guide how the Sixth Amendment standard evolves and to maximize Padilla's systemic effect.

I. THE ABA STANDARDS IN THE SUPREME COURT

In Padilla v. …

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