Academic journal article Iowa Law Review

Counsel's Role in Bargaining for Trials

Academic journal article Iowa Law Review

Counsel's Role in Bargaining for Trials

Article excerpt


Plea bargaining defines our criminal-justice system and counsel's role in most criminal cases. Forty-nine years after Gideon,1 the Supreme Court ruled that a defendant's right to "effective counsel during plea negotiations," can be violated where counsel's deficient performance costs the defendant a favorable plea deal.2 In reaching this conclusion, the Court quoted Professors Scott and Stuntz approvingly: "[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system."3 The Frye and Lafler decisions implicitly reaffirm two principles: first, effective counsel during bargaining is necessary for a fair process; second, plea bargaining is a significant part of the actual process.4

Guilty pleas resolve almost all criminal cases. In 2012, in federal court, ninety-seven percent of all criminal convictions resulted from guilty pleas.5 The numbers are comparable in state courts.6 In almost all cases, those guilty pleas are secured through bargaining.

The fiftieth anniversary of Gideon, this Symposium, and the Frye and Lafler decisions offer an auspicious moment to consider the role of counsel in plea bargaining, and how counsel might work to limit plea bargaining.

Professor Stuntz identified "Gideon's requirement that indigent defendants receive counsel" as one of a very few doctrines in criminal procedure that enjoys near universal support.7 The other doctrine he identified as enjoying near universal support is "that the ratio of guilty acquittals to innocent convictions should be high."8 Plea bargaining undermines the latter of these doctrines because it has a tendency to shift the balance between wrongful acquittals and wrongful convictions.9 But the first of these doctrines-Gideon's promise of counsel-might help restore the balance. Specifically, counsel could decrease the dominance of plea bargaining by bargaining differently-counsel could bargain for trials.

This is, admittedly, a counterintuitive proposal. Defendants are entitled to trials, so what would it mean to bargain for something to which one is entitled? It means that defendants could bargain away limited trial rights in exchange for leniency. By this mechanism, defendants might preserve adjudication on the merits while still securing some of the leniency normally reserved for those defendants who plead guilty. In a system that only provides trials to a tiny fraction of all defendants, the practice of securing leniency in exchange for limiting the trial rights that are so rarely exercised might fairly be understood as bargaining for trials.

This Essay is part of a larger project exploring the possibility of revitalizing criminal trials through trial bargaining. There are numerous suggestions about how to fix plea bargaining, which one could roughly group into three camps. First, there are proposals to ban or limit the practice of plea bargaining.10 Second, there are proposals to regulate plea bargaining.11 Finally, there are proposals to import some aspects of the trial into plea bargaining.12 To the extent trial bargaining fits into the existing literature, it is most akin to these last proposals. Trial bargaining seeks to revitalize key aspects of the jury trial within a system dominated by bargaining.13 Trial bargaining is not without precedent; one can see the contours and possibility of trial bargaining in agreements to stipulate to certain facts as well as in agreements to try a case before a judge rather than a jury.14 However, as far as I am aware, this is the first proposal that counsel systematically bargain for leniency in exchange for limited waivers of trial rights. Currently, this does not happen, but it ought to.

Counsel are firmly entrenched in a bargain-based system. If juries and trials are going to be more than a curious vestige of the past, counsel will need to function within the bargaining system to preserve adjudication.

My argument builds on premises that, for reasons of space, I take as given and do not directly address in this Essay. …

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