Plea Bargaining: Innovative Remedies for Ineffective Assistance of Counsel

Associate Justice Anthony Kennedy

The 6th Amendment right to effective assistance of counsel had its historic origins in the elements of a fair trial: the right of confrontation, to compel attendance of witnesses, etc.  But when the Supreme Court in the wake of Gideon v. Wainwright (1963) began spelling it all out, fairness throughout the criminal prosecution process was comprehended.  So defense counsel's incompetence at the sentencing phase became grounds for relief.  And in Padilla v. Kentucky failure to advise a client that a guilty plea would mean deportation violated the right to effective assistance.  So today's headlines are wrong.  The court in Lafler v. Cooper and Missouri v. Frye did not vastly expand criminal defendants rights. 
But the court did innovate regarding remedy.  Though it infuriated Justice Scalia the court did declare that a man who took his lawyer's stupid advice and was convicted of murder in a fair trial is nonetheless entitled to a remedy: We  "order the State to re-offer the plea agreement", Justice Kennedy declared in the majority opinion.  Cooper, now serving 185 - 365 months for murder, is sure to grab the opportunity to reduce that to the 51 - 85 months sentence that will make him a free man.
Justice Scalia (joined by Roberts, Alito and Thomas)  is alarmed:

[I]t would be foolish to think that “constitutional” rules gov­erning  counsel’s behavior will not be followed by rules governing the  prosecution’s behavior in the plea­ bargaining process... Is it constitutional, for example,  for the prosecution to with­ draw a plea offer that has already been accepted?  Or to withdraw an offer before the defense has had adequate time to consider and accept it?  Or to make no plea offer at all, even though its case is weak—thereby excluding the  defendant from [the plea bargaining process]?

Such Pandora's Box arguments are the stock in trade of dissenters.  I am reminded of Caperton v. A.T. Massey three years ago.  A liability verdict was vacated because one of the judges who decided it had benefited from a coal mine operator's enormous independent election campaign expenditures on the judge's behalf.  A flood of recusal motions was predicted by Chief Justice Roberts.  Didn't happen then.  Won't happen now. But we can hope that there will be remedies in the likely modest number of cases where a criminal defendant was shortchanged by a lawyer, learns about it, and obtains relief.