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Right to Effective Counsel
March 21, 2012 5:06 PM   Subscribe

Supreme Court Expands Right to Counsel in Plea Bargains. In a legal landscape that has enforced a right to counsel for criminal defendants, but not, practically speaking, a right to effective counsel except in extreme circumstances (ie: when you can prove that but for the gross incompetence of your counsel, the outcome of the case would have been different) and where the vast majority of criminal cases are resolved through plea bargaining, these two cases may be hugely influential in increasing the rights of the accused.
posted by likeatoaster (42 comments total) 20 users marked this as a favorite

 
*spit-take*

What now? How did this happen?
posted by thsmchnekllsfascists at 5:24 PM on March 21, 2012


Well this seems like a wonderful thing
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 5:38 PM on March 21, 2012 [3 favorites]


Wow, that is some Barry Zuckercorn-level lawyering. What's a femoral artery, anyway?
But [the defendant] rejected the offer, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist.
Other legal advice you may want to ignore:posted by 0xFCAF at 5:38 PM on March 21, 2012 [28 favorites]


I think getting the bullshit behind the scenes railroading that passes for the justice system out in the open can only be a good thing. We're putting too many people in jail for complete bullshit and it needs to stop. Everyone deserves a trial. Not a take it or leave it proposition from a prosecutor.
posted by empath at 5:43 PM on March 21, 2012 [15 favorites]


What now? How did this happen?

We elected Barack Obama in 2008 and got Kagan and Sotomayor instead of electing McCain and getting two ultra-conservative justices.
posted by dirigibleman at 5:54 PM on March 21, 2012 [85 favorites]


No surprise, Volokh commenters think this is terrible and contrary to their mythological Originalist reading of the Constitution.
posted by klangklangston at 5:56 PM on March 21, 2012 [2 favorites]


We elected Barack Obama in 2008 and got Kagan and Sotomayor instead of electing McCain and getting two ultra-conservative justices.

I gotta say, the full magnitude of this had not struck me before
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 5:57 PM on March 21, 2012 [13 favorites]


East Manitoba Regional Junior Kabaddi Champion '94: I gotta say, the full magnitude of this had not struck me before
Pop pop!

Wait, sorry- wrong thread
posted by hincandenza at 6:06 PM on March 21, 2012 [20 favorites]


As hard as it can be for progressives to vote for Obama, the Supreme Court is really where the difference between a Republican and Democrat president is huge.
posted by Mavri at 6:12 PM on March 21, 2012 [9 favorites]


What now? How did this happen?

We elected Barack Obama in 2008 and got Kagan and Sotomayor instead of electing McCain and getting two ultra-conservative justices.


F-ing A right! Favorited and preening like a rooster!
posted by darkstar at 6:12 PM on March 21, 2012 [1 favorite]


Even something as well-intentioned and, often, extremely beneficial such as pre-prosecution diversion is problematic for many of the same reasons as plea-bargaining is. All put the accused into the position of making a pragmatic, realistic judgment which is independent of their guilt or innocence; and it puts the prosecution into the position of utilizing its institutional influence to achieve guilty verdicts also independently of proving guilt or convincing a judge and jury of guilt.

And pre-prosecution diversion is especially problematic, in my opinion, because of the conjunction of two things:

First, in effect it involves criminal punishment (a probation or the like) which entirely bypasses the judicial system.

Second, and worse, is the fact that it's rightly designed for first-offenders who arguably made a relatively minor mistake and where everyone is better served by what's effectively (in relative terms) a slap on the wrist instead of a criminal record and all the public expenditures that otherwise would occur. But the problem with this is that it's precisely that population of first-offenders which is most likely to have the largest proportion of the innocently accused. And, given the circumstances and what it would mean to go to court and be found guilty, it's precisely the innocent who will know themselves most likely to accept the non-judicial punishment without getting into further trouble and thus to put it behind them without major consequence. So the innocent have the largest incentive to falsely admit they are guilty and go through the pre-prosecution diversion. The end result is both a "miscarriage of justice" that also isn't even judicial and is outside of the system which is constitutionally mandated in the US.

Yet, clearly, there's a need for something that accomplishes the intended purpose of such programs.

Contrary to the opinions of political conservatives, the way the criminal justice system actually operates in the US is a far cry from the lofty ideals established in the Constitution and how we like to think and admire it to be. For the poor, especially minorities, it's a machine that grinds its way with little regard for actual guilt or innocence (guilt is assumed), the socioeconomic conditions which give rise both to this injustice and to the increased prevalence of crime are reinforced, justice isn't really served, and we incarcerate in prisons a larger portion of the population than any other wealthy advanced nation. And then we executing some of them.

This decision is a welcome surprise, but the problems are endemic and there's essentially no political will to address them, and little judicial will for that matter.
posted by Ivan Fyodorovich at 6:12 PM on March 21, 2012 [16 favorites]


As hard as it can be for progressives to vote for Obama, the Supreme Court is really where the difference between a Republican and Democrat president is huge.

And that statement sums up quite a lot of what's wrong with our political system.
posted by curious nu at 6:16 PM on March 21, 2012 [7 favorites]


Ivan Fyodorovich has already said it more eloquently, but this decision – while undoubtably better than the old status quo – does nothing to change the fact that the ubiquity of plea bargaining (as opposed to trials) is extremely fucked up and basically makes a mockery of the entire criminal justice system.
posted by Scientist at 6:22 PM on March 21, 2012 [2 favorites]


Yet, clearly, there's a need for something that accomplishes the intended purpose of such programs.

what is the need?
posted by lulz at 6:22 PM on March 21, 2012


"what is the need?"

People who are otherwise law-abiding and well-intentioned occasionally do very stupid things for stupid reasons, or out of extreme desperation, and would be better served by an approach that is more educational than punitive, especially considering the extreme socioeconomic consequences of being a convicted felon in the US.

One possible alternative solution, which has approximately zero political chance for implementation in the US, is for our justice system to be in general more oriented toward education and rehabilitation instead of being punitive. But the overwhelming consensus of opinion in the US is toward a punitive system. To Americans, in general, justice means punishment, full stop. But that's specifically why there's a need here for pre-prosecution programs — a portion of first offenders are better off (we're all better off) if they are not subject to the kind of prosecution and punishment that otherwise will occur.

I don't know this to be true (I should look it up right now, but I'll admit that at the moment I'm lazy) but I'd be willing to wager that the outcomes of these programs (in terms of the rate of subsequent offenses and socioeconomics) is, relative to traditional justice, quite good. Because, again, first offenders both guilty and innocent, are less likely to be career criminals and more likely to be served by a "learning experience" as opposed to outright punishment.
posted by Ivan Fyodorovich at 6:29 PM on March 21, 2012 [8 favorites]


And that statement sums up quite a lot of what's wrong with our political system.

I'm curious what you mean by that. If you're talking about our political system's surrender of constitutional interpretation to the Court, then I'll agree with you. The feeling today seems to be that Congress will pass any nonsense and the courts will work it out. The people and our representatives are no longer expected to have any idea what the constitution means. That's fucking terrible, but as long as that's where we are, I'd rather have a president who won't appoint another Scalia, Thomas, Roberts, or Alito.
posted by Mavri at 6:30 PM on March 21, 2012 [2 favorites]


Let me guess, 5-4?
WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
Oooh... Let's see if I can guess the decent: Scalia, Alito, Roberts and Thomas?
Justice Scalia, in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr., called all of this “a process of retrospective crystal-ball gazing posing as legal analysis.”
Oh well, some good news I guess.
posted by delmoi at 6:30 PM on March 21, 2012


Yet, clearly, there's a need for something that accomplishes the intended purpose of such programs.
The only reason it's needed is because the courts are swamped with minor drug bullshit, and because you have and more automated background screening that prevents people with records from getting jobs, etc.
posted by delmoi at 6:34 PM on March 21, 2012


I'm definitely happy about a rare SCOTUS win for the little guy, but I do have some reservations...

When a defendant is poorly represented in a trial, it's out there for everyone to see. But with a plea bargain, isn't the discussion between the lawyer and his or her client confidential? As an example, say I got charged with possession, but I reveal to my lawyer that I was actually dealing. He or she might recommend I take a plea bargain just to avoid further facts coming out at trial. From the outside, how do you tell whether that was a good recommendation or a bad one without breaking confidentiality?

And from the article...
Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”
I appreciate Kennedy breaking ranks with the conservatives, but if he wrote the above then how can he justify not breaking further? Isn't it a complete violation of due process to have artificially harsh sentences simply so people can be coerced into accepting punishment without a trial?

I feel like the correct solution here would have been to declaw the plea system, or to add some more judicial review of the sentencing guidelines themselves, or both.
posted by Riki tiki at 6:37 PM on March 21, 2012 [5 favorites]


It's sad for an innocent person to decide to plead guilty in a plea bargain, but it's surely even more sad for them to be forced to stand trial without the option of a plea bargain.

I don't see why the existence of plea bargains (in conjunction with effective counsel) is harmful to defendants. Everyone still has the right to a trial if they choose. The plea bargain should give the defendant more rights, not fewer. The fairness of the actual trial is a separate issue, as is the matter of whether the sentence is unnecessarily draconian.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 6:38 PM on March 21, 2012


...we incarcerate in prisons a larger portion of the population than any other wealthy advanced nation.

It's a little worse than that. Not only does the U.S. incarcerate a larger proportion of it's population than any other country wealthy or not but we also have the largest prison population outright.

We're number 1!
posted by VTX at 6:42 PM on March 21, 2012 [1 favorite]


People who are otherwise law-abiding and well-intentioned occasionally do very stupid things for stupid reasons, or out of extreme desperation, and would be better served by an approach that is more educational than punitive, especially considering the extreme socioeconomic consequences of being a convicted felon in the US.

i believe you previously indicated that these are the people most likely to take advantage of the plea system and are also most likely to be innocent yet plea to a lesser offence due to potential consequences of a conviction. i would infer that they are also more sympathetic defendants.

if there was no plea system, what would happen? we would need to prosecute drastically fewer people. ultimately, these are the people that would not be getting prosecuted... plea bargaining replaces prosecution, not standing trial for a crime that you may or may not have committed. if it is a question, in a no-plea world, you are not going to be prosecuted. whether this is good or bad, i don't know, just wasn't sure it was that clear.
posted by lulz at 6:56 PM on March 21, 2012 [3 favorites]


Those are good points.
posted by Ivan Fyodorovich at 6:59 PM on March 21, 2012


We're the largest advanced nation, so it's not surprising that we we have a larger prison population then any other advanced nation.

What's suprising is when you compare us to larger countries. We're the third largest country in the world, only india and china are larger.

We have more prisoners, in total, (not percentage) then China.

Also surprising, we have more prisoners in total (not percentage) then India.

Even more surprising? We have more Also surprising, we have more prisoners in total (not percentage) then India and China combined.

What about percentages? Well, we already heard that we outpace advanced countries, but according to Wikipedia we have a higher incarceration rate then any other country on earth. (According to that list only Rwanda, Georgia, Russia, Seychelles, St. Kittts and Nevis, Cuba, and Anguilla have incarceration rates more then half ours.)

I remember hearing that the U.S actually has about 25% of the world's total prison population, don't have a cite for it but it seems reasonable, given the vast disparity between us and pretty much every other country.
posted by delmoi at 7:00 PM on March 21, 2012 [2 favorites]


Adam Gopnik wrote an interesting article in the New Yorker awhile back that I think is relevant, if only tangentially. Worth a read.

"The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual."
posted by dave78981 at 7:08 PM on March 21, 2012 [9 favorites]


seems possible, out of the top ten incarcerating countries we have about 35% of the total (real numbers)
posted by edgeways at 7:09 PM on March 21, 2012


Well we had two options after the civil rights era, we could fully integrate black people into society or throw them into the gulags.

You can see what we did.
posted by empath at 7:09 PM on March 21, 2012 [3 favorites]


People who are otherwise law-abiding and well-intentioned occasionally do very stupid things for stupid reasons

Show me a prison, show me a jail,
Show me a prisoner whose face has gone pale
And I'll show you a young man with so many reasons why
And there but for fortune, may go you or I

Show me the alley, show me the train,
Show me a hobo who sleeps out in the rain,
And I'll show you a young man with so many reasons why
There but for fortune, may go you or go I -- you and I.

Show me the whiskey stains on the floor,
Show me the dunken man as he stumbles out the door,
And I'll show you a young man with so many reasons why
There but for fortune, may go you or go I -- you and I

Phil Ochs--There But For Fortune

I've long felt that the failure to understand the moral insight that animates this song is really the signature moral failing of our times.
posted by yoink at 7:12 PM on March 21, 2012 [2 favorites]


Oh and P.S.--it's highly probable that the next President will appoint two justices to the Supreme Court. Think about that the next time you're tempted to believe that it doesn't matter who wins the election.
posted by yoink at 7:15 PM on March 21, 2012 [16 favorites]


Stuntz's book is definitely worth reading. He takes potshots at everyone, from the flog 'em and hang 'em crowd to the Warren court. Also worth examining, though less directly on point, is Robert A. Kagan's book on adversarial legalism.
posted by anigbrowl at 7:15 PM on March 21, 2012 [2 favorites]


This is good news. I'm not sure what it means in practice, though. I have represented many clients on petitions for post-conviction relief who are seeking to set aside guilty pleas based on their allegations that they were ineffectively represented.

The problem that I anticipate in putting the Supreme Court's ruling into practice is that what happens between counsel and client is largely undocumented. It will be the attorney's word against the client's. And judges are personally very well acquainted with lawyers who practice criminal defense, so at the first level of attacking a guilty plea, the judge will almost always make fact findings that accredit the defense attorney's account, over the defendant's. Appeals courts are unlikely to disturb the post-conviction court's (that is, the court hearing the petition for post conviction relief) findings of fact. So it is predictable that nothing much will change. Plea bargains are almost always much better than the worst case scenario if the case goes to trial, so defense counsel can argue it was the client's pragmatic decision after weighing the options.

I do have one case that I am cautiously optimistic could be helped by this ruling.

But the problem with this is that it's precisely that population of first-offenders which is most likely to have the largest proportion of the innocently accused.

How do you know this?

The end result is both a "miscarriage of justice" that also isn't even judicial and is outside of the system which is constitutionally mandated in the US.

How can you broadly characterize this as a miscarriage of justice? Do you mean when innocent people choose diversion rather than risk trial? To me it is a prudential calculation, where one is choosing an option that guarantees a dismissal and expungement rather than the possibility of conviction (and possibility of being denied diversion) at trial.

Your statement above seems to contemplate that being falsely accused, and agreeing to an option that would guarantee a dismissal, is a miscarriage of justice, which is a really strange assertion. The justice system expects people to be falsely accused. That's why we have due process and trials. To say it is a miscarriage of justice to have a safety valve for first offenders -- diversion -- is not very realistic.

(And by the way, diversion or deferred prosecution does not always involve a guilty plea or admission of guilt.)
posted by jayder at 7:16 PM on March 21, 2012


This sort of plea bargaining is an unusual feature of the US justice system. My understanding is that in most common law jurisdictions the prosecutor is required to charge the defendant with the most appropriate crime, irrespective of the defendant's plea, although the sentencing judge may impose a reduced sentence when the defendant has pleaded guilty. In other jurisdictions the prosecutor may negotiate a reduced charge in exchange for a guilty plea, but may not negotiate a punishment. It's quite unusual to have a formal bargaining system for punishment.
posted by Joe in Australia at 7:19 PM on March 21, 2012


The dissents in Lafler v. Cooper seem exactly right. Hill and Padilla involved defendants giving up their right to trial without adequate assistance of counsel, and the remedy provided here just made me laugh.
Here's where the story gets relevant: he gets a public defender. The defender urges a plea deal. The public defender assigned to a guy arrested due to mistaken data entry error in relation to a crime that he was the victim of urges a plea deal.
And thus this sort of situation could give rise to an ineffective assistance claim under prior law, of course.
posted by planet at 7:41 PM on March 21, 2012


Also surprising, we have more prisoners in total (not percentage) then India.

Not addressing your point about American incarceration rates, but just to riff off on the Indian perspective. Thing is, despite the Union's occassional predilection for violent responses (responses that, I hasten to add, are often at odds with the non-violent ideology under which the country was established in the first place), India is, by any measure possible, a grossly under-policed country.

We have the lowest policemen-to-citizen ratios in the world, one of the lowest prosecution rates, one of the longest undertrials (some poor sod in Assam was jailed for 40 years before he was even shown in court, at which point, he was immediately acquitted; the largest punishment ), one of the largest court backlogs in the world. Even Delhi High Court, which is generally considered to be among the best running courts in the country with some sterling judgments in its record, has a backlog so huge that if it spent 5 minutes on each outstanding case without taking on any new case, it'll take 400 years just to clear them all.

I say this with no intended exaggeration, but it's a near miracle that the country runs in the first place. The Law Commission of India has been screaming for procedural reforms for decades now; one of its more prominent suggestions is to introduce the plea-bargain concept to India as well. It thinks plea-bargains and have a fast-track clearance system for traffic cases will cut down on the backlog quite a bit. So this ruling by SCOTUS should have a relevance for Indian jurisprudence as well.
posted by the cydonian at 7:44 PM on March 21, 2012 [4 favorites]


If we accept that sentences resulting from an otherwise valid plea or a valid conviction represent a fair, shall we say, "debt to society," does it make sense that a lawyer's error which prevented the defendant from getting a better deal should mitigate the "debt to society?" It seems strange that society should bear the cost of a lawyer's error where the fairness of the result is not in question.
posted by cheburashka at 8:07 PM on March 21, 2012


"Your statement above seems to contemplate that being falsely accused, and agreeing to an option that would guarantee a dismissal, is a miscarriage of justice, which is a really strange assertion."

It's a dismissal...with punishment. In the case of an innocent, how is that actually justice being served?

"And by the way, diversion or deferred prosecution does not always involve a guilty plea or admission of guilt."

Maybe not, but in some jurisdictions it does. In mine, it does. It requires a signed admission of guilt.

"How do you know this?"

It makes sense. As an attorney with access to criminal and legal statistics, you're welcome to disprove this by, say, looking for and citing the rate of arrests and releases that involve a later discovery of proof of innocence for first-offenders versus repeat offenders, if such statistics are available, and more available and more within your bailiwick, the comparative rates of not guilty verdicts for first offenders who go to jury trial versus repeat offenders who go to jury trial, though that would be less compelling evidence.

Anyway, again, the main problem with these programs is that they universally involve some amount of supervised punishment and often reparations. That this officially involves a dismissal of charges does not alter that this is a conviction and punishment by another name, except with lessened punishment and a lack of a criminal record, and outside the judicial system and supervision. (The lack of a conviction record, by the way, wouldn't be an issue anyway in a system where such records are not allowed to have continued social consequences outside of the justice system, as is the case in many places which aren't the US.)

It's criminal punishment, minus a judiciary. It's an end-run around due process. The notion that any accused could take their chances in the judicial system and that there's therefore no sort of violation of due process is a cruel joke. A choice with such unequal risks externally imposed is not a choice, it's coercion. This is the problem with plea-bargaining, in fact. As someone above mentioned that Kennedy discussed how the system actually works, following the rationale for the acceptability of this system to its conclusion, all felonies could be individually divided into two gradations of severity of punishment where the more severe version is so severely punished (for example, life imprisonment or, better yet, execution) such that almost every rational defendant would choose a plea-bargain of pleading guilty to the lesser of the gradations, which could be basically the more severe versions we already have. Thus, a guilty plea, everyone saves time and money and almost all accused would go to prison. The only reason this hasn't happened is because everyone realizes that this would make clear to all how unconstitutional this practice actually is. Instead, we've just been slowly moving toward such an end-result slowly, like the proverbial frog in boiling water.

Plea-bargaining is state coercion, plain and simple. But at least this all occurs within the context of the criminal justice system and the supervision of the courts. Pre-prosecution programs specifically exist outside of the courts, avoiding the specific consequences of a court conviction while substituting a different kind of conviction and punishment that merely goes by another name.

Even if the consequences of a specific program were as non-punitive and, rather, educational as possible (like, say, attending some combination of community education in some relevant area, and some private counseling, and at public, not the individual's, expense) and so arguably not within the context of criminal justice, the mere fact that a failure to to abide by such an agreement (made with a prosecutor acting in their official capacity!) would necessarily involve actual criminal justice makes such a program de facto criminal justice.
posted by Ivan Fyodorovich at 8:23 PM on March 21, 2012 [5 favorites]


It's quite unusual to have a formal bargaining system for punishment.

No, it's the same in the US as elsewhere. The judge ultimately decides the sentence on a guilty plea. The prosecutor can recommend a sentence, but it is up to the judge's discretion for the final say.

Death penalty cases are different, because you can only be sentenced to death if the prosecutor pursues it. A judge can't sentence someone to death without prosecutor consent, which wouldn't happen in a plea.

I am familiar with a couple of cases where the judge didn't go with the prosecutor's recommendation on a plea, one ended up a shorter sentence, the other a larger penalty amount.
posted by jabberjaw at 8:56 PM on March 21, 2012


Hey, wait a sec--weren't we all supposed to be rejecting plea bargains anyway?
posted by MoonOrb at 9:08 PM on March 21, 2012


We elected Barack Obama in 2008 and got Kagan and Sotomayor instead of electing McCain and getting two ultra-conservative justices.

The likely retirement of Ginsburg and the possible retirement of Scalia are the only reason I'm voting Obama this year instead of my usual symbolic vote for the socialists.

It's the only reason you need either, fellow travellers.
posted by clarknova at 9:35 PM on March 21, 2012 [4 favorites]


Not addressing your point about American incarceration rates, but just to riff off on the Indian perspective. Thing is, despite the Union's occassional predilection for violent responses (responses that, I hasten to add, are often at odds with the non-violent ideology under which the country was established in the first place), India is, by any measure possible, a grossly under-policed country.
Oh, no doubt. India is way on the low end when it comes to incarceration. But the main point I'm making is that The U.S. has more prisoners then both India and China, not per capita, but in total. That's 2.509 bilion people, nearly ten times our population, with fewer total prisoners.
posted by delmoi at 9:51 PM on March 21, 2012


I'm curious what you mean by that. If you're talking about our political system's surrender of constitutional interpretation to the Court, then I'll agree with you.

As a non-American, what he meant by that was instantly obvious. The US is a country where your judges are classified, publicly and openly, as liberal or conservative, as Republican or Democrat. It's just fucked up that a public position that, by definition, is supposed to be impartial is blatantly partial, and the political game revolves around getting one of your guys on the bench until they fall off their perch.

I've never seen any commentary about whether the any of the Justices are any good, just how politically tied-up they are.
posted by Jimbob at 11:56 PM on March 21, 2012


Not all states allow judges to run advertising their political allegiances.
posted by Atreides at 6:53 PM on March 22, 2012


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