Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations
In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining. More specifically, in Lafler v. Cooper, the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant. Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.
To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time. In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years. Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.
In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976). The comparison is not meant as a compliment.
Henderson established that a defendant’s guilty plea is not constitutionally valid if the defendant does not understand what the critical elements are of the offense to which he is pleading. Henderson may be thought of as an indirect way of regulating the quality of defense representation in plea bargaining; if the defendant does not know the nature of the crime to which he is pleading, that seems a pretty good indication of crummy lawyering.
However, Henderson, like Lafler and Frye, had some extreme facts, and the Court proved quite reluctant to grant relief to defendants when the nature of the unfairness was less clearcut. Henderson was thus distinguished and limited in various ways, including through the adoption of a presumption that a represented defendant was properly informed by counsel of the key elements. For better or worse, the Court has not been willing to scrutinize lawyer performance with much rigor.
In Lafler and Frye, the Court preserved for itself and lower courts plenty of room for a Henderson replay. Through both the definition of the right and the formulation of the remedy, the decisions establish substantial hurdles for the two defendants (Cooper and Frye) to overcome before they will be able to obtain any meaningful relief, let alone other defendants with less compelling facts.
Perhaps the biggest surprise about Scalia’s dissent is that he bothered to protest at all.
For defendants, the most helpful development in Lafler and Frye may not have anything to do with Sixth Amendment rights, but with habeas corpus. More about that at the end of this post.
First, let’s take a closer look at how limited the reach of the Sixth Amendment holdings are. The Court used the basic two-part analysis for ineffective assistance claims that was developed in Strickland v. Washington.
In the first step, a court must determine whether the lawyer’s performance was unreasonably poor. In Lafler, the case of the lawyer who mistakenly advised his client to go to trial, the state conceded that the performance prong of Strickland was satisfied. Beyond accepting this concession for purposes of its decision, the Supreme Court said almost nothing about what standards must be satisfied when a lawyer advises her client to turn down a plea deal, creating ample opportunity for lower courts to distinguish Lafler in the more common scenario of no concession by the state.
Frye devoted considerably more attention to the performance prong. Here, the Court dealt with a missed deadline, resulting in the loss of a plea offer that promised a much more favorable outcome than the defendant actually received. Frye claimed, and no one seemed to doubt, that he would have accepted the offer had it been communicated to him by his lawyer. In response, the Court provided what it did not in Lafler, that is, a clear holding that the lawyer’s performance fell below the Strickland standard. Indeed, the Court adopted a rule of sorts to govern such situations in the future:
This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires. (9)
Leaving aside the potential loopholes for offers that are not “formal” or that lack a “fixed expiration date,” this rule was an easy one for the Court to adopt. As the Court noted, the American Bar Association has long recommended that defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and the standard has already been adopted by many lower courts and state bar associations.
But what about attorney plea-bargaining errors that are not covered by such clear, widely accepted practice norms? The Frye Court signaled that it has little interest in prescribing specific constitutional standards outside the uncommunicated-offer setting:
“The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. Cf. ibid. (8)
This language is quite reminiscent of similar language that the Court has often used in turning aside Strickland claims based on counsel’s performance in the courtroom. The attitude that “it is all so nuanced and case-specific that we can’t possibly formulate rules for it” seems, in practice, to collapse into anything goes for defense counsel. The general experience with Strickland has been that if defense counsel can with any scrap of plausibility label an action (or a non-action) as “tactical,” the courts will approve it. Based on Frye and Lafler, there’s no reason to think that counsel’s plea-bargaining performance will be subject to any more rigorous review.
Under Strickland’s second prong, the defendant must demonstrate prejudice, that is, a reasonable probability of a different outcome if counsel’s performance had not been so poor. This prong received a bit more attention than the first in Lafler. Here’s how the Court articulated the test:
In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. (5)
The Lafler Court found this test satisfied without much detailed analysis.
Prejudice presented a much more difficult problem for the defendant in Frye. His position was more complicated because he was arrested for a new offense only two days after his plea offer lapsed. Thus, even if he had accepted the offer, there was still a good possibility that the prosecution would have withdrawn the offer or that the judge would have declined to approve the plea deal. Either eventuality would have eliminated any prejudice from counsel’s poor performance:
[A] defendant in Frye’s position must show not only a reasonable probability that he would have accepted the lapsed plea but also a reasonable probability that the prosecution would have adhered to the agreement and that it would have been accepted by the trial court. Frye can show he would have accepted the offer, but there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final. (13-14)
This “strong reason” prompted the Court to remand to the state court in order to make the prejudice determination.
Although Frye’s new arrest so soon after the expiration of the plea offer may be an unusual circumstance, the Court’s discussion highlights what may prove to be an important obstacle to relief for many defendants: the need to establish a reasonable probability that a lost plea deal would have been approved by the judge and would have resulted in a better outcome for the defendant. Having already determined what is believed to be a just sentence for the defendant, a trial judge is not likely to want to give the defendant the benefit of a plea deal that promised a lesser sentence. Incentives seem strong for judges to say that they would not have approved the deal or gone along with a recommended sentence (if that was a kay component of the deal). Defendants may be hard-pressed to counter such assertions persuasively.
Lafler and Frye thus suggest that few defendants may be able to establish a Sixth Amendment violation based on counsel’s plea-bargaining performance. But, perhaps even more significantly, the Court’s treatment of remedy in Lafler indicates that even defendants whose rights were violated cannot count on any meaningful redress.
Here’s what the Court said:
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judgecan then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. (12-13, citations omitted, emphasis added)
What comes through loud and clear is the principle of discretion – the trial judge gets to decide what remedy to provide if any at all.
At one level, this seem a sensible solution to what otherwise would be an awkward problem for trial judges: in some cases, the plea deal that the defendant has lost was far too lenient, and subsequent events may serve to make that quite clear (e.g., if the case goes to trial, important aggravating information may emerge from witness testimony); it would seem unfortunate in these circumstances to force the trial judge to give the defendant the benefit of a deal that obviously disserves the public. Lafler gives trial judges the flexibility to avoid such outcomes. (And, lest one think that the Lafler‘s remedy discussion was limited to cases that went to trial after an offer was declined, Frye seemed to incorporate by reference Lafler‘s treatment of remedy. Slip. Op. at 1 (“Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today.”).)
Yet, in giving such broad discretion to trial judges to determine the remedy — an aspect of the majority opinion of which Justice Scalia was quite rightly critical – Lafler may go too far. If trial judges really are invested in the sentences they hand down — and they really ought to be so invested if they are putting an appropriate level of effort into the enterprise — one imagines that they will be quite resistant to providing any more than a token remedy in most cases.
In elaborating on the discretionary nature of the remedy decision, the Court made two further pronouncements that seem to underscore the scope of the trial judge’s freedom to keep his or her initial sentencing decision in place. First, the Court said, the trial judge “may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.” (13) For many judges, acceptance of responsibility is a major factor in determining a sentence. If a judge was unimpressed with a defendant’s acceptance of responsibility the first time around — and this is probably the usual situation with a defendant who has gone to trial — that fact may apparently justify the denial of a remedy. Second, the Court added,
it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer . . . . (13)
This statement seems to open the door for the judge to take into account any adverse information — and there is probably almost always something adverse — that came to light after the botched plea-negotiation process, including information from the trial (if there was one) or sentencing proceeding. A judge may thus refuse to give the defendant the benefit of a favorable deal on the basis of information that the judge would not have had in deciding whether to approve the deal in the first instance.
There are other ways that the Court could have dealt with the remedy question that would have given the underlying right more teeth without permitting the most egregious windfalls. For instance, the Court might have established a rebuttable presumption in favor of the most natural remedy — that is, giving the defendant the full benefit of the deal that would have been his had his lawyer met minimal standards of competence — subject to modification to the extent that the state could show a strong public interest against the deal based on later-obtained information.
But enough on Sixth Amendment law. As noted above, the most interesting and surprising aspect of Lafler may have been its treatment of habeas corpus law, specifically, 28 U.S.C. §2254(d)(1). This provision, which strictly limits the possibility of habeas relief in cases in which the state court has rejected a defendant’s habeas claim on the merits, has figured prominently in a recent series of Supreme Court decisions. One, Harrington v. Richter, seemed almost to exclude categorically Strickland claims from the realm of federal habeas.
It is surprising, then, to see what happened in Lafler: the Court largely (subject to the remedy question) affirmed a habeas grant by the Sixth Circuit on a Strickland claim. In so doing, the Court seemed to create a loophole in its Harrington rule. Nancy King has explained this aspect of Lafler very effectively in the Yale Law Journal Online, so I’ll just quote her at length:
[T]he Court managed to avoid what would have been a difficult hurdle for the petitioner to clear in seeking relief under § 2254(d)(1), the provision of the habeas statute that conditions relief upon a showing that the state decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The state court’s vague wording allowed the Court to characterize the state decision as “contrary to” Strickland and to bypass the issue of whether it was an “unreasonable application” of Strickland.
The Court’s opinion in Lafler turned on the following two paragraphs of the state court decision:
“To establish ineffective assistance, the defendant must demonstrate that his counsel’s performance fell below an objective standard of reasonableness and that counsel’s representation so prejudiced the defendant that he was deprived of a fair trial. With respect to the prejudice aspect of the test, the defendant must demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different, and that the attendant proceedings were fundamentally unfair and unreliable.
“Defendant challenges the trial court’s finding . . . that defense counsel provided effective assistance to defendant during the plea bargaining process. He contends that defense counsel failed to convey the benefits of the plea offer to him and ignored his desire to plead guilty, and that these failures led him to reject a plea offer that he now wishes to accept. However, the record shows that defendant knowingly and intelligently rejected two plea offers and chose to go to trial. The record fails to support defendant’s contentions that defense counsel’s representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea bargain for defendant.”
The five Justices in the Lafler majority concluded that this decision was “contrary to” Strickland, because in their view it failed entirely to apply the case: “Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel.” The state court, in the majority’s view, “applie[d] a rule that contradicts the governing law set forth in [Supreme Court] cases.”
By contrast, the four dissenting Justices read the second paragraph of the state court’s analysis as that court’s application of the Strickland standard. The state court’s statement that “defendant knowingly and intelligently rejected two plea offers and chose to go to trial,” the dissenters explained, “can be regarded as a denial that there was anything ‘fundamentally unfair’ about Cooper’s conviction and sentence, so that no Strickland prejudice had been shown.” Because it referenced and applied the correct test, they reasoned, the decision was not contrary to established federal law. Furthermore, this opinion was not an “unreasonable application of clearly established law,” the dissenters argued, “since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice.”
Had the state court used language more easily read as rejecting Cooper’s claim under Strickland’s prejudice standard, the majority would not have had the option of characterizing the state decision as “contrary to” Strickland. Instead, the Court would have had to explain why the state decision was an unreasonable application of Strickland. And under that standard, Cooper would have lost. It would have been reasonable, before Lafler, for a state court to decide that it was not “prejudice” under Strickland to end up with a fair trial and legal sentence after missing out on a more favorable plea deal because of counsel’s incompetence. No decision of the Supreme Court had held that the Sixth Amendment protected defendants from losing plea deals, as opposed to fair trials, sentencing proceedings, or appeals, and several of the Court’s decisions had pointed in the other direction.
. . . .
Indeed, a petitioner who had challenged a state court decision that said virtually nothing except “denied,” after a bare citation of the correct Supreme Court precedent, would have had a much more difficult time than Cooper did convincing a federal court that the decision was “contrary to” established federal law, and would instead have had to meet Richter’s exacting “unreasonable application” standard. As the Court explained in Richter, “Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” . . .
On its face, Lafler’s “contrary to” analysis leaves the daunting “unreasonable application” standard of Richter in place—both decisions were authored by Justice Kennedy, and the Court carefully avoided discussion of the “unreasonable application” standard. But the decision in Lafler appears to have loosened the “contrary to” standard a notch for future cases, encouraging petitioners to argue that the state court never applied the correct federal precedent (even when that precedent is cited or described), instead of arguing than that the court’s application of federal law was unreasonable. The combination of Lafler and Richter also suggests that when reviewing state court criminal opinions, “less is more”—a summary state denial will not be disturbed unless all possible (hypothetical) applications would have been unreasonable, while a merits decision accompanied by an ambiguously phrased rationale that could be construed as failing to apply the correct rule is vulnerable to attack.
Cross posted at Life Sentences.
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