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.  

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Dorsey v. United States: So Long, Saving Statute?

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.

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The Public Frequently Disagrees With the Supreme Court

An article in Thursday’s New York Times by reporters Adam Liptak and Allison Kopicki examined the public response to the United States Supreme Court’s recent decision in the Affordable Health Care case. Based on public opinion polling shortly after the decision was handed down, only 46% of those surveyed agreed that the case had been correctly decided.

In a sidebar, the story also noted that public reactions of this nature were not unusual.

Using past public opinion polls to determine the immediate popular reaction to landmark Supreme Court decisions, the story reported that in 17 controversial cases decided between 1954 and 2011, majority support from the American public was the exception rather than the rule.

In only 4 of the cases did as many as 51% of respondents support the Supreme Court’s decision.

Two of the four cases were, perhaps surprisingly, the highly controversial opinions in Brown v. Board of Education (54%) and Roe v. Wade (52%). In both cases, a slight majority of Americans felt at the time that the cases were correctly decided.

The other two cases that evoked the support of the majority of Americans were Boy Scouts v. Dale (56%) (allowing the Boy Scouts to exclude homosexuals) and Clinton v. Jones (59%) (allowing Paula Jones to file a sexual harassment suit against the sitting president).

If we assume that the failure to agree with a decision represents a belief that the Constitution, properly interpreted, would have produced a different result, the polls suggest that the American people as a whole have instinctively embraced the following viewpoints:

(1) Race should never be a factor in assigning students to schools. (Brown v. Board of education and Parents Involved v. Seattle)

(2) Affirmative action, on the basis of either race or gender, is wrong. (Johnson v. Santa Clara and Grutter v. Bollinger)

(3) Women have a right to an abortion if they want one. (Roe v. Wade and Gonzales v. Carhart)

(4) It is okay for a private citizen or organization to discriminate against homosexuals, and gay sex acts can be treated as crimes. (Boy Scouts v. Dale and Lawrence v. Texas)

(5) Governmental security concerns trump the First Amendment. (New York Times v. U.S.)

(6) Foreign terrorists can claim no protection under the U.S. Constitution. (Boumediene v. Bush)

(7) The amount of money spent on political campaigns can be limited. (Buckley v. Valeo and Citizens United v FEC)

(8) Politically motivated U. S. flag burning should be a crime. (Texas v. Johnson)

(9) Prayer should be allowed in public schools. (Engle v. Vitale and Santa Fe v. Doe)

(10) The president can be sued for sexual harassment while in office. (Clinton v. Jones)

(11) No one really knows who should have won the 2000 presidential election. (Bush v. Gore)

Like it or not, this is popular constitutionalism.

Thanks to Scott Idleman for calling this article to my attention.

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