Taming Negotiated Justice

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar. Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed some plea-bargaining law. Justice Scalia’s objections might have carried more force half a century ago, before the Court itself blessed plea bargaining as a speedy, efficient way to clear congested dockets. But, having made jury trials too slow and intricate to function in all cases, the Court has long since given up on preserving trials as the norm. In a world where nineteen out of every twenty adjudicated criminal cases ends in a guilty plea, plea-bargaining law is hardly a “boutique” corner of criminal procedure; it should be central. Since even Justice Scalia countenances plea bargaining as a “necessary evil,” it behooves us to regulate that evil. For the Sixth Amendment to remain meaningful in the real world of guilty pleas, the Court must translate its guarantee of assistance of counsel to apply to plea bargains and the sentences set by those bargains.