Plea Bargaining: Law After Lafler and Frye

In dissenting opinions in Lafler v. Cooper and Missouri v. Frye – two recent cases dealing with the application of the Sixth Amendment right to counsel to the plea bargaining process – Justice Scalia warned of the coming creation of a whole new field of constitutional criminal procedure: plea bargaining law. This symposium contribution assesses that prediction. It concludes that the Lafler and Frye cases do lay the groundwork for important, albeit incremental, expansion of constitutional protections to criminal defendants in the guilty plea process. In particular, it urges the extension of prosecutorial disclosure obligations to the guilty plea stage and increased restrictions on coercive bargaining practices by prosecutors seeking to induce defendants to plead guilty.