The United States Supreme Court ruled Wednesday in a pair of cases that the right to effective legal representation extends to discussions of plea bargains. The decision may be one of the most significant rulings in criminal law in decades.
The ruling is bound to cause some disruption and more than a little scrambling in similar cases to find practicable remedies that follow the courts decision. At the same though, it represents a simple recognition of reality. As Justice Anthony M. Kennedy wrote for the majority, Criminal justice today is for the most part a system of pleas, not a system of trials.
The two cases involved one guy who was apparently a chronic traffic offender and another who shot a woman four times. What they had in common was unconscionably bad legal representation.
In the first case, the defendant pleaded guilty and was sentenced to three years in prison after his lawyer neglected to tell him of an offered plea agreement that could have seen him serve as little as 10 days. In the second, the defendant went to trial after turning down a offer of no more than 85 months in exchange for a guilty plea. His lawyer had alledgedly told him he could not be found guilty of attempted murder because all the shots struck the woman below the waist. The lawyer was wrong and the man was sentenced to 15 to 30 years.
At the heart of this is the Sixth Amendment right to counsel. Americans have come to know the warning that must be issued before a suspect can be interrogated: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.
That now-familiar phrasing stems from the Supreme Courts 1966 Miranda decision that required such a reminder, another 5-4 ruling. That the right to counsel includes a court-provided lawyer for those who cannot afford their own dates to a unanimous 1963 Supreme Court ruling Gideon vs. Wainwright. It is to Gideon that the significance of Wednesdays ruling has been compared.
Perhaps the comparison is apt. As Justice Kennedy wrote, In todays criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
Kennedy cited statistics showing that more than 90 percent of all criminal cases end, not in a trial but in a plea bargain. As such, the justice wrote, The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.
Plea bargains are not popular. Critics envision lazy prosecutors letting bad guys off easy. But they are also necessary.
While defendants may see a chance at a lighter sentence, putting harsh sentences on the books can also be a way to encourage plea bargains. And judges know the courts would be overloaded to the point of collapse without such deals. Plea bargains allow prosecutors both a more manageable workload and a sure conviction.
In dissent, Justice Antonin Scalia wrote, with his usual flair, that the court, elevates plea bargaining from a necessary evil to a constitutional entitlement.
Scalia may not like it, but as the court recognized plea bargains have become an integral part of criminal justice. And with that the Sixth Amendment has to apply.