Effective Assistance of Counsel and the Consequences of Guilty Pleas
46 Pages Posted: 20 Sep 2004 Last revised: 28 Nov 2020
Because more than 90% of merits dispositions are convictions, and more than 90% of convictions result from guilty pleas, perhaps the most important service criminal defense lawyers perform is advising clients whether to plead guilty and on what terms. In spite of the importance of counsel, virtually all jurisdictions hold that while defense lawyers must advise clients of the direct consequences of a plea of guilty, such as the period of incarceration and the fine, they need not discuss collateral consequences, which, although they might follow by operation of law, are not part of the penalty imposed by the particular statute the defendant is accused of violating. Thus, counsel has no obligation to advise that prison sentences may be served consecutively rather than concurrently, even if that means that the client will serve 40 rather than 20 years. Counsel may advise clients to plead guilty to trivial offenses without mentioning that the client will then be deported. A lawyer need not even advise a client facing a capital charge that a guilty plea in an unrelated case will be treated as an aggravating circumstance in the capital trial; execution is a mere collateral consequence.
This paper argues that the rule is inconsistent with Strickland v. Washington, which held that a defendant could make out a claim of ineffective assistance of counsel by showing that their lawyer's conduct fell below a minimum standard of competence, and they were prejudiced thereby. In evaluating competence, the Court explained, judges should look at all relevant circumstances, and evidence of appropriate measures of professional behavior, such as the ABA Standards for Criminal Justice. The ABA Standards require defense lawyers to consider collateral consequences of conviction; other evidence of the norms of competent lawyering, such as legal treatises and practitioners' materials, also emphasize the importance of considering collateral consequences in evaluating risks and setting goals for criminal litigation.
The collateral consequences doctrine presents a puzzle: Why do virtually all jurisdictions apply a rule which seems to be contrary to the result apparently required under the Court's analytical structure? One answer is doctrinal. Very few cases actually apply the Strickland standards, evaluating as a matter of professional practice whether competent counsel consider collateral consequences. Instead, most courts simply rely on pre-Strickland cases recognizing a limited role for defense counsel. Because Strickland changed the test, these cases are inapposite. Moreover, guilty pleas are indispensable to the system, and the decision to plead guilty or go to trial is part of literally all criminal convictions. Accordingly, judges may hesitate to do anything to destabilize such an important procedure. However, existing Sixth Amendment doctrine would likely be sufficient to prevent a mass exodus from prisons if a broader duty were recognized.
JEL Classification: K14, K41
Suggested Citation: Suggested Citation