Lafler, Frye, and the Subtle Art of Winning by Losing
Federal Sentencing Reporter, Vol. 25, No. 2, pp. 126-130, 2012
Virginia Public Law and Legal Theory Research Paper No. 2013-18
7 Pages Posted: 9 May 2013 Last revised: 18 Sep 2013
Date Written: December 1, 2012
In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.
Keywords: Plea-bargaining, guilty pleas, ineffective assistance of counsel, right to counsel, Gideon v. Wainwright, Lafler v. Cooper, Missouri v. Frye, defense counsel, defense attorneys, prosecutors
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