Lafler, Frye, and the Subtle Art of Winning by Losing

7 Pages Posted: 9 May 2013 Last revised: 18 Sep 2013

Josh Bowers

University of Virginia School of Law

Date Written: December 1, 2012

Abstract

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

Suggested Citation

Bowers, Josh, Lafler, Frye, and the Subtle Art of Winning by Losing (December 1, 2012). Federal Sentencing Reporter, Vol. 25, No. 2, pp. 126-130, 2012; Virginia Public Law and Legal Theory Research Paper No. 2013-18. Available at SSRN: https://ssrn.com/abstract=2262488

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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