In two recent decisions, the United States Supreme Court moved further in the direction of at least limited constitutionalization of plea bargaining. A majority on the Court held that criminal defendants must be given "effective assistance" by their attorneys as they contemplate whether to waive important legal rights and enter guilty pleas. Fortunately for the Court, the defense attorneys in the two cases had almost comically failed to do their jobs and thus the majority could, as it acknowledged, avoid addressing in any very thorough way the parameters of effective assistance in the plea bargaining context. In spite of this, the Court struggled with identifying a remedy for defendants whose attorneys falter, a point made quite effectively by the dissenting justices. Given the fluidity of plea negotiations, it was difficult for the Court to say with any certainty what sentences the defendants would have received if not for the missteps of their attorneys. The Court assigned the task of discerning the remedy to the lower courts, a solution that, as Justice Scalia caustically noted, would require those courts to engage in considerable guesswork. Worse than this, the majority conceded that the lower courts might determine that no remedy whatsoever is necessary, though the defendants had not received effective assistance during their plea negotiations.
Richard L. Lippke,
Plea Bargaining in the Shadow of the Constitution,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol51/iss3/11