Fairness in pleas

Fairness in the justice system demands good counsel in plea bargains, as the Supreme Court says.

March 23, 2012 

One lawyer failed to tell his client charged with driving without a license that a prosecutor had offered a plea bargain of a 90-day jail sentence. The defendant pleaded guilty without a plea deal and got three years in prison.

In another case, a lawyer botched his explanation of the law to a man who had shot a woman four times below her waist. The lawyer told him he couldn’t be charged with assault with intent to murder. So the defendant turned down a plea deal of four to seven years in prison. He was convicted, and is serving 15 to 30 years.

On Wednesday, the U.S. Supreme Court, in a decision written by Justice Anthony Kennedy based on those cases, ruled in a 5-4 decision that there is a constitutional right to competent lawyers representing clients in plea negotiations. It is a wise ruling, as over 90 percent of convictions in federal and state courts are the result of plea bargains. Unfortunately, the criminal justice system is so overwhelmed these days that absent plea bargains, courts would be stacked up and bogged down to the point of complete ineffectiveness.

But the plea bargain system can be seriously skewed, and little more than an arm of prosecutors’ offices, if defendants are in the hands of incompetent lawyers who don’t keep them fully informed of plea offers and the consequences, or are perhaps so swamped with cases they can’t keep plea deals straight from one client to the next.

A defendant who has one of those lawyers might go to jail when the prosecutor had made an offer that would have kept him out of it. He might get a stiffer sentence than someone charged with an identical crime who had an attorney with his headlights on.

That is as unfair as a defendant who goes to trial with an obviously inept lawyer and later files an appeal proving that because of that disadvantage, his constitutional rights were violated. The legal protections for defendants are not to ensure that more of them go free; they exist to ensure that the justice system that is a cornerstone of this democracy is fair.

Yes, the predictable dissenter, Justice Antonin Scalia, may be right in saying that this ruling will spur lengthy appeals. He seems close to arguing that this is bad ruling because it will make things inconvenient.

If that happens for a while, so be it. The long-term credibility of the courts is at stake.

Do we really want a system that would be more favorable to wealthier and connected defendants than it already is? Yet that would be the case if the poor defendant with a grab-bag lawyer goes to jail and then sees that a more affluent defendant walks away because of a plea deal negotiated by a shrewd lawyer. That happens every day in every state, every county.

That isn’t ... well, American. People who do crimes should pay the price. People who are innocent should go free. But the outcomes of trials and of more common plea bargain negotiations must be, most importantly, fair.

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