Plea bargaining has evolved into the most prominent way criminal justice is administered in the United States today, even though it is met with general disdain in legal academic circles. Recently, the issue of the right to effective assistance of counsel during the plea-bargaining process was raised twice before the Supreme Court of the United States, bringing the process to the forefront of national attention. In Lafler v. Cooper, the Supreme Court determined that the petitioner was prejudiced by his counsel’s deficient performance in advising him to reject a plea offer and go to trial, in violation of his Sixth Amendment right to effective assistance of counsel. He was therefore entitled to be reoffered the plea deal by the state and to have the state court determine whether sentencing should be reconsidered.
In Missouri v. Frye, the Supreme Court also found ineffective assistance of counsel based upon defense counsel’s failure to report a formal plea offer to his client. In response to the holdings in these two cases, Supreme Court Justice Antonin Scalia stated in his fiery dissent:
With those words from this and the companion case, the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice.
With these two cases, the Supreme Court has reaffirmed the legitimacy of plea bargaining and cemented its place as the most important means by which criminal convictions are administered in this country. Plea bargaining can no longer be ignored as an undesirable but necessary byproduct of our criminal justice system. It includes procedural and substantive rights that will be recognized and protected by the United States Supreme Court. Lafler and Frye demonstrate that it is essential to develop an effective but cost-effective system by which to manage and provide oversight for the plea-bargaining process.
Plea bargaining involves a great deal of prosecutorial discretion. In fact, American University law professor Angela J. Davis stated that “[u]nchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more.” The prosecutor is normally able to choose the charge and recommend a sentence. This large amount of power places the prosecutor in the position of making unilateral decisions that will directly affect a criminal defendant and will ultimately direct the likely result of any future plea bargain. In light of this immense power vested in a single individual, it becomes necessary to consider the implications of this pervasive and immensely powerful system and how to monitor and control it. But plea bargaining cannot be controlled through a purely adversarial model. Instead, this Note suggests that we should look to the plea-bargaining process through the lens of an administrative model.
With the rise of plea bargaining, criminal justice has evolved from a purely adversarial system of trials and litigated justice in which the decisions are made by judge or jury to a system of administrative justice where the prosecutor makes the most important decisions in charging and plea bargaining. Because of the overloaded, criminal dockets across the country stemming from overcriminalization, the traditional adversarial process of trials protected by rules of evidence and zealous advocacy on both sides has given way as the criminal justice system has tried to find ways to deal with complex criminal matters as quickly and efficiently as possible. With this focus, it becomes easy for the wheels of justice to move too quickly and mistakes to be made. Heavy caseload burdens lie on both the prosecutor and defense attorney alike, as the sheer volume of criminal proceedings and overloaded criminal dockets lead attorneys who do not have the necessary time to properly consider each case to make hasty decisions. This is in part because very few of the protections one would find in a traditional adversarial trial are found in the plea-bargaining process, except for the right to effective assistance of counsel discussed above. If the criminal justice system and plea bargaining is viewed as an administrative system of justice, then it becomes necessary to put in place administrative-style safeguards.