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U.S. Supreme Court Expands Defendants' Plea Bargain Rights

April 16, 2012, by The McKellar Law Firm, PLLC

Two cases argued before the U.S. Supreme Court have now allowed defendants to get a second chance at accepting a plea offer if their attorney either acts unethically or gives wrong advice to the defendant.


In State v. Frye, the defendant was charged with a felony for driving with a revoked license. While the prosecutor offered to reduce the charge to a misdemeanor if Frye pled guilty and agreed to serve for ninety days, Frye's defense attorney neglected to inform Frye of the offer. Frye was instead sentenced to three years in prison after pleading guilty to the charges.

In the second case, Lafler v. Cooper, the defendant was charged with assault with intent to murder after shooting a female in the thigh and buttocks. The prosecutor offered a plea deal twice to have the defendant serve a recommended prison sentence of four to seven years. But the defendant's attorney told the defendant to not accept the plea due to the attorney's belief that, under Michigan law, a defendant could not be convicted of attempted murder for wounds below the waist. Once the case went to trial, the defendant was sentenced to fifteen to thirty years in prison.

While the state in both cases argued that defendants do not have a constitutional right to a plea bargain-and therefore no constitutional right to assistance of counsel during a plea bargain- the Supreme Court disagreed. Under a 5-4 majority vote, Justice Kennedy opined that the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the "central role plea bargaining plays." Because plea bargaining is used in 95% of cases to determine "who goes to jail and for how long[,] [i]t is not an adjunct to the criminal justice system. It is the criminal justice system." When a defense attorney provides ineffective assistance of counsel during plea negotiations, the Supreme Court held that if a defendant can show that they would have accepted the original plea offer, the prosecutor would not have withdrawn the offer, and that the judge would have approved the offer, the defendant can get a second chance to accept the original plea offer.

Justice Scalia, in his dissenting opinion, believed that the decision did away with the idea that plea bargaining was "a necessary evil" to prevent the system from "grinding to a halt" if a majority of cases went to trial. Justice Scalia went on further by stating that this decision emphasized the idea that plea bargaining was like gambling at a casino. According to him, the decision "embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house─that is to serve less time than the law says he deserves." An article discussing the potential ramifications of the above decision can be found here at