The Supreme Court cited an amicus brief filed by the Center on the Administration of Criminal Law (CACL), and a law review article written by its faculty director, Rachel Barkow, in a landmark ruling on March 21. In a pair of 5-to-4 decisions, the court held that defendants have a constitutional right to effective counsel when considering whether to turn down a plea bargain. In previous cases the court has said that competent legal advice is required during trial, and when a defendant is giving up a right to trial by accepting a guilty plea. In the New York Times Adam Liptak wrote that the new decisions, in Missouri v. Frye and Lafler v. Cooper, “mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.”
Key to the court’s reasoning was a recognition that the criminal justice system revolves around pleas, not trials. In his opinion for the majority, Justice Anthony Kennedy quoted from a 2006 Stanford Law Review article by Barkow that stated, “[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.” He cited a portion of the CACL brief explaining how courts can document that defendants receive competent plea advice – a way to avoid a flood of subsequent claims that this advice was inadequate.
“It is incredibly gratifying to have played a part in these landmark rulings and to see how research contained in the Center's brief influenced the majority's opinion,” said Barkow, who is the Segal Family Professor of Regulatory Law and Policy. “NYU students Jason Richman '11 and Sarah Morduchowitz '08 helped us research the issues, and we received top-notch pro bono representation from Latham & Watkins in writing a brief that made clear to the court the importance of plea bargaining in the real world of criminal justice, that explained why policing ineffective assistance of counsel in that context is critical, and that offered guidance on how a remedy for violations could be crafted based on what we know from jurisdictions already addressing the problem."
Posted March 22, 2012