The Plea Bargaining Blog

On Wednesday, March 28, 2012, I testified before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.  A portion of my testimony regarding plea bargaining is below.  In closing, I would like to address one additional issue. While creating additional overlapping federal criminal statutes and significantly increasing the statutory maximum penalties for offenses related to prescription drug offenses may not result in greater deterrence of potential offenders or significantly increase sentences for those convicted, such legislation will perpetuate the phenomenon of overcriminalization and with it the continued deterioration of our constitutionally protected right to trial by jury. Today, almost 97% of criminal cases in the federal system are resolved through a plea of guilty. As the number, breadth, and sentencing severity of federal criminal statutes continue to increase through overcriminalization, prosecutors gain increased ability to cr...

As detailed by the SCOTUSblog , the Supreme Court recently handed down two important decisions regarding plea bargaining in the cases of Missouri v. Frye and Lafler v. Cooper . In Missouri v. Frye and Lafler v. Cooper , the Court held that criminal defendants have a Sixth Amendment right to effective assistance of counsel during plea negotiations, including when they miss out on, or reject, plea bargains because of bad legal advice. Writing for a five-four majority in each case, Justice Anthony M. Kennedy reasoned that the right to counsel extends to the plea-bargaining process because of the “simple reality” that plea bargaining is so pervasive in our system such that the negotiation of a plea “is almost always the critical point for a defendant.” Justice Antonin Scalia, who pointedly read a summary of his dissenting opinions in both cases from the bench, called the decisions “inconsistent with the Sixth Amendment and decades of our precedent.” The four dissenting Justices also c...