566 U.S. 156 | SCOTUS | 2012
Lead Opinion
delivered the opinion of the Court.
In this case, as in Missouri v. Frye, ante, p. 134, also decided today, a criminal defendant seeks a remedy when inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome. In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the client but, on advice of counsel, was rejected. In Frye, there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.
I
On the evening of March 25, 2003, respondent pointed a gun toward Kali Mundy’s head and fired. From the record, it is unclear why respondent did this, and at trial it was sug-
Respondent was charged under Michigan law with assault • with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions, the prosecution offered to dismiss some of the charges and to recommend a sentence of 51 to 85 months for the remaining charges, in exchange for a guilty plea. In a communication with the court respondent admitted guilt and expressed a willingness to accept the offer. Respondent, however, later rejected the offer on both occasions, allegedly after his attorney convinced him that the prosecution would be unable to establish his intent to murder Mundy because she had been shot below the waist. On the first day of trial the prosecution offered a significantly less favorable plea deal, which respondent again rejected. After trial, respondent was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months’ imprisonment.
In a so-called Ginther hearing before the state trial court, see People v. Ginther, 390 Mich. 436, 212 N. W. 2d 922 (1973), respondent argued his attorney’s advice to reject the plea constituted ineffective assistance. The trial judge rejected the claim, and the Michigan Court of Appeals affirmed. People v. Cooper, No. 250583 (Mar. 15, 2005) (per curiam), App. to Pet. for Cert. 44a, 2005 WL 599740. The Michigan Court of Appeals rejected the claim of ineffective assistance of counsel on the ground that respondent knowingly and intelligently rejected two plea offers and chose to go to trial. The Michigan Supreme Court denied respondent’s application for leave to file an appeal. People v. Cooper, 474 Mich. 905, 705 N. W. 2d 118 (2005) (table).
The United States Court of Appeals for the Sixth Circuit affirmed, 376 Fed. Appx. 563 (2010), finding “[e]ven full deference under AEDPA cannot salvage the state court’s decision,” id., at 569. Applying Strickland, the Court of Appeals found that respondent’s attorney had provided deficient performance by informing respondent of “an incorrect legal rule,” 376 Fed. Appx., at 570-571, and that respondent suffered prejudice because he “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him,” id., at 573. This Court granted certiorari. 562 U. S. 1127 (2011).
II
A
Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Frye, ante, at 144; see also Padilla v. Kentucky, 559 U. S. 356, 364 (2010); Hill, supra, at 57. During plea negotiations defendants are “entitled to the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771 (1970). In Hill, the Court held “the two-part Strickland v. Washing
The question for this Court is how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.
B
To establish Strickland prejudice a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. See Frye, ante, at 148 (noting that Strickland’s inquiry, as applied to advice with respect to plea bargains, turns on “whether The result of the proceeding would have been different’ ” (quoting Strickland, supra, at 694)); see also Hill, 474 U. S., at 59 (“The ... ‘prejudice ... ’ requirement... focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”). In Hill, when evaluating the petitioner’s claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Ibid.
In contrast to Hill, here the ineffective advice led not to an offer’s acceptance but to its rejection. Having to stand
Petitioner and the Solicitor General propose a different, far more narrow, view of the Sixth Amendment. They contend there can be no finding of Strickland prejudice arising 'from plea bargaining if the defendant is later convicted at a fair trial. The three reasons petitioner and the Solicitor General offer for their approach are unpersuasive.
First, petitioner and the Solicitor 'General claim that the sole purpose of the Sixth Amendment is to protect the. right to a fair trial. Errors before trial, they argue, are not cognizable under the Sixth Amendment unless they affect the fair
The Court, moreover, has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue. Thus, in Vasquez v. Hillery, 474 U. S. 254 (1986), the deliberate exclusion of all African-Americans from a grand jury was prejudicial because a de
In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.
Second, petitioner claims this Court refined Strickland’s prejudice analysis in Lockhart v. Fretwell, 506 U. S. 364 (1993), to add an additional requirement that the defendant show that ineffective assistance of counsel led to his being denied a substantive or procedural right. Brief for Petitioner 12-13. The Court has rejected the argument that Fretwell modified Strickland before and does so again now. See Williams v. Taylor, 529 U. S. 362, 391 (2000) (“The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993), modified or in some way supplanted the rule set down in Strickland”)-, see also Glover, supra, at 203 (“The Court explained last Term
Fretwell could not show Strickland prejudice resulting from his attorney’s failure to object to the use of a sentencing factor the Eighth Circuit had erroneously (and temporarily) found to be impermissible. Fretwell, 506 U. S., at 373. Because the objection upon which his ineffective-assistance-of-counsel claim was premised was meritless, Fretwell could not demonstrate an error entitling him to relief. The case presented the “unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry.” Ibid. (O’Connor, J., concurring). See also ibid, (recognizing “[t]he determinative question — whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different — remains unchanged” (internal quotation marks and citation omitted)). It is for this same reason a defendant cannot show prejudice based on counsel’s refusal to present perjured testimony, even if such testimony might have affected the outcome of the case. See Nix v. Whiteside, 475 U. S. 157, 175 (1986) (holding first that counsel’s refusal to present peijured testimony breached no professional duty and second that it cannot establish prejudice under Strickland).
Both Fretwell and Nix are instructive in that they demonstrate “there are also situations in which it would be unjust to characterize the likelihood of a different outcome as legitimate ‘prejudice,’” Williams, supra, at 391-392, because defendants would receive a windfall as a result of the application of an incorrect legal principle or a defense strategy outside the law. Here, however, the injured client seeks relief from counsel’s failure to meet a valid legal standard, not from counsel’s refusal to violate it. He maintains that, absent ineffective counsel, he would have accepted a plea offer for a sentence the prosecution evidently deemed consistent with the sound administration of criminal justice. The fa
It is, of course, true that defendants have “no right to be offered a plea . . . nor a federal right that the judge accept it.” Frye, ante, at 148. In the circumstances here, that is beside the point. If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise. Much the same reasoning guides cases that find criminal defendants have a right to effective assistance of counsel in direct appeals even though the Constitution does not require States to provide a system of appellate review at all. See Evitts, 469 U. S. 387; see also Douglas v. California, 372 U. S. 353 (1963). As in those cases, “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.” Evitts, supra, at 401.
Third, petitioner seeks to preserve the conviction obtained by the State by arguing that the purpose of the Sixth Amendment is to ensure “the reliability of [a] conviction following trial.” Brief for Petitioner 13. This argument, too, fails to comprehend the full scope of the Sixth Amendment’s protections; and it is refuted by precedent. Strickland rec
There are instances, furthermore, where a reliable trial does not foreclose relief when counsel has failed to assert rights that may have altered the outcome. In Kimmelman v. Morrison, 477 U. S. 365 (1986), the Court held that an attorney’s failure to timely move to suppress evidence during trial could be grounds for federal habeas relief. The Court rejected the suggestion that the “failure to make a timely request for the exclusion of illegally seized evidence” could not be the basis for a Sixth Amendment violation because the evidence “is ‘typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.’” Id., at 379 (quoting Stone v. Powell, 428 U. S. 465, 490 (1976)). “The constitutional rights of criminal defendants,” the Court observed, “are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.” 477 U. S., at 380. The same logic applies here. The fact that respondent is guilty does not meán he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney’s deficient performance during plea bargaining.
In the end, petitioner’s three arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That
C
Even if a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence; there is the question of what constitutes an appropriate remedy. That question must now be addressed.
Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution, see Mechanik, 475 U. S., at 72 (“The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences”).
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a
In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e. g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9-2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.
In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, however, it suffices to note two considerations that are of relevance.
First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here
Petitioner argues that implementing a remedy here will open the floodgátes to litigation by defendants seeking to unsettle their convictions. See Brief for Petitioner 20. Petitioner’s concern is misplaced. Courts have recognized claims of this sort for over 30 years, see supra, at 164, and yet there is no indication that the system is overwhelmed by these types of suits or that deferidants are receiving windfalls as a result of strategically timed Strickland claims. See also Padilla, 559 U. S., at 371 (“We confronted a similar ‘floodgates’ concern in Hill,” but a “flood did not follow in that decision’s wake”). In addition, the “prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction.” Frye, ante, at 146. See also ante, at 146-147 (listing procedures currently used by various States). This, too, will help ensure against meritless claims.
H-1 H-1
The standards for ineffective assistance of counsel when a defendant rejects a plea offer and goes to trial must now be applied to this case. Respondent brings a federal collateral challenge to a state-court conviction. Under AEDPA, a federal court may not grant a petition for a writ of habeas corpus unless the state court’s adjudication on the merits was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Su
The state court’s decision may not be quite so opaque as the Court of Appeals for the Sixth Circuit thought, yet the federal court was correct to note that AEDPA does not present a bar to granting respondent relief. That is because the Michigan Court of Appeals identified respondent’s ineffective-assistance-of-counsel claim but failed to apply Strickland to assess it. Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. 2005 ,WL 599740, *1, App. to Pet. for Cert. 45a. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel. See Hill, 474 U. S., at 57 (applying Strickland to assess a claim of ineffective assistance of counsel arising out of the plea negotiation process). After stating the incorrect standard, moreover, the state court then made an irrelevant observation about counsel’s performance at trial and mischaracterized respondent’s claim as a complaint that his attorney did not obtain a more favorable plea bargain. By failing to apply Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state court’s adjudication was contrary to clearly established federal law. And in that circumstance the federal courts in this habeas action can determine the principles necessary to grant relief. See Panetti v. Quarterman, 551 U. S. 930, 948 (2007).
As to prejudice, respondent has shown that but for counsel’s deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. See 376 Fed. Appx., at 571-572. In addition, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The standard for ineffective assistance under Strickland has thus been satisfied.
As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resen-tence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions ánd sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) ("If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”). Today’s decision
The judgment of the Court of Appeals for the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Dissenting Opinion
with whom Justice Thomas joins, and with whom The Chief Justice joins as to all but Part IV, dissenting.
“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. ” Ante, at 168.
“The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question.... Bargaining is, by its nature, defined to a substantial degree by personal style.... This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects . . . .” Missouri v. Frye, ante, at 144-145.
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. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965). The Court now moves to bring perfection to the alternative in which prosecutors and defendants have sought relief. Today’s opinions deal with only two aspects of counsel’s plea-bargaining inadequacy, and leave
Anthony Cooper received a Ml and fair trial, was found guilty of all charges by a unanimous jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent advice regarding a plea offer caused him to receive a full and fair trial. That conclusion is foreclosed by our precedents. Even if it were not foreclosed, the constitutional right to effective plea bargainers that it establishes is at least a new rule of law, which does not undermine the Michigan Court of Appeals’ decision and therefore cannot serve as the basis for habeas relief. And the remedy the Court announces — namely, whatever the state trial court in its discretion prescribes, down to and including no remedy at all — is unheard of and quite absurd for violation of a constitutional right. I respectfully dissent.
I
This case and its. companion, Missouri v. Frye, ante, p. 134, raise relatively straightforward questions about the scope of the right to effective assistance of counsel. Our case law
It is also apparent from Strickland that bad plea bargaining has nothing to do with ineffective assistance of counsel in the constitutional sense. Strickland explained that “[i]n
In Lockhart v. Fretwell, 506 U. S. 364 (1993), the deficient performance at issue was the failure of counsel for a defendant who had been sentenced to death to make an objection that would have produced a sentence of life imprisonment instead. The objection was fully supported by then-extant Circuit law, so that the sentencing court would have been compelled to sustain it, producing a life sentence that principles of double jeopardy would likely make final. See id., at 383-385 (Stevens, J., dissenting); Bullington v. Missouri, 451 U. S. 430 (1981). By the time Fretwell’s claim came before us, however, the Circuit law had been overruled in light of one of our cases. We determined that a prejudice analysis “focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable,” would be defective. Fretwell, 506 U. S., at 369. Because counsel’s error did not
Those precedents leave no doubt about the answer to the question presented here. As the Court itself observes, a criminal defendant has no right to a plea bargain. Ante, at 168. “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Weatherford v. Bursey, 429 U. S. 545, 561 (1977). Counsel’s mistakes in this case thus did not “deprive the defendant of
II
Novelty alone is the second, independent reason why the Court’s decision is wrong. This case arises on federal ha-beas, and hence is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Since, as the Court acknowledges, the Michigan Court of Appeals adjudicated Cooper’s ineffective-assistance claim on the merits, AEDPA bars federal courts from granting habeas relief unless that court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). Yet the Court concludes that § 2254(d)(1) does not bar relief here, because “[b]y failing to apply Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state court’s adjudication was contrary to clearly established federal law.” Ante, at 173. That is not so.
“To establish ineffective assistance, the defendant must demonstrate that his counsel’s performance fell below an objective standard of reasonableness and that counsel’s representation so prejudiced the defendant that he was deprived of a fair trial. With respect to the prejudice aspect of the test, the defendant must demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different, and that the attendant proceedings were fundamentally unfair and unreliable.
“Defendant challenges the trial court’s finding after a Ginther hearing that defense counsel provided effective assistance to defendant during the plea bargaining process. He contends that defense counsel failed to convey the benefits of the plea offer to him and ignored his desire to plead guilty, and that these failures led him to reject a plea offer that he now wishes to accept. However, the record shows that defendant knowingly and intelligently rejected two plea offers and chose to go to trial. The record fails to support defendant’s contentions that defense counsel’s representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea bargain for defendant.” People v. Cooper, No. 250583 (Mar. 15, 2005), App. to Pet. for Cert. 45a, 2005 WL 599740, *1 (per curiam) (footnote and citations omitted).
The first paragraph above, far from ignoring Strickland, recites its standard with a good deal more accuracy than the Court’s opinion. The second paragraph, which is presumably an application of the standard recited in the first, says that “defendant knowingly and intelligently rejected two plea offers and chose to go to trial.” This can be regarded
Since it is ambiguous whether the state court’s holding was based on a lack of prejudice or rather the court’s factual determination that there had been no deficient performance, to provide relief under AEDPA this Court must conclude that both holdings would have been unreasonable applications of clearly established law. See Premo v. Moore, 562 U. S. 115, 121 (2011). The first is impossible of doing, since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice. The Sixth Circuit thus violated AEDPA in granting habeas relief, and the Court now does the same.
Ill
It is impossible to conclude discussion of today’s extraordinary opinion without commenting upon the remedy it provides for. the unconstitutional conviction. It is a remedy unheard of in American jurisprudence — and, I would be willing to bet, in the jurisprudence of any other country.
The Court requires Michigan to “reoffer the plea agreement” that was rejected because of bad advice from counsel. Ante, at 174. That would indeed be a powerful remedy—
Why, one might ask, require a “reoffer” of the plea agreement, and its acceptance by the defendant? If the District Court finds (as a necessary element, supposedly, of Strickland prejudice) that Cooper would have accepted the original offer, and would thereby have avoided trial and conviction, why not skip the reoffer-and-reacceptance minuet and simply leave it to the discretion of the state trial court what the remedy shall be? The answer, of course, is camouflage. Trial courts, after all, regularly accept or reject plea agreements, so there seems to be nothing extraordinary about their accepting or rejecting the new one mandated by today’s decision. But the acceptance or rejection of a plea agreement that has no status whatever under the United States Constitution is worlds apart from what this is: “discretionary” specification of a remedy for an unconstitutional criminal conviction.
To be sure, the Court asserts that there are “factors” which bear upon (and presumably limit) exercise of this discretion — factors that it is not prepared to specify in full, much less assign some determinative weight. “Principles elaborated over time in decisions of state and federal courts, and in statutes and rules” will (in the Court’s rosy view) sort all that out. Ante, at 171. I find it extraordinary that “statutes and rules” can specify the remedy for a criminal defendant’s unconstitutional conviction. Or that the remedy for an unconstitutional conviction should ever be subject at all to a trial judge’s discretion. Or, finally, that the remedy could ever include no remedy at all.
IV
In many — perhaps most — countries of the world, American-style plea bargaining is forbidden in cases as serious as this one, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial. See, e. g., World Plea Bargaining 344, 363-366 (S. Thaman ed. 2010). In Europe, many countries adhere to what they aptly call the “legality principle” by requiring prosecutors to charge all prosecutable offenses, which is typically incompatible with the practice of charge bargaining. See, e. g., id., at xxii; Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 Mich. L. Rev. 204, 210-211 (1979) (describing the “Legalitátsprinzip,” or rule of compulsory prosecution, in Germany). Such a system reflects an admirable belief that the law is the law, and those who break it should pay the penalty provided.
In the United States, we have plea bargaining aplenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often — perhaps usually — results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt. See, e. g.,
Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, “ ‘it is the criminal justice system.’” Frye, ante, at 144 (quoting approvingly from Scott 1912). Thus, even though there is no doubt that the respondent here is guilty of the offense with which he was charged; even though he has received the exorbitant gold standard of American justice — a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward, and (in Michigan as in most States
I am less saddened by the outcome of this ease than I am by what it says about this Court’s attitude toward criminal justice. The Court today embraces the sporting-chance theory of criminal law, in which the State functions like a consci-. entious casino operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves. And when a player is excluded from the tables, his constitutional rights have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the Supreme Court.
* ⅝ *
Today’s decision upends decades of our cases, violates a federal statute, and opens a whole new boutique of constitutional jurisprudence (“plea-bargaining law”) without even
Rather than addressing the constitutional origins of the right to effective counsel, the Court responds to the broader claim (raised by no one) that “the sole purpose of the Sixth Amendment is to protect the right to a fair trial.” Ante, at 164 (emphasis added). Cf. Brief for United States as Amicus Curiae 10-12 (arguing that the “purpose of the Sixth Amendment right to counsel is to secure a fair trial” (emphasis added)); Brief for Petitioner 12-21 (same). To destroy that straw man, the Court cites cases in which violations of rights other than the right to effective counsel— and, perplexingly, even rights found outside the Sixth Amendment and the Constitution entirely — were not cured by a subsequent trial. Vasquez v. Hillery, 474 U. S. 254 (1986) (violation of equal protection in grand jury selection); Ballard v. United States, 329 U. S. 187 (1946) (violation of statutory scheme providing that women serve on juries); Stirone v. United States, 361 U. S. 212 (1960) (violation of Fifth Amendment right to indictment by grand jury). Unlike the right to effective counsel, no showing of prejudice is required to make violations of the rights at issue in Vasquez,
Kimmelman v. Morrison, 477 U. S. 365 (1986), cited by the Court, ante, at 169, does not contradict this principle. That case, which predated Fret-well and Williams, considered whether our holding that Fourth Amendment claims fully litigated in state court cannot be raised in federal habeas “should be extended to Sixth Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel’s failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.” 477 U. S., at 368. Our negative answer to that question had nothing to do with the issue here. The parties in Kimmelman had not raised the question “whether the admission of illegally seized but reliable evidence can ever constitute ‘prejudice’ under Strickland” — a question similar to the one presented here — and the Court therefore did not address it. Id., at 391 (Powell, J., concurring in judgment); see also id., at 380. Kimmelman made clear, however, how the answer to that question is to be determined: “The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect,” id., at 374 (emphasis added). “Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial . . . will be granted the writ,” id., at 382 (emphasis added). In short, Kimmel-man’s only relevance is to prove the Court’s opinion wrong.
See People v. Cooks, 446 Mich. 503, 510, 521 N. W. 2d 275, 278 (1994); 6 W. LaFave, J. Israel, N. King, & 0. Kerr, Criminal Procedure § 22.1(e) (3d ed. 2007 and Supp. 2011-2012).
Dissenting Opinion
dissenting.
For the reasons set out in Parts I and II of Justice Scalia’s dissent, the Court’s holding in this case misapplies our ineffective-assistance-of-counsel case law and violates the requirements of the Antiterrorism and Effective Death Penalty Act of 1996. Respondent received a trial that was free of any identified constitutional error, and, as a result, there is no basis for concluding that respondent suffered prejudice and certainly not for granting habeas relief.
The weakness in the Court’s analysis is highlighted by its opaque discussion of the remedy that is appropriate when a plea offer is rejected due to defective legal representation. If a defendant’s Sixth Amendment rights are violated when deficient legal advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical remedy is to- give the defendant the benefit of the favorable deal. But such a remedy would cause serious injustice in many instances, as I believe the Court tacitly recognizes. The Court therefore eschews the only logical remedy and relies on the lower courts to exercise sound discretion in determining what is to be done..
Time will tell how this works out. The Court, for its part, finds it unnecessary to define “the boundaries of proper discretion” in today’s opinion. Ante, at 171. In my view, re
The lower court judges who must implement today’s holding may — and I hope, will — do so in a way that mitigates its potential to produce unjust results. But I would not depend on these judges to come to the rescue. The Court’s interpretation of the Sixth Amendment right to counsel is unsound, and I therefore respectfully dissent.
