The U.S. Supreme Court's Failure to Fix Plea Bargaining: The Impact of Lafler and Frye Academic Article uri icon


  • In the 2012 companion cases of Lafler v. Cooper and Missouri v. Frye, the United States Supreme Court held that there is a right to effective assistance of counsel during plea bargaining, even when a defendant later loses at trial. Legal commentators suggested the cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright," that the cases will have a "significant effect,"' and that they were "the term's decisions with the greatest everyday impact on the criminal justice system." But, will things really change for defendants in the wake of Lafler and Frye? Is it realistic to expect these two decisions to mark the beginning of serious or fundamental changes in plea bargaining? This Article will explain why these cases are unlikely to create meaningful change in how plea bargaining works because they focus on one narrow issue in the context of plea bargaining: single instances of bad lawyering. These cases do not address the larger systemic issues that create serious concerns for defendants in plea bargaining. This Article concludes that Lafler and Frye will have a limited impact because they fail to address these larger issues. Section I of this Article discusses the basic legal framework for plea bargaining in the United States, arguing that the Supreme Court has not touched basic issues that have serious implications for fairness to defendants in plea bargaining. Section II discusses the Lafler and Frye decisions and the criticism that they will fail to bring far-reaching change due to the Court's limited focus on competent assistance of counsel. Section III examines the Indigent Defense Structures and Prosecutorial Power Structures left untouched by Lafler and Frye, which continue to create serious problems for defendants caught in the criminal justice system. Section IV explores the reasons for plea bargaining in the criminal justice system to understand why it may be so difficult for the Court to address larger, structural problems. Section V analyzes plea bargaining as a form of negotiation. This section considers the negotiation environment, and explains why defendants experience problems in plea bargaining due to its often highly adversarial nature, the serious power imbalances, the problem of innocent defendants pleading guilty, and the trial penalty. As this section discusses, plea bargaining is an informal dispute resolution process that can, at best, reflect the larger system within which it operates) Finally, Section VI concludes that Lafler and Frye are unlikely to lead to meaningful change in the Indigent Defense Structures or Prosecutorial Power Structures, but will possibly make some limited changes within the Legal Framework Structures due to their focus on competent assistance of counsel issues. Although Lafler and Frye may help bring some definition to the most extreme bad conduct of lawyers, these cases, and the cases that are most likely to reach the Court in their wake, are not positioned to make systemic changes in the key areas of Indigent Defense Structures and Prosecutorial Power Structures. Instead, they will continue to focus on plea bargaining in the context of individualized cases, but not address the larger structural problems.

published proceedings

  • Hastings Constitutional Law Quarterly

author list (cited authors)

  • Alkon, C

complete list of authors

  • Alkon, Cynthia

publication date

  • March 2014