Burden of the Bargain: Ineffective Assistance of Counsel Claims in the Absence of a Plea Offer

April 1, 2024

The modern criminal justice system in the United States is a “system of pleas.”  Plea bargains have largely supplanted trials as the primary method of resolving criminal proceedings in this country.  Acknowledging their prevalence, the U.S. Supreme Court has held that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process.  Thus, defendants may bring ineffective assistance of counsel (IAC) claims for alleged ineffectiveness during the plea-bargaining phase.

In two companion cases, Missouri v. Frye and Lafler v. Cooper, the Court held that its two-pronged test for IAC, laid out in Strickland v. Washington, applies when attorney ineffectiveness prevents defendants from accepting favorable plea offers and results in unfavorable convictions at trial.  In proving the second prong of Strickland—the prejudice prong—in such claims, the defendant must show a reasonable probability that, but for their defense counsel’s ineffectiveness, the defendant, prosecution, and court all would have accepted the plea deal.

Frye and Lafler inevitably raised a related question:  can defendants bring a successful IAC claim on the grounds that attorney ineffectiveness precluded the extension of a plea offer by the prosecution altogether?  Circuit courts have answered this question in two ways.  Some have imposed a threshold requirement that a plea offer precludes any such claims outright, while others have taken a more fact-dependent approach to the question and have allowed certain claims to proceed.  This Note argues that the former approach is too strict and prevents defendants who have suffered prejudice from receiving relief, but it acknowledges the flaws raised by the latter approach.  To mitigate those pitfalls, this Note proposes a burden-shifting framework that requires the prosecution to show that there is a “reasonable purpose” for its decision not to offer a plea.  This proposal recognizes the centrality of plea bargaining in the modern criminal justice system while still operating within the confines of existing IAC jurisprudence as it pertains to plea bargaining.

April 2024

No. 5