Lafler and Frye: A New Constitutional Standard for Negotiation

Authors

Rishi Batra, Whittier Law School

Abstract

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation of a plea bargain . . . is almost always the critical point for a defendant" and "defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires."

What might these responsibilities be, and how might we determine them? This paper argues that by holding that there is a constitutional minimum standard for counsel in the plea-bargaining context, the court has effectively created a negotiation competency bar for criminal defense attorneys. This paper will look to existing and potential sources of standards for negotiation competency in plea-bargaining to determine how lower courts can and should shape the scope of this right in the future.

Disciplines

Constitutional Law | Criminal Law | Criminal Procedure | Dispute Resolution and Arbitration | Jurisprudence | Law

Recommended Citation

Rishi Batra, Lafler and Frye: A New Constitutional Standard for Negotiation, 14 Cardozo J. Conflict Resol. 309 (2013).
Available at: https://larc.cardozo.yu.edu/cjcr/vol14/iss2/2