Cynthia Alkon (Texas A&M) has published “The U.S. Supreme Court’s Failure To Fix Plea Bargaining: The Impact of Lafler and Frye” in the Hastings Constitutional Law Quarterly, available on SSRN here. The abstract:

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant’s constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were “the single greatest revolution in the criminal justice process since Gideon v. Wainwright.” But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is no. Lafler and Frye will not bring fundamental change because these cases fail to address structural problems in plea bargaining and instead focus on single instances of bad lawyering.

In Lafler and Frye, the Court failed to address systemic problems in the appointment of indigent defense counsel and the extraordinary power that prosecutors wield in the plea bargaining process. Both of these structural problems significantly affect whether the plea bargaining process is fundamentally fair for the average defendant. Lafler and Frye may lead to an expansion of some limited rights for defendants in plea bargaining, such as better definition of the obligations of individual defense lawyers in the client-counseling phase of plea bargaining. However, as this Article will explain, addressing individual attorney misconduct will not make plea bargaining substantially different for most defendants. Instead of being revolutionary, Lafler and Frye will more likely simply allow the criminal justice system to continue plea bargaining nearly every case without addressing the larger structural problems. Most defendants in the criminal justice system will continue to feel pressured to enter quick guilty pleas to avoid the serious possible consequences of trial, regardless of whether they are innocent, have a defense, or fully understand the rights they are waiving and the consequences of their guilty plea.