Volume 12, Issue 2 - June 2014

Current Issue

Lead Article

Article Summary

Case Summary

Student Spotlight


JDR Home


The United States Supreme Court’s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye

Cynthia Alkon, The United States Supreme Court’s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye, Hastings Const. L.Q., 561 (2014)

In her most recent published article, Professor Alkon of Texas A&M expanded upon her 2012 Mayhew-Hite note and explored the 2012 Supreme Court decisions of Lafler v. Cooper and Missouri v. Frye and their impact on plea bargaining within the criminal justice context.  While many in the legal community posited that Lafler and Frye, taken together, were perhaps the lynchpin of the greatest revolution in the criminal justice process in the last 60 years, Professor Alkon argues that, in fact, the resulting process from Lafler and Frye will not improve defendant’s situations, much less create a fundamental change in the criminal justice process.  Rather, the two cases fail to address core structural problems inherent in plea-bargaining in the criminal system and instead focuses on limited—perhaps single—instances of bad lawyering.  Professor Alkon suggests that there are much larger, systematic issues that need to be addressed in order to enact fundamental change in the plea-bargaining arena.

These larger, systematic changes to the criminal justice and plea-bargaining process were not accomplished by Lafler and Frye.  Rather, the Court failed to address the larger problems of appointment of indigent defense counsel and the wielding power that prosecutors possess in the plea-bargaining process.  These two issues—appointment of counsel and the power that prosecutors wield—affect the fairness of the plea-bargaining process itself.  Professor Alkon explores whether Lafler and Frye would expand rights for defendants in the plea-bargaining context and ultimately concludes that there may be some limited expansion of rights, especially regarding the obligations of individual defense attorneys.  But, she contends that addressing the conduct of individual defense attorneys and their misconduct will not, in and of itself, make the plea-bargaining process different for defendants.

Professor Alkon, however, contends that the decisions in Lafler and Frye will more likely allow the criminal justice system to continue plea bargaining in almost every case (she notes that 94-97% of all criminal cases end up in a plea bargain).  The article argues that in order for successful—and more importantly, fair—plea-bargaining to continue there need to be larger structural problems dealt with.  The problems with the current plea-bargaining system (pressure on defendants to plea, ineffective counseling by defense attorneys, defendants not understanding the rights they are afforded) will not be resolved by Lafler and Frye’s attempts to alter the landscape of plea-bargaining by enhancing defendant’s rights.  Thus, it seems that—according to Professor Alkon—regardless of the Supreme Court’s attempts to change the game of plea-bargaining, defendant’s still sit at a disadvantage.

Posted in: Volume 12, Issue 2

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391