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Lafler, Part II

Erica Goode of the NYT has a balanced article in today's paper surveying what some practicing attorneys and academics are thinking about the probable impact of Lafler and Frye. Toward the end, Ms. Goode recounts one particularly sourpuss assessment:

The implication of the decisions is that defendants should be rewarded with the lesser sentences afforded by plea bargains simply because "the squeezed economics of the system demand that almost all cases be processed by watered-down negotiation rather than by trial," said William G. Otis, a former Appellate Division chief at the United States attorney's office in the Eastern District of Virginia.

"That view of the system is perverse," Mr. Otis said, "a virtual tip of the hat to cynicism sailing under the flag of practicality."

Kent is particularly apt at analyzing the legal particulars of cases.  In my Golden Years (I would really like to strangle whoever invented that phrase), I like to look at the aesthetics as well,  That's what I was doing in the passage Ms. Goode quoted.  Not to put too fine a point on it, the aesthetics stink.

Being an appellate lawyer, I of course had a few more observations than the NYT had room to print, which I repeat below:

The most unfortunate feature of [Lafler], and it is unfortunate indeed, is that it ratifies the gaming model of justice. The controlling question now will be whether the defendant can reclaim the "benefits" he might have obtained from a plea bargain -- not because he deserved those benefits (however one might define "deserves"), or even deserved the offer of a bargain at all.  Instead, he is to obtain those benefits, at bottom, for no better reason than that the squeezed economics of the system demand that almost all cases be processed by watered-down negotiation rather than by trial.

That view of the system is perverse, a virtual tip-of-the-hat to cynicism sailing under the flag of practicality. The majority brushed aside what I had taken to be the paramount goal of the system, namely, to obtain a just and reliable outcome. The Court gave essentially no weight to that goal. Instead, it all but said the defendant is constitutionally entitled to whatever  --  because of the crush of cases and the lack of resources  --  the prosecutor was compelled to offer, notwithstanding that the thing that actually is ordained by the Constitution -- a trial -- had determined otherwise. 

It was only in 1971, in Santobello v. New York, that it was made clear (in dictum) that plea bargaining was even permissible. No one pretends that plea bargains are an ideal, or even a very good, route to justice. They are always compromises, and compromises are by definition unsatisfactory. The  (lazy? overburdened?) prosecutor gets the certainty of a conviction without having to do the work he would have to do to prepare for trial.  In exchange, he can give away almost anything he wants, and the more he gives away, the easier it's going to be to get a deal.  On the defense side, I often hear the complaint that a defendant's bargained-for guilty plea to reduced charges is still unjust, because it his not his guilt, but the pressure of draconian sentences, that makes him take the deal. (My personal opinion is that this is so much baloney: Defendants plead guilty because the government has the goods on them, this is the best they're going to do, and they would just as soon not have the whole messy business spelled out in front of the judge). But one way or the other, simply because bargaining is economically necessary hardly makes it, or its outcomes, just.  As Justice Scalia noted, what Lafler does is take a necessary evil  --  an extraconstitutional practice that was slapped together on the fly to try to cope with the overload  -- and transmogrify it into a constitutional entitlement.

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