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Lafler, Part III: The March of Proceduralism

Q:  What is the most important thing a constitutional system of criminal adjudication is supposed to produce?

A:  Just and reliable outcomes, exonerating the innocent and punishing the guilty as the law prescribes.

Q:  Is that what Lafler will encourage?

A:  Do you wanna buy this bridge?

It's one thing for the Court to understand and accept the reality of modern-day plea bargaining. It's another to put that reality ahead of the constitutionally-designated method for ascertaining guilt and punishment, but that's what the Court has done. We are not dealing here with the usual circumstances that, over the last fifty years, have called for the Court's intervention  --  a defendant who, because of some procedural deficiency, has been unjustly or illegally convicted and punished. Here, we have a defendant who received exactly what the Framers intended -- a trial. The punishment he got after that trial is not claimed to be illegal or even unfair (as unfairness is conventionally understood, i.e., excessive or disproportionate). It is claimed merely to be more than he would have been able to extract from a system so overstuffed and so starved of resources that a watered down plea deal was the best it could do.

Lafler is so nonchalantly cynical as to amount to a burlesque of the trend of the last fifty years, in which the concern  --  dare I say obsession  -- with criminal procedure has overtaken the more serious, and preferable, concern with just outcomes. Procedure is now driving the train, and Lafler will only make it more so. 
Perhaps this is the place to note that Lafler's procedural bonanza is, not merely the continuation of a fifty-year march in that direction, but an unexpected example of a more recent phenomenon:  The fear, among conservatives at least, that law itself has grown too much and too fast, to the point that it is no longer something the Framers would recognize. I doubt they would recognize the majority opinion as anything like the system they had in mind. It's more accurately viewed as one creative judicial embellishment on the Constitution's original language, building on the embellishment before it, which built on the embellishment before it.  The constitutionalized code of criminal procedure we have now looks like the Tyrannosaurus version of a Rube Goldberg machine. 

The aftershocks from Lafler are going to be unfortunate whether they do, or whether they do not, produce a boatload of retrospective attacks on previously settled, bargained-for convictions and sentences. If they do, we will have pushed the system in exactly the direction we know it can't go precisely because it's hemmed in with tight budgets. That is, we will have to shift now-dwindling budget dollars toward looking into old cases, rather than devote them to the legion of new ones in need of initial adjudication. This in turn will push us further into the justice-on-the-cheap cycle that is the root of problem to begin with. As the dollars are stretched yet further, we are sure to see more and more bumbling defense lawyers dealing with more and more overwhelmed prosecutors.

If on the other hand the opinion does not produce a boatload of re-opened cases, then it will have achieved very little practical benefit (if one looks on this new toy for the guilty as a "benefit") at a very high price. The price, as I mentioned in an earlier entry, is its embrace of the gaming model of justice, with, astoundingly, our dumbed down bargaining system as its leading advertisement.

It is one thing for the Court to tolerate this system, and quite another to egg it on, with all the game-playing and slippery practice it encourages.


I suspect, as a practical matter, it's not going to have much effect, since most courts have accepted this anyway.

The effect on the Court maybe more. Anyone with sense can see that this is result-oriented. Another loss for the rule of law.

Thanks to an astute regular reader, I will be posting shortly on the probable real world impact. The reader agrees with you.

I hesitated to add that comment because I am not a prosecutor and wouldn't know.

I suspect it will have an effect, at least initially, and until and unless some claims are rejected. I would be surprised if there are not claims raised by defendants convicted at fair trials that they would have taken an offered plea had their attorney not "misassessed" the strength of the prosecution's case by underplaying it, or misassessed the strength of the defense case or overplaying it, and that by so doing and so advising the defendant, counsel performed ineffectively in the "plea bargaining/advice" stage under Lafler. If such a claim is rejected as outside Lafler, that's one thing, but if that's viewed as a proper claim, then we're off to the races.

I'm not sure it's the Supreme Court's job to consider -- at least primarily or at the expense of concerns for substantial justice -- the practical effects of its rulings. Yes, the practical or potential effect of the decision may be to give scores of guilty defendants more bites at the apple than their individual cases properly warrant. However, as a basic philosophic premise underlying our criminal justice system, isn't the acceptance or rejection of a plea bargain one of the most fundamental rights of a defendant, independent of his attorney's assessment of the case?

I think of the Tyler Clementi case, in which the defense was offered what must seem in retrospect the sweetest deal imaginable. The contrast between 600 hours of community service and the current likelihood of up to 10 years incarceration and/or deportment from the country highlights how critical it is that the defendant, and not the lawyer, assume the responsibility of accepting or rejecting a plea. Does Ravi regret his decision to proceed? The answer may well be yes. But the fact that he alone elected to maintain his innocence and face the possibility of a crushing sentence makes the "outcome" of the case more solid than it might otherwise be. Because in my opinion, what he now faces is quite possibly out of all proportion to any consequence any actor in the entire case could have foreseen before the matter hit the press.

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