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Lafler, Part IV: No Harm, No Foul?

One of our readers is highly-regarded, veteran prosecutor in a big city.  I asked how much of an impact she thought Lafler would have in practice.  Her answer:  Not much:

[Y]ou'd be surprised at how few convictions get undone under our [present] Lafler-esque "system." The fact that defendants don't come back to court in droves to claim that their attorneys were ineffective in plea bargaining is, I think, a consequence of basic free market forces. I'll try to explain.

Most defendants are guilty as hell and realize they have the proverbial snowball's chance if they go to trial. Therefore, most defendants want to mitigate their damages in the form of plea bargains rather than going to trial. (My husband's criminal defense practice is based on this premise, as he almost never goes to trial and sees his role as the damage controller, kind of like an insurance adjuster.) 

If lots of cases got challenged and thrown out later on grounds of ineffective assistance, the net result on the "market" would be that prosecutors would change their behavior accordingly by not offering very many plea bargains. Therefore, due to these market forces, the vast majority of defendants do not challenge their convictions unless 1) their attorney really was ineffective, or 2) there is some other problem they are seeking to avoid (e.g., immigration consequences or a three-strikes life sentence). It is also worth noting that in my office, our policy is to charge conservatively at the outset, and to add charges and/or enhancements or amend charges if the case is going to trial. Accordingly, barring unforeseen circumstances, the most favorable plea offer will always be the first offer. All the defense attorneys know this, which keeps our "market" relatively stable as well. 


A couple thoughts from a non-prosecutor:

1) These market forces may not obtain in death cases, so prosecutors will have to be very careful when communicating plea deals then, and even then, there may be some reversals.

2) I understand the market phenomenon, but, as a theoretical matter, aren't defense attorneys not supposed to worry about the global impact of their actions, but rather how their actions affect their client? And ineffective rep claims would be raised by different lawyers. I could see, though, how only really egregious cases got raised for this reason.

Federalist's point should be well taken, and should cause prosecutors to reserve capital indictments for those cases they intend from the outset to try.

Also, it seems that the post-Lafler capital petitioner will have to represent that he would now take a previously rejected plea deal calling for mega-time or a guarantee that the only way he'd legally leave the prison is for a trip to the cemetery. The percentage of capital petitioners willing to do so will be much less than who rejected the offer to begin with, because the "sensible" ones would have already taken the deal.

I agree wholeheartedly that any plea bargaining in capital cases is a much dicier proposition in a post-Lafter world, and prosecutors should take care to make a great record in those cases. On the other hand, I think that would have been the case in any event, particularly in jurisdictions (like mine) where the law was already Lafler-esque on the state level.

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