SCOTUS Weighs in on Plea Bargaining – But do the Decisions “Crash the Justice System”?

By Najah Farley

On Wednesday, the Supreme Court of the United States issued two rulings that give criminal defendants “a constitutional right to a competent lawyer’s advice when deciding to accept a plea bargain.” Justice Kennedy, noting that over 90% of all criminal cases, both state and federal, end in plea bargains, Justice Kennedy stated that the negotiation of the plea bargain “is almost always the critical point for the defendant.”

This decision is clearly a huge decision for the criminal defense bar. It will potentially affect both current and future cases, because of the probable effect on habeas claims. For those convicted without having had adequate legal assistance during the plea bargaining process, there could be post-conviction relief.

This ruling comes at a very interesting time, due to the increase in conversations about the expanding nature of the criminal justice system, largely due to Michelle Alexander’s book, “The New Jim Crow.” Just last week, Alexander, wrote a NYTimes column suggesting that all criminal defendants go to trial in order to “Crash the Justice System.” The column began with the description of a woman, Susan Burton, who suffered the terrible consequences of a criminal conviction, losing her job and housing prospects on the basis of her convicted felon status.  As a result, Burton suggests that all criminal defendants ask for a trial by jury, which could result in bringing the whole justice system to a halt. In a sense, Alexander and Burton are suggesting a form of collective  action or civil disobedience. A project that would require coordination amongst criminal defendants, and possibly with public defenders and other criminal defense attorneys as well, seems unlikely to succeed, but it is a useful thought experiment. Alexander’s discussion of the issues of mass incarceration in the column highlighted all of the issues that plague the criminal justice system: the incentive to plead out, the disincentive to claim innocence, the power of prosecutors, and the destitution that awaits convicted felons after their release.

With the addition of this SCOTUS decision, criminal defendants now have a plea bargaining system with more control, but it could ultimately increase the percentage of defendants that plead out, contrary to the goals of those who wish to see a decrease in the number of people in prison or under state supervision. The addition of rules to correct disparities to the plea bargaining process, while it may serve criminal defendants in the short term, may not serve the greater goal of reducing the prison population in the long term the way that “crashing the justice system” would. It will be interesting to see whether Alexander’s ideas continue to hold traction in the national discourse and just how far her idea of “crashing the justice system” will go.


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