In a pair of cases decided in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court clarified an important principle of Sixth Amendment jurisprudence. Criminal defendants, the Court confirmed, have a right to competent counsel even during the plea bargaining process. The Court also established that the injury caused by a violation of this right is not mooted by the subsequent conviction and sentencing of the defendant at an otherwise fair trial.
Lafler involved a defendant charged with attempted murder whose lawyer erroneously advised him that because he had shot his victim below the waist, the prosecution would not be able to show the requisite intent to murder. Following the lawyer’s advice, the defendant rejected a plea deal, was convicted at trial, and was given a sentence over three times as long as the one the prosecution had offered. Concluding that the defendant had been prejudiced by his lawyer’s ineffective assistance, the Supreme Court found a Sixth Amendment violation and suggested that some form of relief was appropriate. Lafler and its companion case, Frye, made headlines, and some commentators celebrated the cases for affirming the application of the Sixth Amendment to plea bargaining.
The most significant and surprising part of Lafler, however, was the Court’s holding concerning the remedies. After recognizing that the right to effective assistance of counsel applies during plea bargaining, the Court proceeded to hold that lower courts do not always have to repair the harm caused by ineffective assistance. Specifically, courts need not provide defendants with the benefit of the shorter sentence that was foregone as a result of attorney incompetence. The Supreme Court held that the question whether to order the shorter sentence, to allow the longer sentence to stand, or to pick a sentence somewhere in between lays within the discretion of the lower court. It offered little guidance to judges concerning how they should exercise this discretion. Instead, it suggested that in determining the remedy, trial courts “must weigh various factors,” which would be determined over time through case law and legislation.
The dissent called this approach to remedies “absurd,” “unheard-of,” and “incoheren[t].” Justice Scalia argued that the Constitution demands an effective remedy for every violation of a constitutional right. The majority’s flexibility on remedies neglected this cardinal principle, according to Justice Scalia, and was the result of “squeamishness . . . attributable to [the] realization, deep down, that there is no real constitutional violation here anyway.”
This Article argues that the dissent’s ultimate position concerning remedies is correct, though not for the reasons it offered. The majority defended its decision using the principle of balancing: The defendant’s right to a remedy must be balanced against competing public interests, such as the efficient administration of justice. The majority did not provide a clear justification for this approach. In response, the dissent implicitly attacked balancing and appeared to reject the notion that a constitutional violation could be identified but not fully redressed. This Article maintains that both approaches are to some extent misplaced.
