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Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren D. Sudeall
Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren D. Sudeall
Vanderbilt Law School Faculty Publications
Advocates seeking indigent defense reform have often relied on civil litigation to prospectively enforce the Sixth Amendment right to counsel and to attack structural deficiencies of indigent defense systems-such as under- funding-that are likely to lead to system-wide ineffective assistance. Although the United States Supreme Court has addressed myriad aspects of postconviction ineffective assistance of counsel claims made in the criminal context, particularly in the last decade or so,' many of these cases have had little direct bearing on the way in which advocates have attempted to enforce the Sixth Amendment in the civil context. The Supreme Court has never …
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
All Faculty Scholarship
Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …
Taming Negotiated Justice, Stephanos Bibas
Taming Negotiated Justice, Stephanos Bibas
All Faculty Scholarship
After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.
Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …
Confrontation Control, Pamela R. Metzger
Confrontation Control, Pamela R. Metzger
Faculty Journal Articles and Book Chapters
After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.
This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense …
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Georgetown Law Faculty Publications and Other Works
A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan
Faculty Scholarship
A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The …
Frye And Lafler: No Big Deal, Gerard E. Lynch
Frye And Lafler: No Big Deal, Gerard E. Lynch
Faculty Scholarship
The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …