A few weeks ago, I wrote about ineffective assistance of counsel and plea-bargaining in the context of the upcoming Supreme Court case, Lee v. United States. In deciding Lee, the Court will consider whether it is rational for a noncitizen defendant, despite strong inculpatory evidence against him, to reject a plea offer and choose trial when the plea deal mandates permanent exile.[1] On February 21, the Supreme Court agreed to hear Class v. United States, yet another case involving defendants’ rights in the context of plea-bargaining. In deciding Class, the Court will examine “whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.”[2]

As the law currently stands, a knowing and voluntary guilty plea waives a defendant’s right to raise many claims on appeal.[3] Defendants can appeal some claims, such as double jeopardy[4] and ineffective assistance of counsel.[5] Yet most claims are limited on appeal. In Tollett v. Henderson, for example, the Supreme Court noted that a guilty plea “represents a break in the chain of events which has preceded it in the criminal process,”[6] thus limiting the grounds for appeal after a defendant admits guilt. Tollett barred a defendant from appealing a plea deal based on an alleged deprivation of constitutional rights that took place before the court finalized the deal (the defendant alleged unconstitutional discrimination in grand jury selection). Class appears to be an attempt to reexamine this issue.

The prevalence of plea-bargaining,[7] as well as Lee and Class on the docket, bring up questions about reforming rights in the criminal justice system to fit the practical needs of most modern defendants. In 2012, the Supreme Court expanded the rights of the accused in plea-bargaining in Lafler v. Cooper. In Lafler, Justice Kennedy wrote the majority opinion, holding that the two-prong standard of ineffective assistance of counsel applied to defendants during the plea bargaining process.[8] One year later, however, the Court in Burt v. Titlow upheld the doubly deferential standard, which requires that in cases involving a claim of ineffective assistance of counsel during plea-bargaining, the appeals court must give both the state court and the defense attorney the benefit of the doubt.[9] With two new plea bargaining cases on their way to the Supreme Court, I wondered how the new Court would react.

Neil Gorsuch may not be on the Court in time to review Lee and Class. However, continued challenges to the plea-bargaining regime will likely make their may up to the Court in the future. When I read the rumors that Neil Gorsuch was involved in the Harvard Prison Legal Assistance Project and Harvard Defenders Program,[10] I wondered how he might treat defendants’ rights in the context of plea-bargaining, if and when he is confirmed.

Neil Gorsuch is an originalist.[11] As such, he is likely persuaded by arguments that, (1) the Constitution does not bar a defendant from making the decision to plead guilty rather than risk a far higher sentence at trial[12] and (2) since the Constitution does not include a right to a plea bargain, the usual constitutional rights do not automatically attach.[13] In fact, in his dissenting opinion in Williams v. Jones, a case involving a defendant whose lawyer threatened to leave if he took a plea deal, Gorsuch stated:

No principle of justice rooted in our constitutional order entitles a defendant to receive, accept, or enforce a plea offer. Very much to the contrary, the Supreme Court has explained (repeatedly) that a plea offer is a matter of executive grace—not constitutional right or even contract—and so affords the defendant no enforceable rights unless and until the plea is embodied in the judgment of a court.[14]

Absent a new and more originalist characterization of defendants’ rights during and after the plea-bargaining stage, Gorsuch seems unlikely to part from Scalia’s staunch views.[15] After Lafler, advocates of defendants’ rights can hopefully rely on Kennedy to join the four liberal justices in expanding rights of the accused. Yet like many other progressive causes, the immediate future for plea-bargaining reform is uncertain. Reform may occur via a more general effort to cabin prosecutorial discretion. Measures such as lowering sentences overall or setting caps on plea to trial sentencing differentials could help advance the rights of the accused during the plea-bargaining process. The current political climate likely makes this a project for state governments. Then again, mass incarceration is an enormous problem on the state level anyway.[16] In the absence of support on the federal level, states should take steps to reform the plea-bargaining process with the knowledge that they will most likely be the key innovators in the criminal justice system over the foreseeable future.

[1] Lee v. United States, 825 F.3d 311, 313 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] Petition for Writ of Certiorari at i, Class v. United States.

[3] Alexandra W. Reimelt, An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal, 51 B.C. L. Rev. 871, 877 (2010).

[4] Menna v. N.Y., 423 U.S. 61, 63 (1975).

[5] Hill v. Lockhart, 474 U.S. 52, 58, (1985).

[6] Tollett v. Henderson, 411 U.S. 258, 267 (1973).

[7] See, e.g.Brady v. United States, 397 U.S. 742, 751–52, (1970), the seminal case involving plea-bargaining. Brady states that plea-bargaining “is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law.” See also Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals. New York Times (Mar. 22, 2012) http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html, noting that plea-bargaining makes up 94-97% of criminal cases.

[8] Lafler v. Cooper, 566 U.S. 156, 162–163 (2012).

[9] Burt v. Titlow, 134 S. Ct. 10, 13, (2013).

[10] http://www.salon.com/2017/02/06/questions-arise-about-neil-gorsuchs-volunteer-claims-while-at-harvard-law-school/

[11] https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/?utm_term=.38610189ef39

[12] See Chaffin v. Stynchcombe, 412 U.S. 17, 30-31 (1973). See also Brady, 397 U.S. at 752.

[13] See Missouri v. Frye, 566 U.S. 133 (2012) (Scalia, J., dissenting). Scalia noted that the failure of defendant’s attorney to inform defendant of a plea deal “did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”

[14] Williams v. Jones, 583 F.3d 1254, 1259 (10th Cir. 2009).

[15] See Lafler, 566 U.S. at 176 (Scalia dissenting). Scalia argued that in expanding protection to defendants during plea bargaining, “the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable. . .”

[16] https://www.prisonpolicy.org/reports/pie2016.html