If you've ever lost an afternoon to a marathon of Law & Order reruns, you might think prosecutors just can't wait to strut their stuff in front of a jury. While this is likely true for many newly minted prosecutors, for veterans the encumbrance of trials is a resource-intensive and time-consuming venture. They much prefer to settle cases through plea bargains. Verification of this may be seen in the fact that 95% of all U. S. criminal cases are settled by plea deals. Plea bargaining has several unintended consequences for the justice system. On one hand, they serve the people's interests through a kind of "bird in the hand" logic. On the other, they permit prosecutors a certain leeway with regard to charges.

If you’ve ever lost an afternoon to a marathon of Law & Order reruns, you might think prosecutors just can’t wait to strut their stuff in front of a jury. While this is likely true for many newly minted prosecutors, for veterans the encumbrance of trials is a resource-intensive and time-consuming venture. They much prefer to settle cases through plea bargains. Verification of this may be seen in the fact that 95% of all U. S. criminal cases are settled by plea deals. Plea bargaining has several unintended consequences for the justice system. On one hand, they serve the people’s interests through a kind of “bird in the hand” logic. On the other, they permit prosecutors a certain leeway with regard to charges.

In the second instance, the ability to enter plea bargains allows prosecutors in states with “three strikes” laws to leverage defendants against charges that would otherwise earn them their third strike. Also, in states with so-called “mandatory minimums” it effectively permits prosecutors to subvert the system by under-charging defendants. As many scholars have written, prosecutors develop a sense of what a given offense is “worth” in sentencing terms. When the decreed mandatory minimum specifies a potential sentence in excess of what a given prosecutor deems is merited, plea deals allow them to adjust the equation to better match their sensibilities.

Dynamics such as these are the ebb and flow of our criminal justice system. By most objective standards, the fluidity of the process generally arrives at balanced interests. This is of course unless one side has an unfair advantage. This week the United States Supreme Court ruled on a set of cases to correct just such an inequity.

Along a 5-4 vote, conservative Justice Anthony Kennedy joining the court’s four liberals in two cases, the majority held that the right to effective counsel applies to informal plea bargain negotiations. In the second ruling, the majority held a defendant must demonstrate “a reasonable probability” the plea offer would have been accepted by the judge when the defendant’s attorney gave bad advice that subsequently caused the defendant to reject the plea deal and then stand trial.

The rulings based in these cases could allow offenders nationwide to reopen their cases after having passed up favorable plea bargains because of ineffective counsel. In both cases, the defendants argued they had been denied their Constitutional right to effective assistance of counsel because of errors by their attorneys during plea negotiations. The majority agreed.

The most interesting language contained in the decisions comes from Justices Kennedy and Antonin Scalia. In one opinion, Kennedy states that defense counsel has a duty to communicate formal prosecution offers of a plea deal that may be favorable to the accused. To show harm, when a plea offer has lapsed or been rejected (due to poor counsel), Kennedy said defendants must show they likely would have accepted the plea offer had they received effective legal advice (and the deal was accepted by a judge).

Clarifying his reasoning, Kennedy stated in the second opinion that when ineffective counsel causes the rejection of a plea (thus leading to more severe sentence at trial), the remedy must “neutralize the taint” of a constitutional violation.

In a rare moment of reading sections of his opinion aloud, Justice Scalia observed, “Until today, no one has thought that there is a constitutional right to a plea bargain. Today’s opinion opens a whole new field of constitutionalized criminal procedure: the field of plea-bargaining law. The court announces this new field in opinions that almost seem designed to sow confusion. In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just, convictions. It is not wise; it is not right.”

When I teach students about the importance of due process, I always emphasize that the guarantee of a fair hearing, with fair evidence, transparent procedures and unbiased arbiters, is the greatest strength of our justice system. We may not like the result, but we should always be confident in the process by which it was derived. To the extent we are not, justice is not served. Scalia is doubtless right. This will cause confusion, but as time has shown, we’re pretty good at this kind of puzzle.

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Matthew Pate, a Pine Bluff native who holds a doctoral degree in criminal justice, is a senior research fellow with the Violence Research Group at the University at Albany. He may be contacted via pate.matthew@gmail.com