By John L. Kane

The Marshall Project

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the results of guilty pleas. As United States Supreme Court Justice Anthony Kennedy noted in 2012 in Missouri v. Frye“it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” If there is no trial, there can be no fair trial, Justice Kennedy asserts, and that means that this constitutional right, for most, is a myth.

Frye, and its companion case decided the same day, Lafler v. Cooper, place the burden of assuring effective assistance in plea bargaining not only on defense counsel, but on the prosecution and the court as well. But will this monitoring of the effectiveness of defense counsel do much to prevent innocent people from pleading guilty? I doubt it. The so-called trial court is not primarily a trial court at all. It is a plea bargaining court. And every courtroom actor in the drama, including federal trial judges, share some measure of blame for the injustice that follows from that.

Defendants plead guilty for a variety of reasons: pleas to reduced charges result from an explicit agreement between the prosecutor and defense counsel in which both parties make concessions and explain the result to the hapless defendant and the offended victim. To use an economic analogy, plea bargaining establishes a “going rate.” The anticipated sentence is the central concern in the negotiation. The problem, however, is that both innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of justice, not the realization of it.

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