Right to Counsel and Plea Bargaining: Gideon's Legacy Continues

INTRODUCTIONThroughout the twentieth century, the United States Supreme Court addressed questions regarding the Sixth Amendment right to counsel. Beginning in 1963 with the watershed decision of Gideon v. Wainwright,1 right to counsel jurisprudence has developed and evolved into an interestingly complicated body of law. Initially, Gideon was hailed as a victory for human-rights advocates and promised a hopeful change in the administration of criminal justice.Today, Gideon's legacy faces new challenges. With indigent defense declared "shamefully inadequate" by the American Bar Association ("ABA") and the American brand of justice considered "'a system of pleas,'"2 the Supreme Court has grappled with the jurisprudential reach of Gideon. In the plea-bargaining trilogy-Padilla v. Kentucky,3 Missouri v. Frye,4 and Lafler v. Cooper5-the Court wrestled with a number of questions concerning the right to effective assistance of counsel in the plea-bargaining context. While these decisions appear to comport with the principles espoused in Gideon, a closer look reveals that the plea-bargaining trilogy will likely suffer a fate similar to Gideon: problems in implementation and enforcement.This Essay argues that the principles espoused in Padilla, Frye, and Lafler are a natural extension of the modern understanding of Gideon. However, as in Gideon, the Court declined to provide guidance on implementation and enforcement of these plea-bargaining principles. Absent such guidance, the constitutional protections advanced in the plea-bargaining cases will probably not be realized.Part I of this Essay discusses the modern understanding of Gideon, particularly in the plea-bargaining context, thereby providing a basis on which to evaluate the principles announced in Padilla, Frye, and Lafler. Part II offers an overview of the current state of criminal justice in America-the context underlying the plea-bargaining trilogy. Focusing on indigent defense, plea-bargaining, and mass incarceration, this Part presents a brief synopsis of the problems in the criminal-justice system. Part III provides a summary of the plea-bargaining trilogy highlighting the most important aspects of each case. Part IV analyzes the ways in which the plea-bargaining trilogy jurisprudentially comports with Gideon's legacy. This Part also argues that the implementation of the principles announced in these cases will suffer from a distorted application as history demonstrates occurred with Gideon. Part V concludes the Essay with a brief summary.I. THE RIGHT TO COUNSELThe right to counsel and specifically, indigent defense, has long been accepted as an integral piece of federal criminal prosecutions. However, at the beginning of the twentieth century, it was far from clear whether the same understanding of the right to counsel was recognized in the states. A large part of the jurisprudence that courts developed in this area addressed the constitutional dimensions of this right as well as state responsibilities in recognition of the imperatives announced by the Court. This Part will discuss the development of the constitutional right to counsel, and introduce its use in the plea-bargaining context.The first case in which the United States Supreme Court required a state to provide counsel for indigent defendants on constitutional grounds was Powell v. Alabama in 1932.6 The Court held that it was the duty of the trial court to assign counsel in capital cases "where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like."7 Rooted in principles of justice and fairness, the Powell opinion concluded that the right to counsel was of a "fundamental character" constitutionally akin to freedom of speech and freedom of the press.8 This "fundamental character" placed the right to counsel within the protections guaranteed by the Due Process Clause of the Fourteenth Amendment, thereby requiring state compliance. …