Chemerinsky on Plea Bargaining and Effective Assistance of Counsel

The popular Constitutional Law expert, Erwin Chemerinsky, published an article with the ABA Journal titled, “Effective Assistance of Counsel Now a Right in Plea Bargaining.”  Chemerinsky goes through the different Supreme Court cases dealing with effective assistance of counsel and how it relates to the plea bargaining phase in criminal cases.  It will be interesting to see the fall out and application of these case decisions.


The court concluded that plea bargaining is a “critical stage” of criminal proceedings and thus the right to effective assistance of counsel applies. Justice Kennedy noted that 97 percent of federal convictions and 94 percent of state convictions are gained via guilty pleas.

The court applied the test from Strickland v. Washington, decided in 1984, for determining whether there had been ineffective assistance of counsel. Under Strickland, a defendant must show first that counsel’s performance is so deficient as to negate the Sixth Amendment right to counsel, and, second, the defendant must demonstrate “prejudice” from the inadequate representation. As to the former, the court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”…

Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

The full article is available here.

On an unrelated side note, if you have not been following the Supreme Court discussion about Arizona immigration, Chemerinsky wrote a good run-down about the relevant issues.  The article is available here.

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