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In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts do not always have to repair the harm caused by the ineffective assistance. Specifically, courts need not provide a defendant the benefit of the shorter sentence that was foregone as a result of the attorney’s incompetence. The Court allowed trial courts to balance the defendant’s right to a remedy against competing social interests, such as the interest in the administration of justice.

This Article argues that the ad hoc balancing approach endorsed in Lafler is misplaced. While balancing of interests may be used in some remedial contexts, such as the exclusion of evidence for Fourth Amendment violations, cases concerning ineffective assistance of counsel are categorically different. Sixth Amendment jurisprudence has traditionally endorsed an approach that attempts to restore the defendant as nearly as possible to the position he would have occupied in the absence of a constitutional violation. The Article argues that this restorative approach better protects the underlying constitutional right and can be applied without undue disruption or cost to cases concerning ineffective assistance during plea bargaining.

Consistent with the restorative approach, if a defendant can show that but for counsel’s mistake, he would have received a more favorable sentence under a plea bargain, then reviewing courts should reduce the defendant’s sentence to match that under the foregone bargain. Intervening facts should affect the remedy for ineffective assistance only when these facts have arisen independently of the ineffective assistance. Application of a more discretionary balancing approach, such as that suggested by the Lafler majority, conflicts with much of the rest of Sixth Amendment jurisprudence. It also represents a mistaken application of reasoning more appropriate for Fourth Amendment cases, where community interests weigh more heavily.

In advancing the argument for more robust and bright-line remedies for ineffective assistance during plea bargaining, the Article reviews lower court decisions that have addressed Lafler-type claims over the last year. To date, these decisions suggest that lower courts summarily dismiss meritless claims of ineffective assistance and that the vast majority of Lafler claims do not reach the remedial stage. Among those that do, however, at least some courts appear to be engaging in the type of balancing analysis the Lafler majority discussed. The confusion among lower courts concerning the nature of the balancing analysis suggests the need for greater clarity.

The Supreme Court may have recognized the need to revisit its holding in Lafler, and this fall it will hear Burt v. Titlow, a case concerning remedies for ineffective assistance in plea bargaining. The most desirable outcome would be for the Court to acknowledge that an ad hoc balancing approach to remedies is ill-suited to this area of Sixth Amendment jurisprudence. The Court should read the remedial holding of Lafler narrowly and adopt an approach that generally aims to restore the defendant to the position he would have occupied but for the constitutional violation.

Should the Court fail to modify its balancing approach, lower courts should use their discretion under Lafler to fully enforce the promise of the Sixth Amendment that every accused is entitled to effective representation in a criminal case. When a defendant receives incompetent representation and this violation prejudices the outcome of his case, the only meaningful response is to attempt to undo the prejudice. Anything less would undermine the right to effective counsel and would carve out an unnecessary exception to the longstanding principle of American constitutional law that where there is a right, there must be a remedy.

Publication Title

Wake Forest Law Review

Document Type



ineffective assistance of counsel, plea bargaining, guilty plea, remedies, Sixth Amendment, right to counsel, Fourth Amendment, exclusionary rule, balancing, Lafler v. Cooper, Missouri v. Frye



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