Personal Failure, Institutional Failure, and the Sixth Amendment


I agree with Professor Schulhofer’s main thesis: The problem of guaranteeing the effective assistance of counsel cannot be solved within a plea bar-gaining system.’ The reasons for this conclusion fall under two main headings. First, a system of plea negotiation is a catalyst for inadequate representation. It subjects defense attorneys to serious temptations to disregard their clients’ interests, engenders suspicion of betrayal on the part of defend-ants, and aggravates the harmful impact of inadequate representation when it occurs. Second, a plea negotiation system insulates attorneys from review and often makes it impossible to determine whether inadequate representation has occurred.

As Professor Schulhofer suggests, almost every defense of plea negotiation depends on the assumption that defendants will be well-represented. Apologists for plea bargaining draw pictures of well-informed defendants, advised by capable attorneys, making rational assessments of surrender and gain. These apologists know that, were they to peer into the pit, they often would find their assumptions unjustified. Nevertheless, they regard the defective performance of lawyers as exogenous to a plea bargaining system. In their view, inadequate lawyers are as likely to appear and work their mischief in one system as another; whether their cases are bargained or tried is immaterial. Although these observers condemn departures from their idealized models as abuses, they evaluate the institution of plea bargaining by examining how the process might work with Earl Warren as the prosecutor, Socrates as the defense attorney, and Solomon as the trial judge. These observers wear blinders.They are somewhat like the people who once proclaimed that monarchy is a marvelous form of government so long as the king is good. Although apologists for plea negotiation usually recognize that the king may not be good, they argue that no system can be better than the people who administer it.

Suggested Reading

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why