Systemic barriers to effective assistance of counsel in plea bargaining

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the US Supreme Court focused its attention on defense counsel's pivotal role during the plea bargaining process. The Court recognized long ago that a criminal defendant was entitled to effective assistance of counsel at the plea stage. Part I explores the challenges competent, conscientious defense counsel faces to provide meaningful advice to criminal defendants contemplating a guilty plea. Part II describes the limited assistance of counsel that too many defendants receive. It concludes that the underfunding of defense services in many jurisdictions, together with the coerciveness of the plea bargaining process, already comprise constitutionally inadequate representation during plea bargaining for too many defendants. The prosecutorial practice of demanding a waiver of ineffective assistance of counsel only exacerbates the existing situation. Part III analyzes the law and ethics of waivers of ineffective assistance of counsel claims and whether such waivers should be permissible.