The Prosecutor's Turn

TABLE OF CONTENTS INTRODUCTION I. LAFLERIFRYE II. TURNING TO PROSECUTORS III. PROSECUTORS, PLEAS, AND DUE PROCESS CONCLUSION INTRODUCTION In a term that included cases about witness identification testimony, (1) the applicability of the Confrontation Clause to expert testimony, (2) and imposing mandatory life-without-parole sentences on juveniles, (3) many criminal justice advocates heralded Lafler v. Cooper (4) and Missouri v. Frye (5) as game changers. A policy advisor for the Brennan Center for Justice described Lafler and Frye as "the term's decisions with the greatest, everyday impact on the criminal justice system." (6) Professor Wesley Oliver called the two cases "the single greatest revolution in the criminal process since Gideon u. Wainwright provided indigents the right to counsel." (7) Professor Ronald Wright added, "I can't think of another decision that's had any bigger impact than these two are going to have over the next few years." (8) The press, too, praised the decisions. The New York Times applauded the decisions for "vastly expanding] judges' supervision of the criminal justice system." (9) Even detractors recognized the cases' impact. Justice Scalia, writing for the dissent in both cases, lamented that the cases would open "a whole new boutique of constitutional jurisprudence (plea-bargaining law)." (10) Given this response, it is not surprising that Lafler and Frye have generated extensive scholarly consideration. The Yale Law Journal devoted a series of essays in its online forum to the impact of the decisions, (11) and the Duquesne Law Review devoted a print issue to the cases. (12) And of course, there is this William & Mary Law Review Symposium. The primary goal of this Article is not to weigh in on the significance of Lafler and Frye, or to question the attention they have received, although the Article does a little of both. Rather, the primary goal is to shift the focus somewhat. Lafler and Frye certainly signal increased attention to the regulation of defense counsel in criminal cases, as did an earlier case, Padilla v. Kentucky. (13) But what about prosecutors? For the most part, prosecutors remain underexamined and underregulated. Put differently, the problem brought to the fore in Lafler and Frye--the failure of defense counsel to properly advise their clients of plea offers--is not the only problem in this new, old world of negotiated pleas. With Lafler and Frye, there will now be more judicial oversight of defense counsel when it comes to plea negotiations. But if judges are watching defense counsel, who is watching prosecutors? This Article argues for more regulation of prosecutors during the plea bargaining stage. Part I begins by first offering some modest criticisms of Lafler and Frye, with particular attention paid to possible collateral consequences. Part II turns the attention to prosecutors, who are notoriously underregulated, and to the outsized role they play in plea negotiations. Part III suggests that the next goal of "plea bargaining" law should be to remedy this lack of oversight and offers the Due Process Clause, and to a lesser extent internal and external regulation, as one possible route for getting there. I. LAFLER/FRYE The conventional wisdom is that Lafler and Frye broke new ground. (14) Of course, the Court had long ago read the Sixth Amendment, despite its seeming emphasis on rights at trial, as extending the right to the assistance of counsel beyond trial to plea negotiations. As the Court observed in United States v. Wade, the right to assistance of counsel extends to "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." (15) That assistance has to be effective, the Court made clear in Strickland v. Washington, (16) and thus it followed quite naturally that the right to effective assistance would extend to plea negotiations, as the Court held in Hill u. …