Using Outcomes to Reframe Guilty Plea Adjudication

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. This Article traces these significant doctrinal shifts and argues that they supply both impetus and authority for trial courts to regulate guilty pleas by monitoring plea outcomes. This proposal builds on marketbased concepts while strengthening the judicial role in safeguarding constitutional values. By monitoring outcomes, courts can detect and correct factors in the plea-bargaining market, such as prosecutorial overreaching and ineffective defense counsel, which can distort the parties’ ability to negotiate fair results. Outcomes monitoring is justified for practical reasons because it builds on courts’ expertise and unique place in the plea markets, it can be implemented at the trial court level, it reinforces courts’ traditional sentencing authority, and it can prevent litigation of prejudicial ineffective assistance in post-conviction proceedings. INTRODUCTION 824 I. THE COURT’S PROCEDURAL APPROACH 829 A. Regulating the Validity of a Guilty Plea 830 B. Regulating Defense Counsel in the Plea Phase 836 C. Frye and Lafler: Incorporating Outcomes Analysis 841 * Associate Professor, William S. Boyd School of Law, University of Nevada, Las Vegas. Dean John Valery White, Interim Dean Nancy Rapoport, and Dean Daniel W. Hamilton provided financial support for this project. I am grateful for comments and encouragement from Stephanos Bibas, Laura Appleman, G. Jack Chin, Sam Kamin, Justin Marceau, Carissa Hessick, Shima Baradaran, Angela J. Davis, Jenny Roberts, Bret Birdsong, and participants in the Southwest Criminal Law Conference, and the ABA-AALS Criminal Justice Section Academic Workshop. Thanks to Wade Beavers for research assistance. 1 Traum: Using Outcomes to Reframe Guilty Plea Adjudication Published by UF Law Scholarship Repository, 2015 824 FLORIDA LAW REVIEW [Vol. 66 1. Delinking Strickland and Due Process 842 a. Claiming Strickland, Not Hill 842 b. Strickland as an Independent Basis for Relief 844 2. Measuring Prejudice Based on Outcomes 846 3. Remedying and Preventing Lawyer Incompetence 850 D. Toward Outcome-Based Regulation 851 II. RETHINKING APPROACHES TO REFORM 852 A. Plea-Bargaining Eats Everything 853 1. The Adaptability of Plea-Bargaining 853 2. Institutional Players and Their Incentives 857 B. Approaches to Reform 859 1. Constitutional Reformers 862 2. Market-Based Reformers 864 a. Reinforcing Shared Incentives 864 b. Ensuring Market Prices 867 III. MONITORING OUTCOMES IN THE TRIAL COURT 869 A. Trial Court Authority 870 B. A Blueprint for Monitoring 873 CONCLUSION 878