In two companion cases decided on March 21, 2012, the U.S. Supreme Court held, in 5-4 rulings, that the right to effective counsel in criminal cases includes the right to an attorney who competently permits a defendant to evaluate a plea-bargain offer from the prosecution.

In Missouri v. Frye and Lafler v. Cooper, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” In the Frye case, the Court held, “When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In Frye, the defense counsel did not tell his client about a plea offer that would have resulted in a 90-day sentence for driving without a license. The defendant went to trial and was sentenced to three years. In Lafler, the lawyer, based on his misunderstanding of the criminal law, turned down a plea to attempted murder that would have led to a sentence of 51 to 85 months. The trial resulted in a conviction and a mandatory minimum sentence of 185 to 360 months.

In both cases, the plea bargain would have left the defendant much better off. In the past, the Supreme Court has found inadequate assistance of counsel in cases in which a defense lawyer, because of an error that amounted to incompetence, advised a defendant to accept a plea rather than go to trial – and the consequences of that decision were highly unfavorable to the defendant. These cases reflected the flip side of those precedents, and a sharply divided Court, in an opinion written by Justice Anthony Kennedy, decided to extend the rule to cases where a defendant did not have the chance to receive the benefit of a plea bargain.

This new rule on inadequate assistance of counsel will help ensure that the entire criminal justice system is fair – including the plea-bargaining process, which leads to the disposition of 95 percent of criminal cases nationwide. It will also bring into full effect the Sixth Amendment’s guarantee of the right to counsel.

There may be some initial difficulties in deciding how to remedy cases like these, in which counsel was inadequate at the plea-bargaining stage. Prosecutors and judges will probably need to offer plea deals in writing or in open court in order to preserve a record of what was offered and when, and to guard against fictitious claims of inadequate counsel. But the system will doubtless be able to cope with the impact of these two decisions and to provide a higher degree of fairness to defendants.