I’m running behind today on reading the newspaper and everything else, chiefly because I’m finishing a piece for the Weekly Standard that was due yesterday on gasoline issues. (I hope Bill Kristol isn’t reading Power Line today, or he’ll wonder why I’m not getting the piece nailed down. . .) But I just now noticed the front page story in the Post about yesterday’s Supreme Court decision that says criminal defendants can now challenge their plea-bargained sentences on grounds that they got bad advice from their attorneys. In other words, the Supreme Court has just created a constitutional right to a good attorney. Get ready for endless appeals and for perverse incentive for the criminal defense bar.
I always predicted the Supreme Court would eventually rule that the right to an attorney at taxpayer expense would eventually become a right to a good attorney at taxpayer expense, but I was only joking. Justice Kennedy, the swing vote as usual, didn’t get the joke. One reason death penalty appeals have become such long, drawn out affairs, costing millions, is that the courts created a competence-of-counsel ground for appeals. This makes some sense in capital cases, given the finality of the sentence, but it has meant a lot of litigation on this ground, and it has led some capital murder defense lawyers deliberately to make mistakes to provide grounds for appeal by their clients. (There’s been some interesting research and reflection on this. See Judge Danny Boggs’s lecture on this topic from a few years ago.) Now we’re going to have the same kind of thing happening in a raft of plea bargain cases: “Hey—my lawyer didn’t correctly explain to me that ten years meant ten years!” And the courts will stumble around for a while devising standards. And the defense bar will try to figure out clever ways to botch plea bargains. I’m sure it will be an episode of Law and Order by next week.