Document Type


Publication Title

Duquesne Law Review

Publication Date



In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of Justice Scalia’s complaint. First, it challenges Justice Scalia’s assumption that defendants take refuge in plea bargaining as an alternative to criminal trials because of the intricacies of constitutional criminal procedures. On the contrary, guilty pleas have become the ordinary means of resolving criminal cases, and defendants’ waivers of other constitutional rights have also become increasingly common, not because the Court is procedurally too demanding but because it has been under-protective; its decisions have constructed a system of waivers in which prosecutors may use harsh punishment as leverage to compel defendants to forgo procedural protections. Second, this essay raises doubts as to whether the two decisions to which Justice Scalia dissented either impose or invite new procedural burdens. Finally, this essay questions Justice Scalia’s premise that constitutional decisions in general burden the criminal process, and also questions the Justice’s attempt to support this premise by citing a 1965 article by Judge Henry Friendly, who did not disparage procedural protections in criminal cases, but asserted that constitutional decision-making should leave room for state legislative innovation in this field.