The crux of the holdings is (Missouri v. Frye):
The State's contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/ sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court's case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours "is for the most part a system of pleas, not a system of trials," Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. "To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) ("[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial" (footnote omitted)). In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. "Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.'" Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).I think most criminal defense attorneys recognize the power of the reasoning. Confidence in the fairness of the criminal justice process requires competence of counsel for plea agreements.
I do want to address statistics. As quoted above, the Court observed the "simple reality" that "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Since this is a federal tax crimes blog, I and, I think, readers of the blog, might like to know what the plea rate in federal tax crimes is. We know the plea rate is high, but I have found it difficult to ascertain what the plea rate actually is.
I am aware that, at one time, DOJ Tax claimed a 97% conviction rate. That is not the same as a 97% plea rate, but obviously the great bulk of the 97% conviction rate (if that is an accurate rate) would be pleas. I have previously expressed skepticism about that conviction rate because I could not make it square with other publicly available data. (Of course, as Benjamin Disreali mused, “there are lies, damned lies, and statistics,” so worrying about these statistics is perhaps a fool's errand; but perhaps not since the Supreme Court finds such statistics important.)
DOJ Tax’s claim as to a 97% conviction rate was presented in a report titled: Eileen J. O’Connor, Assistant Attorney General, Statement to the Senate Finance Committee, titled Filing Your Taxes: an Ounce of Prevention Is Worth a Pound of Cure 3 (4/12/07). The report is here and, as indicated the statement is at page 3, here: I could not reconcile the claim statistics with IRS statistics, however. So, I made a written request to DOJ Tax for an explanation and the request was declined.
I expect that DOJ Tax has good statistics on (i) the conviction rate and (ii) the plea rate. I think that DOJ Tax should publish those statistics.
Perhaps the issue is not that important -- does it really make a difference whether the conviction rate is 90 or 97% or the plea rate is 90 or 97%? Perhaps it does. It could suggest that, despite the lore that tax cases have a high rate of conviction, they really don't relative to general federal tax system. It could mean that DOJ Tax is not that selective in picking cases to indict. It could mean that DOJ Tax criminal prosecutors (including their AUSA colleagues in trying these cases) are not as good as nontax federal criminal prosecutors. It could mean that convictions in tax cases are just harder to achieve than for the other federal crimes. At any rate, it would at least be interesting to get the real statistics and see if we can play Moneyball with them.
For example, and just playing with the numbers we have (albeit suspect), assuming arguendo the claimed conviction rate of 97% and the year for that statistic is representative, we might extend those statistics working from the known to the unknown and make some interesting speculations. Let’s say 95% of federal tax crimes plead. This means that only 5% of the tax indictments are tried. Then, assuming a 97% conviction rate, it would appear the only 2 of 5 that go to trial end in conviction. In other words, for those cases going to trial the defendant has an implied success rate of 60%. And what that might further imply is that for at least some of the 95% pleading (say the 10% portion that are the weakest cases for the Government), the defendants might have been better off had they gone to trial. But this is just speculation from a statistical data set that, I think, overstates the conviction rate (or, if correct for the year claimed, was not a representative year).
Other resources on the Supreme Court's Decisions in Missouri v. Frye and Lafler v. Cooper:
- Erica Goode, Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals (NYT 3/22/12), here.