03/26/2012 11:01 am ET Updated May 26, 2012

Might Kennedy's Plea Bargain Decisions Reveal How He Will Swing on Health Care?

The Supreme Court will hear arguments next week on the constitutionality of a health insurance mandate -- the most important constitutional issue it has considered since Citizens United vs. FEC and Bush v. Gore.

Two decisions filed this week by the High Court -- Missouri v. Frye and Lafler v. Cooper -- will have an enormous impact on procedures in the criminal justice system. But in addition to that salutary impact, Justice Kennedy's approach to the decisions might provide insight as to how he will decide to cast his likely swing vote on the health care mandate.

Plea Bargaining's Impact on Justice in the Real World

For almost five decades, the Supreme Court has interpreted the Sixth Amendment to require that criminal defendants are guaranteed the right to a competent lawyer to guide them through court proceedings and speak for them at a trial. After trials, convicted defendants frequently complain that their attorney's representation was deficient and, but for the ineffective assistance of counsel (known as IAC) they would not have been convicted.

In murder and other serious cases, especially when the death penalty is imposed, appellate courts sometimes reverse convictions on the ground that the lawyer did such a bad job representing the defendant at trial, we cannot be confident that the defendant would have been convicted if the defense had been properly conducted.

What the public does not understand when hearing about these kinds of IAC reversals is how little such cases have to do with the real criminal justice system that impacts everyone else not accused of murder or subject to the death penalty.

Courtroom dramas, reality TV and Nancy Grace focus on criminal trials because the trial of a criminal case is a tailor made dramatic vehicle for conflict and some kind of resolution in less than an hour. But, unlike what is shown in television dramas and on the evening news, the vast bulk of the criminal justice system is not characterized by trials in courtrooms.

Justice Kennedy's opinions cite statistics showing that 97 percent of the criminal cases filed never come anywhere near a jury or a judge sitting to hear witnesses testify. Except for the three percent of criminal cases that are tried, the lion's share are resolved through haggling between prosecutors and defense counsel on the telephone or in courthouse hallways.

The first day after the case is filed (even occasionally before any filing) and up until the morning the case might actually go to trial, there is a 97 percent likelihood that the case will conclude with a defendant entering a plea of guilty in a matter of a few minutes in a courtroom. None of that criminal justice system can be interestingly portrayed on television or in movies of shorter duration than a Fredrick Wiseman documentary.

In Missouri v. Frye and Lafler v. Cooper a five member majority of the Supreme Court went where the High Court has never gone before -- out into those courthouse hallways and into jail holding cells prior to trial. The High Court ruled that the defense lawyers who counsel defendants to take a plea bargain or go to trial must meet standards of professional competence in the same way that lawyers (who 3 percent of the time actually try the cases of their clients) must meet them in the courtroom.

Both Frye and Lafler were incompetently advised about whether to accept a plea bargain for a specified punishment rather than go to trial. The prosecutors and lower courts admitted that their defense lawyers had been incompetent and for purposes of its decisions, the Supreme Court accepted that to be true in the two cases.

Before this week's decisions, it was unclear whether a defendant's constitutional rights to a professionally competent defense included plea negotiations. Some of the Court's precedents had hinted that -- since there is no right to be offered a plea bargain and since the Sixth Amendment only applies when and if there is a trial -- there may have been harm but no constitutional foul.

In these two 5-4 decisions split down the political trench lines of the Roberts Court, Justice Kennedy joined four Democratic appointees instead of the conservative Republican appointees. He wrote for that majority that:

Because ours "is for the most part a system of pleas, not a system of trials ... it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.


Justice Kennedy cites with agreement a statement in an influential law review article about plea bargaining, that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

Justice Kennedy's description of the criminal justice system might easily have employed better known imagery about the nature of icebergs: we only see the 3 percent that is above water (i.e. those publicized cases that actually are tried in courtrooms) and we don't see the 97 percent of the system that is below the waterline, only seen by criminal justice lawyers and the judge accepting a plea bargain.

And after conceding that empirical point known to all who work in, or are processed through, the criminal justice system, Justice Kennedy goes further. He notes that the longer sentences (such as Three Strikes sentencing and mandatory minimum of years in prison for drug crimes) "exist on the books largely for bargaining purposes." That one sentence may come to be seen as a "judicial" gaffe; an analogue of the politician's gaffe of accidentally speaking truthfully.

The Wizard's Dissent

Justice Scalia wrote his usual scathing dissent insulting the intelligence of those disagreeing with his static view of the constitution. Scalia's dissent amounts to the contention that in the criminal justice Land of Oz, we should "pay no attention to that man behind the curtain."

Scalia's originalist reliance on use of the single word ("trial") in the Sixth Amendment would have us conclude that the Framers thought it unimportant for persons to have professionally competent lawyers before being imprisoned by the state through a process that, in today's world, impacts 97 percent of those accused of crimes. A potted plant -- as counsel at a Watergate hearing once characterized a lawyer who did little to assist a client -- standing by at a brief guilty plea appearance will do just nicely.

Will Kennedy's Judicial Approach Be Applied in His Health Care Mandate Vote?

Justice Kennedy, who wrote for the majority in both opinions, has one commendable quality when it comes to his criminal justice views: he sees the world more realistically than many other members of the court who only see consequences related to their political ideology (Thomas), their pet constitutional interpretation theory (Scalia) or their concern for robust law enforcement powers (Alito and Roberts).

In criminal justice cases Justice Kennedy has been the "real world" swing vote against the criminalization of sex between same sex consenting adults (Lawrence v. Texas); a believer in the scientific evidence based world of medicine that has shown juveniles have immature brains and deserve punishment less severe than that imposed on adults (Roper v. Simmons); and now, a justice who forthrightly recognizes that incompetent lawyers can produce unfairness for defendants in the 97 percent of cases resolved through plea bargaining, not just the 3% who have the temerity to ask for a trial.

One can hope Justice Kennedy's approach of seeing the world as it really functions, and not through ideological glasses, will incline him to be a swing vote to affirm the constitutionality of imposing insurance obligations for health care.

Scalia, Thomas, Alito and Roberts are Republicans placed on the court by presidents who gave lip service to ideologies churned out by conservative think tanks and the Tea Party. Justice Kennedy is a Republican whose ascension to the High Court preceded our current epoch of ideological loggerheads. We can keep fingers crossed that the reality based approach to decisions in criminal justice -- in which Frye and Lafler are grounded -- will be followed as he contemplates his vote in the health care mandate cases.