The U.S. Supreme Court has recognized “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” This is as true for defendants facing charges of robbery and extortion as for those charged with tax evasion, embezzlement, or securities fraud. Indeed, research has previously shown that nearly 97% of all federal convictions are secured through plea agreements—not jury verdicts.
Against this context, it is noteworthy that the Court recently declined to resolve a lingering circuit split involving the right of defendants to have their counsel seek such plea agreements. Specifically, the Court was asked to consider whether a defense attorney’s failure to pursue a plea agreement on behalf of a client could constitute ineffective assistance of counsel. The Sixth Amendment affords criminal defendants the right “to have the assistance of counsel” for their defense, which the Supreme Court has interpreted to mean effective counsel.
In Davis v. United States, Justices Ketanji Brown Jackson and Sonya Sotomayor took the rare step of issuing a written dissent of the Court’s denial of certiorari. Both justices are former criminal law attorneys—Justice Jackson was once an assistant public defender in Washington, D.C., and Justice Sotomayor was an assistant district attorney in Manhattan. As a result of the Court’s denial of certiorari, the ongoing circuit split means that an attorney’s failure to pursue a plea agreement may constitute ineffective assistance of counsel in violation of the defendant’s Constitutional rights, but only in certain states.