For this assignment, you will write a short paper proposing a strategy to minimize the negative impact a selected issue may have on the criminal justice system. 

 

There are many controversial topics in the field of criminal justice. So far, you have been introduced to a few of these issues, such as improper or excessive use of force, police corruption, disparity in prison sentences based on race, improper training or policies, racial profiling, and civil liability, to name a few. Often, these issues create a negative public perception of the criminal justice system. 

 

Excessive use of force-  Topic of the paper

 
 

Next, identify and utilize a problem solving strategy after reviewing the Problem-Solving Strategies and Sample document. You may also use your own strategy. Additionally, you need to identify and analyze an evidence-based practice that will be most effective in dealing with the issue you selected. In your paper, analyze the controversial issue and describe how it may negatively affect public perception of the criminal justice system.  

 

Prompt: Specifically, the following critical elements must be addressed: 

 

1. Issue Presented: Summarize the issue in the form of a brief one-sentence question.

 2. Short Answer: Provide a short answer which summarizes the conclusion of your paper.

 3. Statement of Facts: Describe how the issue may negatively affect public perception of the criminal justice system. 

4. Discussion: Provide a brief discussion of the issue, including the recent history of the issue and any legal precedents related to it. 

5. Conclusion: Provide a conclusion based on the details of the issue outlined in the Discussion section.

6. Recommendations:

 a. Based on your reading, propose at least one evidence-based practice to minimize the negative impact this issue may have on public perception of the criminal justice field.

 b. Describe what possible successful outcomes might result from addressing this issue by analyzing it with evidence-based practices. 

 

Reference course readings to support your submission. 

 
 
 

Guidelines for Submission: Your submission should be at least 2 to 3 pages in length (in addition to title and reference pages) and should use double spacing, 12point Times New Roman font, and one-inch margins. Use APA style to cite your sources within the text of your paper and on the reference page.  

Touro Law Review

Volume 29 | Number 3 Article

8

10-21-201

3

A Criminal Quartet: The Supreme Court’s
Resolution of Four Critical Issues in the Criminal
Justice System
Richard Klein
Touro Law Center, richardk@tourolaw.edu

Follow this and additional works at: http://digitalcommons.tourolaw.edu/lawreview
Part of the Constitutional Law Commons, and the Criminal Law Commons

This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law
Review by an authorized administrator of Digital Commons @ Touro Law Center. For more information, please contact ASchwartz@tourolaw.edu.

Recommended Citation
Klein, Richard (2013) “A Criminal Quartet: The Supreme Court’s Resolution of Four Critical Issues in the Criminal Justice System,”
Touro Law Review: Vol. 29: No. 3, Article 8.
Available at:

http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

http://www.tourolaw.edu/lawlibrary/?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://www.tourolaw.edu/lawlibrary/?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview/vol29?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/589?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/912?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8?utm_source=digitalcommons.tourolaw.edu%2Flawreview%2Fvol29%2Fiss3%2F8&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:ASchwartz@tourolaw.edu

603

A CRIMINAL QUARTET: THE SUPREME COURT’S

RESOLUTION OF FOUR CRITICAL ISSUES IN THE CRIMINAL

JUSTICE SYSTEM

Richard Klein
*

I. Introduction ………………………………………………………………….604

II. Constitutional Protection for Rejection of Plea Offers ……….604

A. The Strickland Analysis …………………………………………..605

B. Strickland Analysis and Acceptance of a Plea Offer ……606

C. Recognizing Constitutional Protections for Rejecting a

Plea Bargain …………………………………………………………..608

1. Missouri v. Frye: Did Counsel Act as a Reasonably

Competent Counsel Regarding Communication of

Plea Offers? ……………………………………………………… 609

2. Lafler v. Cooper: Can a Guilty Verdict After Trial

Constitute Strickland Prejudice? …………………………. 613

D. Implications of Frye and Lafler ………………………………..617

III. Abandonment of Client Severs Principal-Agent

Relationship in the Post Conviction Phase of a Death Penalty

Case …………………………………………………………………………………..619

IV. Does the Mandatory Imposition of Life Imprisonment

Without the Possibility of Parole for Juveniles Constitute Cruel

and Unusual Punishment? ……………………………………………………….625

V. Conclusion …………………………………………………………………..630

*
Bruce K. Gould Distinguished Professor of Law, Touro Law Center; J.D., Harvard Law

School 1972. The author wishes to express his gratitude to the outstanding editorial and

writing assistance provided by Keri Mahoney, Associate Editor of the Touro Law Review in

the preparation of this Article.

1

Klein: A Criminal Quartet

Published by Digital Commons @ Touro Law Center, 2013

604 TOURO LAW REVIEW [Vol. 29

I. INTRODUCTION

The most recent Supreme Court term was one in which

the

Court tackled several of the most critical issues that arise in our crim-

inal justice system. Perhaps most importantly, as the 50th Anniver-

sary of the Court’s decision in Gideon v. Wainwright
1
approached,

the Court addressed the problems presented by counsel who had not

provided the effective assistance of counsel during the plea bargain-

ing process. Whereas it was common knowledge that the vast ma-

jority of cases in the criminal courts of this country are resolved by

plea bargaining, the Court had never required that court-appointed

counsel provide competent advice when recommending rejection of a

plea offer by the prosecution. It had not even been constitutionally

required that counsel communicate to his client the existence of an

offer that entailed a reduced sentence were the defendant to plead

guilty. The Court also addressed the matter of what action by coun-

sel would constitute abandonment of the client in the post-conviction

phase of a case where the client had received the death penalty. And,

finally, the Court considered what had remained an unresolved issue:

was it constitutional to impose a sentence of life without parole for a

juvenile who had been convicted of murder.

II. CONSTITUTIONAL PROTECTION FOR REJECTION OF PLEA
OFFERS

Claims of ineffective assistance of counsel are often raised by

criminal defendants who have either accepted or rejected a plea offer

based on counsel’s advice or actions.

2

The Supreme Court had pre-

viously applied a Strickland
3
analysis to claims of ineffective assis-

tance of counsel that arose from a defendant’s acceptance of a plea

bargain,

4

but until recently, had not yet provided an absolute declara-

1
372 U.S. 335 (1963).

2
See, e.g., Hill v. Lockhart, 474 U.S. 52 (1985).

3
466 U.S. 668, 686 (1984) (“The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.”).
4

Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (finding that counsel’s failure to

advise his client of the immigration consequences of accepting a plea offer is constitutionally

2

Touro Law Review, Vol. 29 [2013], No. 3, Art. 8

http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 605

tion that criminal defendants are entitled to effective assistance of

counsel when rejecting a plea offer. This issue is of great importance

because, as the Court noted, the overwhelming majority of criminal

cases are resolved through the plea bargaining process.

5

A. The Strickland Analysis

The Sixth Amendment provides certain protections for crimi-

nal defendants, among them the right to “have the Assistance of

Counsel for his defence.”

6

In Strickland v. Washington,

7

the Supreme

Court determined that the standard for actual ineffectiveness is that

the “counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having pro-

duced a just result.”
8
The Court utilized a two-part test in order to de-

termine whether this standard is met.

9

Each part of the test is inter-

preted in a narrow manner, creating a high-bar for a criminal

defendant to overcome.

10

The first part of the analysis requires that the defendant

demonstrate that his “counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amend-

ment.”

11

The Court stated that in performing this part of the analysis,

the courts should “indulge a strong presumption that counsel’s con-

duct falls within the wide range of reasonable professional assis-

tance,” thus encouraging a highly deferential review.

12

A criminal

defendant is not guaranteed the right to flawless assistance of coun-

sel, but only that level of counsel that is reasonable under the circum-

stances.

13

The second part of the analysis requires that the defendant

deficient assistance of counsel); Hill, 474 U.S. at 57 (holding that the Strickland test applies

to a claim of ineffective assistance of counsel arising from a defendant’s acceptance of a plea

offer).
5

Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (“Ninety-seven percent of federal

convictions and ninety-four percent of state convictions are the result of guilty pleas.”).
6

U.S. CONST. amend. VI.
7

466 U.S. 668 (1984).
8

Id. at 686.
9

Id. at 687.

10

See Richard Klein, The Constitutionalization of Ineffective Assistance of Counsel, 58

MD. L. REV. 1433 (1999).
11

Strickland, 466 U.S. at 687.
12

Id. at 689.
13

Id. at 687.
3
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

606 TOURO LAW REVIEW [Vol. 29

demonstrate that counsel’s unreasonable performance led to actual

prejudice.

14

In certain cases, such as attorney conflict of interest, the

courts may deem there to be a “limited[] presumption of prejudice.”

15

However, absent the use of such a presumption, the defendant must

show actual prejudice.

16

This typically requires more than “some

conceivable effect on the outcome of the proceeding.”

17

Rather, the

defendant must show that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.”

18

“A reasonable probability is a proba-

bility sufficient to undermine confidence in the outcome.”

19

There-

fore, the touchstone of a Strickland analysis is not an absolute enti-

tlement to high-quality counsel, but rather protection of the integrity

of the trial process.

20

B. Strickland Analysis and Acceptance of a Plea Offer

In Hill v. Lockhart,

21

a criminal defendant asserted a claim for

ineffective assistance of counsel based on his acceptance of a plea of-

fer and subsequent guilty plea.

22

The defendant claimed that his

counsel incorrectly advised him that he would only need to serve

one-third of his sentence before becoming eligible for parole, when,

in fact, he was not eligible for parole until he had served one-half of

his sentence.

23

The Court held that the Strickland analysis should be

applied in such circumstances in order to determine whether the de-

fendant had been deprived of effective assistance of counsel.

24

The Court in Lockhart had determined that in the context of

an accepted guilty plea, the first part of the Strickland test turns on

14
Id. The Court stated that a showing of prejudice is made only where the defendant

shows that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.”

Id.

15

Strickland, 466 U.S. at 692; see United States v. Cronic, 466 U.S. 648 (1984) (such

a conflict creates a circumstance where prejudice is so likely that it is not worth the cost of

litigating every particular case).
16

Strickland, 466 U.S. at 693.
17

Id.
18

Id. at 694.
19

Id.
20

Id. at 686.
21

474 U.S. 52 (1985).
22

Id. at 53.
23

Id. at 54-55.
24

Id. at 57.

4
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 607

whether “counsel’s advice ‘was within the range of competence de-

manded of attorneys in criminal cases.’ ”

25

The Court did not address

whether this part of the test had been met in Lockhart, but rather de-

termined that the ineffectiveness claim failed on the prejudice re-

quirement.

26

The Court concluded that the defendant’s parole eligi-

bility would have been different than his counsel had advised whether

he had taken the guilty plea or had proceeded to trial.

27

Therefore,

counsel’s error caused no prejudice because the defendant had not

demonstrated that there was a reasonable probability that the outcome

would have been different had his counsel had advised him correct-

ly.

28

More recently, in Padilla v. Kentucky,

29

the Court applied a

Strickland analysis to the situation where a defendant had suffered

significant consequences as a result of a guilty plea.
30

In Padilla, a

criminal defendant had pled guilty to drug charges based on the ad-

vice of his counsel.
31

The defendant was a lawful permanent resi-

dent, and his guilty plea subjected him to automatic deportation.
32

The deficiency in representation alleged by the defendant was that his

attorney had incorrectly informed him that his immigration status

would not be affected by the guilty plea.
33

It was alleged that, but for

this error, the defendant would not have pled guilty and instead

would have gone to trial.
34

The Court agreed, and found that this er-

roneous advice fell below the standard of a reasonably competent at-

torney, therefore the first part of the Strickland test was met.
35

The

25
Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).

26
Hill, 474 U.S. at 60.

27
Id. (“Indeed, petitioner’s mistaken belief that he would become eligible for parole

after serving one-third of his sentence would seem to have affected not only his calculation

of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but

also his calculation of the time he likely would serve if he went to trial and were convict-

ed.”).
28

Id.
29

130 S. Ct. 1473 (2010).
30

Id. at 1478.
31

Id.
32

Id. at 1477-78.
33

Id. at 1478.
34

Padilla, 130 S. Ct. at 1478.
35

Id. at 1483. Padilla was the first time that the Court had applied Strickland to the

issue of whether the misadvice by counsel on an uncategorized consequence of a plea of

guilty could constitute a Sixth Amendment violation. Id. at 1482. Previous decision of the

Court had only required that counsel advise a client appropriately regarding the direct conse-

quences of a guilty plea. Id. at 1487 (Alito, J., concurring).

5
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

608 TOURO LAW REVIEW [Vol. 29

Court remanded the case to the state court for a determination as to

whether the defendant had been prejudiced as a result of his counsel’s

error.
36

On remand, the Court of Appeals of Kentucky determined

that the defendant was, in fact, prejudiced by his counsel’s error; but

for that error, the defendant would have proceeded to trial.
37

Interest-

ingly, it was not required that the defendant demonstrate that he

would have been acquitted at trial in order to show prejudice; it was

enough that the defendant was deprived of the opportunity to go to

trial.
38

The prejudice suffered was the loss of the opportunity to force

the State to show his guilt beyond a reasonable doubt, and also the

loss of the possibility of accepting a different plea offer, which may

not have included provisions requiring mandatory deportation.
39

The

conviction, therefore, was vacated.
40

C. Recognizing Constitutional Protections for
Rejecting a Plea Bargain

The Court has only recently addressed the issue of whether a

defendant’s rejection of a plea offer can create the basis of a claim for

ineffective assistance of counsel. In this context, the Court once

again turned to a Strickland analysis.
41

In the first of two companion

cases dealing with this issue, the Court applied the first prong of the

Strickland test, that is, what level of attorney performance is guaran-

teed by the Sixth Amendment when advising a defendant to reject a

plea offer.
42

In the second of the companion cases, the Court dealt

with the second prong of the Strickland analysis, that is, what quali-

fies as “prejudice” when a defendant rejects a plea offer.
43

36
Id. at 1487 (majority opinion).

37
Padilla v. Commonwealth, 381 S.W.3d 322, 330 (Ky. Ct. App. 2012).

38
Id. at 330.

39
Id.

40
Id. at 330-31. The Supreme Court recently revisited its holding in Padilla in a very

different context. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013) (determining

that the rule announced in Padilla does not apply retroactively).
41

Frye, 132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012).
42

Frye, 132 S. Ct. 1399.
43

Lafler, 132 S. Ct. 1376.

6
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 609

1. Missouri v. Frye: Did Counsel Act as a

Reasonably Competent Counsel Regarding
Communication of Plea Offers?

In Missouri v. Frye,
44

Galin Frye was charged with a Class D

felony for driving with a revoked license following three prior con-

victions for the same crime.
45

The charged crime carried a maximum

sentence of four years in prison.
46

Prior to the trial, the prosecutor

sent a letter to Frye’s counsel offering a choice of two plea bargains

which would expire just before Frye’s preliminary hearing.
47

Neither

offer was communicated to the defendant prior to his preliminary

hearing; the offers expired without Frye ever being aware of their ex-

istence.
48

After the expiration of the offers and just prior to Frye’s

preliminary hearing, Frye was again arrested for driving with a re-

voked license.
49

Frye pled guilty at his arraignment and, without the

benefit of any plea agreement, was sentenced to three years in pris-

on.
50

The defendant filed a motion for post-conviction relief, which

was denied by the trial court, but granted by the Missouri Court of

Appeals.
51

The trial court had reasoned that Frye’s basis for claiming

prejudice was his deprivation of the opportunity to plead guilty to a

lesser charge.
52

The court distinguished this from the Lockhart line

of cases based on the type of prejudice alleged by Frye.
53

Frye’s

complaint alleged that, but for counsel’s error, he would have taken

the plea offer; the defendant in Lockhart had alleged that but for

44
132 S. Ct. 1399 (2012).

45
Id. at 1404.

46
Id.

47
Id.

48
Id.

49
Frye, 132 S. Ct. at 1404.

50
Id. at 1404-05. Ironically, the Prosecutor recommended the same sentence as he

would have pursuant to one of the plea offers, and the Court’s sentence followed along the

lines of the Prosecutor’s recommendation. Id.
51

Id. at 1405. The Missouri Court of Appeals applied a Strickland analysis in reaching

the conclusion that counsel had been constitutionally inefficient. Id.
52

Frye v. State, No. 08BA-CV03050, 2008 WL 8185677 (Mo. Cir. Nov. 18, 2008),

rev’d, Frye v. State, 311 S.W.3d 350 (Mo. Ct. App. 2010), vacated, Frye, 132 S. Ct. 1399.
53

Id.
7
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

610 TOURO LAW REVIEW [Vol. 29

counsel’s error, he would have opted to go to trial.
54

The trial court

reasoned that this distinction was significant because, while there is a

constitutional entitlement to a full and fair trial, there is no entitle-

ment to receive a plea offer.
55

Furthermore, the prosecutor had with-

drawn the plea offer, and the court could not force the prosecutor to

reinstate the offer.
56

Therefore, defendant failed to allege prejudice

rising to level sufficient to meet the Strickland test.
57

The Missouri Court of Appeals reversed the trial court, find-

ing that both parts of the Strickland test were met.
58

The Court rea-

soned that failure to communicate a plea offer could not be justified

by any conceivable trial strategy, and, therefore, representation fell

below that of a reasonably competent attorney.
59

Further,

the Court

reasoned that Frye was, in fact, prejudiced, because but for counsel’s

error, Frye would have pled guilty to a much lesser charge.
60

The

Court determined that this was enough to create prejudice sufficient

to satisfy the second part of the Strickland test.
61

On appeal to the Supreme Court, the State’s argument hinged

on the theory that a criminal defendant “has no right to plea bargain,

and a plea bargain standing alone has no constitutional signifi-

cance.”
62

Therefore, even though the defendant was not informed of

the plea offer, he was not deprived of any constitutional substantive

or procedural right.
63

The Court was asked to adopt the view that in

order to make a showing of prejudice sufficient to satisfy the Strick-

land test, the defendant must suffer more than just a less favorable

outcome; rather, the defendant must suffer the loss of a “substantive

or procedural right.”
64

In support of the prosecution, the Attorneys General from

twenty-nine states joined together to submit an amicus brief.
65

The

54
Id.

55
Id.

56
Id.

57
Frye, 2008 WL 8185677.

58
Frye v. State, 311 S.W.3d 350, 356-57 (Mo. Ct. App. 2010), vacated, Frye, 132 S.

Ct. 1399.
59

Id. at 354.
60

Id. at 360.
61

Id.
62

Brief for Petitioner at 9,

Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444).

63

Id. at 10.
64

Id.
65

Brief of Amici Curiae Connecticut and 28 Other States in Support of Petitioner at 4,

Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444).
8
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 611

states argued that the touchstone of the analysis of a claim of ineffec-

tive assistance of counsel is fairness of the trial process.
66

The failure

to communicate the plea offer did not undermine the adversarial pro-

cess or interfere with “the State’s obligation to provide a fair and reli-

able process for adjudication,” and, therefore, there was no constitu-

tional violation.
67

Additionally, the United States submitted an

amicus brief in support of the prosecution.
68

The United States ar-

gued that counsel’s “failure to communicate a plea offer does not

prejudice a defendant under Strickland because it does not render the

defendant’s subsequent conviction or sentence unreliable or deprive

the defendant of a right that he would have been entitled to assert in

his defense.”
69

In support of Frye, the Constitution Project submitted an ami-

cus brief arguing that the plea bargaining process is entitled to the

protections of the Sixth Amendment.
70

The Constitution Project em-

phasized the prevalence of plea bargaining in the criminal justice sys-

tem, and urged the Court to apply the Sixth Amendment protections

to all parts of the adversarial process (not just the trial itself).
71

The

Constitution Project argued that counsel’s failure to communicate the

plea offer to defendant caused a breakdown in the adversarial process

that was not cured by defendant’s later guilty plea.
72

The defendant

had maintained that he entered into a guilty plea without being aware

of the earlier plea offer, and “[t]his lack of awareness undermine[d]

the reliability of the plea and render[ed] it fundamentally unfair.”
73

Justice Kennedy wrote the opinion of the five-justice majori-

ty, holding that the plea bargaining process is entitled to Sixth

Amendment protection.
74

The majority recognized that plea bargain-

ing is “not some adjunct to the criminal justice system; it is the crim-

inal justice system.”
75

The Court set out a general rule that “defense

66
Id.

67
Id. at 6.

68
Brief for the United States as Amicus Curiae Supporting Petitioner, Missouri v.

Frye, 132 S. Ct. 1399 (2012) (No. 10-444).
69

Id. at 12-13.
70

Brief for the Constitution Project as Amicus Curiae in Support of Respondents at 5,

Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444) and Lafler v. Cooper, 132 S. Ct. 1376

(2012) (No. 10-209).
71

Id. at 5-6.
72

Id.
73

Brief for Respondent at 7, Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444).
74

Frye, 132 S. Ct. at 1408.
75

Id. at 1407 (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as a Con-

9
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

612 TOURO LAW REVIEW [Vol. 29

counsel has the duty to communicate formal offers from the prosecu-

tion to accept a plea on terms and conditions that may be favorable to

the accused.”
76

By failing to even communicate the offer to the de-

fendant, the attorney’s conduct fell below that of the reasonably

competent attorney guaranteed by the Constitution.
77

The Court re-

ferred to the standards of professional practice set forth by the Amer-

ican Bar Association which require defense counsel to communicate

all plea offers in a prompt manner.
78

The Supreme Court, however, disagreed with the finding of

prejudice of the Court of Appeals.
79

The Court recognized that alt-

hough the defendant likely would have accepted the plea offer, in or-

der to make a showing of prejudice under Strickland, the defendant

must demonstrate that the prosecution would have adhered to the of-

fer, and that the court would have accepted the terms of the offer.
80

The Court recognized that these are state-law issues, and therefore

remanded to the state court for further determination as to the preju-

dice requirement under Strickland.
81

The four-justice dissent, led by Justice Scalia, disagreed with

the protections given to the plea bargaining process and instead rea-

soned that “[c]ounsel’s mistake did not deprive Frye of any substan-

tive or procedural right; only of the opportunity to accept a plea bar-

gain to which he had no entitlement in the first place.”
82

Additionally, the dissent noted that the process leading to the defend-

ant’s conviction was fair and, through his own guilty plea, “the de-

fendant acknowledged the correctness of his conviction.”
83

There-

fore, although the dissent agreed that defense counsel did not act as a

reasonably competent attorney, the dissent concluded that the errors

made by defense counsel did not cause prejudice within the meaning

tract, 101 YALE L.J. 1909, 1912 (1992)).
76

Id. at 1408.
77

Id. The Court had noted in McMann that it was the responsibility of the Court that

no criminal defendant be left to “the mercies of incompetent counsel.” 397 U.S. 759, 771

(1970).
78

Frye, 132 S. Ct. at 1408; see also ABA Standards for Criminal Justice, Pleas of

Guilty 14-3.2(a) (3d ed. 1999) (imposing on counsel a duty to “promptly communicate and

explain to the defendant all plea offers made by the prosecuting attorney”).
79

Frye, 132 S. Ct. at 1410.
80

Id. at 1410-11.
81

Id. at 1411.
82

Id. at 1412 (Scalia, J., dissenting).
83

Id.
10
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 613

of Strickland.
84

2. Lafler v. Cooper: Can a Guilty Verdict After
Trial Constitute Strickland Prejudice?

In the second companion case, Lafler v. Cooper,
85

the Court

expanded on the Frye holding by further examining the relationship

between the rejection of a plea offer and Strickland prejudice.
86

Frye

and Lafler are distinguishable on one critical fact: Frye plead guilty

to the underlying charge after rejecting the plea offer,
87

while Cooper

(the defendant in Lafler) was found guilty following a full trial after

rejecting the plea offer.
88

Therefore, the State’s argument relied

heavily on the theory that any constitutional deficiency at the plea

bargaining stage was cured by the completion of the trial process.
89

Cooper was charged with “assault with intent to murder, pos-

session of a firearm by a felon, possession of a firearm in the com-

mission of a felony, misdemeanor possession of marijuana, and for

being a habitual offender.”
90

The charges arose following an incident

where Cooper aimed a gun at a woman’s head, fired once and missed,

and then chased her and fired multiple shots at her as she fled from

him.
91

It is unclear why Cooper engaged in this conduct, but at trial

there were suggestions of self-defense or defense of others.
92

The

charges carried a mandatory minimum sentence of 185 to 360

months’ imprisonment.
93

Cooper was offered a fifty-one month sentence in exchange

for pleading guilty to the charge of assault with a deadly weapon.
94

Cooper’s counsel discouraged Cooper from taking the plea, and in-

stead advised Cooper that because of the location of the gunshot

wounds on the victim (all below the waist) the prosecution would not

84
Frye, 132 S. Ct. at 1413 (Scalia, J., dissenting).

85
132 S. Ct. 1376 (2012).

86
Id.

87
Frye, 132 S. Ct. at 1404.

88
Lafler, 132 S. Ct. at 1383.

89
Id. at 1385.

90
Id. at 1383.

91
Id.

92
Id.

93
Lafler, 132 S. Ct. at 1383.

94
Id.

11
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

614 TOURO LAW REVIEW [Vol. 29

be able to prove that Cooper had acted with intent to murder.
95

The

case proceeded to trial and the necessary level of intent was found

despite the location of the gunshot wounds.
96

Cooper was sentenced to a mandatory minimum sentence of

185 months in prison, more than 3.5 times what he would have re-

ceived if he had instead accepted the prosecution’s plea offer.
97

Cooper later filed a federal habeas petition claiming ineffective assis-

tance of counsel.
98

The district court and the Sixth Circuit deter-

mined that the incorrect legal advice of the attorney had rendered

counsel’s performance constitutionally ineffective.
99

At the Supreme

Court level, the state conceded that defense counsel had acted in a de-

ficient manner by advising the client that there was no chance he

could be found guilty of the crime.
100

Therefore, the only question

left for the Court was whether Cooper suffered prejudice within the

meaning of Strickland as a result of his rejection of the plea offer.
101

The state argued that Cooper did not suffer any prejudice be-

cause “he received a fair and constitutional trial.”
102

Therefore, the

integrity of the adversarial process remained intact and the Sixth

Amendment was not violated.
103

Furthermore, Cooper failed to make

a showing that “counsel’s conduct deprived him of any substantive or

procedural right.”
104

In support of Lafler, the Warden of a Michigan

Correctional Facility, the United States filed an amicus brief,
105

as did

Wayne County, Michigan,
106

and twenty-seven states.
107

Additional-

95
Id.

96
Id.

97
Id. at 1383, 1386.

98
Lafler, 132 S. Ct. at 1383.

99
See Cooper v. Lafler, 376 F. App’x 563, 564 (6th Cir. 2010), vacated by Lafler, 132

S. Ct. 1376 (2012).
100

Lafler, 132 S. Ct. at 1384 (“In this case all parties agree the performance of re-

spondent’s counsel was deficient when he advised respondent to reject the plea offer on the

grounds he could not be convicted at trial.”).
101

Id. at 1385 (“Having to stand trial, not choosing to waive it, is the prejudice al-

leged.”).
102

Brief for the Petitioner at 10-11, Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-

209).
103

Id.
104

Id. at 11.
105

Brief for the United States as Amicus Curiae Supporting Petitioner, Lafler v.

Cooper, 132 S. Ct. 1376 (2012) (No. 10-209).
106

Brief of Wayne County, Michigan as Amicus Curiae in Support of Petitioner,

Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209).
107

Brief of Amici Curiae Connecticut and 26 Other States in Support of Petitioner,

12
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 615

ly, the Criminal Justice Legal Foundation joined with the National

District Attorneys Association echoing the arguments of the state that

there was no entitlement to a plea bargain and contending that to “af-

ford the right to a more favorable outcome via the right to effective

assistance of counsel is to grant defendants a windfall the Sixth

Amendment does not require.”
108

Additionally, these amici main-

tained that the procedures (either a subsequent trial or admission of

guilt) following a rejection of a plea offer “should be reviewed for re-

liability and fairness,”

in essence, shifting the inquiry from the fair-

ness of the rejection of the plea offer, to the fairness of the subse-

quent process leading to the ultimate guilty verdict.
109

Cooper claimed that the protections of the Sixth Amendment

apply to all “critical stages of a criminal prosecution,” and not just to

the trial itself.
110

Cooper maintained that he was, in fact, prejudiced

by the unreasonable conduct of his counsel because, but for this con-

duct, Cooper would have accepted the favorable plea.
111

Therefore,

he has been deprived of “the right to make an informed choice re-

garding the State’s offered plea bargain,” a deprivation that was not

cured by his subsequent trial.
112

Four amicus briefs were submitted

by various organizations in support of Cooper.
113

The American Bar

Association emphasized that since nearly 95% of criminal trials are

resolved by plea bargaining, it was crucial to ensure effective assis-

tance of counsel during the plea bargaining phase.
114

The National

Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209).
108

Brief Amici Curiae of the Criminal Justice Legal Foundation and the National Dis-

trict Attorneys Association in Support of Petitioners at 6, Lafler v. Cooper, 132 S. Ct. 1376

(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444).
109

Id.
110

Brief of Respondent Anthony Cooper at 9, Lafler v. Cooper, 132 S. Ct. 1376 (2012)

(No. 10-209).
111

Id. at 9-10.
112

Id. at 10.
113

Brief of Amicus Curiae Center on the Administration of Criminal Law, New York

University School of Law, Supporting Respondents, Lafler v. Cooper, 132 S. Ct. 1376

(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444); Brief of the

Nat’l Ass’n of Criminal Def. Lawyers et al. as Amici Curiae in Support of Respondents,

Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399

(2012) (No. 10-444) [hereinafter Respondents NACDL Brief]; Brief of the American Bar As-

sociation as Amicus Curiae in Support of Respondents, Lafler v. Cooper, 132 S. Ct. 1376

(2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399 (2012) (No. 10-444) [hereinafter

ABA Brief]; Brief for the Constitution Project as Amicus Curiae in Support of Respondents,

Lafler v. Cooper, 132 S. Ct. 1376 (2012) (No. 10-209) and Missouri v. Frye, 132 S. Ct. 1399

(2012) (No. 10-444).
114

ABA Brief, supra note 113, at 4-5.

13
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

616 TOURO LAW REVIEW [Vol. 29

Association of Criminal Defense Lawyers, the Connecticut Criminal

Defense Lawyers Association, and the American Civil Liberties Un-

ion Foundation argued that a subsequent trial or less favorable plea

does not cure the constitutional violation that occurs when a criminal

defendant rejects a plea offer due to attorney incompetence and then

becomes the recipient of a harsher sentence.
115

Justice Kennedy wrote for the five-justice majority which

held that when a criminal defendant rejects a plea offer as a result of

his counsel’s deficient performance, the defendant would be preju-

diced only if four additional elements are met: (1) the prosecution

would not have withdrawn the offer; (2) the defendant would have

accepted the offer; (3) the court would have accepted the defendant’s

guilty plea; and (4) the rejected plea offer was more favorable for the

defendant than was the sentence imposed after trial.
116

These addi-

tional elements are required in order to confirm that the outcome of

the plea process would have been different if the defendant had had

reasonably competent counsel.
117

Furthermore, the Court determined

that the proper remedy is not specific performance of the missed plea

opportunity, but rather to “order the State to reoffer the plea agree-

ment.”
118

If the defendant should accept the plea offer, it is then left

to the discretion of the trial court to determine whether and to what

extent the terms of the plea should be accepted by the court.
119

The first dissenting opinion, authored by Justice Scalia who

was joined by Justice Thomas and Chief Justice Roberts, disagreed

with the constitutionalization of the plea-bargaining process as well

as the remedy proposed by the Court.
120

These Justices maintained

that any result which follows a full and fair trial cannot be deemed a

prejudicial outcome.
121

Justice Alito authored a separate dissent

which highlighted his concerns about the remedy set forth by the

Court, as well as stating concerns that the majority holding “misap-

115
Respondents NACDL Brief, supra note 113, at 2.

116
Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).

117
Id. at 1384-85.

118
Id. at 1391.

119
Id.

120
Id. (Scalia, J., dissenting).

121
Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting) (“Anthony Cooper received a full

and fair trial, was found guilty of all charges by a unanimous jury, and was given the sen-

tence that the law prescribed. The Court nonetheless concludes that Cooper is entitled to

some sort of habeas corpus relief (perhaps) because his attorney’s allegedly incompetent ad-

vice regarding a plea offer caused him to receive a full and fair trial.”).

14
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 617

plies our ineffective-assistance-of-counsel case law and violates the

requirements of the Antiterrorism and Effective Death Penalty Act of

1996.”
122

Alito opposed the propriety of finding prejudice when a de-

fendant has received a full trial that had been free of any identifiable

constitutional error.
123

D. Implications of Frye and Lafler

Both Frye and Lafler demonstrate that a criminal defendant

can successfully assert a Sixth Amendment claim if counsel either

recommends or causes a defendant to reject a plea offer, provided

that both prongs of the Strickland test are met.
124

Frye takes the ini-

tial step by acknowledging that the plea bargaining process is entitled

to the protections of the Sixth Amendment,
125

while Lafler provides

some guidance as to how to determine whether a defendant is preju-

diced by his failure to accept a plea offer.
126

As a result of Frye and

Lafler, some courts have started to insist that plea offers be made in

writing.
127

Some judges also question the defendant before trial and

on the record in order to establish that the defendant knows of the

plea offer and understands the consequences of refusing that offer.
128

However, this formal emphasis on the harsh consequence of not ac-

cepting the plea offer may place a certain level of coercion on the de-

fendant.
129

It is not entirely clear that greater judicial involvement in

plea bargaining is to be desired.
130

Often, the plea bargaining process

is an informal “meet them and plead them” process resulting from a

quick conversation that occurs without any prior investigation on the

part of the defense attorney. And any plea of guilty that is entered

entails the defendant’s waiving the right to confront witnesses,
131

the

122
Id. at 1398 (Alito, J., dissenting).

123
Id. at 1398-99.

124
Id. at 1390-91 (majority opinion); Frye, 132 S. Ct. 1399, 1411 (2012).

125
Frye, 132 S. Ct. at 1411.

126
Lafler, 132 S. Ct. at 1385.

127
A Broader Right to Counsel, N. Y. TIMES, Mar. 22, 2012, http://www.nytimes.com/

2012/03/23/opinion/a-broader-right-to-counsel.html?_r=0.
128

Id.
129

Jed S. Rakoff, Frye and Lafler: Bearers of Mixed Messages, 122 YALE L.J 25, 26

(2012), available at http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/supreme-court

/frye-and-lafler:-bearers-of-mixed-messages/.
130

Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining

Process, 32 HOFSTRA L. REV. 1349, 1423 (2004).
131

Boykin v. Alabama, 395 U.S. 238, 243 (1969).

15
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

618 TOURO LAW REVIEW [Vol. 29

right to challenge the introduction of evidence that can be used

against him,
132

and the right to have a trial before a jury of his

peers.
133

The American Bar Association Standards for Criminal Justice

warn defense counsel that “[u]nder no circumstances should defense

counsel recommend to a defendant acceptance of a plea unless ap-

propriate investigation and study of the case has been completed, in-

cluding an analysis of controlling law and the evidence likely to be

introduced at trial.”
134

In order to properly reach an informed deci-

sion to recommend acceptance of a plea, investigation is needed to

accurately ascertain the strength of the prosecutor’s case and the like-

lihood of conviction. Ideally, the effective counsel will contact wit-

nesses, investigate any possible defenses, and analyze any police

misconduct which might lead to a successful motion to suppress evi-

dence that is required to convict the defendant. The information that

a competent counsel may obtain from a thorough investigation which

reveals weaknesses in the prosecution’s case may then be used as part

of the plea negotiations to obtain a more favorable plea than might

otherwise have been the case. To be sure, the decision to enter a plea

of guilty is for the defendant, and not counsel, to make;
135

one can

hope that the Lafler and Frye holdings will lead more counsel to rec-

ognize and honor their obligation to provide competent assistance

during the plea bargaining process.

A potentially significant result that may be forthcoming from

Frye and Lafler is the impact on systemic public defense litigation.

Insufficient time available for defenders to act competently due to

excessively high and unmanageable caseloads create the precise

problems that the Court had addressed. In recent years, the recession

has impacted the providers of indigent defense services with full

force as states find themselves with diminished resources.
136

Legisla-

tures have proven themselves unwilling and unable to provide ade-

quate funding, and the courts’ expansion of the rights afforded indi-

132
McMann v. Richardson, 397 U.S. 759, 770-71 (1970).

133
Brady v. United States, 397 U.S. 742, 748 (1970).

134
STANDARDS FOR CRIMINAL JUSTICE 4-6.1(b) (3d ed.1993).

135
See MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2012) (“In a criminal case, the

lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to

be entered . . . .”).
136

See Richard Klein, The Role of Defense Counsel in Ensuring a Fair Justice System,

THE CHAMPION, June 2012, at 38, available at http://www.nacdl.org/Champion.aspx?id=

24996#.USj4QVchWZQ.

16
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 619

viduals under the Sixth Amendment can prove to be of critical assis-

tance. Cases such as Hurrell-Harring v. State,
137

Duncan v. State,
138

and the ongoing litigation in Florida
139

may find new strength from

Lafler and Frye in challenging in the inadequacy of funding which

leads to ineffective representation during the plea bargaining process.

III. ABANDONMENT OF CLIENT SEVERS PRINCIPAL-AGENT
RELATIONSHIP IN THE POST CONVICTION PHASE OF A
DEATH PENALTY CASE

In another recent case, the Supreme Court found cause to ex-

cuse a procedural default stemming from attorney error in the post-

conviction phase of a criminal case.
140

The defendant, Maples, had

received the death penalty when he was convicted of murdering two

individuals with whom he had been out on the town, drinking.
141

Maples had filed a petition for post-conviction relief claiming inef-

fective assistance of counsel and various other deficiencies which had

occurred throughout the trial.
142

Sullivan & Cromwell, a large law

firm whose partners are known to charge legal fees in excess of

$1000 per hour, represented Maples pro bono during the post-

conviction phase of his case.
143

The Sullivan & Cromwell associates that represented Maples

during the post-conviction phase left the firm without notifying Ma-

ples or the Alabama court handling Maples’ case.
144

These attorneys

took positions at firms which precluded them from continuing to rep-

resent Maples.
145

Sullivan & Cromwell maintained that there was

some understanding that there would be new representation for Ma-

ples within the firm; however no new attorney sought admission to

the Alabama bar, and the original attorneys failed to formally with-

137
930 N.E.2d 217 (N.Y. 2010) (presenting a claim for the constructive denial of the

Sixth Amendment right to counsel).
138

488 Mich. 957 (2010).
139

See Wayne A. Logan, Litigating the Ghost of Gideon in Florida: Separation of

Powers as a Tool to Achieve Indigent Defense Reform, 75 MO. L. REV. 885, 891-97 (2010).
140

Maples v. Thomas, 132 S. Ct. 912, 927 (2012).
141

Adam Liptak, A Mailroom Mix-Up that Could Cost a Life, N.Y. TIMES, Aug. 2,

2010, http://www.nytimes.com/2010/08/03/us/03bar.html?_r=0.
142

Maples, 132 S. Ct. at 916.
143

Liptak, supra note 141.
144

Maples, 132 S. Ct. at 919.
145

Lance J. Rogers, Blown Deadline Doesn’t Sink Habeas Review Where Pro Bono

Lawyers Abandoned Client, CRIMINAL LAW REPORTER, Jan. 25, 2012.

17
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

620 TOURO LAW REVIEW [Vol. 29

draw from the case.
146

The Alabama court sent two copies of an order denying Ma-

ples’ petition for post-conviction relief to the attorneys of record at

the Sullivan & Cromwell office; these letters were returned unopened

with notations on the outside of the envelope stating, “Return to

Sender—Attempted Unknown,” and “Return to Sender—Left

Firm.”
147

The statutory timeframe for filing an appeal lapsed, and no

appeal was filed on Maples’ behalf.
148

Maples turned to the federal

courts for relief after his request for “an out of time” appeal was de-

nied by the State courts.
149

The federal district court denied Maples’ petition for writ of

habeas corpus, and the Eleventh Circuit affirmed the denial.
150

The

Eleventh Circuit reasoned that the statutory timeframe for filing an

appeal represented a procedural bar that was “firmly established and

regularly followed by the Alabama courts and [was] not applied in an

unprecedented or arbitrary fashion.”
151

Therefore, Maples’ federal

habeas claim was barred because the denial of the out-of-time appeal

rested on “adequate, independent state law procedural rules” that

were applied in a consistent and non-arbitrary fashion.
152

The Elev-

enth Circuit rationalized this harsh decision by shifting the blame for

the procedural default to Maples, stating that “Maples relied exclu-

sively on his counsel and made no attempt to deal directly with the

state trial court or its clerk, or to keep himself apprised directly of the

developments in his case.”
153

The Eleventh Circuit further determined that Maples’ proce-

dural default was inexcusable.
154

The Eleventh Circuit reasoned that

146
Id.

147
Liptak, supra note 141; see also Maples v. Allen, 586 F.3d 879, 884 (11th Cir.

2009) (stating that it was undisputed that the clerk sent copies of the order denying defend-

ant’s petition for post-conviction relief to Sullivan & Cromwell and that the order was re-

ceived by Sullivan & Cromwell and returned, unopened, to the court), rev’d sub nom. Ma-

ples v. Thomas, 132 S. Ct. 912 (2012).
148

Maples, 586 F.3d at 884 (“Neither Maples nor any of his three attorneys filed a no-

tice of appeal from the dismissal of Maples’s Rule 32 petition within the 42 days required by

Alabama Rule of Appellate Procedure 4(b)(1).”).
149

Id. at 887.
150

Id. at 895.
151

Id. at 888.
152

Id. at 890.
153

Maples, 586 F.3d at 890.
154

Id. at 891 (“Here, the factor that resulted in Maples’s default—namely, counsel’s

failure to file a timely notice of appeal . . . cannot establish cause for his default because

there is no right to post-conviction counsel.”).

18
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 621

the procedural default could be excused only if Maples could demon-

strate either “a fundamental miscarriage of justice” or “cause for and

actual prejudice [resulting] from the default.”
155

The Eleventh Circuit

concluded that a deficiency in counsel’s performance in the post-

conviction phase does not establish cause to excuse the procedural

default because the constitutional right to effective assistance of

counsel does not extend to the post-conviction phase.
156

To reach this

conclusion, the Eleventh Circuit relied on Supreme Court precedent

which seemingly barred a finding of “cause” in the circumstances

presented in Maples.
157

It was this portion of the decision that com-

prised the issue for appeal before the Supreme Court.
158

Numerous amici briefs were filed with the Court in support of

Maples.
159

These amici contended that the procedural default was the

fault of Sullivan & Cromwell and of the Alabama court clerk, and

was certainly not the fault of Maples.
160

The combination of Maples’

apparent blamelessness for the default and the severity of the pun-

ishment (deprivation of federal review of a death sentence convic-

tion) created a unique situation before the Court—one that required a

departure from earlier jurisprudence of the Court requiring the client

to suffer the consequence of his attorney’s mistakes.
161

Only two amicus briefs were filed in support of the prosecu-

155
Id. at 890.

156
Id. at 891.

157
Id. (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)).

158
Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (“We granted certiorari to decide

whether the uncommon facts presented here establish cause adequate to excuse Maples’ pro-

cedural default.”).
159

See Brief of Amicus Curiae Alabama Criminal Defense Lawyers Association in

Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63); Brief of Amica

Curiae Deborah A. Demott in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912

(2012) (No. 10-63); Brief of Amicus Curiae NAACP Legal Defense & Educational Fund,

Inc. in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63) [herein-

after NAACP Brief]; Brief for the National Association of Criminal Defense Lawyers et al.

as Amici Curiae Supporting Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-

63) [hereinafter Petitioner’s NACDL Brief]; Brief of Legal Ethics Professors and Practition-

ers and the Ethics Bureau at Yale as Amici Curiae in Support of Petitioner, Maples v. Thom-

as, 132 S. Ct. 912 (2012) (No. 10-63); Brief of Amici Curiae Alabama Appellate Court Jus-

tices and Bar Presidents in Support of Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012)

(No. 10-63); Brief for Amici Curiae the Constitution Project and Cato Institute in Support of

Petitioner, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63).
160

Petitioner’s NACDL Brief, supra note 159, at 3-4 (“Alabama seeks to execute peti-

tioner without any federal court review of serious constitutional errors because of a missed

filing deadline that everyone agrees was not his fault.”).
161

NAACP Brief, supra note 159, at 1-3.

19
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

622 TOURO LAW REVIEW [Vol. 29

tion.
162

These organizations argued that habeas review is meant to be

a limited review, rather than a mechanism of “extensive relitigation

of state criminal cases.”
163

Therefore, the procedural default should

not be excused because there has not been a miscarriage of justice.
164

Additionally, the Attorneys General of multiple states argued that this

case is indistinguishable from earlier cases where the Court created

the bright-line rule that “no cause exists to excuse a procedural de-

fault when a petitioner’s state habeas counsel errs.”
165

The Supreme Court reversed the decision of the Eleventh Cir-

cuit and determined that there was, in fact, cause to excuse the proce-

dural default.
166

The Court characterized the conduct leading to the

procedural default in harsh terms, noting that when the letters arrived

at Sullivan & Cromwell, they were sent back to the court rather than

“forwarded to another Sullivan & Cromwell attorney.”
167

The Court

also noted that the Alabama court clerk “took no further action” when

he received the returned, unopened letters from Sullivan & Crom-

well, and that no attempts were made to contact the counsel of record

“at the personal telephone numbers or home addresses they had pro-

vided in their pro hac vice applications.”
168

Further, the Court ob-

served that the clerk made no other efforts to contact Sullivan &

Cromwell, or the Alabama attorney overseeing the pro hac vice work

of the New York based Sullivan & Cromwell attorneys.
169

Addition-

ally, the Alabama attorney overseeing the pro hac vice work took no

action, despite receiving his copy of the letter.
170

It was only when

Maples himself was prompted to contact his mother, after receiving a

letter directly from the Alabama Assistant Attorney General notifying

him that he had missed the deadline to file an appeal, that any action

was taken on behalf of Maples.
171

As the Eleventh Circuit observed, the Supreme Court has his-

162
See Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of

Respondent, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63) [hereinafter CJLF Brief];

Brief of Texas et. al as Amici Curiae In Support of Respondent, Maples v. Thomas, 132 S.

Ct. 912 (2012) (No. 10-63) [hereinafter States Brief].
163

CJLF Brief, supra note 162, at 4-5.
164

Id.
165

States Brief, supra note 162, at 1.
166

Maples v. Thomas, 132 S. Ct. 912, 917 (2012).
167

Id. at 920.
168

Id.
169

Id.
170

Id.
171

Maples, 132 S. Ct. at 920.

20
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 623

torically treated the attorney as the client’s agent during the post-

conviction phase; therefore, under basic theories of agency law, the

defendant (principal) generally is left to suffer the negative conse-

quences associated with his agent’s negligence.
172

For example, in

Coleman v. Thompson,
173

Coleman had been convicted under Virgin-

ia state law for rape and capital murder and was sentenced to death.
174

Coleman’s appeal to the Virginia Supreme Court was dismissed be-

cause it was filed outside of the statutory timeframe for filing an ap-

peal.
175

Coleman sought federal habeas relief following the proce-

dural default.
176

The district court and the Fourth Circuit determined

that Coleman’s claim for federal relief was barred because the proce-

dural bar (the timeframe for filing for an appeal) was an adequate and

independent state law rule which was fairly applied by the State, and

that Coleman had failed to show cause to excuse the procedural de-

fault.
177

At the Supreme Court level, Coleman argued that there was

cause to excuse the procedural default because the default was the re-

sult of attorney error.
178

The Court disagreed, and instead determined

Coleman’s argument was “contrary to well-settled principles of agen-

cy law.”
179

The Court stated that “the attorney is the [client’s] agent

when acting or failing to act, in furtherance of the litigation, and the

[client] must ‘bear the risk of attorney error.’ “
180

The Court

acknowledged that there is an exception to this rule if the attorney er-

ror violates a constitutional right of the defendant; however, there is

no constitutional right to effective assistance of counsel during the

post-conviction phase.
181

The Court determined that, absent a consti-

tutional right to effective assistance of counsel, agency law governs

172
Coleman, 501 U.S. at 757 (1991) (“Because Coleman had no right to counsel to

pursue his appeal in state habeas, any attorney error that led to the default of Coleman’s

claims in state court cannot constitute cause to excuse the default in federal habeas.”).
173

501 U.S. 722 (1991).
174

Id. at 726-27.
175

Id. at 727-28.
176

Id. at 728.
177

Id. at 728-29.
178

Coleman, 501 U.S. at 752 (“Coleman maintains that there was cause for his default.

The late filing was, he contends, the result of attorney error of sufficient magnitude to excuse

the default in federal habeas.”).
179

Id. at 754.
180

Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
181

Id. at 752-54. The Court stated in unequivocal terms that “[t]here is no constitu-

tional right to an attorney in state post-conviction proceedings.” Id. at 752.

21
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

624 TOURO LAW REVIEW [Vol. 29

claims of error during the post-conviction phase; therefore, the client

“bear[s] the risk of attorney error that results in procedural de-

fault.”
182

The facts of Maples differed from the facts of Coleman in one

important respect—the late-filing in Maples was due to complete

abandonment of the client, rather than simple attorney error.
183

This

distinction allowed the Court to find cause to excuse Maples’ proce-

dural default, despite the Court’s longstanding history of refusal to

find cause to excuse procedural defaults resulting from attorney error

in the post-conviction phase.
184

In Maples, the Court reasoned that

the abandonment of Maples severed the principal-agent relation-

ship.
185

Therefore, at the time of the procedural default, the attorney

was not the agent of Maples, and Maples could not be left to suffer

the consequences of the attorney’s failures or omissions.
186

Although

the outcome in Maples was different than the outcome in Coleman, in

both cases the Court relied on basic agency law, rather than the

recognition of a constitutional right of the defendant, in order to de-

termine whether there was cause to excuse a procedural default at the

post-conviction phase.
187

Accordingly, Maples represents a new ap-

plication of a long-standing rule, and the holding is sufficiently nar-

rowed to apply only in cases of client abandonment at the post-

conviction phase.
188

Justice Scalia and Justice Thomas wrote separately, not to dis-

sent from the underlying reasoning of the court, but rather because

they did not believe the principal-agent relationship in this case to

182
Coleman, 501 U.S. at 752-53.

183
Compare Coleman, 501 U.S. 722 (1991) (showing post-conviction federal habeas

proceeding where procedural default resulted from late filing of appeal with no mention of

client abandonment), with Maples, 132 S. Ct. 912 (2012) (showing post-conviction federal

habeas proceeding where procedural default resulted from late filing of appeal as a result of

abandonment of client by attorney).
184

Maples, 132 S. Ct. at 922 (“A markedly different situation is presented, however,

when an attorney abandons his client without notice, and thereby occasions the default.”).
185

Id. at 922-23 (“Having severed the principal-agent relationship, an attorney no

longer acts, or fails to act, as the client’s representative.”).
186

Id. at 923.
187

See id. (finding cause to excuse a procedural default based on severance of the

principal-agent relationship); Coleman, 501 U.S. at 753-54 (finding no cause to excuse pro-

cedural default because attorney acts as agent for client-principal).
188

Maples, 132 S. Ct. at 927 (“In the unusual circumstances of this case, principles of

agency law and fundamental fairness point to the same conclusion: There was indeed cause

to excuse Maples’ procedural default.” (emphasis added)).

22
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 625

have been effectively severed.
189

The dissent reasoned that Maples

was represented by the firm of Sullivan & Cromwell, rather than the

two individual associates in charge of Maples’ case.
190

Therefore,

despite the departure of the two associates in charge of Maples’ case,

Sullivan & Cromwell still remained the agent of Maples, and Maples

should, therefore, carry the burden of his agent’s errors.
191

Further,

the dissent acknowledged the ongoing involvement of John Butler

(the local counsel who was responsible for oversight of the New

York-based Sullivan & Cromwell attorneys).
192

Although Butler was

not meant to have “substantive involvement” with the case, the dis-

sent believed Butler’s involvement “would surely include, at a mini-

mum, keeping track of local court orders and advising ‘substantive’

counsel of impending deadlines.”
193

Despite the dissent’s reserva-

tions as to whether the principal-agent relationship had been severed,

there was basic agreement with the reasoning of the majority that if

the relationship had been severed, the client would not bear the bur-

den of the attorney’s mistakes.
194

IV. DOES THE MANDATORY IMPOSITION OF LIFE
IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE FOR
JUVENILES CONSTITUTE CRUEL AND UNUSUAL
PUNISHMENT?

In Graham v. Florida,
195

the Supreme Court held that it was

unconstitutional to sentence a juvenile to life without parole for a

non-homicide crime,
196

but left open the question of whether life

189
Id. at 930 (Scalia, J., dissenting).

190
Id.

191
Id. at 931.

192
Id. at 932.

193
Maples, 132 S. Ct. at 932 (Scalia, J., dissenting).

194
Id. at 930 (“[T]he Court is correct to conclude that a habeas petitioner’s procedural

default may be excused when it is attributable to abandonment by his attorney. In such a

case, Coleman’s rationale for attributing the attorney’s acts and omissions to the client

breaks down; for once the attorney has ceased acting as the client’s agent, ‘well-settled prin-

ciples of agency law,’ no longer support charging the client with his lawyer’s mistakes.”

(quoting Coleman, 501 U.S. at 754)).
195

130 S. Ct. 2011 (2010).
196

Id. at 2034. The actual sentence imposed on Graham was life in prison, but because

Florida has no parole, there was no possibility that Graham would be released. Id. at 2020.

The trial court’s sentence was imposed in spite of the recommendation of the Florida De-

partment in corrections that Graham could be sentenced to a prison term of four years. Id. at

2019. The prosecutor had sought a sentence of thirty years. Id.

23
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

626 TOURO LAW REVIEW [Vol. 29

without parole could be imposed on a juvenile for a homicide crime.

The Supreme Court addressed this issue in Miller v. Alabama,
197

which was a consolidated appeal of two cases involving juveniles

who had been sentenced to life without parole for homicide.
198

In the

first case, fourteen-year-old Jackson had received a mandatory sen-

tence of life without parole when he was convicted of felony murder

and aggravated robbery.
199

In the second case, fourteen-year-old Mil-

ler received a mandatory sentence of life without parole after he was

convicted of a murder which had taken place during the course of ar-

son.
200

The sentences at issue for both Jackson and Miller were man-

datory, meaning that once the juvenile was found guilty of the crime,

the sentence had to be imposed—the judge could not use age as a fac-

tor to mitigate the sentence.
201

In each case, the state courts had de-

termined that the sentences were not unconstitutional.
202

The Su-

preme Court, in a 5-4 opinion written by Justice Kagan, held that a

mandatory sentence of life without parole is unconstitutional when

imposed on a juvenile, even when the juvenile has been convicted of

a homicide crime.
203

The Court first turned to scientific evidence that indicated that

the minds of juveniles are fundamentally different from the minds of

adults.
204

The Court pointed out five distinctions that it found partic-

ularly relevant on the issue of culpability: (1) juveniles have an unde-

veloped sense of responsibility; (2) juveniles are more subject to peer

influence; (3) juveniles act impulsively and engage in reckless con-

duct; (4) juvenile personalities are less fixed than adults; and (5) ju-

veniles are less likely to be irretrievably evil.
205

The sentencing judge

is not free to consider any of these factors within the confines of a

197
132 S. Ct. 2455 (2012).

198
Id. at 2460.

199
Id. at 2461.

200
Id. at 2462-63.

201
Id.

202
Miller, 132 S. Ct. at 2461 (noting that the Arkansas Supreme Court upheld defend-

ant’s mandatory sentence of life without parole since “Roper and Graham were ‘narrowly

tailored’ to their contexts.”); id. at 2463 (“The Alabama Court of Criminal Appeals affirmed,

ruling that life without parole was ‘not overly harsh when compared to the crime’ and that

the mandatory nature of the sentencing scheme was permissible under the Eighth Amend-

ment.”).
203

Id. at 2460.
204

Id. at 2464.
205

Id.
24
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 627

mandatory sentencing scheme.
206

Next, the Court questioned which, if any, penological justifi-

cations for punishment (retribution, deterrence, incapacitation, and

rehabilitation) could be served by the imposition of a mandatory sen-

tence of life without parole for a juvenile.
207

The Court concluded

that none of the penological justifications were met by such a sen-

tence because of the differences between juvenile and adult minds.
208

Retribution was not served because juveniles are less culpable than

adults.
209

Deterrence was not served because juveniles are impulsive

and not likely to calculate and weigh the potential punishment associ-

ated with their actions before acting.
210

Incapacitation was not served

because it cannot be concluded that a juvenile who commits a crime

will forever remain a risk and danger to society.
211

Rehabilitation can

never be one of the goals served by a sentence of life without parole

since there is no hope that a rehabilitated defendant will ever be able

to rejoin society.
212

Therefore, the majority concluded that based on the differ-

ences between adult and juvenile minds, as well as the lack of any

penological justification for the punishment, the mandatory sentence

of life without parole as applied to juvenile offenders is unconstitu-

tional.
213

Justices Breyer and Sotomayor wrote separately to express

their concern as to the appropriateness of any life without parole sen-

tence, even when discretionary, applied to a juvenile who is convict-

ed of a non-intentional homicide.
214

Breyer and Sotomayor opined

that defendant Jackson had the same “twice diminished moral culpa-

bility” which formed the basis for the Court’s holding in Graham,

because Jackson had been convicted of felony murder, a crime in

which he neither “kill[ed] nor intend[ed] to kill the victim.”
215

The

notion of “twice diminished moral culpability” is based on an under-

standing that “a juvenile offender who did not kill or intend to kill” is

less culpable than an adult murderer by virtue of two significant fac-

206
Miller, 132 S. Ct. at 2466.

207
Id. at 2465.

208
Id.

209
Id.

210
Id.

211
Miller, 132 S. Ct. at 2465.

212
Id.

213
Id. at 2469.

214
Id. at 2475 (Breyer, J., concurring).

215
Id.

25
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

628 TOURO LAW REVIEW [Vol. 29

tors: (1) the age of the offender; and (2) the “nature of the crime,” in-

cluding the lack of murderous intent.
216

As to the first factor, the age

of the offender, the Graham court quoted Roper v. Simmons:
217

“From a moral standpoint it would be misguided to equate the fail-

ings of a minor with those of an adult, for a greater possibility exists

that a minor’s character deficiencies will be reformed.”
218

As to the

second factor, the type of crime, the Court concluded that “defend-

ants who do not kill, intend to kill, or foresee that life will be taken

are categorically less deserving of the most serious form of punish-

ment than are murderers.”
219

Breyer and Sotomayor applied this con-

cept to Jackson’s felony murder conviction, and determined that “this

type of ‘transferred intent’ was not sufficient to satisfy the intent to

murder that could subject a juvenile to a sentence of life without pa-

role.”
220

Justices Roberts, Scalia, Thomas and Alito authored the first

dissent, which maintained that the Court has acted as a legislature by

using the Eighth Amendment as a justification to ban punishment that

is not unusual.
221

Indeed, the Court in two crucially important cases

in 2003 had illustrated the historic unwillingness of the Court to in-

terfere with the rights of individual states to determine what ought to

be the appropriate sentences for crimes.
222

These four dissenting Jus-

tices in Miller believe that questions of “science and policy” may in-

dicate that juveniles should not receive such a harsh sentence; how-

ever they do not believe the punishment in question to be cruel or

unusual, and therefore would hold that it is not within the power of

the judiciary to ban such punishments.
223

Justices Thomas and Scalia

authored a separate dissent, stating that the majority’s opinion is

founded in morality and policy, rather than constitutionality.
224

Fi-

216
Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (discussing Graham v. Florida,

130 S. Ct. 2027 (2010)).
217

543 U.S. 551 (2005).
218

Graham, 130 S. Ct. at 2026-27 (quoting Roper, 543 U.S. at 570 (alteration in origi-

nal)).
219

Id. at 2027.
220

Miller, 132 S. Ct. at 2476 (Breyer, J., concurring).
221

Id. at 2477 (Roberts, J., dissenting) (“Determining the appropriate sentence for a

teenager convicted of murder presents grave and challenging questions of morality and so-

cial policy. Our role, however, is to apply the law, not to answer such questions.”).
222

See Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11

(2003).
223

Miller, 132 S. Ct. at 2482 (Roberts, J., dissenting).
224

Id. at 2486-87 (Thomas, J., dissenting).

26
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 629

nally, Alito and Scalia authored a third dissent, which similarly notes

that the Court has overstepped its authority by improperly infringing

upon the prerogatives of the legislature.
225

The Miller decision is line with a recent string of cases ex-

panding the breadth of the definition of cruel and unusual punishment

and thereby limiting the scope of harsh sentences.
226

The Court has

taken the rare step of overturning its earlier decisions where it had

held that it was not cruel and unusual punishment to execute those

who were suffering from mental retardation
227

or who were juveniles

at the time the murder had been committed.
228

In 2009, the Court in

Kennedy v. Louisiana
229

held that it did constitute cruel and unusual

punishment to impose a death sentence for the crime of rape of a

child.
230

The Miller holding also is consistent with the Court’s deci-

sion in Woodson v. North Carolina,
231

which had questioned the ap-

propriateness of mandatory sentencing because of the need to engage

in individualized sentencing that is based on the offender as well as

the offense.
232

The Miller opinion was a huge victory for the 2,000

juveniles who are facing charges for crimes that carry mandatory sen-

tences of life without parole.
233

225
Id. at 2487 (Alito, J., dissenting).

226
See, e.g., Graham, 130 S. Ct. at 2034 (holding that a sentence of life without parol

to a juvenile for a non-homicide crime was cruel and unusual punishment); Roper, 543 U.S.

at 578 (holding that imposition of the death penalty on juvenile offenders is unconstitution-

al); Atkins v. Virginia, 536 U.S. 304, 320 (2002) (holding that imposition of the death sen-

tence on a mentally retarded individual was cruel and unusual punishment).
227

Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated by Atkins, 536 U.S. 304.
228

Stanford v. Kentucky, 492 U.S. 361 (1989), abrogated by Roper, 543 U.S. at 578.

The prior year, the Court in Thompson v. Oklahoma had overturned a death sentence for a

fifteen year old, but had not ruled on the validity of the death penalty for sixteen and seven-

teen year olds. 487 U.S. 815, 838 (1988). In his concurring opinion in Graham, Justice Ste-

vens wrote that, “Society changes. Knowledge accumulates. We learn, sometimes, from our

mistakes.” 130 C. Ct. at 2036 (Stevens, J., concurring).
229

554 U.S. 407 (2008).
230

Id. at 447. The Court emphasized that for crimes against individuals, as distinct

from crimes punishment treason or terrorism, the death penalty will be permissible only for

the crime of murder. Id. at 437. The Court had previously held the death penalty for the

crime of rape in general was unconstitutional because it was disproportionate and excessive.

Id. at 437-38 (citing Coker v. Georgia, 433 U.S. 584 (1977)).
231

428 U.S. 280 (1976).
232

Id. at 304 (prohibiting mandatory death penalty sentence because of the need to en-

gage in individualized sentencing).
233

Miller, 132 S. Ct. at 2477 (Roberts, J., dissenting).

27
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

630 TOURO LAW REVIEW [Vol. 29

V. CONCLUSION

The quartet of concerns that the Court recently addressed can

have a significant impact on the administration of criminal justice.

The expansion of Sixth Amendment right to counsel to cover most

situations that arise in plea bargaining is most notable. Some Circuit

Courts of Appeal had previously recognized that when a lawyer fails

to convey a plea offer to a defendant and the client is prejudiced as a

result, that there has not been the effective assistance of counsel. It

was not until Missouri v. Frye,
234

however, that the Supreme Court

acknowledged that the Sixth Amendment is violated in such a cir-

cumstance. Whereas it might be clear that an individual with court-

appointed counsel had the constitutional right to expect that counsel

would provide correct information regarding the elements of the

crime with which is charged and a reasonable assessment of the like-

lihood of conviction were there to be a trial, it was not until Lafler v.

Cooper
235

that the Court acknowledged such to be the case.

The Court also considered the appropriate remedy for a de-

fendant who had been sentenced to death but whose pro bono counsel

had scandalously abandoned him. Historically, the negligence of an

attorney who was providing representation during post conviction

proceeding and who failed to comply with the requisite timeframe for

filing an appeal with the court, would be attributable to the defendant

whatever the consequences. The Eleventh Circuit in the Maples v.

Thomas matter had determined that the deficiency in counsel’s per-

formance during post-conviction proceedings did not constitute cause

to excuse the procedural default that had occurred, because the Sixth

Amendment right to counsel does not extend to the post-conviction

phase.
236

The Supreme Court, however, concluded that in this in-

stance, the white-glove and generally highly regarded corporate law

firm of Sullivan & Cromwell had in fact abandoned its client, and,

therefore, the Court found cause to excuse the procedural default.

The Court’s expansion of the concept of cruel and unusual

punishment to death penalty cases has been rather extraordinary in

recent years. Whereas the Court had held in 2005 that the death pen-

alty for those under eighteen years of age at the time they committed

234
See supra notes 44-84 and accompanying text.

235
See supra notes 85-123 and accompanying text.

236
See supra notes 140-194 and accompanying text.

28
Touro Law Review, Vol. 29 [2013], No. 3, Art. 8
http://digitalcommons.tourolaw.edu/lawreview/vol29/iss3/8

2013] A CRIMINAL QUARTET 631

the crime was unconstitutional,
237

it had left open the issue of whether

a sentence of life without parole for a juvenile convicted of murder

would be constitutional. The Court had, in 2010, concluded that the

Eight Amendment was violated when a juvenile was sentenced to life

without parole for a non-homicide offense.
238

But it was not until

2012 that the Court determined that even were the crime to have been

one of murder, it is cruel and unusual punishment to sentence a juve-

nile to a term of life with no possibility of parole.
239

237
Roper, 543 U.S.at 578.

238
Graham, 130 S. Ct. at 2034.

239
Miller, 132 S. Ct. at 2460. The Miller decision is the third major Court ruling in

three years to have declared that juveniles need to be treated differently in our criminal jus-

tice system than adults. In J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), the Court held

that a juvenile’s age must be taken into consideration when determining whether a reasona-

ble person would have believed he was in custody for Miranda purposes. Id. at 2408.

29
Klein: A Criminal Quartet
Published by Digital Commons @ Touro Law Center, 2013

Copyright of Touro Law Review is the property of Touro Law Center and its content may not
be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s
express written permission. However, users may print, download, or email articles for
individual use.

CJ 500 Problem-Solving Strategies and Sample

Problem solving is used to address many disciplines, often with different strategies or perspectives. It is a
mental process in the area of criminology. Problems are often either well defined or ill defined. What
appropriate solutions can be determined is based on the definition of the problem. Ill-defined problems
do not have clear goals, solutions, or a path to a solution. Well-defined problems have specific goals and
a distinctive path to a solution. In selecting an issue, make sure that the issue or problem is well defined.
These problems also allow for more initial planning than ill-defined problems. The ability to comprehend
the problem and understanding the issue are paramount. This will be the key to solving your issue or
problem. Sometimes the problem requires some outside-the-box thinking to come up with a creative
and unique solution to the issue.

In determining whether an issue is well defined or ill defined, look to see whether significant research,
data, analysis, or published articles have been written on the topic. Consider the source of this research
when selecting your topic. If the issue appears in your textbook or has been covered in the modules, it
has been published and studied. Select your issue based upon the information that can be gathered,
paying mind to whether the issue is well defined. For example, the use of drug courts across the country
is an issue that has been addressed significantly over the past few years, both in research and in
publication. The use of drug courts is a fundamental shift from punishment to rehabilitation. This shift
has also sparked much controversy in the public. When researching this topic, students will find data
analysis, research, journal articles, and statistics on recidivism rates on drug offenders. This would be a
great example of a well-defined problem.

The following article is a great resource in understanding how problem solving has been incorporated
into the conventional court system: Breaking With Tradition: Introducing Problem Solving in
Conventional Courts.

Brainstorming Strategies

Brainstorming is a relaxed and informal approach to solving a problem. It requires you to think creatively
and outside the box. Brainstorming memorializes and crystallizes initial ideas into original or creative
solutions to the issue you are trying to solve. Brainstorming can also spark more ideas to the problem
you are attempting to solve. This can help implement a light-bulb moment when you are seeking a
solution to your problem, because during brainstorming there is no censorship of ideas. You are trying
to open up possibilities and break down wrong assumptions about the limits of the problem by thinking
outside the box. Ideas should only be evaluated at the end of the brainstorming session, after your
thoughts have been memorialized on paper, in order to tackle a more conventional approach. Review
the following steps in the problem-solving process as well as the problem-solving sample below.

Steps in the Problem-Solving Process

Define the Issue of the Well-Defined Problem

 What has led you to think of this issue as a problem? Understand the problem and how it came
to be; this is a huge first step. It is needed before moving on to other steps.

 What has the problem done to cause it to need to be addressed and fixed?

http://ezproxy.snhu.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&AuthType=cookie,ip,url,cpid&custid=shapiro&db=a9h&AN=31747805&site=ehost-live

http://ezproxy.snhu.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&AuthType=cookie,ip,url,cpid&custid=shapiro&db=a9h&AN=31747805&site=ehost-live

 Who are the stakeholders that will solve this problem? Assemble the stakeholders and begin the
next phase.

Brainstorm the Solutions

 Do not discard ideas at this point. Every idea may have usable information contained
somewhere within it.

 When it comes time to select a solution, you may need to use bits and pieces of other
suggestions in order to come up with a viable one.

 What are some possible solutions? When soliciting solutions, ask yourself these questions: How
will this help solve the solution? Will this have any adverse effects if executed? Could this
solution create other problems if executed?

Select a Solution

 This step may be repeated several times, requiring you to analyze the execution of the solution
and modify it along the way. Each time you modify the solution, always go back to the beginning
and work it through the process again from beginning to end. Each time you modify the
solution, you change the path of it. Analyze it completely through each time, to ensure you are
ending up at the point you need to be at in order to solve the problem.

 Is this solution the best one?

 Is this the most efficient way to solve this problem?

Implement the Solution (Both Immediate and Long-Term Actions)

 Where does the solution need to begin in the chain of events?

 How does the solution need to be executed?

 Does the solution require explanation, or a foundation of explanation, in order for it to take off?
Who is going to implement the solution, and where this occur?

 Is there a chance the solution will be misunderstood and create another problem?

Gather Feedback

 What is needed to accurately assess success of the solution?

 Is the problem solved? Who should you seek feedback from? What should you ask in order to
solicit the correct answer?

 What type of surveys or information can be gathered to assess whether your solution has been
successful? Consider the use of gathering statistics. Review, for example, the Key Statistics page
on the Bureau of Justice Statistics website. Also view the Crime Statistics page on the Federal
Bureau of Investigation website.

Problem-Solving Sample

Defining the Issue
At a certain bus stop in Anytown, USA, between the hours of 4:00 p.m. and 7:00 p.m., there are many
people congregating at the bus stop. The sidewalk pedestrian traffic is blocked, causing people on the
sidewalk to walk around the people waiting for the buses. They walk in the street to go around them.
Vehicle traffic slows to a crawl, backing up for miles. People’s safety is jeopardized when this happens.
So what is the issue? Is the bus stop too small for the number of people riding? Is it that the businesses
in the area are letting their employees off work at the same time? Depending on how you look at this,

http://www.bjs.gov/index.cfm?ty=kfa

http://www.bjs.gov/

https://www.fbi.gov/stats-services/crimestats

https://www.fbi.gov/stats-services/fbi-resources

https://www.fbi.gov/stats-services/fbi-resources

you could come up with many problems. Who are the stakeholders in this situation? Who can
contribute to the solution? The police, bus company, businesses in the immediate area, and the
pedestrian traffic would be a good place to start.

Brainstorm the Solutions, Select a Solution
Coming up with a solution for this simple scenario would be easy in a perfect world; the bus company
needs to increase bus service to this route by four buses. But what happens when the bus company only
has one or two extra buses? The point is that it is impractical to think that a solution is a one-person, or
in this case a one-company, responsibility. It becomes the responsibility of each stakeholder to fix the
problem, because each stakeholder has a vested interest in resolving the problem. The bus company
wants more revenue. The police want to reduce traffic jams and make the roads safer for everyone. The
pedestrians would like to get home quicker.

The solution here may involve a little bit of effort or change from each stakeholder. For example, say the
bus company was able to add one additional bus during this rush hour, which reduced the crowd a little.
The local businesses in the immediate area that employed large numbers of employees agreed to start
staggering their quitting times. Rather than everyone getting off work at the same time, they agreed to
stagger their quitting times between the affected hours, reducing the bus crowd a little bit more.
Another recommended solution was made by the police. They agreed to reroute opposing traffic and
open up the entire street to one-way traffic, expediting the vehicular traffic out of the city. The
pedestrian traffic (the people) suggested that they could line up at the bus stop in a single-file fashion,
allowing other pedestrians a clear path on the sidewalk to walk by. This would eliminate pedestrians
walking out into the street, causing traffic to slow down and putting other people at risk. These are all
great plans. Which one do you select? You could select one, or you could select them all. You could
implement them all at once, or you could implement them one at a time, allowing each solution time to
see if it reduces the problem to an acceptable level.

Implement the Solution
In the example above, all of the suggestions were implemented. The solutions suggested that involved
little to no money or resources were implemented first, and the rest were implemented from the least
costly to the most. The changes were implemented over a four-week period. By the end of the fourth
week, all solutions were implemented.

Feedback
After all solutions were implemented, each stakeholder sent a representative out to the street corner to
observe the plan. Vehicle traffic was moving at a normal speed. No pedestrians were walking in the
road. Standing and waiting for the bus was reduced to the point where there was nearly no wait. This
was due to the fact that the buses were able to get to the bus stop faster, because the traffic speed
moved at a normal pace, coupled with the extra bus that were added during peak times.

Who benefitted here? Everyone did. The types of information collected to see whether this was a
successful solution showed that the police now had more time to spend on more important duties, and
that pedestrians got home quicker, which made them happier employees. Work production increased
due to happier employees. Profits for the bus company improved because, with this solution, they
quadrupled the number of passengers in the same amount of time. Businesses sold more items because
it was easier to move around from store to store. Plus—the most important thing—no one was placed in
harm’s way anymore.

The following methods were used to collect information to assess the success of the solution:

 Surveys to the police officers, pedestrians, and employers

 Data that showed what police officers were able to accomplish in the time period when they
used to be monitoring traffic

 The profit data from the bus company and the businesses in the area

 Analysis of the past and present incident reports from the area