From the Archives: Harvard Law and Policy Review

What Are a Criminal Defendant’s Sixth Amendment Rights In A World of Plea Incentivizing?

Author’s Note: This was published November 4, 2011 during my time when I was regular columnist at the Harvard Law and Policy Review.

Imagine the following scenario: John Doe has been accused of narcotics sales by Assistant District Attorney Brown. Mr. Brown meets Mr. Doe’s court-appointed attorney, Jack Smith, and offers a plea bargain which would result in a maximum sentence of 2 years.

As it is his Office’s policy to incentivize pleas prior to indictment, Mr. Brown makes the plea offer available only until the matter is presented to a grand jury in two weeks. As the deadline for acceptance of the plea offer approaches, Mr. Smith is on vacation and his colleague, Ms. Jones, handles the case instead. As Mr. Smith has failed to adequately document prosecutor Brown’s plea offer, Ms. Jones tells Mr. Doe that his choices are to plead guilty as charged or go to trial. Mr. Doe pleads guilty and receives a 7 year sentence.

This unfortunate scenario and its corollary, going to trial on defense c…