Professor Stephanos Bibas has a provocative commentary in the current edition of the Harvard Law Review Entitled, INCOMPETENT PLEA BARGAINING AND EXTRAJUDICIAL REFORMS.  The article begins,

For many years, plea bargaining has been a gray market. Courts are rarely involved, leaving prosecutors unconstrained by judges or juries.1 Prosecutors’ plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel’s competence, compensation, and zeal.3 And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively. Nevertheless, criminal procedure has long focused on jury trials. Even though guilty pleas resolve roughly ninety-five percent of adjudicated criminal cases, the Supreme Court has usually treated plea bargaining as an afterthought, doing little to regulate it. When it has regulated pleas, the Court has largely focused on the procedures for waiving trial rights, not the substantive pros and cons of striking a deal. This past Term, the Court for the first time addressed how the Sixth Amendment’s guarantee of effective assistance of counsel applies to defendants who reject bargains and receive heavier sentences after fair trials. In Lafler v. Cooper7 and Missouri v. Frye, a five-to-four majority of the Court held that ineffectiveness that leads defendants to reject plea bargains can satisfy both the performance and prejudice prongs of Strickland v. Washington. Incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment.

The full article can be found at http://www.harvardlawreview.org/media/pdf/vol126_bibas.pdf