Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in right to counsel cases. Because the constitutional test under the Sixth Amendment is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” the standard of competence is necessarily an evolving one. The Supreme Court\u27s decision in Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of defense counsel\u27s obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms. The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla. Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court. The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons. Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla. It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect