The future of health care in America is on the table.

After more than an hour of arguments Wednesday, the Supreme Court seemed divided in a case concerning what Congress meant in one very specific four-word clause of the Affordable Care Act with respect to who is eligible for subsidies provided by the federal government to help people buy health insurance. If the Court ultimately rules against the Obama administration, more than 5 million individuals will no longer be eligible for the subsidies, shaking up the insurance market and potentially dealing the law a fatal blow. A decision likely will not be announced by the Supreme Court until May or June.

The liberal justices came out of the gate with tough questions for Michael Carvin , the lawyer challenging the Obama administration's interpretation of the law, which is that in states that choose not to set up their own insurance exchanges, the federal government can step in, run the exchanges and distribute subsidies. Arvin argued it was clear from the text of the law that Congress authorized subsidies for middle and low income individuals living only in exchanges "exstablished by the states." Just 16 states have established their own exchanges, but millions of Americans living in the 34 states are receiving subsidies through federally facilitated exchanges.

But Justice Elena Kagan, suggested that the law should be interpreted in its "whole context" and not in the one snippet of the law that is the focus of the challengers. Justice Sonia Soto mayor was concerned that the challenger's interpretation of the law could lead to "death spirals" in states that hadn't established their own exchanges. Justice Anthony Kennedy, another potential swing vote, asked questions that could be interpreted for both sides, but he was clearly concerned with the federalism aspects of the case. He grilled Carvin on the "serious" consequences for those states that had set up federally-facilitated exchanges. At one point he told Carvin that his argument raised "a serious constitutional question."

President Obama has expressed confidence in the legal underpinning of the law in recent days."There is, in our view, not a plausible legal basis for striking it down," he told Reuters this week. Wednesday’s hearing marks the third time that parts of the health care law have been challenged at the Supreme Court. In this case -- King v. Burwell -- the challengers say that Congress always meant to limit the subsidies to encourage states to set up their own exchanges. But when only 16 states acted, they argue the IRS tried to move in and interpret the law differently.

Republican critics of the law, such as Texas Sen. Ted Cruz, filed briefs warning that the executive was encroaching on Congress' "law making function" and that the IRS interpretation "opens the door to hundreds of billions of dollars of additional government spending."In a recent op-ed in the Washington Post, Orrin Hatch (R-Utah) and two other Republicans in Congress said that if the Court rules in their favor "Republicans have a plan to protect Americans harmed by the administration's actions."Hatch said that Republicans would work with the states and give them the "freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices."

Via: http://www.cnn.com/2015/03/04/politics/obamacare-supreme-court-oral-arguments/index.html

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

Supreme Court Strikes Down Key Part of Voting Rights Act

WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and gave very different accounts of whether racial minorities continue to face discrimination in voting.

President Obama, whose election as the nation’s first black president was cited by critics of the law as evidence that it was no longer needed, said he was “deeply disappointed” by the ruling. “Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent,” he said.

The decision will have immediate practical consequences. Changes in voting procedures that had required advance federal approval, including voter identification laws and restrictions on early voting, will now be subject only to after-the-fact litigation.

“With today’s decision,” said Greg Abbott, Texas’ attorney general, “the state’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

Chief Justice Roberts said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. When the law was last renewed, in 2006, Congress relied on data from decades before to decide which states and localities were covered. The chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.

The current coverage scheme, Chief Justice Roberts wrote, is “based on 40-year-old facts having no relationship to the present day.”

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

The decision did not strike down Section 5, which sets out the preclearance requirement. But without Section 4, which determines which states are covered, Section 5 is without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

It was hardly clear, in any event, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying the majority opinion had provided the reasons and merely left “the inevitable conclusion unstated.”

The Supreme Court had repeatedly upheld the law in earlier decisions, saying that the preclearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks.

Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement, and Chief Justice Roberts said its "strong medicine" was the right response to "entrenched racial discrimination." At the time it was first enacted, he said, black voter turnout in the South stood at 6.4 percent in Mississippi.

In the most recent election, by contrast, “African-American voter turnout has come to exceed white voter turnout in five of the six states originally covered by Section 5.”

The chief justice recalled the Freedom Summer of 1964, when the civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered near Philadelphia, Miss., while working to register black voters. He mentioned Bloody Sunday in 1965, when police officers beat marchers seeking the right to vote in Selma, Ala.

“Today,” Chief Justice Roberts wrote, “both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.”

In summarizing her dissent from the bench, an unusual move and a sign of deep disagreement, Justice Ginsburg called on the words of the Rev. Dr. Martin Luther King Jr. to make a different point.

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “'The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”

“That commitment,” she said, “has been disserved by today’s decision.”

She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said Section 5 had been effective in thwarting such efforts.

In any event, she said, Congress, which reauthorized the law by a large majority in the House and unanimously in the Senate, was the right body to decide whether the law was needed and where.

The Supreme Court had once before considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress, Chief Justice Roberts noted on Tuesday, did not respond.

Justice Ginsburg suggested in her dissent that an era had drawn to a close with the court’s decision on the Voting Rights Act, or V.R.A., in Shelby County v. Holder, No. 12-96.

“Beyond question, the V.R.A. is no ordinary legislation,” she wrote. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” the Reconstruction Era amendment that barred racial discrimination in voting and authorized Congress to enforce it.

“The court errs egregiously,” she concluded, “by overriding Congress’s decision.”

This article has been revised to reflect the following correction:

Correction: June 25, 2013

An earlier version of this article misstated the name of a civil rights worker murdered in 1964. He was Michael Schwerner, not Schwermer.

Via NY Times

http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html?pagewanted=1&_r=0

Four out of Nine Supreme Court Justices Are Okay With Executing the Innocent

By Paul Goodman
Back before I was a telco nerd, I was a criminal defense nerd, and I still follow developments in criminal justice.  While the criminal justice system evolves, one constant is that race still plays a huge role. If you want proof, there’s no better policy to examine than the death penalty. If you’re a member of a minority in this country, you’re far more likely to get the death penalty if you’re convicted of murder. For example, about fifty percent of murder victims are white; however, in cases which result in an execution, about eighty percent of the victims are white.  Similarly, a study of the death penalty in Georgia concluded the race of the defendant and the race of the victim play a huge role in whether the government executes the defendant:

Defendant’s Race	Victim’s Race	% Sentenced to Death
Black	White	22
White	White	8
Black	Black	1
White	Black	3

(That bottom statistic isn’t terribly trustworthy:  Out of 2,500 homicide cases in the study, only 65 involved a white defendant and a black victim, too small a sample to be reliable.)

Without getting into the whole death penalty debate, most people can agree that if we’re going to execute people, it should be people who are actually guilty.  We’ve almost undoubtedly executed innocent people.

Since 1973, over 140 people have been exonerated and freed from death row. There’s a host of reasons innocent people end up on death row, from the way memory works to bad science toprosecutorial misconduct. Like everything created by human beings, the justice system makes mistakes.

McQuiggen v. Perkins is a case about evidence of innocence. Under federal law, a defendant sentenced to the death penalty can only present new evidence of their innocence within a year of their last appeal. So if you uncover new evidence proving your innocence a year and one day after that appeal, you’re out of luck. On Tuesday, the Supreme Court, with a 5-4 vote, decided that in some circumstances, the one-year limit doesn’t apply.  That will save some innocent lives, but four justices were willing to strictly enforce the one-year limit even if it means killing people who have done nothing wrong.

In a dissenting opinion, Justice Scalia bitterly complained about the ruling. He takes his usual positions—the Court doesn’t have the authority to make the exception, the Court must strictly interpret Congress’ wishes, and so on. Here’s a particularly chilling excerpt:

There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them.

Scalia’s dissent argues that because Congress created the one-year limit, the Court does not have the authority to carve out exceptions to that limit.  The subtext, however is that Scalia has no problem with our government executing a perfectly innocent person. Neither do the three justices who joined the dissent. That’s a disturbing proposition, and completely ignores the pervasive racism of our criminal justice system.

Law is full of what we call “legal fictions.”  For example, when you click the “I agree” button when using the iTunes store, courts will assume you read and understood Apple’s terms and conditions, even if you didn’t.  Or get this one: If you buy a smart phone, by removing the shrink wrap, you agree to the terms and conditions which are printed in a booklet inside of the box. It’s one of those situations where courts decide, “we don’t know whether you agreed or not, but for the sake of efficiency, we’ll assume that you did.  Otherwise, courtrooms will be even more backlogged than they already are.”

There are times when the law shafts you for the sake of efficiency.  But what I’m most disgusted by is the fact that on May 29, 2013, there are Supreme Court justices who do not understand  that the government deciding to kill you should not be one of those times, especially when that government is more likely to kill you if you’re a person of color, and there’s a fair chance you don’t deserve to die.

via Greenlining.org

Supreme Court rules police can take DNA samples from arrestees

WASHINGTON (AP) — A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.

‘‘Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,’’ Justice Anthony Kennedy wrote for the court’s five-justice majority.

But the four dissenting justices said that the court was allowing a major change in police powers.

‘‘Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,’’ conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. ‘‘This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.’’

Twenty-eight states and the federal government now take DNA swabs after arrests. But a Maryland court was one of the first to say that it was illegal for that state to take Alonzo King’s DNA without approval from a judge, saying King had ‘‘a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches’’ under the Fourth Amendment.

But the high court’s decision reverses that ruling and reinstates King’s rape conviction, which came after police took his DNA during an unrelated arrest. Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Maryland’s DNA collection law only allows police to take DNA from those arrested for serious crimes like murder, rape, assault, burglary and other crimes of violence. In his ruling, Kennedy did not say whether the court’s decision limits DNA only to those crimes, but he did note that other states’ DNA collection laws differ from Maryland's.

Scalia saw that as a flaw. ‘‘If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light,’’ he said.

Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing. The fight at the Supreme Court was over whether that DNA collection could come before conviction and without a judge issuing a warrant.

According to court documents, the FBI’s Combined DNA Index System or CODIS — a coordinated system of federal, state and local databases of DNA profiles — already contains more than 10 million criminal profiles and 1.1 million profiles of those arrested.

Kennedy called collecting DNA useful for police in identifying individuals.

‘‘The use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,’’ Kennedy said. ‘‘DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to police.’’

In the case before the court, a 53-year-old woman was raped and robbed but no one was arrested. Almost six years later, Alonzo King was arrested and charged with felony second-degree assault. Taking advantage of the Maryland law that allowed warrantless DNA tests following some felony arrests, police took a cheek swab of King’s DNA, which matched a sample from the 2003 Salisbury rape. King was convicted of rape and sentenced to life in prison.

King eventually pleaded guilty to a lesser charge of misdemeanor assault from his arrest, a crime for which Maryland cannot take warrantless DNA samples. The state courts said it violated King’s rights for the state to take his DNA based on an arrest alone. The state Court of Appeals said King had ‘‘a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches.’’ But the high court’s decision reinstates King’s conviction.

Maryland stopped collecting DNA after that decision, but Roberts allowed police to keep collecting DNA samples pending the high court’s review.

The case is Maryland v. King, 12-207.

via boston.com

Supreme Court Could Avoid Ruling on California Gay Marriage Ban

The Supreme Court suggested Tuesday it could find a way out of the case over California's ban on same-sex marriage without issuing a major national ruling on whether gays have a right to marry, an issue one justice described as newer than cellphones and the Internet.

Several justices, including some liberals who seemed open to gay marriage, raised doubts during a riveting 80-minute argument that the case was properly before them. And Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.

Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.

Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.

Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.

There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights.

Kennedy made clear he did not like the rationale of the federal appeals court that struck down Proposition 8, the California ban, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.

That appeals court ruling applied only to California, where same-sex couples briefly had the right to marry before voters adopted a constitutional amendment in November 2008 that defined marriage as the union of a man and a woman.

Several members of the court also were troubled by the Obama administration's main point that when states offer same-sex couples all the rights of marriage, as California and eight other states do, they also must allow marriage.

Justice Samuel Alito described gay marriage as newer than such rapidly changing technological advances as cellphones and the Internet, and appeared to advocate a more cautious approach to the issue.

"You want us to assess the effect of same-sex marriage," Alito said to Solicitor General Donald Verrilli. "It may turn out to be a good thing. It may turn out to be not a good thing."

Charles Cooper, representing the people who helped get Proposition 8 on the ballot, ran into similar resistance over his argument that the court should uphold the ban as a valid expression of the people's will and let the vigorous political debate over gay marriage continue.

Here, Kennedy suggested that Cooper's argument did not take account of the estimated 40,000 children who have same-sex parents. "The voices of these children are important, don't you think?" Kennedy said.

via Dallas News

California's working poor would lose a lot if health reform law dies

A bill to create a federally funded Basic Health Plan for about 720,000 low-income residents would go for naught if the Supreme Court tosses out the law.

If the healthcare reform law is thrown out by the U.S. Supreme Court — as many fear could happen based on the comments of conservative justices — more than 700,000 low-income Californians could lose a once-in-a-lifetime chance to obtain affordable health insurance.

At stake is what's known as a Basic Health Plan. This is a system provided for by the reform law, fully funded by the federal government, that would extend coverage to people who may not be able to afford conventional insurance policies but don't qualify for Medi-Cal.

 

State Sen. Ed Hernandez (D-West Covina), chairman of the Senate health committee, is the author of legislation that would create a Basic Health Plan in California beginning in 2014. It would provide coverage to about 720,000 people for as little as $30 a month.

But that's only if the reform law remains intact, providing up to $3 billion in federal funds needed annually to make the program a reality.

"If the court throws out the entire law, that's the nuclear option," Hernandez told me. "The Basic Health Plan would lose all funding. It's what I'm afraid of most."

Critics of the healthcare reform law focus primarily on its requirement that most people buy insurance or face a modest tax penalty, which is the trade-off for a separate requirement that insurers provide coverage to everyone, regardless of medical condition.

These critics seldom acknowledge other aspects of the law aimed at helping insure some of the roughly 50 million people in this country who now lack coverage.

That's an act of pure selfishness (even though we'd all benefit from having fewer people relying on emergency services for treatment). It's also a display of heartlessness unbefitting a country that claims to define itself by love-thy-neighbor Judeo-Christian values.

I wrote this month about another program in jeopardy, the Pre-Existing Condition Insurance Plan, or PCIP, which relies on nearly $350 million in federal funds to provide a safety net for Californians who have been turned away by private-sector insurers because of a medical disorder.

The PCIP is intended to protect such people until so-called insurance exchanges are created by the reform law in a couple of years. But if the Supreme Court rules the entire law unconstitutional, the exchanges would almost surely collapse and funding for PCIP would vanish.

Hernandez's Basic Health Plan faces the same prospect.

"The beauty of the plan is that it's completely funded by the federal government," he said. "When we can help this many people get access to the affordable, quality healthcare they need without putting additional strain on California's budget, we need to act."

Hernandez's bill, SB 703, would target people earning $30,000 to $46,000 a year. Such people would probably find the policies offered by insurance exchanges too pricey, although it remains to be seen how much coverage under the system would cost.

 

At the same time, these people would be largely ineligible for Medi-Cal because their incomes are above the near-poverty levels required by the program.

"The Basic Health Plan is coverage for the working poor," Hernandez explained.

The drafters of the healthcare reform law anticipated a need for such coverage, he said, because many people fall between the cracks of the existing healthcare system. So funding for Basic Health Plans was included in the law for any state choosing to establish such a program.

"It is clear, even at this early stage, that the BHP option deserves serious consideration by states seeking to provide their low-income residents with affordable and continuous coverage while improving state fiscal circumstances in 2014 and beyond," the nonpartisan Urban Institute concluded in a recent report.

Hernandez's bill creating a Basic Health Plan in California was approved by the state Senate last year. It's now making its way through the Assembly.

The key question before the Supreme Court, meanwhile, is whether Congress has the authority to impose a tax penalty if people choose not to buy health insurance.

Although many constitutional scholars say this power is well-established under a number of judicial precedents, the court's conservative justices made clear during three days of hearings that they think lawmakers may have overstepped.

Justice Antonin Scalia indicated that if the so-called mandate is ruled unconstitutional, the entire law would have to be scrapped. "My approach would be to say that if you take the heart out of this statute," he said, "the statute's gone."

With it would go the requirement that insurers provide family coverage to young people up to age 26, which has extended insurance to about 2.5 million people. With it would go the requirement that insurers cover anyone who applies, no questions asked.

With it would go the Pre-Existing Condition Insurance Plan, which is currently the only affordable way many people can obtain coverage. With it would go the exchanges that would provide a marketplace for millions of people who lack insurance.

And with it would go the Basic Health Plans that, as Hernandez observed, may be the only recourse for the working poor — people who are striving mightily to participate in the economic benefits of American society but all too frequently are left out in the cold.

The stakes are so very high.

Republican politicians can criticize the healthcare reform law all they want. But at least offer an alternative that accomplishes as much.

David Lazarus' column runs Tuesdays and Fridays. He also can be seen daily on KTLA-TV Channel 5. Send your tips or feedback to david.lazarus@latimes.com.

via LA Times 

Justices’ Ruling Expands Rights of Accused in Plea Bargains

WASHINGTON — Criminal defendants have a constitutional right to effective lawyers during plea negotiations, the Supreme Court ruled on Wednesday in a pair of 5-to-4 decisions that vastly expanded judges’ supervision of the criminal justice system.
     

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Justice Kennedy, who more often joins the court’s conservative wing in ideologically divided cases, was in this case in a coalition with the court’s four more liberal members. That alignment has sometimes arisen in recent years in cases that seemed to offend Justice Kennedy’s sense of fair play.

The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.

In the context of trials, the Supreme Court has long established that defendants were entitled to new trials if they could show that incompetent work by their lawyers probably affected the outcome. The Supreme Court has also required lawyers to offer competent advice in urging defendants to give up their right to a trial by accepting a guilty plea. Those cases hinged on the right to a fair trial guaranteed by the Sixth Amendment.

The cases decided Wednesday answered a harder question: What is to be done in cases in which a lawyer’s incompetence caused the client to reject a favorable plea bargain?

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, acknowledged that allowing the possibility of do-overs in cases involving foregone pleas followed by convictions presented all sorts of knotty problems. But he said the realities of American criminal justice required to the court to take action.

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

“In today’s criminal justice system,” Justice Kennedy wrote, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Quoting from law review articles, Justice Kennedy wrote that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.” He added that “longer sentences exist on the books largely for bargaining purposes.”

One of the cases, Missouri v. Frye, No. 10-444, involved Galin E. Frye, who was charged with driving without a license in 2007. A prosecutor offered to let him plead guilty in exchange for a 90-day sentence.

But Mr. Frye’s lawyer at the time, Michael Coles, failed to tell his client of the offer. After it expired, Mr. Frye pleaded guilty without a plea bargain, and a judge sentenced him to three years.

A state appeals court reversed his conviction but said it did not have the power to order the state to reduce the charges against him. That left Mr. Frye roughly where he started, with the options of going to trial or pleading guilty without the benefit of a plea deal.

Justice Kennedy wrote that Mr. Frye should have been allowed to try to prove that he would have accepted the original offer. But that was only the beginning of what Mr. Frye would have to show to get relief. He would also have to demonstrate, Justice Kennedy wrote, that prosecutors would not have later withdrawn the offer had he accepted it, as they were allowed to do under state law. Finally, Justice Kennedy went on, Mr. Frye would have to show that the court would have accepted the agreement.

A version of this article appeared in print on March 22, 2012, on page A1 of the New York edition with the headline: Justices Expand Right Of Accused In Plea Bargains.

http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?nl=todaysheadlines&emc=edit_th_20120322

By ADAM LIPTAK
Published: March 21, 2012