Plea Agreements and Waivers - Awaiting New Policy Announcement

According to the Wall Street Journal, the DOJ will soon announce a major policy shift regarding plea agreements and certain types of waivers.  According to the paper, Attorney General Holder is preparing to announce that the government will no longer request defendants waiver their right to appeal for ineffective assistance of counsel.  

The waivers are used by about one-third of the 94 U.S. attorneys' offices and have come under increased scrutiny by legal ethics authorities in recent years. While federal prosecutors say the waivers pre-empt frivolous litigation and preserve resources, defense lawyers and federal public defenders argue they create a conflict of interest and insulate attorney conduct from judicial review.

The debate has grown in importance now that nearly all charges in federal and state courts are settled with plea bargains. These agreements represented more than 97% of all federal convictions in 2013, said the Administrative Office of the U.S. Courts.

By signing a waiver—usually a paragraph in a plea agreement—a defendant agrees not to challenge her conviction by filing a claim alleging that an attorney provided ineffective assistance. If the defendant were to try anyway, a court could enforce the waiver without considering the merits of the claim.

In a ruling last month, the Kentucky Supreme Court became the first to pronounce such waivers unethical, saying they put defense lawyers in the awkward position of having "to advise a client on the attorney's own conduct."

Along with the Kentucky pronouncement, bar associations in eleven other states currently hold that such waivers are improper.  The entire Wall Street Journal article is here.