« Oklahoma releases extensive report concerning problems with Lockett execution | Main | Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges »

September 4, 2014

"Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining"

The title of this post is the title of this notable paper I just saw on SSRN authored by Peter Joy and Rodney Uphoff.  Here is the abstract:

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process.  At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye.  Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved.

Waivers of ineffective assistance of counsel claims pose both legal and ethical issues. Legally, the waivers serve to undermine a defendant’s due process rights — recognized by the Court in Gideon v. Wainwright — by requiring the defendant not only to waive what is unknown to them at the time of waiver, but to do so even when based upon bad advice of ineffective counsel.  Ethically, a defense lawyer counseling a defendant to waive ineffective assistance of counsel claims has a personal conflict of interest with the client, because the lawyer has reputational and other interests in not having the lawyer’s representation of the client determined to be ineffective.

Whether the Supreme Court would approve a waiver of an ineffective assistance claim that would negate the due process right to effective assistance of counsel is not yet resolved.  Such a decision, however, would immunize much incompetent lawyering from any judicial scrutiny altogether.

This article begins by examining the systemic barriers defense counsel face to provide meaningful advice to criminal defendants contemplating a guilty plea These barriers include the underfunding of defense services in many jurisdictions and the coerciveness of the plea bargaining process.  Next, the article analyzes the law and ethics of waivers of ineffective assistance of counsel claims and whether such waivers should be permissible.  We contend that such waivers should not be enforceable for both legal and ethical reasons.  Permitting waivers of ineffective assistance of counsel claims not only constitutes judicial acceptance of a prosecutorial veto of the Court’s recent decisions regarding plea bargaining, but also ensures that more defendants never receive the effective assistance of counsel during plea bargaining.

September 4, 2014 at 02:12 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201b8d0636ed1970c

Listed below are links to weblogs that reference "Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining":

Comments

Again, after any ruling of inadequacy of counsel, should there be a per se lawyer malpractice case filed, where the sole question remaining is the value of the damages? I think so.

Posted by: Supremacy Claus | Sep 5, 2014 2:54:59 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB