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April 30, 2014

"Waiving the Criminal Justice System: An Empirical and Constitutional Analysis"

The title of this post is the title of this notable and important new paper now available on SSRN and authored by Susan Klein, Donna Lee Elm and Aleza Remis.  Here is the abstract:

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system."  Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea.

In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court â€” waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage.  We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm.  After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

April 30, 2014 at 09:02 AM | Permalink


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I don't know what is notable about "we conclude that effective assistance of counsel waivers are unethical"
Back in 2001, the Ohio Board of Commissioners on Grievances and Discipline in Opinion 2001-06 opined: "It is unethical under the Ohio Code of Professional Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a plea agreement that waives the defendant’s appellate or postconviction claims of ineffective assistance of trial counsel or prosecutorial misconduct."

Posted by: ? | Apr 30, 2014 11:49:37 AM

I'm with you ?! I'd consider that one a no-brainer at a minimum and allow criminal prosecution against any DA or Defense Attorney who did it.

Posted by: rodsmith | May 1, 2014 1:58:53 PM

When I was young--I remember distinctly--this is what we were told the criminal justice system was like in "communist" countries. Simply to be accused of a crime was to be convicted. The charges and the punishment were decided by government bureaucrats unaccountable to anyone outside the regime. Courts and judges served as only as a formality as they rubber-stamped the decisions. The greatest persecution was reserved for those who asserted their rights. And all this despite florid guarantees in written laws and constitutions.

Posted by: Boffin | May 3, 2014 3:40:49 PM

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