Examples of the federal government’s overreach are popular topics across much of the country, sometimes for good reason and sometimes not. But most Americans would agree that a policy of making it possible for a defendant in federal cases to waive their right to claim that ineffective legal representation took place is a very bad idea.
What has been occurring is in cases in which a defendant pleaded guilty to a crime, the defendant has been asked to waive the right to appeal on the grounds of receiving poor legal advice. These are cases in which a defendant may plead guilty and receive a certain short prison term, say, rather than risk receiving a longer sentence from a jury or a judge after a trial. Later, he might believe his attorney should have recommended he go to trial, instead.
Federal prosecutors have not required the defendant to give up the right to appeal claiming ineffective counsel, but that option has been frequently presented in the body of the plea agreement. According to a recent story in The Wall Street Journal, the waivers are used by about one-third of the U.S. attorneys’ offices.
If agreed to, and the defendant later believes he has an argument that he received inadequate representation (and likely is serving more time than he thinks he deserves), he cannot ask to have his guilty plea or the terms of his plea bargain reviewed.
According to the Journal, prosecutors have used the waiver in an attempt to reduce the number of frivolous legal actions. It is understandable, of course, for a defendant to try to reduce his sentence or to at least postpone it. That is the American criminal system.
The use of the waivers has been an ethical issue for years in legal communities, wrote the Journal, but it took a Kentucky Supreme Court ruling last month to bring the topic to a head. That court became the first to label the waivers unethical. As well, 11 other state bar associations have signaled that those organizations believe the waivers should be eliminated.
The waivers are viewed as negating an important component of the judicial process, that defendants have a right to receive appropriate legal counsel.
Attorney general Eric Holder announced last week that he will be stepping down from the position of top federal attorney. Holder’s office has announced that eliminating the waiver will be one of the decisions he makes before leaving office. It looks to us to be a very good decision.
