Waiving the Criminal Justice System: An Empirical and Constitutional Analysis

This article examines the inclusion of waivers in plea agreements and its growth in recent years. The article specifically focuses on the waiver of one’s Due Process right to receive exculpatory evidence and the waiver of one’s Sixth Amendment right to effective assistance of counsel during plea negotiations. In reviewing a set of federal pleas, the authors found that many prosecutors seek waivers of all of a defendant’s statutory and constitutional rights because appeals and collateral attacks negate the underlying purpose of plea bargaining, which is closure and finality. Thus, as long as the practice of seeking waivers of a defendant’s Sixth Amendment right or Due Process right is deemed legal and acceptable, such waivers will continue to be used as a bargaining chip by actors in the criminal justice system. The use of waivers—especially the waiver of a claim for ineffective assistance of counsel—troubles the authors of this article for three reasons: (1) state bars across the United States have held that these waivers contravene ethics conflict rules; (2) the ban of such waivers is the only way to ensure a plea bargaining system of the highest integrity; and (3) such waivers “offend the very narrow category of constitutional rights that cannot be waived” by a defendant. In conclusion, the article calls for ineffective assistance of counsel waivers to be deemed invalid.

“…[T]here is no feasible return to our former system of trials. Once we accept that premise, we must be willing to regulate plea bargaining, or the executive branches of the government will fill the vacuum with rules favorable to itself. A mandatory plea bargaining system where the kind of deal received is fortuitous, depending upon quality of prosecutor and defense attorney assigned, rather than level of guilt, leads to unequal sentences for similarly situated defendants and, in rare cases, the conviction of the innocent.” p. 77