Tuesday, August 12, 2014
Peter A. Joy and Rodney J. Uphoff (Washington University in Saint Louis - School of Law and University of Missouri School of Law) have posted Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining on SSRN. 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.
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.