New DOJ policy bans waiver of potential ineffective-assistance claims against defense counsel
Attorney General Eric Holder. ABA file photo by Tony Avelar.
In a new policy announced Tuesday that is effective immediately, the U.S. Department of Justice says an individual who takes a plea cannot waive a potential ineffective assistance claim against his or her legal counsel by doing so.
That means federal prosecutors can no longer include such waiver language in plea bargain documents and that waivers in earlier documents that have already been signed should not be enforced, the Washington Post (reg. req.) reports. Before this week, 35 of the Justice Department’s 94 U.S. attorney’s offices still used the waiver, the Post reported.
“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Eric H. Holder Jr. in a DOJ press release. “Under this policy, no defendant will have to forgo their right to able representation in the course of pleading guilty to a crime.”
The American Bar Association urged Holder to do away with the policy last year and commended the DOJ’s decision. “Respect for the integrity of the criminal justice system requires a fair process, conflict-free defense counsel and the proper administration of justice,” ABA President William C. Hubbard said in a statement. “With a high percentage of criminal cases decided by guilty pleas, the routine use of waivers of ineffective assistance of counsel can create a conflict of interest and insulate attorney conduct from judicial review.”
The Blog of Legal Times (sub. req.) provides a copy of the DOJ’s memo to prosecutors (PDF).
The Hill, the Los Angeles Times (sub. req.) and the Wall Street Journal (sub. req.) also have stories.
Updated Oct. 15 to add Hubbard’s comments and additional information from the Washington Post.
