Waiving the criminal justice system: an empirical and constitutional analysis.

AuthorKlein, Susan R.
PositionI. Introduction: The World of Guilty Pleas into III. The Future of Effective Assistance of Counsel Waivers A. Unethical Waivers of Conflict of Interest, p. 73-100
  1. Introduction--The World of Guilty Pleas II. The Growth of Waivers A. Discovery and Habeas Waivers--An Empirical Assessment B. Plea Appeal and Collateral Attack Waivers--A National Survey C. Judicial Reaction to Effective Assistance of Counsel Waivers III. The Future of Effective Assistance of Counsel Waivers A. Unethical Waivers of Conflict of Interest B. A Voluntary, Intelligent Plea Bargaining System Depends Upon Unconflicted Counsel C. Effective Assistance of Counsel During Plea Negotiation as a Non-Waivable Right IV. Conclusion V. Appendices A. Appendix A: Robbery FOIA Waivers B. Appendix B: Robbery Brady Waiver C. Appendix C: Robbery Habeas Waiver D. Appendix D: Robbery DNA Waiver E. Appendix E: Arson Habeas Waiver F. Appendix F: Arson FOIA Waiver G. Appendix G: Arson Brady Waiver H. Appendix H: Plea Appeal and Collateral Attack Waivers Chart I. Introduction--The World of Guilty Pleas

    Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where plea-bargaining "is the criminal justice system." (1) The criminal justice process envisioned by the framers seems quaint by today's standards. The Fourth Amendment search, seizure, and warrant rules and Fifth Amendment self-incrimination privilege regulated the investigation of crime and the taking of confessions. The Fifth and Fourteenth Amendment rights to proof beyond a reasonable doubt on every element of a criminal offense and the Sixth Amendment protections of a public jury trial, compulsory process, confrontation of witnesses, and effective assistance of counsel governed criminal trials. The Eighth Amendment Cruel and Unusual Punishment prohibition limited the quality and quantity of punishments that could be imposed, especially for capital cases. Statutory, Fifth Amendment, and Fourteenth Amendment Equal Protection doctrines ensured opportunities for direct and collateral appeals of convictions. These rights appeared so important during the Warren Court's heyday that their incorporation was deemed a "revolution." (2) Yet today the exercise of any of these rights is quite a rarity.

    Instead, our modem criminal justice system consists of one government official--the prosecutor--unilaterally making most of the significant decisions. (3) Criminal matters are often resolved by plea rather than trial, and procedural protections are routinely waived as part of the bargain. Contract principles, rather than constitutional law, govern these agreements. (4)

    The movement from an adversarial system to a de facto administrative regime began in the 1970s. The Court found that a government's offer of a plea to life imprisonment to avoid the death penalty can be acceptable and non-coercive, (5) and that a prosecutor could threaten to add a recidivism enhancement, with a mandatory life sentence, if the defendant refused to plead guilty to a two- to ten-year felony. (6) Now that prosecutors are free to warn suspects of additional and more serious charges, and to offer steep sentencing discounts only to those who will "play ball," plea bargains have become the offer a defendant cannot refuse. Prosecutors regularly threaten to give notice of three-strikes provisions and other recidivist enhancements, impose mandatory minimums or consecutive sentences, and indict weapons charges with consecutive sentences and other enhancements if defendants refuse to sign on the dotted line. (7) Likewise, prosecutors offer downward departures for substantial assistance, reductions rewarding acceptance of responsibility or remorse, and dismissal of various charges in exchange for a timely plea. (8) Where the charges are misdemeanors, state prosecutors suggest the nearly irresistible trade of allowing a defendant to go home immediately with time served and probation in exchange for a guilty plea. (9)

    Not surprisingly, 97% of federal criminal felony convictions were by guilty plea in 2012, (10) while a slightly lower 94% of state criminal felony convictions were by guilty plea in 2006. (11) For the overwhelming majority of defendants, plea bargaining is no longer done in the shadow of a criminal trial outcome. In fact, the term "bargaining" is a misnomer. Plea agreements are boilerplate, and, for the most part, defendants cannot negotiate individual terms, or else they run the risk of rejecting the deal and going to trial. (12) Overworked and underpaid defense lawyers frequently do not have the information or the resources to assess the government's case and accurately predict trial outcomes. (13)

    Hand-in-hand with plea bargaining's triumph (14) came the spread of waivers. Some prosecutors demanded that criminal defendants "voluntarily" waive every right that the Constitution, state law, or federal statutes provide, as a condition of obtaining a plea agreement. (15) Trial rights necessarily have to be waived to replace the criminal trial with the plea bargain. Thus, the Rules Advisory Committee to the Federal Rules of Criminal Procedure developed a standard list of trial rights a federal criminal defendant must waive, on the record, at her Rule 11 plea colloquy. (16) As we transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, many prosecutors began demanding waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea. As prosecutors developed the bargaining clout to save their offices money and make their convictions unassailable, they began adding waiver demands well beyond what was necessary to enter a plea.

    First the waiver bug spread from trial rights to appellate rights in the 1980s and 1990s. (17) Though all appellate courts to rule on this issue have accepted them, (18) the Rules Advisory Committee has pointedly offered no opinion as to their constitutionality. (19) Next came habeas corpus waivers, some with exceptions for ineffective assistance of counsel claims and some without any exceptions. (20) Over the last decade, prosecutors began requesting waivers of all discovery materials, including not only impeachment evidence but also exculpatory evidence of actual innocence and claims of prosecutorial misconduct in failing to disclose such materials. (21)

    This is not an essay castigating the transformation of our current criminal justice system, as we have described it above. Our plea regime is not necessarily worse than the system it replaced. The majority of criminal defendants are guilty of some crime, and encouraging those defendants to plead guilty saves judicial and government resources. There is significant scholarly disagreement on the advantages of plea bargaining, (22) and our essay is not the venue to resolve this dispute. We merely note that there 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. (23) Five Justices of the Supreme Court recognized recently in Lafler v. Cooper (24) and Missouri v. Frye, (25) the right to effective defense counsel at the plea negotiation stage and expanded the remedy in the case of ineffectiveness. In Frye and Lafler, the Court held that defense counsel's failure to communicate the prosecutor's plea bargain to the defendant and a defense attorney's erroneous legal advice that the penalty imposed after trial would be better than the sentence offered at the plea deal, respectively, constituted deficient performance. (26) These opinions indicate a willingness to monitor the plea bargaining process.

    Unfortunately, some state and federal prosecutors' response to Lafler and Frye's application of the Sixth Amendment right to effective assistance of counsel during the plea stage was to demand the waiver of that right. (27) We contend that effective assistance of counsel waivers are unjust and could topple our current plea bargaining system; therefore, the Court and the Department of Justice should not have condoned them. (28) In Part II of this essay, we will describe the growth of non-trial-related waivers. We will focus here on two waivers that have not yet been ruled on by the Court: waivers of the due process right to obtain exculpatory evidence as to guilt and punishment and waivers of the Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. In Section A, we offer the results of an empirical project that Professor Klein undertook at the United States Sentencing Commission, counting discovery and habeas corpus waivers. In Section B, we report Defender Elm's national survey of all waivers contained in federal plea agreements. In Section C, we examine post-Lafler and Frye state and federal case law regarding pre-trial waivers of effective assistance of counsel. In Part III, we argue that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

  2. THE GROWTH OF WAIVERS

    The Supreme Court logically held that entering a guilty plea acts as a waiver of all trial rights. (29) Trial rights are necessarily waived by the act of entering the plea and foregoing trial. (30) Pleading guilty and proceeding to sentencing is a useless exercise unless the defendant waives his privilege against self-incrimination, his rights to trial by jury and proof beyond a reasonable doubt, his right to representation by counsel or self-representation during his trial, and his right to confront the witnesses against him. "Waivers of constitutional rights not only must be voluntary but must be [a]...

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