October 01, 2014

ABA commends Justice Department for new policy on waiving right to claim ineffective counsel

The ABA commended the Justice Department this month for a new policy announced Oct. 14 that will ensure that defendants who plead guilty will no longer be asked by U.S. attorneys to waive their right to claim that their attorney was ineffective.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with assistance of effective legal counsel,” Attorney General Eric H. Holder Jr. said in a statement explaining the new policy. Holder added that under the policy “no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.”

The policy was unveiled in a memorandum to all federal prosecutors from Deputy Attorney General James M. Cole, who stated that the policy “reaffirms the commitment by the department’s prosecutors to protecting the right to counsel and enhancing due process.”

Prior to the announcement, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel.

“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 an Oct. 15 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,” he said.

ABA policy on this issue, adopted in 2013, opposes plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance counsel, prosecutorial misconduct or destruction of evidence unless based upon past instances of such conduct that are specifically identified in the plea or sentencing agreement or the transcript of the proceedings. The policy also urges judges to reject such plea and sentencing agreements.  

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