DOJ To Modify Plea Agreements’ Waiver Provision

Following news of Attorney General Eric Holder’s intention “to leave the Justice Department as soon as his successor is confirmed” comes a story today from Joe Palazzolo at the Wall Street Journal that next week the Attorney General will announce a significant shift in DOJ policy: “federal prosecutors no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice.” I wrote about these untenable waivers several years ago:

[…]waiving the right to challenge constitutional and other legal errors concerning the process by which a conviction is obtained is another matter entirely, and thus a cause for concern as it pertains to the appeal and postconviction waiver language that federal prosecutors routinely insert into plea agreements consistent with the U.S. Attorney’s Manual. (See 9 USAM: Criminal Resource Manual 626.) These provisions look to leave defendants with no meaningful chance at postconviction relief regardless of whatever meritorious issue may later present.[…]

An equally obvious problem is that these waivers work to insulate the plea and government and defense counsel’s respective actions from any review. Importantly, ethics bodies in five of six jurisdictions, which have considered the question, have issued opinions excluding ineffective assistance of counsel claims from the scope of permissible postconviction waivers.

From a defense perspective, this reported shift in DOJ policy is welcome news since it affords clients an opportunity for relief where an attorney has rendered constitutionally deficient representation. In Connecticut, the U.S. Attorney’s Office’s standard plea agreement language has already begun to reflect the change. Notably, however, DOJ is not also excluding waivers of prosecutorial misconduct claims, which a handful of state ethics bodies have also found impermissible.

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