Abstract

http://ssrn.com/abstract=2259694
 


 



Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye


Nancy J. King


Vanderbilt University - Law School

May 2, 2013

Duquesne University Law Review, Vol. 51, p. 647, 2013
Vanderbilt Public Law Research Paper No. 13-25

Abstract:     
This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

Number of Pages in PDF File: 27

Keywords: Waiver, ineffective assistance, Strickland, Lafler, Frye, plea bargaining, ethics, appeal waiver, habeas, post-conviction, plea agreements

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Date posted: May 3, 2013 ; Last revised: July 6, 2013

Suggested Citation

King, Nancy J., Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye (May 2, 2013). Duquesne University Law Review, Vol. 51, p. 647, 2013; Vanderbilt Public Law Research Paper No. 13-25. Available at SSRN: http://ssrn.com/abstract=2259694

Contact Information

Nancy J. King (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
(615) 343-9836 (Phone)
(615) 322-6631 (Fax)
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