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