The Waiver Paradox

Abstract:     
Can individuals give up constitutional rights in exchange for a governmental benefit? The question reveals a paradox in constitutional law. While criminal rights are easily and routinely waived through plea bargaining, the unconstitutional conditions doctrine prohibits the government from making deals with First Amendment and other non-criminal rights. This is true even though the unconstitutional conditions cases involve exactly the same arrangement as plea agreements: the government offers a benefit or relief from a penalty in exchange for foregoing a constitutional protection. In overlooking this sameness, courts have developed two independent and vastly different approaches to waiving constitutional rights. Academic commentary reflects a comparable trend; in dealing exclusively with criminal rights or with non-criminal rights, commentators have also failed to provide an integrated account of waiver.

This Article examines the waiver paradox in greater detail, explores its implications for constitutional law, and considers some possible resolutions. The Article begins by tracing the emergence and contours of the unconstitutional conditions doctrine and the doctrine of criminal waiver. It then examines the nature and consequences of the waiver paradox, highlighting the differences between the two doctrinal approaches, the consequences of applying just one doctrine across the board to resolve all issues of waiving rights, and the uncertainty of both doctrines that results from the failure to develop an integrated approach to waiver.

After demonstrating that the waiver paradox cannot be resolved by understanding criminal rights as individual rights subject to bargaining but non-criminal rights as public rights properly protected from waiver, the Article presents and assesses three possible resolutions to the waiver paradox. The first, a conservative resolution, relaxes to some extent the unconstitutional conditions doctrine and places greater restraints on waiving criminal rights. The conservative resolution therefore brings the doctrines of unconstitutional conditions and of criminal waiver closer together, but it does not aim for complete consistency between the two. A second resolution, more radical, applies a single standard to all questions of waiving constitutional rights, eliminating current differences between the unconstitutional conditions doctrine and the criminal waiver doctrine.

The third, and best, resolution entails a new, value-oriented approach to all questions of waiver. Under this resolution, if waiver of a constitutional right would undermine a compelling public value protected by the Constitution, then individuals should not be able to waive the right. In making that determination, attention should be given to the procedures followed when rights are waived.

For instance, one way to protect the public values underlying criminal constitutional protections would be for juries rather than judges to assess the validity of guilty pleas and plea agreements. The Article therefore proposes the use of plea panels, panels of citizens akin to grand juries, to oversee guilty pleas.

The Article concludes by observing that although courts and commentators have developed special doctrines for waiving rights, waiver is a form of the more general issue of governmental burdens on constitutional

Number of Pages in PDF File: 78

Keywords: constitutional rights, waiver, juries, criminal rights, guilty pleas, waiving rights, unconstitutional conditions

JEL Classification: K14, K41, H4

Accepted Paper Series