Waiving the Criminal Justice System: An Empirical and Constitutional Analysis

73 Pages Posted: 12 Apr 2014  

Susan R. Klein

University of Texas School of Law

Donna Lee Elm

University of Texas at Austin - School of Law

Aleza S Remis

University of Texas at Austin - School of Law

Date Written: March 26, 2014

Abstract

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system." Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea.

In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court - waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm. After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

Suggested Citation

Klein, Susan R. and Elm, Donna Lee and Remis, Aleza S, Waiving the Criminal Justice System: An Empirical and Constitutional Analysis (March 26, 2014). U of Texas Law, Public Law Research Paper No. 556. Available at SSRN: https://ssrn.com/abstract=2422545 or http://dx.doi.org/10.2139/ssrn.2422545

Susan R. Klein (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1324 (Phone)
512-471-6988 (Fax)

HOME PAGE: http://www.utexas.edu/law/faculty/sklein/

Donna Lee Elm

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Aleza S Remis

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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