Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye
27 Pages Posted: 3 May 2013 Last revised: 6 Jul 2013
Date Written: May 2, 2013
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.
Keywords: Waiver, ineffective assistance, Strickland, Lafler, Frye, plea bargaining, ethics, appeal waiver, habeas, post-conviction, plea agreements
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