Oct 15

DOJ Policy Shift: No Waiver for Ineffective Assistance of Counsel Claims

Back in January, we wrote about the challenge facing counsel when the United States Attorney’s Office requires a defendant to waive his or her Sixth Amendment claims of ineffective assistance of counsel as part of any plea deal. Today, this practice (which is policy within 35 of the 94 United States Attorney’s Offices) is officially over.

Attorney General Eric Holder announced that:

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” Holder said in a statement. “Under this policy, no defendant will have to forgo their right to able representation in the course of pleading guilty to a crime.”

The DOJ issued a memo to all federal prosecutors on this policy change today which instructs them to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. Additionally, the memo tells prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant raises a serious issue that a court should resolve.

Eric Holder’s pending resignation (which we wrote about here) has prompted a national discussion on what his legacy will be, and perhaps he has now decided to take active steps to help shape that image. The New York Times has called his almost-six-year tenure as Attorney General, “one of the most consequential in United States history.”   This new policy unveiled today is just “one of several initiatives Holder wanted to put in place before he steps down as attorney general.”

Let’s hope the rest are as good as this one: all Americans benefit when Constitutional rights are protected.

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