Duquesne Law Review
plea bargaining, right to counsel, appellate procedure, waiver of appeal
Constitutional Law | Law
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.
Nancy J. King,
Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Fry, 51 Duquesne Law Review. 647
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/717