Waiving the criminal justice system: an empirical and constitutional analysis

Here, Klein et al contend that effective assistance of counsel waivers are unjust and could topple their current plea bargaining system; therefore, the Court and the Department of Justice should not have condoned them. They describe the growth of non-trial-related waivers by focusing on two waivers that have not yet been ruled on by the Court: waivers of the due process right to obtain exculpatory evidence as to guilt and punishment and waivers of the Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. In Section A, they offer the results of an empirical project that Prof Klein undertook at the US Sentencing Commission, counting discovery and habeas corpus waivers. In Section B, they report Defender Elm's national survey of all waivers contained in federal plea agreements. In Section C, they examine post-Lafler and Frye state and federal case law regarding pre-trial waivers of effective assistance of counsel. In the third part, they argue that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.