Department of Justice

DOJ to Scale Back Some Thuggery in Plea Bargaining Deals

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Your federal justice system, now one percent less repulsive.
Credit: Adam Jones, PHD

The Department of Justice (DOJ) throws every potential criminal complaint at anybody they target for prosecution in order to intimidate them with the threat of decades in prison in order to secure plea agreements for lesser sentences and avoid trial. But it goes further than that. Once DOJ prosecutors have defendants terrified and ready to sign off on just a couple of months or years in prison (rather than fighting the charges), some prosecutors then turn the screws by requiring these defendants to waive the right to later claim they received bad advice from their attorneys as part of accepting the deal. Therefore, these defendants are later hamstrung in their ability to fight back.

But that's going to change, as Attorney General Eric Holder prepares to step down. He's told his prosecutors to knock it off. They have to stop demanding defendants waive their rights as part of a guilty plea. From The Washington Post:

The Justice Department said Tuesday that it will no longer ask criminal defendants who plead guilty to waive their right to claim that their attorney was ineffective and deprived them of their constitutional right to a competent counsel.

Attorney General Eric H. Holder Jr. said the new policy, his latest effort to reform the criminal justice system, is an attempt to ensure that all individuals who face criminal charges are ably represented.

"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 forego their right to able representation in the course of pleading guilty to a crime."

Some U.S. attorney's offices no longer ask defendants to waive their right to make future claims about the effectiveness of their counsel. But before this week, 35 of the Justice Department's 94 U.S. attorney's offices still did.

Not only does this order tell prosecutors to stop demanding these waivers moving forward, it also instructs them to stop enforcing waivers that have already been signed, according to the Post.

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12 responses to “DOJ to Scale Back Some Thuggery in Plea Bargaining Deals

  1. Attorney General Eric H. Holder Jr. said the new policy, his latest effort to reform the criminal justice system, is an attempt to ensure that all individuals who face criminal charges are ably represented.

    It is simply disgusting that *now*, when Holder is a lame duck on his way out and no longer feeding at the trough, that he finds some damn principles.

    1. What does he have to lose? His job?

    2. I doubt he has found any principles.

      More likely he figures this is a good move for him as he exits, because he can leverage it in his next endeavor.

      Just like how he leveraged the standing policy to his favor while he was in the middle of it.

    3. And when he is likely to catch the blame for a whole lot of corruption and needs some friends.

      This is Holder spitting in civil Libertarians’ faces. If anything it makes him seem even more loathsome because he clearly doesn’t give a shit about the issue one way or another. Otherwise he either would have done it before now or wouldn’t be doing it at all.

  2. Oh please. How many times have the Mainstream Media announced some wonderful-sounding “directive” from Eric Holder that, when we actually get our hands on the source document, is nothing like what the Media described?

    Exh A – the “directive” not to prosecute medical marijuana users in medical marijuana states that led to more medical marijuana raids and prosecutions than under Bush.

    Exh B – the “directive” not to seek mandatory minimums which, when one turned to pages 3 and 4, “directed” prosecutors to allege mandatory minimum violations in their indictments and then “agree” to reduce the charge in exchange for a guilty plea and/or the defendant’s “cooperation”… In other words, for federal prosecutors to continue doing what they already were doing.

    So I cannot wait to see what this new “directive” actually says. And I mean the directive itself, not the press release.

  3. But that’s going to change, as Attorney General Eric Holder prepares to step down. He’s told his prosecutors to knock it off. They have to stop demanding defendants waive their rights as part of a guilty plea.

    It’s amazing how noble these guys become, once they have one foot out the door.
    Is this supposed to make it harder for the Republicans to hound him personally after he loses the shield of office?

  4. “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 forego their right to able representation in the course of pleading guilty to a crime.”

    What the fuck? What does this non sequitur cloaked in doublespeak have to do with prosecutors coercing defendants into signing away their rights?

    It’s simply not possible for him to stop being a lying sack of shit, even when he’s trying to do something right, I guess.

    Also, how long ’til his successor rescinds this “policy”?

    1. Exactly, there’s nothing at all to actually enforce this policy. It’s merely empty words. And even if it is adopted, how often is the judge going to side with the defendants in finding their lawyers incompetent? It’s not like the DOJ is allowing victims of their thuggery to change their minds with this.

      The core issue still remains about loosing the right to appeal once you plead and only getting the right to appeal if you go to trial in order to gain standing by getting a criminal conviction.

      But of course getting standing in order to appeal means risking much worse punishment and there’s no guarantee that the federal courts or Supreme Court will even hear your case.

  5. How would a waiver about ineffective assistance of counsel possibly stand up?

    “Sure, I signed the waiver. My ineffective counsel told me to!

  6. When the prosecutor offers any plea bargain, they are admitting that the proposed punishment is adequate for whatever the accused is claimed to have done. if the accused goes to trial, THAT should be the maximum penalty that they face.

    -jcr

    1. Not sure if criminal federal law pleas are conducted like state pleas, or if is even consistent across different jurisdictions, but state pleas often don’t include sentence agreements (or even recommendations.) In the county where I practiced, it was the Prosecutor’s general policy to offer a lesser charge and let the judge decide on the sentence (which was usually whatever the probation department recommended.)

  7. This is going from 10 all the way to 9. The real reform would be eliminating a lot of felonies, and require the government to prove the original charges rather than piling on.

    “Federal felon” used to be someone like John Dillinger. Now it’s someone like Martha Stewart.

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