Due Process

Plea Circus

A bad bargain


When the Department of Justice accuses someone of a federal crime, prosecutors often pile a long list of related charges on top of the main offense. Frequently, the government isn't actually interested in imposing lengthy sentences. Instead, the goal is to scare the defendant into a plea, which is cheaper and faster than a trial.

In about one-third of Justice Department attorney's offices-35 out of 94, according to The Washington Post-those pleas include a clause in which defendants waive their right to later claim that their attorney was ineffective. If a defendant realizes after the fact that he was pressured into taking a bad deal, he has signed away his best bet for fighting back.

A couple of weeks after announcing his resignation as attorney general, Eric Holder told prosecutors to stop this constitutionally dubious practice. "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 an October statement. "Under this policy, no defendant will have to forgo their right to able representation in the course of pleading guilty to a crime."