'Waiving the criminal justice system'

There's an interesting looking paper on SSRN from a UT-Austin law prof, a  public defender and a law student with the same title as this post. Here's the abstract:

Constitutional criminal procedural guarantees are becoming increasingly marginalized in a world where "the criminal justice system is the plea bargaining system." Plea agreements are boilerplate, and the 97% of defendants who enter guilty pleas cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. As we have transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, the government has begun demanding the waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea.

In this essay, we will first describe the growth of two non-trial-related waivers that have not yet been accepted by the Supreme Court - waivers of the due process right to obtain exculpatory evidence as to guilt and punishment, and waivers of the newly-expressed Sixth Amendment right to effective assistance of counsel at the plea negotiation stage. We then offer the results of an empirical project that Professor Susan Klein undertook at the United States Sentencing Commission and a national survey of federal plea agreements conducted by Public Defender Donna Elm. After examining caselaw and practice in the area, we conclude that effective assistance of counsel waivers are unethical, unwise, and perhaps unconstitutional.

Here's a notable excerpt:

our modern criminal justice system consists of one government official—the prosecutor—unilaterally making most significant decisions. Criminal matters are resolved by plea rather than trial, and procedural protections are routinely waived as part of the bargain. Contract principles, rather than constitutional law, govern these agreements. This movement from an adversarial to a de facto administrative regime now seems to us, with our perfect 20-20 hindsight, a foregone conclusion from the combination of resource restraint and the Supreme Court's high tolerance for government coercion. The transformation began in the 1970s when the Court accepted as non-coercive a government offer of a plea to life imprisonment to avoid the death penalty, and a prosecutorial threat of adding a recidivism enhancement with a mandatory-life penalty if the defendant refused to plead guilty to a two to ten year felony. Now that prosecutors are free to threaten suspects with additional and more serious charges, and to offer steep sentencing discounts only to those who will play ball, plea bargains have become the offer a defendant cannot refuse. Prosecutors regularly threaten to give notice of three strikes provisions and other recidivist enhancements, impose mandatory minimums or consecutive sentences, and indict weapons charges with consecutive sentences and other enhancements if defendants refuse to sign on the dotted line. Likewise, prosecutors offer downward departures for substantial assistance, reductions rewarding acceptance of responsibility or remorse, and dismissal of various charges in exchange for the timely plea. Where the charges are misdemeanors, state prosecutors suggest the nearly irresistible trade of allowing a defendant to go home immediately with time served and probation in exchange for a guilty plea.

Not surprisingly, 97% of federal criminal felony convictions were by guilty plea in 2012, while a slightly lower 94% of state criminal felony convictions were by guilty plea in 2006. Considering the more inclusive universe of all cases charged, rather than just the percentage of convictions accomplished by guilty pleas, the percentage drops slightly. Just under 90% of all federal defendants charged with a federal felony pled guilty, and approximately 70% of state defendants charged with felonies pled guilty. While we hope that innocent persons are obtaining those dismissals or acquittals, and the least culpable are pleading to lesser charges, for the overwhelming majority of defendants plea bargaining is no longer done in the shadow of a criminal trial outcome. In fact, the term “bargaining” is a misnomer. Plea agreements are boilerplate, and defendants cannot, for the most part, negotiate individual terms, nor run the risk of rejecting the deal and going to trial. Over-worked and underpaid defense lawyers frequently do not have the information or the resources to assess the government’s case and accurately predict what the trial outcome might be.

Hand-in-hand with plea-bargaining’s triumph came the spread of waivers. Some prosecutors demanded that criminal defendants “voluntarily” waive every right that the Constitution or state or federal statutes provide as a condition of obtaining a plea agreement. Trial rights necessarily have to be waived to replace the criminal trial with the plea bargain. Thus, the Rules Advisory Committee to the Federal Rules of Criminal Procedure developed a standard list of trial rights a federal criminal defendant must waive, on the record, at her Rule 11 plea colloquy. As we transformed from an adversary process where guilt was determined by trial to an administrative process where guilt and penalties are determined by negotiation, many prosecutors began demanding waiver of all constitutional criminal procedure rights, not just the trial and investigative-related ones inherent in replacing the trial with the plea. Prosecutors developed the bargaining clout to save their offices money and make their convictions unassailable, so they added waiver demands well beyond what was necessary to enter a plea.

First the waiver bug spread from trial rights to appellate rights in the 1980s and 1990s. Though all appellate courts to rule on this issue have accepted them, the Rules Advisory Committee has pointedly offered no opinion as to their constitutionality. Next came habeas corpus waivers, some with exceptions for ineffective assistance of counsel claims and some without any exceptions. Over the last decade, prosecutors began requesting waivers of all discovery materials, including not only impeachment evidence but also exculpatory evidence of actual innocence and claims of prosecutorial misconduct in failing to disclose such materials.

Finally, even before two fractured 2012 Supreme Court cases clearly applying the right to effective defense counsel at the plea negotiation stage and expanding the remedy, a fair number of prosecutors began demanding that a defendant waive her right to effective assistance of counsel in helping her investigate her case and negotiate her plea terms. We will focus on these last two sets of waivers in the rest of this essay, particularly the latter one. We contend that effective assistance of counsel waivers are unjust and will topple our current plea bargaining system, and that therefore the Court and the Department of Justice should refuse to condone them.

This is not an essay castigating the transformation of our current criminal justice system, as we have described it above. Our plea regime is not necessarily worse than the system it replaced. The majority of criminal defendants are guilty of some crime, and encouraging those defendants to plead guilty saves judicial and government resources. There is significant scholarly disagreement on the advantages of plea-bargaining, and our essay is not the venue to resolve this dispute. We merely note that there is no feasible return to our former system of trials. Once we accept that, we must be willing to regulate it, or the executive branches of the government will fill the vacuum with rules favorable to it. A mandatory plea bargaining system where the kind of deal received is fortuitous depending upon quality of prosecutor and defense attorney assigned, rather than level of guilt, leads to unequal sentences for similarly situated defendants and, in rare cases, the conviction of the innocent. Five Justices of the Supreme Court recognized this last term in two decisions, Lafler v. Cooper and Missouri v. Frye, that we believe indicate a willingness to monitor the plea-bargaining process. Much of the clear inequities in our current system can be mitigated by better discovery and more effective counsel at the plea stage.  (Citations omitted.)