Justice Dept. shifts plea agreement policy

The Justice Department announced Tuesday that federal prosecutors would no longer ask criminal defendants to waive their right to bring future claims that they did not have adequate counsel during their legal proceedings as part of plea agreements.

The policy shift is the latest in a string of actions taken by outgoing Attorney General Eric Holder to reform the criminal justice system to promote fairness.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” Holder said.  “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.”

Previously, 35 of the Justice Department’s 94 U.S. Attorney’s Offices around the country asked defendants to waive their rights to make future “ineffective assistance of counsel” claims as part of plea agreements.

The agency stressed that the practice is legal – and ethical – but said it would no longer be followed. A memo issued Tuesday directs the nation’s federal prosecutors to cease seeking the waivers, and instructs them to decline to enforce past waivers in cases where there could otherwise be a legitimate claim of poor representation.

The new policy is effective immediately.

“I am confident in the ability of our outstanding prosecutors to ably and successfully perform their duties without the use of these waivers, as the vast majority of them already do,” Holder said.