Update on DOJ’s Decision to Reverse Course on Appellate Waivers

Yesterday, we posted a blog entry concerning an anticipated announcement by Eric Holder involving the Department of Justice’s decision to stop requiring appellate waiver provisions in plea agreements in federal court. Although the announcement has not yet been made, a number of individuals with whom we have spoken confirmed that the announcement should indeed be made soon.

Importantly, however, those same individuals have mentioned that the Department’s decision to alter its current policy on appellate waivers is going to be limited to the removal of ineffective assistance of counsel (IAC) claims only from those waiver provisions. In other words, it is our understanding that the Department will continue to insist on appellate waivers in plea agreements but it will remove the IAC waiver provisions from those agreements. Accordingly, as we understand it, under the anticipated new policy, individuals will not be required to waive current and future IAC claims.

Most of us that practice in federal court have always been troubled by the Government’s appellate waiver policy. To me, though, the most troubling aspect of the current policy has been the inclusion of the provision that requires an individual to waive all IAC claims. Under this policy, except in limited circumstances, at the time an individual enters a guilty plea, he waives his right to file an ineffective assistance of counsel claim. Unbelievably, these waivers have been construed to include waivers on ineffective assistance of counsel claims at a yet-to-be-had sentencing hearing. I have always had difficulty understanding how an individually can logically waive (or give up) the right to challenge deficient performance by his lawyer, months before his lawyer actually performs deficiently.

In any event, although I was hoping that the Attorney General’s announcement would abolish all aspects of the Department’s current appellate waiver policy, I am pleased to know that the most troubling aspect of the current policy will supposedly be abolished soon. Stay tuned for additional details.