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Holder Orders U.S. Attorneys Not to Use Appeal Waivers

Former U.S. Attorney General Eric Holder followed up his announcement restricting the usage of 851’s to coerce plea bargains with an announcement directing, not suggesting, that all U.S. Attorneys refrain from asking for appeal and habeas waivers in plea agreements, not to use them in cases already reduced to judgment. The playing field is getting slightly more level for federal defendants.

Holder apparently has recognized that such appeal waivers were inherently unfair, and although they were neither illegal nor an example of misconduct in the past, clearly constituted an abuse of a defendant’s constitutional guarantees. It is bad enough for the accused to have to endure the unknown risk of “relevant conduct” in the sentencing process, let alone give away the right to attack mistakes by the sentencing court or their own defense attorney, without getting anything in return.

According to Holder, “Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel.  Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.” Deputy Attorney General James Cole, Holder’s point man on most matters of policy, stated that the new policy “reaffirms the commitment by the department’s prosecutors to protecting the right to counsel and enhancing due process.”

Criminal defense attorneys have applauded the move. The president of the National Association of Criminal Defense Lawyers, Theodore Simon, said, “While we appreciate today’s announcement by the Department of Justice of this new policy, it rights a wrong that should never have been a practice employed by federal prosecutors. The extraction of these types of waivers not only created an inherent conflict of interest for defense counsel, they deprived defendants of a claim that ‘cuts right to the heart of their Sixth Amendment right to counsel, the right to competent counsel. It is critical that all states and territories follow the DOJ’s lead and abandon this practice without delay.”


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