47 UCLA LAW REVIEW 113 (1999) conservative membership expanded, the scope of jurisdictional error shrank, and fewer and fewer claims survived the defendant's plea of guilty."
Regrettably, the Court's opinions still have not provided clear guid- ance as to whether the Justices today consider the concept of jurisdiction to offer a meaningful method of distinguishing between claims that are subject to waiver and those that are not. As recently as 1994, in Custis v. United States
96the Court stated that an uncounseled conviction was subject to collateral attack by a defendant facing a higher sentence based on that conviction because it involved jurisdictional error. Needless to say, this res- urrection of the concept of jurisdictional error generated protests by the dissenters that the Court felt compelled to "re-embrace" a futile concept
"fraught... with difficulties."
97Defined only by the postconviction con-
sequences of its presence and lacking independent content, jurisdictional
error is a dead end. Clearly another concept is needed to serve as a coher-
ent expression of what features of a particular error render it appropriate for
review despite express waiver by the parties."
Nonnegotiable Features of Criminal Litigation 145
"subject matter jurisdiction" carries a multitude of meanings, embracing such a varied and ill-defined set of requirements that it too fails as a useful description of what is nonnegotiable in criminal litigation.
Allegations of defective subject matter jurisdiction, according to some courts, include claims that the government lacked the power to create the criminal sanction under which a defendant is being prosecuted, and claims that the criminal statute imposes punishment retroactively in violation of the Ex Post Facto Clause,"
°violates equal protection guarantees, or is vague or overbroad. As I argue later in this Article, agreements to tolerate such errors threaten very different injuries and have not received uniform treat- ment in the courts.1
lEven when subject matter jurisdiction is limited to a court's authority to adjudicate a particular criminal charge, its dimensions remain hazy.
Conceivably, a prosecutor and a defendant could agree to adjudication by the wrong sovereign-in the wrong state, in federal court instead of state court, or in federal or state court instead of tribal court. Or the parties' agreement may include a promise not to challenge the conviction if the charge was adjudicated in the wrong court within the correct judicial system-in juvenile court instead of criminal court or vice versa, in a court of limited jurisdiction that had no power to adjudicate a felony charge, or in a mili- tary court powerless to adjudicate a charge against a civilian.
2A variety of
ter jurisdiction). Consider also the comments of Justice Scalia, concurring in Freytag v. Commissioner, 501 U.S. 868 (1991):
Must a judgment already rendered be set aside because of an alleged structural error to which the losing party did not properly object? There is no reason in principle why that should always be so. It will sometimes be so-not, however, because the error was struc- tural, but because, whether structural or not, it deprived the federal court of its requisite subject-matter jurisdiction. Such an error may be raised by a party, and indeed must be noticed sua sponte by a court, at all points in the litigation .... Since such a jurisdictional defect deprives not only the initial court but also the appellate court of its power over the case or controversy, to permit the appellate court to ignore it because of waiver would be to give the waiver legitimating, as opposed to merely remedial, effect, i.e., the effect of approving, ex ante, unlawful action by the appellate court itself...
I would not extend that nonwaiver rule-a traditional rule in its application to Article III courts, and understandably extended to other federal adjudicative tribunals- to structural defects that do not call into question the jurisdiction of the forum.
Id. at 896-98.
100. U.S. CONST. art. I, § 9, cl. 3.
101. See infra text accompanying notes 207-215.
102. 1 exclude for purposes of this discussion venue cases in which the law specifies which locality (district or county) within the correct sovereign has jurisdiction over a prosecution. Most courts have considered venue waivable for some time. See, e.g., People v. Burgess, 946 P.2d 565, 569 (Colo. Ct. App. 1997) (contrasting the power of any district court to adjudicate crimes com- mitted wholly or partially within the territorial boundaries of the state, which is unwaivable, with venue, which "is for the benefit of defendants and may be waived"); Smith v. State, 695 A.2d 575, 580 (Md. Ct. Spec. App. 1997) (noting that because the appellate court did not object to the
146 47 UCLA LAW REVIEW 113 (1999) interests are protected by these very different requirements, and there is no consensus on whether an agreement to evade any of them can be enforced.
A third category of error sometimes treated as a defect in subject mat- ter jurisdiction arises in cases in which the charge is in the correct judicial system and in the correct court, but the initiation or continuation of the case (or the court's particular action) is not authorized by law. These defi- ciencies are sometimes referred to as "justiciability" questions and include timeliness requirements"
3and the authority of the prosecutor."
4Several courts continue to treat the failure of the charging instrument to characterize an offense as a "jurisdictional" error that can be raised at any time."
0Federal courts, for example, have split over whether a defect in subject matter jurisdiction exists when a prosecutor fails to comply with the statutory requirement to notify a defendant of a prior conviction if the prosecutor will later request an enhanced sentence based on that conviction.
6Also in this category are requirements that a "case or controversy" exist for a court to decide (standing, ripeness, and mootness requirements), or, for appel- late courts, a final judgment to review.
'jurisdiction of the circuit court, which had jurisdiction for all crimes committed in Maryland, but objected only to the proper venue, the defendant's concession that venue was proper waived the error); Omalza v. State, 911 P.2d 286, 294 (Okla. Crim. App. 1995) (finding that venue, although a constitutional right, may be waived, but jurisdiction may not). But see Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 773-74 (Ky. Ct. App. 1996) (reversing, although reluc- tantly, a conviction because of the trial court's assent to the parties' request to hold the trial in the wrong county at the hospital where the defendant was a patient, and noting that the territorial jurisdiction of the court was an issue that could not be waived).
103. See, e.g., People v. Smith, 475 N.W.2d 333, 336-40 (Mich. 1991) (discussing whether violations of statutory speedy trial rights are jurisdictional).
104. See, e.g., United States v. Navarro, 972 F. Supp. 1296 (E.D. Cal. 1997) (holding that an unauthorized prosecutor is a defect in subject matter jurisdiction).
105. See, e.g., Johnson v. State, 459 S.E.2d 840, 841 (S.C. 1995) (vacating in part a plea-based conviction and sentence for grand larceny because the indictment failed to allege theft of property over $200, and hence the court lacked subject matter jurisdiction). There is some evidence that this rigid pleading requirement in criminal cases is historically based. Before court records were regularly kept, the only way to determine what crime a person had been convicted of committing was to examine the charging instrument. Despite the development of other means of determining this information, states continue to treat errors in charging instruments as nonwaivable. See LAFAVE, ISRAEL, & KING, supra note 28, § 19.1.
106. See Harris v. United States, 149 F.3d 1304, 1306-07 (11th Cir. 1998) (collecting cases); United States v. Ruelas, 106 F.3d 1416, 1418 (9th Cir. 1996) (finding that a waiver of the right to appeal does not "confer jurisdiction on the district court to receive the plea," and thus that the defendant may still raise jurisdictional questions such as whether the indictment failed to charge an offense).
107. Federal authority to review state criminal proceedings also seems to fall into this cate- gory. For example, the Supreme Court will only review a state decision after it is assured that there is a federal question at stake. See, e.g., Sochor v. Florida, 504 U.S. 527, 534 n.86 (1992) (noting that the state's defense that the decision below was based on an independent state ground