TRENDS IN THE REGULATION OF BARGAINING
Inalienability and the Rise of Bargaining
W hose R ight Is It?
Decisions from the mid-1800s to the 1930s show a gradual replacement of the view that procedural deficiencies harm all citizens with the alternative notion that the procedural features of the criminal justice system are designed primarily to protect the interests of individual defendants. In particular, it is not clear whether the abandonment of the idea of rights as "public" has prompted judicial acceptance of the waiver of rights in the criminal process or vice versa.
The Dem ise of Paternalism
But it is also possible that judges eager to enforce the growing number of defense exemptions during this period found the explanation of rights as personal a convenient justification for enforcement. In any event, as illustrated by the examples in Part I.C below, the defendant's newfound ability to waive rights in criminal cases appears to be closely related to the relatively new assumption that it was only the defendant's rights to waive.
Efficiency and Estoppel
Instead, this recent testing of the limits of the negotiated procedure is linked to the explosion of criminal appeals and the rising costs of defending them. Currently, plea bargains that include partial pleas or waiving the right to a summary judgment are not common.
Examples of the Transformation of Inalienable Rights
- T h e Jury
- Presence
- Lim itations Periods
- SENSIBLE REGULATION OF NEGOTIATED PROCEDURE TODAY
34; it is not in the power of the prisoner, either by himself or by his attorney, to waive the right to be personally present at the trial." Waiver of the limitations defense came late in the twentieth century.
A Proposed Approach: Narrowly Tailored Protection
The idea here is that even if the defendant does not have the right to waive (which precludes the enforcement of open waivers), courts may still, for reasons of efficiency, insist that a defendant take appropriate action to enforce the right to be applied in a timely manner. The regulation of the waiver of a potentially non-negotiable right must be tailored to the specific interests of third parties or public interests protected by the right.”
Trumping Party Preferences: A Justification
They are suspect because of the harm such agreements cause to an interest or value independent of the preferences of the accused and the prosecution. A third objection to allowing third-party concerns to void agreements between parties in criminal cases is that courts are unable to identify when "public policy" is harmed.70 Recitations of the need to consider.
The Menu of Regulatory Options
- Controlling Evasion Prior to Judgment: The Power
- Controlling Evasion Prior to Judgment: Intervention
- Collateral Actions by Third Parties
- Appellate or Collateral Relief for Defendants Who
34;clearly contrary to the obvious public interest," noting that the judge should have accepted the prosecutor's decision that the defendant's cooperation was sufficient grounds for dismissal, noting that "a finding of public interest. Nevertheless, third-party oversight of the prosecutor's assessment of the public interest could sufficiently deter some agreements to avoid the need for appellate courts to grant appellate defendants relief from their own agreements. If the co-defendant were to be tried and the defendant refused to testify, the co-defendant could successfully object to the execution of the deal as a violation of his right to due process, which would prevent similar deals in the future.86.
Recent decisions make defense challenges to negotiated agreements more attractive by allowing defendants to retain prosecutorial concessions while invalidating only the unenforceable aspects of the agreement.88.
Selecting the Best Option
DEFINING NONNEGOTIABLE ERROR-DESCRIPTIONS
Defects in "Subject Matter Jurisdiction"
Once the concept of "jurisdiction" is taken beyond the question of the court's jurisdiction to try the class of offenses charged and the person of the inmate, it becomes a less than shining beacon. A third category of error, sometimes treated as a defect in the jurisdiction of the case, arises in cases where the charge is in the proper legal system and in the proper court, but the initiation or continuation of the case (or the particular action of the court) is not authorized by law. These deficiencies are sometimes referred to as "fairness issues" and include requirements of timeliness"3 and prosecutorial authority."4 Several courts continue to hold that the charging instrument does not characterize an offense as a "jurisdictional error" that can be raised at any time."0 Federal courts for example, have divided 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 later seeks an enhanced sentence based on that conviction.
Asking whether an error implicates the court's subject matter jurisdiction is almost as pointless as asking whether an error is jurisdictional.
Waivers of the Right to the Review of Error
Defendants can agree to waive their right to appeal even if they go to trial. Appellate review simply has no peremptory value, regardless of the waived claim." "Any waiver may be quite trivial—the defendant's decision to waive the right to appeal another preserved hearsay objection, to example. Dyer & Brendan Judge, Note, Waiver of Criminal Defendants' Right to Appeal-An Unacceptable Condition of a Negotiated Sentence or Plea Agreement, 65 NOTRE DAME L.
But the constitutional status of the right to review in criminal cases is not clear.
Waiver of the Ability to Object to Future Error
47 UCLA LAW REVIEW defendant is informed of the risk, he cannot claim that he did not know that he risked an error by waiving the right to appeal his conviction. A] plea decision is not made with full knowledge of the results should a trial be held. A defendant is not "out of choice" by entering into a plea agreement that includes a waiver of the right to appeal future mistakes, any more than he is out of choice to accept other kinds of deals offered by the prosecutor.
The more compelling objection to enforcing a waiver of the right to appeal a future sentence is not based on paternalism toward the defendant, who will either receive the benefit of his bargain or can claim infringement, but instead on the consequence that such punishment inflicts. an exemption may have consequences for the interests of non-parties.
The Separation of Powers: The Proper Court
considering a civil litigant's constitutional challenge to the scope of the Commodity Futures Trading Commission's (CFTC) authority). The nonpartisan interest threatened by the evasion of Article III is no less than one of the most fundamental features of our democracy: the restraints provided by an independent judiciary on the excesses of legislative and executive power. 2, to the validity of a tax suit, even though the objection was not raised below, because of the "strong interest of the federal judiciary in preserving the constitutional scheme of separation of powers." Id.
34; Liberty is always at stake when one or more of the branches seek to violate the separation of powers.").
Opting for the Wrong Sovereign: Waiving Territorial
Inviolable concerns of decency are unlikely to be controlled by the state, whose exclusive authority has been usurped by the parties. Without the means, or even the incentive, to challenge such a statute themselves, states must rely on federal judges to step in, regardless of the parties' preferences, to remedy the federal violation.” Because the limits of sovereignty are not subject to regulation by the legislature, the courts must remain judges in such fights on the ground. 45. Some courts have objected that it would be unreasonably burdensome for the courts to police, as a consequence, the Lopez problem in the face of party admissions.'46 Assuming that the courts will override party preferences on some issues, 47 efficiency is a particularly unpersuasive reason to deny sua sponte review if a federal criminal statute falls outside.
Because of the burden such removal places on state resources and autonomy, states are more likely to control this separation of powers.
Trading Away the Right to the Effective Assistance
Mingues, 681 N.Y.S.2d, holding that the defendant's waiver of the right to appeal included claims of ineffective assistance of counsel and must be enforced unless the error affected the voluntariness of the plea). June, which held that a knowing and voluntary guilty plea precludes review of an ineffective assistance claim). Waiver of the right to raise ineffective assistance claims raises a unique concern for defendants. First, it is a breach of professional ethics to waive the right to effective assistance.
Karlan, Discrete and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 HARV.
Waiving Accuracy: Trading in Falsehoods and Waiving
These cases sometimes come to light when the defendant faces incarceration after violating probation. The California Court of Appeal granted the defendant's request for post-appeal relief, rejecting the parties' "creativity" and explaining that "the parties may not enter into a negotiated disposition. In Libretti v. United States,75' the majority sidestepped the defendant's claim that his agreement with the government did not was enforceable because his determination of a factual basis for asset forfeiture was false.
ABA, supra note requiring that the factual basis establish that the defendant actually committed a crime at least as serious as the one to which he is willing to plead).
Waiving the Protections of the Eighth Amendment
Despite the persistent arguments of some members of the Court, the majority regularly looked to the past when applying the Eighth Amendment's limitations. First, the irrevocability of a conviction warrants greater scrutiny than would be acceptable in non-conviction cases. The Court's own precedent appears to be consistent with this distinction.” One explanation for the Court's recent willingness to enforce waivers of Eighth Amendment due process rights in death cases0 2 may be that the procedural requirements for capital sentencing that the Court proclaimed for the past twenty-five years to be part of the Eighth Amendment.
47 UCLA LAW REVIEW outward guarantees in the Eighth Amendment are necessary to protect larger social values against the narrower interests of the parties.
Waiving Facial Constitutional Challenges to the Statute
Characteristics of Non-Negotiable Criminal Litigation 177. Concession using a promise not to challenge a law that might violate the Ex Post Facto Clause. While tolerating punishment under discriminatory law clearly has third-party effects, the equal protection disadvantage differs from the non-negotiable elements discussed earlier in an important respect: members of an unequally disadvantaged group who have not yet been charged or those convicted under such laws may nonetheless recognize and challenge such laws with civil actions seeking injunctive relief or declaratory judgments.”5 Likewise, laws that violate the First Amendment do not do so in the abstract, but instead violate free speech, freedom of religion, or the right to freedom of association of identifiable individuals or groups. The key question for courts deciding whether to uphold or enforce agreed waivers of the right to challenge a discriminatory law is not, therefore, whether an error in the law is somehow more fundamental than other, waivable constitutional errors.
See, for example, the Fraternal Order of Police's recent success in challenging on equal protection grounds recent amendments to the federal criminal code that make it illegal to provide a firearm to a person convicted of a misdemeanor domestic violence crime (a class that includes a considerable number of police officers).
Waiving the Right to a Speedy Trial
47 UCLA LAW REVIEW alternative methods for adequately protecting these extraneous concerns."' If Barker instead reflects a view of the Sixth Amendment that no longer survives, then an entirely different conclusion is called for. Indeed, there are reasons to believe that viewing the right to a speedy trial as a public good rather than an individual privilege is headed into the same bin as Hopt and Cancemi's reasoning that denied parties the ability to negotiate a jury or attendance requirement. Now, it's almost as if the Constitution isn't the supreme law of the land, but merely an expensive option package that a defendant can purchase if he doesn't want the models available on the lot for a discount.
This article presents a reasoned method for developing and testing new default rules, as various features of the criminal process are presented for trading in criminal cases.
