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Justice Dept. says it won't ask those who plead guilty to waive certain appeals rights

Legal advocates have criticized the practice as unfair and unethical

Federal prosecutors have long defended the waivers

CNN —  

The Justice Department says it will no longer ask defendants who plead guilty to waive their right to appeal convictions because of bad legal advice.

The department issued a memo Tuesday to ban the practice in 35 U.S. attorney offices that still used the waivers, which already had been discontinued in the majority of the department’s 94 jurisdictions around the nation. The new policy was announced by Attorney General Eric Holder and Deputy Attorney General James Cole in a conference call with federal prosecutors.

Legal advocates have criticized the practice as unethical and as further stacking the deck in favor of the government by putting defendants at a disadvantage. Many lower-income defendants rely on strained legal resources for their defense – the waivers effectively insulate defense attorneys from review of the courts. Plea agreements settle the vast majority of U.S. federal court charges.

Federal prosecutors have long defended the waivers by saying they discourage frivolous lawsuits by defendants and encourage defendants to reach a settlement that conserves judicial resources. The Justice Department says it still believes the waivers are legal but is seeking to create a uniform policy.

Holder said he expects that even without the waivers, prosecutors will be able to do their work effectively.

Even without the use of the waivers, defendants face long odds in claims of poor legal representation.

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Holder. “I am certain that this more consistent policy will help to bring our system of justice closer in line with our most fundamental values and highest ideals.”

Cole said the new policy is in line with the Justice Department’s efforts to boost resources for public defenders.

The memo issued Tuesday prohibits federal prosecutors all over the country from seeking waivers that forbid defendants from making claims of ineffective legal counsel.

It also requires prosecutors to not enforce certain waivers already signed – particularly in certain serious cases where a defense attorney’s legal advice is found to have possibly derailed a defendant’s right to a fair trial.