The right to effective assistance of counsel is a core value of our Constitution. The Department of Justice has a strong interest in ensuring that individuals facing criminal charges receive effective assistance of counsel so that our adversarial system can function fairly, efficiently, and responsibly.

Prosecutors may incorporate waivers of appeal rights and post-conviction rights into plea agreements. The use and enforcement of these waivers has been approved by the courts, and in appropriate cases can be helpful in reducing the burden of appellate and collateral litigation.

However, prosecutors should not seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal. See Memorandum from the Deputy Attorney General, “Department Policy on Waivers of Claims of Ineffective Assistance of Counsel,” Oct. 14, 2014. With respect to plea agreements entered prior to issuance of the Oct. 14, 2014 memorandum, prosecutors should decline to enforce a waiver of a claim of ineffective assistance of counsel when defense counsel rendered ineffective assistance resulting in prejudice, or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve. As long as prosecutors exempt ineffective-assistance claims from their waiver provisions, they are free to request waivers of appeal and of post-conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.

[updated January 2020]