Plea Bargains and Appellate Waivers

Professor Berman's Sentencing Law and Policy Blog has a link to an article in the Denver Post discussing a federal judge's rejection of a plea agreement because it contained a waiver of appellate review.  Click here to see Professor Berman's post.  Click here to see the Denver Post article. 

The New York Times has also weighed in on the case.  In an editorial, the paper stated, "An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues."  The editorial went on to state that where appellate waivers are permitted, "Our system of pleas then looks more like a system of railroading."

Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.” In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court. The judge insisted the matter go forward to trial so that the United States Court of Appeals for the Tenth Circuit could review it: “Indiscriminate acceptance of appellate waivers,” he said, “undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.” The case is scheduled for trial next month in Denver. Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

Click here for the entire NYT editorial and here for a response by the U.S. Attorney for the District of New Jersey.