Is it fair for the government to require a criminal defendant to waive his right to appeal as part of accepting a plea agreement?  Such “appellate waivers” have become quite common over the past several years, but, according to a recent report, DOJ will abandon them starting as early as next week.  Why?

When a defendant accepts a plea agreement, he still often faces a range of possible sentences that can be handed down by the presiding Judge under 18 U.S.C. § 3553.  A defendant may believe a plea makes sense at the low end of the range, but come to regret that decision later, or may come to realize that there were other legal or factual arguments that he should have pursued instead of accepting the plea.  Appellate waivers have been used to reduce the ability of a defendant to later have the plea agreement set aside.

In the typical waiver, the defendant would attest that he was aware that he had the right to appeal his sentence or later challenge it by petition for writ of habeas corpus, but knowingly desired to waive those rights in exchange for unspecified “concessions” by the government forming part of the plea agreement.

These waivers have been closely scrutinized by the bar and bench alike over the years.  The bar has highlighted the ethical problem inherent in having trial counsel encourage a defendant to sign a plea that includes a waiver of a later claim of ineffective assistance.  Moreover, a defendant can escape an otherwise enforceable appellate waiver by showing that he did not understand it or that the court did not adequately explain its consequences during what is known as the “Rule 11 colloquy” with the court.  See United States v. Manigan, 592 F.3d 621 (4th Cir. 2010).

After weathering the criticism for some time, the Justice Department is poised to stop using appellate waivers at all going forward.

Like me and several other members of our firm’s appellate practice group, many of our readers offer pro bono or reduced rate appellate services to criminal defendants as part of a Criminal Justice Act panel.  I would imagine you have seen, as I have, that criminal defendants sometimes appeal even though their plea agreements contained an appellate waiver.  In those cases, the waivers simply add a threshold issue to those appeals, which are filed regardless.  Because waivers present only modest savings in judicial resources, the concomitant questions as to the fairness of such waivers for defendants has been deemed to outweigh their benefits.

I will be interested to see how the government treats appellate waivers that have already been signed.  Will it abandon them even in pending appeals?  Will it abandon them in appeals that have not yet been filed?  Or will it seek to enforce those that have already been signed, but discontinue their use in the prosecutor’s plea agreement toolbox prospectively?

–Matt Leerberg