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May 15, 2013

"Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers"

The title of this post is the title of this notable new paper now up on SSRN by Kevin Bennardo. Here is the abstract:

A sentencing appellate waiver is a promise by a criminal defendant not to appeal her sentence.  These provisions routinely appear in federal defendants’ plea agreements.  With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the scope of the waiver.  Using previous models of judicial behavior and available empirical data, this article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process.  As a solution, the article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

First, during the plea bargaining stage, both parties suffer from incomplete information about the true value of the defendant’s appellate rights because neither the procedure nor the outcome of the sentencing hearing is yet known.  With that information deficiency, the parties’ default valuation of the defendant’s sentencing appellate rights are often unaligned — the defendant overvalues her appellate rights out of fear of an unjust sentence and the government undervalues the same rights based on past experiences. This disparity is magnified by the disproportionate significance that a defendant places on an unfavorable sentencing outcome relative to an unfavorable outcome’s significance to the government.  As a result, the parties inefficiently bargain over sentencing appellate waivers at the pre-plea stage.

Second, the foreknowledge that a sentence is virtually unreviewable removes important incentives from the sentencing judge.  Past research and behavioral modeling have demonstrated that the “ordinary” district court judge labors under an aversion to reversal and that this reversal aversion influences sentencing outcomes and procedures.  By signaling to the court that the prospect of appellate review has been removed, the current system of including sentencing appellate waivers in plea agreements reduces the likelihood that district courts will adhere to statutorily-required sentencing practices.

Third, the inclusion of sentencing appellate waivers in plea agreements creates difficulties in imposing meaningful consequences on defendants for breach of the agreement.  Under the current system, a breaching defendant who notes an appeal in violation of her appellate waiver suffers the consequence of having her appeal dismissed.  In general, neither the government nor the court is willing to unravel the entire plea agreement as a result of the breach.  Thus, the defendant’s breach renders her no worse off than if she had adhered to her promise not to appeal.  The government’s impotence to impose meaningful additional sanctions beyond the prospect of dismissal fails to effectively deter defendants from breaching their sentencing appellate waivers.

This article proposes a post-sentencing appellate waiver system whereby the defendant and the government may bargain for a separate sentencing appellate waiver agreement after the completion of the sentencing hearing.  During this post-sentencing bargaining, both parties will be fully informed about the sentencing hearing’s procedure and outcome, and thus will be able to appropriately value the defendant’s appellate rights and bargain efficiently.  Because a sentencing appellate waiver will not be consummated (if at all) until after the sentencing hearing is complete, the sentencing judge will be incentivized to conduct a hearing that complies with all applicable sentencing law.  And, because the government can withdraw the incremental benefit bartered in exchange for the defendant’s promise not to appeal, defendants will be disincentivized from breaching their sentencing appellate waiver agreements.

May 15, 2013 at 09:22 AM | Permalink


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There is so much wrong with this article that I don't know where to start, so I'll say just three things.

First, why would the government stand down from its successful, money-saving and uniformly approved practice of requiring appellate waivers in plea negotiations, at a time when it has leverage?

Second, the notion that the government is helpless in the face of a breach of the present waiver is incorrect. The government can indeed go back and try all the original counts, since a defense appeal in violation of the waiver is a breach, and thus relieves the government of its obligations. In addition, having to file merely a one-page motion to dismiss the appeal is a good deal less costly and time-consuming than filing a brief on the merits. Lastly, the real incentive is for the government to let it be known that any defense lawyer who breaches a waiver he has signed will be barred from future plea negotiations, and every one of his cases will go to trial (which is the only Constitutional right his client has anyway, there being no right to bargain).

Third, what leverage does the government have to persuade the defendant to enter into a post-conviction appeal waiver? What would it give up? What, at that stage, SHOULD it give up?

Posted by: Bill Otis | May 15, 2013 9:50:07 AM

All those wonderful "rights" that we thought we had, don't mean very much if we're compelled to sign them away at every turn. Well here goes access to the courts to redress miscarriages of justice.

It seems to me that appellate waivers promote lawlessness on the part of prosecutors by putting their actions beyond review.

Posted by: Tony | May 15, 2013 11:20:12 AM

Tony --

"All those wonderful 'rights' that we thought we had, don't mean very much if we're compelled to sign them away at every turn."

You're not "compelled" to sign them away at ANY turn. Defendants sign them away because they believe, almost always correctly, that they'll wind up better off in the end by taking a deal. A young/lazy/hoodwinked/overworked prosecutor makes ripe pickins' to agree to a deal that allows him to take a pass on the exacting work of preparing for trial. The deal is easy; it allows him to take the weekend off. It also guarantees him a warmer reception at bar association dinners, where he'll be glad-handed as a "reasonable guy" rather than one of those "bloodlusting Nazis."

"It seems to me that appellate waivers promote lawlessness on the part of prosecutors by putting their actions beyond review."

Then don't sign it and go full bore.

Posted by: Bill Otis | May 15, 2013 11:54:01 AM

What I would ask is this: after plea negotiations have completed with an entered plea and a sentence conformant with the agreement what more does the government have that the offender would possibly find to have any value?

Sure we could come up with a system where the prosecution and defendant wrangle over a few charges out of the many possible, a plea is entered on those and then a new round is undertaken regarding the remaining charges versus appeal waiver but that does not seem like it would work out very well in very many cases. The offender is not going to want to enter a plea knowing that if the judge under-sentences then the prosecution can turn around and just continue on with remaining viable counts. Getting rid of possible charges is one of the items of very most value to the offender, judging by plea bargain descriptions from case opinions.

Posted by: Soronel Haetir | May 15, 2013 11:58:43 AM

Bill, thanks for your comments. I'd be happy to hear the rest of your feedback (feel free to contact me offline if you like).

It doesn't surprise me to hear that the government is likely to look unfavorably on this proposal. As you say, the government has quite a bit of leverage at the plea bargaining stage and therefore is likely to want to retain the current system. On your second point, however, I don't mean to imply that the government is completely unable to impose additional sanctions on breaching defendants. But as a practical matter, a major benefit of an appellate waiver agreement to the government is its resource-saving features; thus, the government is unwilling to actually go to the trouble of reinstating dismissed charges against breaching defendants with enough regularity to deter defendants from breaching. (I would be very interested to see examples of prosecutions where the government reinstated dismissed charges as the result of a defendant's breach of an appellate waiver.)

Barring a defense attorney from entering into future plea agreements on behalf of future clients because a former client breached an appellate waiver agreements strikes me as a misplaced sanction because the majority of circuits require defense counsel to note an appeal at the direction of the client even if an appeal waiver is in place (see, e.g., Campbell v. United States, 686 F.3d 353 (6th Cir. 2012)). Thus, defense counsel (not to mention defense counsel's future clients) should not be faulted with the breach.

As to your third question, under my proposal the government could move to reduce the sentence based on the appellate waiver. Yes, this would require a new Federal Rule of Criminal Procedure and basically another Rule 11 hearing to ensure that the post-sentencing appellate waiver agreement was knowing and voluntary. But, for the reasons laid out in the article, I think it would be a net gain to the system by improving the efficiency of sentencing appellate waiver bargaining, better incentivizing the stakeholders in the sentencing process to conform to proper sentencing practices, and reducing the frequency of breaches by defendants.

Posted by: Kevin Bennardo | May 15, 2013 12:04:41 PM


Wouldn't it take more than a new rule of procedure (to authorize a sentence reduction based on an appeal waiver)? A judge has no statutory authority (i.e. no jurisdiction) to reduce a sentence for any reason other than substantial assistance or a retroactively applicable lowered guideline.

Am I missing something?

Posted by: AFPD | May 15, 2013 12:22:42 PM

Kevin --

A number of things, if I might.

First, as you acknowledge, the government has no incentive to go along with changing the present appeal waiver, which has worked well, saved a boatload of money, and been approved by every circuit. That seems to me to pretty much end the argument, at least as a practical matter.

Second, the government almost never has a need to reinstate the charges should the defendant breach, although it is free to do so. It just moves to dismiss the appeal, as I did the first time this was litigated in US v. Wiggins, 905 F.2d 51 (4th Cir. 1990)(available here: https://bulk.resource.org/courts.gov/c/F2/905/905.F2d.51.89-5199.html). That is the end of that.

Third, I have no problem with the defense lawyer's merely filing a NOTICE of appeal (to conform with Campbell), so long as, after filing it, he immediately resigns, citing the fact that when, as an attorney, you give your word, you keep it. The defendant can then find another lawyer; the government will file its one-page motion to dismiss; and that will be that. There has just not been any major problem with defendants who sign waivers going back on them. If there gets to be, then the government will be more willing than it has been up to now to reinstate the original indictment. it won't have to do that often before any rebellion fades away.

Fourth, it's an odd sort of "leverage" for the government to reserve the "right" to seek reduction of a legal sentence that (presumably) it asked for. The whole point of appeal waivers is to make the imposition of sentence -- pursuant to a deal that puts aside many (sometimes most) of the original indictment -- the end of the litigation. Your proposal would be the death knell of that advantage. Sentencing would no longer be the end of litigation, but the beginning of a new round. This in the era where we are constantly told (on this blog, among other places), that the system needs to spend less money, not more.

All-in-all, and with respect, it seems to me that you propose a solution in need of a problem. The waiver as it exists has worked well and saved money for 23 years. And it has the ultimate safety valve today that it has always had: Any defendant who thinks it's unfair, or in any other way indigestible, retains the option of telling the AUSA, "No thanks," and going to trial.

Posted by: Bill Otis | May 15, 2013 12:50:50 PM


I don't think that a statutory change would be necessary as long as the new rule was placed within Fed. R. Crim. P. 35. (In that sense I suppose my proposal would be more accurately termed an "amendment to an existing rule" rather than a "new rule.") Then 18 U.S.C. section 3582(c)(1)(B) would provide adequate statutory support for the district court's modification of the sentence.

Posted by: Kevin Bennardo | May 15, 2013 1:35:05 PM

I don't see what incentive either side, particularly the defendant, has to enter into an appeal waiver after the sentence is imposed. The only situation I can see is if both sides have something to appeal, which is not usually the case.

On the idea of a sentencing reduction for signing a post-sentencing appeal waiver, I'd evaluate that on the likely reduction vs my client's chance for success on appeal of getting a lesser sentence. That seems to add an unnecessary layer. The Government should simply be giving up a little more in the plea agreement in order to secure the appeal waiver if they want one.

My experience with appeal waivers is that I agree to them if I've negotiated a reasonably narrow range of sentencing options (sometimes in a plea agreement, sometimes in a sentencing agreement after we've received the PSIR), with the waiver conditioned upon the judge sentencing within that range. If the parties have come to an agreement as to what the appropriate sentence is and the judge goes along with that, then I see no problem including an appeal waiver as part of the deal. If the judge doesn't like the agreed upon sentence (or a sentence within the agreed upon parameters), the judge is free to sentence outside of that agreement and either party can then appeal.

I would not be comfortable agreeing to an appeal waiver if the sentencing options are left wide open by the plea agreement. I've yet to have a prosecutor insist on an appeal waiver if I've asked to take it out of the proposed plea agreement. Perhaps in other districts there is more of a problem with AUSAs insisting on an appeal waiver without any real agreement on an appropriate sentence. A defendant, of course, is always free to plead guilty without any plea agreement or to go to trial.

Posted by: Webb Wassmer | May 15, 2013 4:16:44 PM

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