Important new paper on appeal waivers

Thanks to Larry Solum, I see that Nancy J. King and Michael O'Neill have now made available on SSRN their important and ground-breaking work on appeal waivers in the federal sentencing system. The piece is Entitled "Appeal Waivers and the Future of Sentencing Policy" and is slated to appear in a forthcoming issue of the Duke Law Journal. You can access the paper and read the abstract at this link, and here is a taste from the introduction:

This article examines one potential limitation of appellate review as a means of regulating sentencing: clauses in plea agreements by which defendants waive their rights to appellate and postconviction review of sentencing errors.

For well over a decade anecdotal evidence has suggested that appeal waivers have become increasingly frequent in federal cases. Scholars and litigants disagree about what is waived, by whom, at what price, and how often. In every circuit litigation challenging the enforcement of appeal waivers has raised conflicting claims about their drawbacks and benefits. Recent decisions embracing broad appeal waivers have continued to provoke criticism from commentators. And the Supreme Court has yet to rule on their validity. Yet despite this sustained controversy, in the seventeen-year history of the federal sentencing guidelines, no empirical examination of sentencing appeal waivers in federal cases has ever been conducted. This study was undertaken in order to present a snapshot of the use and impact of appeal waivers in cases sentenced under the federal sentencing guidelines in the hope that the findings will prompt further research and better inform evolving sentencing policy....

In brief, our most important findings demonstrate the following: The rate at which plea-based sentences are appealed has declined somewhat over the period between the adoption of sentencing appeal waivers in the early to mid-1990s and 2003. In nearly two-thirds of the cases settled by plea agreement in our sample, the defendant waived his right to review. The frequency of waiver varies substantially among the circuits, and among districts within circuits. Immigration cases in our sample were more likely to contain waivers than drug trafficking cases, and both were more likely to contain waivers than firearms cases. It was uncommon for the United States to waive its rights to appeal; usually only the defendant waived his rights to review. The government appears to provide some sentencing concessions more frequently to those defendants who sign waivers than to defendants who do not, including "C" pleas, downward departures, safety valve credits, and a variety of stipulations. Many defendants who waive their rights to review obtain clauses in their agreements that limit their exposure to unexpected negative results at sentencing.

Our preliminary study also confirms some concerns raised by critics of appeal waivers. Some defendants in our study appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review. Three-quarters of the defendants in our sample who waived appeal also waived collateral review, and of these, fewer than one-third preserved the right to raise a claim of ineffective assistance. Waivers have been enforced to bar a variety of claims, including claims of ineffective assistance at sentencing, and assertions of constitutional violations under Blakely and Booker. Increased use of stipulations combined with no review increases the risk that sentences not in compliance with the law can proliferate without scrutiny. The uneven practice of trading sentencing concessions for waivers among cases and courts also suggests that waivers are undercutting efforts to advance consistency in federal sentencing.

As Larry likes to say, download it while its hot!  Also, be sure to check out my blog coverage of appeal waivers post-Booker, in posts here and here, where I develop the idea that appeal waivers are perhaps invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act.