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February 16, 2022

Spotlighting the ugly problem of federal prosecutors seeking waivers of future statutory rights to seek compassionate release

In this post a couple of years ago, I flagged an opinion by US District Judge Charles Breyer in US v. Funez Osorto, 445 F. Supp. 3d 103 (N.D. Cal. 2020), in which he rejected a plea agreement based on a provision that sought to dramatically limit the defendants' statutory rights to pursue future compassionate release motions.  Today I see this new NPR article discussing complaints about this practice, and here are excerpts:

Federal prosecutors have been seeking to limit defendants' rights to win compassionate release from prison in plea negotiations across the country, a practice that advocates say undermines the intent of Congress and produces cruel outcomes.

Two advocacy groups — Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers — asked Deputy Attorney General Lisa Monaco on Tuesday to prohibit U.S. attorneys from including the "pernicious" language in plea agreements.

In a copy of their letter exclusively provided to NPR, the groups said at least six jurisdictions around the nation are using the provisions, either barring defendants from filing any motions for early release because of extraordinary medical or family conditions or limiting them to only one such request and barring appeals....

The Justice Department had no comment on the advocates' letter.

Compassionate release is designed to give people in prison facing extraordinary or compelling circumstances a way to seek early release.  The Bureau of Prisons rarely approved such requests, so in 2018 Congress gave prisoners the ability to petition a federal court for freedom, under the First Step Act. More than 4,000 people have used that provision to win release....

Well over 90% of federal prosecutions end in guilty pleas, so the language in plea agreements carries enormous impact. "Individuals pleading guilty cannot know if their future holds a terminal medical condition, the death of the sole caregiver for their children, among many other tragic circumstances," said Shanna Rifkin, deputy general counsel of FAMM.

I have long thought that nearly all appeals waivers, as well as related collateral review waivers, are legally problematic and ought to generally be considered void as against public policy.  Though a criminal defendant trying to secure some remedy or release through an appeal or release motion is obviously the one most directly impacted by any and all possible future litigation over his sentence, the public also has a significant interest in a sentencing system that functions without significant error and that does not spend money on incarceration ineffectively and inefficiently.  Appeal waivers insulate all sorts of potentially significant sentencing errors from scrutiny and review, and waivers of other release or collateral motions can block efforts by prisoners to soundly and properly use existing legal mechanism to secure review of potentially excessive or unnecessary prison terms.

Congress amended the procedures for sentence reduction motions known as compassionate release through the FIRST STEP Act of 2018 precisely because it concluded that the executive branch in the form of BOP and DOJ could no long be trusted to be good stewards of this important sentence-review mechanism.  The amended process gives defendants, after seeking BOP support for a motion, the statutory to bring a motion directly to the judiciary.  Any efforts by the executive branch to reclaim sole authority over such motions though plea provisions runs directly contrary to what Congress duly provided in law as the new policy and procedure for these matters.  Consequently, such waivers should be, in my view, deemed unenforceable and void as against the public policy enacted by Congress via FIRST STEP.

February 16, 2022 at 06:10 PM | Permalink


The judicial branch does not decide what is "public policy." Policy is exactly and precisely the realm of the political branches, which have both the constitutional portfolio to decide it and a much better finger on the public pulse.

Still, if a point be made of it, the courts have been over this again and again. As summarized by DOJ, this is the state of the law: [I]t is important to note that the Supreme Court has repeatedly held that a criminal defendant can elect to waive many important constitutional and statutory rights during the plea bargaining process. See United States v. Mezzanatto, 115 S. Ct. 797, 801 (1995); Tollett v. Henderson, 411 U.S. 258, 267 (1973); Blackledge v. Allison, 431 U.S. 63, 71 (1977, cert. denied, 116 S. Ct. 548 (1995). Consistent with that principle, the courts of appeals have upheld the general validity of a sentencing appeal waiver in a plea agreement. See, e.g., United States v. Allison, 59 F.3d 43, 46 (6th Cir. 1995); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995); United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993), cert. denied, 115 S. Ct. 652 (1994); United States v. DeSantiago-Martinez, 980 F.2d 582, 583 (9th Cir. 1992), amended, 38 F.3d 394 (1994), cert. denied, 115 S. Ct. 939 (1995); United States v. Melancon, 972 F.2d 566, 567-568 (5th Cir. 1992); United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992); United States v. Rutan, 956 F.2d 827, 829-830 (8th Cir. 1992).

A sentencing appeal waiver provision does not waive all claims on appeal. The courts of appeals have held that certain constitutional and statutory claims survive a sentencing appeal waiver in a plea agreement. For example, a defendant's claim that he or she was denied the effective assistance of counsel at sentencing, United States v. Attar, supra; that he or she was sentenced on the basis of race, United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994); or that the sentence exceeded the statutory maximum, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), will be reviewed on the merits by a court of appeals despite the existence of a sentencing appeal waiver in a plea agreement. ###

Of course, the defendant is under absolutely no obligation to sign a waiver, or enter into a bargain at all. He can insist that the government prove its case and carry its burden BRD at trial, and tell the government to put its proposed plea agreement in a poorly lit area.

Posted by: Bill Otis | Feb 16, 2022 6:51:09 PM

I should add that, if Congress actually wanted to forbid the waivers discussed here, in the "spirit" of the First Step Act or otherwise, it would be easy enough for it to do so expressly. If it doesn't -- and it hasn't and doesn't plan to so far as I've heard -- it is distinctly NOT the job of the judicial branch to simply expand the FSA on its own.

This is exactly why the Senate should be careful NOT to ratify a SCOTUS choice who, out of a professional "perspective" favorable defendants, just goes ahead with judicial legislation while calling it something else.

Posted by: Bill Otis | Feb 16, 2022 7:20:17 PM

As you know, Bill, plea agreements are subject to review as contracts. Interestingly, you seem supportive of many courts ruling, surely as a matter of "public policy" when interpreting the application of these contracts, that "certain constitutional and statutory claims survive a sentencing appeal waiver in a plea agreement." So do you disagree with all those rulings you cite and sincerely believe anything and everything can be waived in plea contracts OR do agree with the courts you cite that some matters cannot be waived as a matter of public policy? Are you claiming that the courts placing limits on waivers are all guilty of "judicial legislation" or do you recognize that there must be some (court defined) limits on plea terms?

I suspect you recognize that there must be "public policy" (eg, constitutional, statutory and prudential) limits on pleas terms. For example, I suspect you would agree with me that the parties could not lawfully in a plea deal bind the sentencing judge to sentence based on a coin flip or that any appeal would be resolved by a group of jointly selected arbitrators. Put another way, I suspect we both agree "public policy" means there are some key constitutional and statutory procedures that cannot be waived or bargained around because doing so undermines the foundational structure of how we have decided our criminal system functions.

I believe that the right of appeal and other express statutory rights that provide access to the courts ought to be considered among those key criminal procedures that cannot be waived or bargained around. In other words, I generally see protecting the right to access court as fundamental to our scheme of criminal justice and due process. Those who extol appeal waivers and the like seem to think denying access to court is a virtue, but I see little constitutional or statutory foundation for allowing the executive branch to deny access to the judiciary on terms provided by Congress unless and until Congress has expressly stated it wants access to courts limited/denied (as it has, for example, via AEDPA and other express statutory provisions limiting court access).

Indeed, can you provide any constitutional or statutory text that provides a clear basis for the lawfulness and legitimacy of appeal waivers? If not, I suggest the court rulings you cite blessing appeals waivers are the real examples of "judicial legislation." Similarly, the FIRST STEP Act, enacted by Congress and signed by Prez Trump, changed the law to now read that a court may reduce a sentence "upon motion of the defendant" under certain conditions. This text does not describe a "right" of a defendant to be waived, it describes the authority of a court to modify a sentence under certain circumstances. So described, what law authorizes an executive branch official to seek to preclude the bringing of a motion that Congress has plainly stated can be made?

Posted by: Doug B. | Feb 16, 2022 10:21:01 PM

The argument you make against compassionate release waivers is identical to the argument made many years ago against appeal waivers -- that is, that Congress specifically created a right to appeal in the then-new SRA of 1984, and that "suppressing" the appeals thus authorized both frustrated Congress's clear intent and retarded the courts' opportunity to flesh out the parameters of this at-the-time novel and revolutionary sentencing regime.

Sounds like a reasonable argument, yup. But it lost in every circuit, starting, I'm proud to say, with the case I argued in the Fourth Circuit, US v. Wiggins, 905 F.2d 51 (4th Cir. 1990). DOJ thought that I should go first, since the waiver was my invention and I could sink or swim with it. The Wiggins text is here: https://casetext.com/case/us-v-wiggins-10. The anti-waiver argument was such a complete loser, in Wiggins and the cases that followed around the country, that there was no circuit conflict upon which SCOTUS could rule, much to the consternation of my buddies in the defense bar.

There may be exceptions to the standard waiver in extreme cases, sure. I allowed some myself when I thought the defendant had at least a colorable argument on the merits (in other words, I had the waiver in my back pocket but did not invoke it).

But you don't want rare exceptions to the waiver. You want it banned altogether. I'm willing to bet that that argument will wind up exactly where the Wiggins argument wound up. If you think about it, it's not that hard: Since in plea bargaining a defendant can waive his CONSTITUTIONAL right to a trial that would determine whether he'll go to jail at all, a fortiori he can waive a mere statutory right that affects (usually only marginally) how long he's going to be there.

You sneer at the holdings of all the circuits as malodorous "judicial legislation," when what you want actually IS judicial legislation, namely, for the courts to stick a provision into the First Step Act that Congress never put there.

Of course you have at least three easy remedies if you think the courts are so bad. First, you could persuade AG Garland to reverse it. Second, you could get Nancy Pelosi and Jerry Nadler and Chuck Schumer and Dick Durbin (are they right wing extremists?) to add the language you want into the FSA and pass it through the Congress their Party controls. Third -- and this is the real shocker, I know -- the defendant could say, "Ummmm, this waiver stinks. I'm not going to sign it. Those fascist prosecutors can go prove their case at trial, and they would if they weren't so lazy."

Now I know its heresy on this blog to suggest that the defendant bears even a teeny, tiny sliver of responsibility for what he does, but hey, heresy is my middle name. Here's the heresy in a nutshell: If you think the waiver is illegal, DON'T SIGN IT.

Posted by: Bill Otis | Feb 17, 2022 12:18:22 AM

So, Bill, you admit here that, as an executive branch official/prosecutor, the appeal waiver was your "invention" without any statutory or constitutional basis and now praise the courts for all upholding the appeal waiver provision that you "invented" without any statutory or constitutional basis. You also brag that this invented waiver gave you, as a federal prosecutor, the unilateral power to decide when to allow a defendant to appeal, even though Congress by actual force of law made appeals a statutory right, not something to be a matter of prosecutorial discretion. If your own braggado here is not clear proof of appeal waivers being an example of "executive + judicial legislation" in opposition to what Congress actually put in the text of statutes, I am not sure what would be.

You are right that a bit of thought helps here, and you are smart enough to understand the obvious distinction between waiving a jury trial and waiving a sentencing appeal. Defendants waiving juries to admit guilt has not only a long history, but the admission of guilt eliminates the need for a jury to adjudicate guilt. In sharp contrast, your "invention" of an appeal waiver has no history, flies in the face of Congress creating an express statutory right to appeal, AND entirely precludes an appeal of any errors at a sentencing which take place AFTER the deal is signed. To give up a right to a guilt-finding jury process when one admits guilt is radically different than giving up a right to appeal possible future errors during a proceeding that has not yet taken place. Your "invention" elides that critical difference, and I sneer at the fact you brag about inventing a limit on access to courts and seem to want to believe you are the one faithful to the rule of law.

Critically, I am not trying to "add" to the FIRST STEP Act, I am saying courts should not accept efforts by prosecutors to "invent" new limits on access to court that are not in the text of the FIRST STEP Act. There is no need to "add" anything, the language clearly authorize CR motions by defendants while making no provision for waivers. Consistent with the text of the law signed by Prez Trump, courts should NOT welcome another "invention" by prosecutors eager to further limit the court access that Congress clearly provides in the text of the FSA. It is telling that you view your extra-legal prosecutorial "invention" as somehow more valid as a form of law than the actual text Congress enacted in the FSA. That text nowhere says that access to the court can be limited by prosecutors or should be determined on the whim of what a modern-day Bill Otis thinks might be a "colorable argument."

But just to be sure I understand the nature of your "invention," let me ask again: can you point to ANY constitutional or statutory text that provides ANY foundation for the lawfulness and legitimacy of appeal waivers or CR waivers? I suspect you cannot, but that you are still proud of inventing a means to give prosecutors more power even though your clever tool lacks any clear basis in any constitutional or statutory law.

Posted by: Doug B. | Feb 17, 2022 1:06:20 AM

Doug --

I have 30 years of caselaw on my side, you have none (and understandably cite none), and you want to think I'm going to be put on the defensive?? All those judges over all those years fell for my invention and never bothered, over three decades, to notice what you take to be the absence of "any constitutional or statutory law" justifying their rancid, unlearned, unhinged holdings!

Yikes. I've had my own criticisms of judges, but never one that went that far.

I made my argument for the legality of the waiver in court, where it counted. Do you really think so many judges over so much time were all wrong? That the lot of them -- Democratic, Republican, liberal and conservative -- were bullied by me rather than insisting on a statutory or constitutional anchor? Have you read the opinions?

And there's this too: The huge majority of the defense bar was satisfied to go along with the waiver because, as with all the other provisions in the plea agreement, they got enough out of it to think, correctly, that it was well worth it rather than have their client get turned into toast at trial.

Lastly, I see that you just walk past the three remedies I outlined even if you think, as you apparently do, that so many judges are just oblivious to any proper legal foundations for their holdings. If there's some reason the admitted criminals who signed these agreements can't pursue one or more of those remedies, you don't mention it.

Posted by: Bill Otis | Feb 17, 2022 1:30:49 AM

Yes, Bill, I think judges have been wrong to uphold your appeal waiver invention without any statutory or constitutional foundation. But you are right that defendants could refuse these provision, but the problematic severity of federal sentencing law makes that challenging. Key point here, since you cite only cases to support your appeal waiver “invention,” is that you are the leading advocate and defender of what you derisively call “judicial legislation.” Proof yet again that you are results oriented, eager to invent whatever “law” whenever it served your policy goals.

Posted by: Doug B. | Feb 17, 2022 2:15:09 AM

Doug --

"Yes, Bill, I think judges have been wrong to uphold your appeal waiver invention without any statutory or constitutional foundation."

Have you read the cases?

"But you are right that defendants could refuse these provision, but the problematic severity of federal sentencing law makes that challenging."

Litigation is challenging, for sure. Best to avoid it altogether by not robbing the bank, swindling Medicare, cross-border human trafficking and all the other stuff defendants do to wind up in litigation. Ironically, though (given your position), plea bargains are a way for those very defendants to AVOID the most stressful parts of litigation, which is one reason so many of them, then and now, insist on a deal rather than a trial.

"Key point here, since you cite only cases to support your appeal waiver 'invention,' is that you are the leading advocate and defender of what you derisively call 'judicial legislation.'”

Yes, I cite here, in what might become an immortal phrase, "only cases." When you appear before a court that wrote those cases, this tends to help. But for however that may be, the appeals challenging the waiver were brought by the defendant, not by me. When a case is brought before a court, it has an obligation to decide it -- affirmed or reversed. That is not legislation. It's the core of the judicial function.

"Proof yet again that you are results oriented, eager to invent whatever 'law' whenever it served your policy goals."

I didn't invent law. I wrote the appeal waiver that went into our proposed plea agreement, which absolutely no one thinks of as "law." I then wrote the brief on appeal; the court -- a different branch of government -- wrote the opinion and entered the judgment ("law"). And when I was an AUSA many years ago, yes, I was result-oriented in the sense that any attorney for the government is, to wit, I put forward arguments I thought would appeal to judges as being legally sound, and that would secure the conviction won by my colleagues in the lower court. But not then and not now was I anywhere near as results-oriented as defense counsel, who wanted as little accountability for the client as he could get away with. And if there had to be a little fancy dance in there to pull it off, well.....................

Posted by: Bill Otis | Feb 17, 2022 2:47:18 AM

It seems to me that Bill has the better end of the argument here. Generally, stuff is legal unless the law or the Constitution says it's not. If an executive branch employee has a clever new idea, and no law expressly prohibits it, then it is legal. That is why Bill's appeal waiver is legal. He doesn't need to wait for Congress to say yes. All that matters is that they never said no. Judges, however, do not have the power to make Bill's idea illegal, just because they consider it bad policy.

Posted by: Marc Shepherd | Feb 17, 2022 7:34:08 AM

Perhaps worth noting too that judges have the right to reject plea deals that they believe are not in the public interest. So I don't think Breyer's decision falls in the category of "judicial legislation". If you let judges decide what is in the public interest, then they are no longer just textualists.

Posted by: Marc Shepherd | Feb 17, 2022 8:16:33 AM

Bill: I have read many appeal waiver cases, and I did not see any citation or discussion that grounds the legality of your "invention" on any statutory or constitutional foundation. You candidly claim to have invented these waivers because they come from your clever mind, not from any statutory or constitutional law. That reality means all the case law upholding appeal waivers is what you might call "judicial legislation" or what others might call federal common law, and I sense you and many prosecutors and many courts think appeal waivers make for good public policy. Whether actually good public policy, these waivers certainly mean less work for prosecutors and appellate courts, and so I suspect many are glad that you invented a way to force defendants to waive future court rights provided by Congress (and it is not surprising plenty of judges have been keen to give legal force to what might be deemed a common-law, judicially created exception to a statutory right to access the courts). But none of the cases change the basic reality that appeal waivers are a kind executive and judicial branch lawmaking, based on a vision of good public policy, that has no clear grounding in the text of any statutory or constitutional provisions.

That said, I fully agree that this case law is valid and enforceable "law," but I do think the caselaw is generally wrong --- just like I surmise you acknowledge Miranda/Dickerson is now valid and enforceable law, but you think that caselaw with 50+ years of SCOTUS blessing is generally wrong. Interestingly, most circuit court have now figured out they initially did get a critical part of this caselaw wrong when sometimes saying they had no "jurisdiction" to consider an appeal when there was a waiver, but now they enforce the wavier bar as a matter of court procedure. See United States v. Castillo, 496 F.3d 947 (9th Cir. 2007) (resolving this issue en banc and rejecting DOJ's claim that plea agreements can somehow alter statutory/constitutional jurisdiction rules).

In other words, circuit court have struggled to find a sound legal foundation for turning your "invention" into law, but again I recognize that all this common-law public policy work is now is valid and enforceable "law," albeit with all the court-invented exceptions and limitations that you note --- just like courts have through a common-law process invented exceptions and limitations to Miranda. I could cite you thousands of cases citing Miranda, but I sense that would not convince you those judicial doctrines are "good" law; similarly citing to me appeal waiver rulings alone are not convincing. There is one difference, of course, Miranda and its progeny at least claim to be resting on Fifth and Sixth Amendment text and principles. You still have not cited, nor has any court I have seen cited, any statutory or constitutional foundation for appeal waivers.

Marc: Thanks for your comments, but do you think it would be valid --- and subject to enforcement by federal courts --- if a clever federal prosecutor added into plea agreement provisions that say a defendant waives all rights to vote in any election for the rest of his life or waives the right to take a standard deduction on his federal taxes for the rest of his life? It would seemingly be "legal" to do this, since many states limit voting rights and nobody really has "tax rights." But, just as I think courts should not enforce prosecutor-invented waivers of future rights to court access that lack statutory or constitutional foundation, I do not think courts should enforce waivers of future rights to vote or to file taxes properly even if clever prosecutors think denial of these future rights makes for good public policy (because they think certain criminals ought never vote or ought always pay more in taxes or not have access to courts on the terms provided by Congress).

Of course, Marc, if Congress passes a statute saying appeals can be waived or voting rights waived or tax deductions waived as part of the plea process, then there is now democratic legitimacy to a reshuffle of future rights in the plea process. But to my knowledge, there is no federal statutory basis for any of these kinds of waivers, while there is a clear textual federal statutory basis for a criminal defendant taking an appeal from a final judgment (or filing a motion for sentence reduction under 3582). In a democratic society, I remain quite chary about making it too easy for "clever" executive branch employees to wield vast power to undercut statutory rights created by Congress through a rights-blocking "invention." I think the default should be the plain text of democratically enacted laws that serve as the baseline --- and I would hope most "clever" ideas from the executive branch will involve trying to better execute those laws faithfully, not trying to invent common-law exceptions that undermine both the text and clear policy that Congress sought to advance.

Posted by: Doug B. | Feb 17, 2022 10:55:26 AM

Doug --

A few points.

1. I appreciate, I guess, being labeled as "clever" a dozen times or so, but to be honest, it didn't require a lot of cleverness. In the late Eighties I would go to defense seminars (I paid the fee out of my own pocket, it wasn't USAO money) to see what they were being taught about the new sentencing system. What I heard woke me up: They were going to "litigate the system into the ground" by willy-nilly sentencing appeals, and thus bring down the whole edifice of the SRA of 1984. This struck me as something I didn't want to happen, since I thought (and think) that determinate and honest sentencing is a good idea. So I asked myself how I could counteract the scorched-appellate-earth strategy. The answer, then as now, didn't take much of a clever mind to see: If you can waive your right to a trial, to confront the witnesses against you, to compulsory process, to require the government to prove your guilt BRD, etc., etc., you can surely waive a subsidiary right to appeal your sentence (which is almost always at the low end of the range anyway).

So I sold the idea to my superiors at DOJ. They greenlighted me. I litigated it in 1990 in Wiggins and got all three votes (Wilkinson, the author; Billy Wilkins, then Chairman of the USSC; and James M. Sprouse, a Carter appointee). The word spread. Maybe three years or so later, in the Clinton Administration, DOJ approved it as general policy. By the end of the Ninties, every circuit in the country agreed to its validity.

2. The main argument you make against it -- that it lacks a statutory or constitutional anchor -- was, as you might expect, made repeatedly by those (relatively few) defense counsel who challenged it. It was rejected every time. I can't remember whether there was even a dissenting vote; there probably was, but it was so long ago I can't recall.

The reason I don't go over it again here -- in addition to the one aptly furnished by Marc Shepherd -- is that people well beyond my pay grade, namely circuit judges, have already done it.

3. I haven't much of a clue whether the exotic hypos you posed to Marc could be done (although I do know that courts have, as part of a criminal sentence, forbidden union-infiltrating mobsters from further participation in union affairs, including running for office. I'm pretty sure that has been upheld). But it doesn't make any difference, because appeal waivers at this late date are anything but exotic, and are justified a fortiori by decades of court approval of plea bargains in which the defendant never sees his constitutionally-guaranteed TRIAL but accepts a conviction anyway. Such plea bargaining equally lacks the statutory and constitutional anchor that seems to have you so concerned. (Indeed, only trials are designated in the Constitution as a way of resolving criminal cases; plea bargaining isn't so much as mentioned, much less approved, at all. By contrast, the Constitution does NOT create a right to APPEAL a conviction, much less appeal a sentence). But from the Supreme Court on down, courts approve of, and defense counsel eagerly engage in, plea bargains which, boiled down, are trial waivers. Since they can do that, it's beyond serious argument that they can do appeal waivers as well.

4. Let me just go through what plea bargains with appeal waivers accomplish. They

-- Resolve the case at a fraction of the cost
-- Resolve it more quickly by far than would otherwise be true
-- Resolve it with the defendant typically convicted of only a fraction of what he'd get at trial
-- Are the main ingredient in acceptance of responsibility reductions
-- Attain certainty and finality for the parties -- litigation doesn't linger for years
-- Enable to government to do more cases and thus keep the community safer
-- Enable defense counsel to do more cases or invest more effort in the cases he has

Some of what you have said makes me think you're waiting for me to be ashamed of having invented them. If so, you'll be waiting a long time. It was one of the better things I did with my career.

Finally, I might never have come up with idea but for the angry defense bar promise to "litigate the system into the ground" by zillions of scattershot sentencing appeals just to gum up the machinery. If you don't want to put my supposed evil genius to work, don't provoke it with irresponsible threats.

Posted by: Bill Otis | Feb 17, 2022 2:27:48 PM

Bill, I appreciate your accounting for why you feel you had really good public policy reasons to invent appeal waivers and how you were able to convince lower courts to make up the law as needed to uphold your convenient invention (as they have done with plea bargaining more generally) without any statutory or constitution foundation. As you know, a number of scholars and others view all plea bargains (and even pleas) as constitutionally suspect, but I am not one of them. It makes sense to me that constitutional or statutory protections focused on ensuring only proper convictions can be considered waivable if a defendant is prepared to knowingly and voluntarily admit a conviction would be proper. But in nearly all cases (unless there is a fixed sentence built into the plea), a defendant cannot know what happened at a future sentencing and so how can he (or the government for that matter) knowingly waive a statutory right to appeal a procedure that has not yet taken place. But, as you are keen to note, courts have not cared about this distinction --- though they initially bungled the claimed foundation for your invention in their rush to embrace the public policy benefits you claim.

The key point throughout, Bill, which think you here again concede, is that you made no effort (nor has anyone else to my knowledge) to present your public policy arguments for appeal waivers to Congress so that they could, with democratic legitimacy, amend the text of existing laws to provide expressly for appeal waiver or other limits on appeals. Instead, to achieve your public policy goal of limiting the new appeal rights that Congress had created, you devised a rights-blocking "invention" to undercut statutory rights created by Congress. Perhaps you did advance public policy by using the courts rather Congress to cut back on what Congress enacted --- gosh knows lots of folks on both sides of the aisle look to the courts to achieve public policy goals that they cannot achieve through democratic channels --- but you your effort fundamentally involved a successful example of creating "judicial legislation" to cut back on the actual text and application of actual legislation passed by Congress.

This has been my main point throughout, Bill: if you really are troubled by judges "making up" law to serve public policy ends without any constitutional or statutory foundations, you ought to be ashamed of your appeal waiver achievement since it is a particularly great example of exactly that.

Posted by: Doug B. | Feb 17, 2022 3:23:00 PM

Doug --

I see you've replaced saying "clever" with saying "public policy." Fine my me. I was an officer of one of the political branches, not the judicial branch, and therefore had leave to implement what I saw to be in the public interest. Putting the appeal waiver into a proposed plea agreement THAT THE DEFENDANT COULD ACCEPT OR REJECT AS HE CHOSE was one such thing. If he wanted a trial, fine, he got it no questions asked. If instead he liked the deal with the waiver in it -- which almost all of them did -- he got that, subject to the extensive Rule 11 inquiry for taking a plea. I never forced a defendant to do or to sign anything.

I don't see a single thing morally or legally wrong with that. Do you? What is it? The defendant retained his right to choose from start to finish.

I see you don't cite any authority for the novel proposition that Congress needs affirmatively to approve traditional plea bargains as they existed for decades, bargains that waived a whole lot more than a sentencing appeal. This is not because you're lazy. It's because there is none. As Marc Shepherd notes and you don't refute, there is simply no rule that Congress needs affirmatively to approve any of the numerous terms that go in plea bargains and have gone in them for years. If Congress has a problem with any term in a plea bargain, or with bargaining as a concept at all, of course it has the power to outlaw it.

In the 32 years since Wiggins, can you point to any Congressional action -- or indeed to a single Congressman or Senator -- which has disapproved the appeal waiver provision? I don't know of any. I might also note that it was used, not only by the Clinton DOJ, but by Obama's as well, and presently by Biden's.

In other words, neither Congress nor the courts endorses your view that express Congressional authorization is needed, and decades of practice under Attorneys General both parties attests that it isn't.

Still, I don't want to chill your views. So I invite you to find the (rare) defense lawyer who bridles at the appeal waiver as much as you do, get him to challenge it in the Court of Appeals, come in as his amicus to buttress his argument, and when you lose, go for cert. I'll bet you $500 here and now that you don't get it, and if you do, I'll bet you $1000 you lose on the merits (no matter how many times you type in "public policy").

Are we on? You're a chaired professor, so I know you've got the dough!

Posted by: Bill Otis | Feb 17, 2022 4:07:30 PM

I agree, Bill, that Congress has not disapproved appeal waiver jurisprudence over the last 30 years any more than it has disapproved Miranda/Dickerson jurisprudence over that same period, and I will not have any more luck getting that appeal waiver jurisprudence overturned than you will in getting Miranda/Dickerson jurisprudence overturned. Lots of judges get wedded to the extra-textual doctrines they embrace in pursuit of good public policy, and Congress often does not care much (or even pay attention) unless and until given a strong political reason to do so. But I will continue to express and advocate for courts to develop common law doctrines in ways that serve what I think is good public policy --- which in this case involves not enforcing appeal waivers or CR waivers in nearly all instances because I think access to courts is generally good public policy.

Critically, my point all along has been to refute your silly assertion that refusing to enforce your appeal waiver "invention" would amount to a kind of "judicial legislation while calling it something else." In fact, enforcing appeal waivers to preclude access to courts despite the express statutory text allowing access to court is itself fundamentally a kind of "judicial legislation while calling it something else." We are both advocating, in this setting and many others and in good faith I believe, for courts to embrace a common-law jurisprudence that we think best serves public policy. You think that involves regularly cutting off access to courts whereas I think that involves generally safeguarding access to court. And the beat goes on.

Posted by: Doug B. | Feb 17, 2022 5:48:25 PM

I’m with Doug on the public policy merits of sentence appeal waivers, I too wish to shake my fist ineffectually at Bill for inflicting them on us, and I note that there continue to periodically be interesting and heartening dissents flagging all the ways that sentence appeal waivers are contrary to public policy.

But I think the case for the proposition that compassionate-release waivers are contrary to public policy is even stronger than the case against sentence appeal waivers. 3582(c)(1)(A) motions are, by the terms of the statute, motions to seek relief from incarceration based on extraordinary issues. Extraordinary issues are — almost by definition — the sorts of issues that you can’t intelligently bargain about. And the point of a “safety-valve” — as Congress has described 3582(c)(1)(A) — is to release the pressure when things go unexpectedly or intolerably wrong. Barring access to an extraordinary remedy — thereby insulating from judicial review unexpected & intolerable problems — just wouldn’t honor the point of a safety-valve law that is designed as a remedy for the extraordinary.

Ironically, the flip side of Bill’s remark about how “crash-the-system” appellate defense lawyers (side note: this is not a real thing) somehow justify sentence appeal waivers applies in the compassionate release context. For years, the Bureau of Prisons had the sole power to decide whether to seek compassionate release on a prisoner’s behalf. They repeatedly mismanaged that solemn charge, with the really astonishing result that Congress was actually moved to do something about it. That something was to give inmates the right to initiate their own compassionate-release applications. BOP had their chance to administer the compassionate release process but they crashed the system. If supposed crash-the-system defense lawyers help justify sentence appeal waivers, then when the BOP crashed the compassionate release system, leading Congress to clean up the mess by giving prisoners the opportunity to seek CR for themselves, that justifies putting a hard kibosh on the compassionate release waivers that various Sons-Of-Bill-Otis are minting in whatever diabolical DOJ unit mills these widgets of assembly-line justice.

Put another way: it would be utterly perverse to let DOJ force, through compassionate-release waivers, a reversion to the exact system that Congress not only chose to remedy, but chose to remedy precisely by giving prisoners the right to seek compassionate release. Compassionate-release waivers would very surgically undo the entirety of the First Step Act’s remedy to the problems Congress perceived with the BOP’s management of compassionate release. Or, put more simply, they’d thwart Congress’s intent.

Hopefully the Sons-of-Bill don’t manage to pull off another Wiggins here. I’m cautiously optimistic because of just how clearly public policy is on our side with this one.

Posted by: MP | Feb 17, 2022 11:11:14 PM

MP --

I take it then that you also find plea bargaining as a whole impermissible as against public policy, since the right to be tarred with a criminal conviction and jailed ONLY after a trial by your peers is at the very center of our constitutional protections against an oppressive government. The sentence reduction possibilities embodied in 3582(c)(1)(A) might be important from your point of view, sure, but they are nowhere near as important, as a matter of historically paramount public policy, as the right to have your guilt vel non -- the lynchpin of ANY prison sentence -- determined only by a jury.

And it's true that a defendant cannot foresee future emergencies, but he also cannot foresee what would have happened at the trial a standard plea bargain obviates. Trials are notorious for their surprises and unexpected twists and turns. So the fact that the compassionate release waiver defendant is surrendering a possible but unknown future benefit does not distinguish it from the classic plea bargain. Hey, look, the government's star witness could get cold feet the morning the trial is supposed to start -- or does that never happen?

Therefore you'll be challenging our present and long-existing plea bargaining system as against constitutionally imperative public policy, yes?

P.S. My wager offer to Doug is open to you as well. Are we on?

Posted by: Bill Otis | Feb 18, 2022 1:05:03 AM

Bill, as MP suggests turning to the CR issue in the wake of a (GOP-led) Congress overwhelmingly passing the FIRST STEP Act to enable prisoner access to court to bring sentence reduction motions, let's try this hypo: Do you think it would have been good public policy, subject to enforcement by federal courts, if all federal prosecutors in, say, Feb 2013 or Feb 2017 or now were to start including this provision in all proposed plea agreements in crack cases:

"DOJ has decided that the 2010 act of Congress, which some have called the Crack Dealers Relief Act, was a very bad policy when it lowered crack sentences. Therefore, we will not agree to any plea deal -- and will oppose any acceptance of responsibility guideline credits and will not consider any 5K motions and will argue for the statutory maximum in every crack case --- unless and until a defendant through this plea deal agrees to be sentenced based on the crack statutory and guideline provisions that were in place and had the force of law in 2006 (the USSC lowered the crack guidelines in 2007, and DOJ now also thinks that was a big mistake)."

I surmise you (and perhaps many former and current federal prosecutors) think the 100-1 ratio crack statute/guidelines were good policy and better than current law, though of course the US Sentencing Commission and now Congress have long disagreed. Do you think it would be a sound and good idea, and a matter strictly enforced by courts, for DOJ to use plea agreements to press forward with its crack sentencing policy preferences even in cases when those policy preferences are obviously contrary to recent policies enacted into law through the democratic process?

Indeed, if you think it sound and even wise for DOJ to pursue statutory work-arounds to all legislation it dislikes passed by Congress, did you drop the ball when you had access to folks involved in the Trump DOJ in not suggesting "fair crack sentencing waivers" become standard procedure? Indeed, might you urge DOJ to create a special office --- perhaps the Office of Legal Policy and Statutory Work-Arounds --- that is devoted to develop plea terms that allow it to pursue its policy preferences even in the face of contrary statutory developments?

Posted by: Doug B. | Feb 18, 2022 11:07:21 AM

Doug --

Your moderate turn of mind sometimes prevents you from from torching DOJ as much as it deserves. So let me try to help out here by writing a hypo that will finally straighten out these fascists:

"DOJ has decided that the 2010 Act of Congress, which some have called the Criminals Showtime Extrazagana Act, was very bad policy when it enabled hoodlums to try to enlist others in the community to get them off the hook. Therefore, we will not agree to any plea deal -- and will oppose any acceptance of responsibility guideline credits and will not consider any 5K motions and will argue for the statutory maximum in every case --- unless and until a defendant through this plea deal, agrees to waive the following language that predated the Act: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."

Now that should take care of these creepy little prosecuto.............oh..............wait. This is not a waiver of some reformed sentencing provision from a few years back. It's a waiver of the core provision, indeed the exact language, of the Sixth Amendment!!!

And that language wasn't adopted by the 2010 Act of Congress, it was adopted by the Founders themselves as part of the basic fabric of a free country. No?

So please tell me that the defense bar stands tall by refusing to sign on to -- or, heaven forbid, routinely seek -- plea deals that kiss trials goodbye hence are nothing but wretched evasions of the foundations of our liberty. I mean, they do refuse, right? And the Supreme Court has resolutely refused to countenance these shady deals, being as they are such a slick and collusive undermining of what our country stands for.............right?

I mean the High Court has refused, hasn't it? Hello?? And defense counsel would NEVER soil themselves by seeking out (indeed, thousands of times, aggressively demanding) these trial-avoiding, Constitution-bashing deals. I mean, they don't seek or sign plea deals, do they?

Do they? Hello??

Posted by: Bill Otis | Feb 18, 2022 2:53:02 PM

Bill, you keep going back to the suspect notion that, because courts find it lawful for DOJ to seek and courts to allow the waiving of constitutional trial rights for contesting guilt when defendants want to admit guilt, then it must be lawful for DOJ to seek and courts to allow waivers of rights to any and everything else that has no connection to the trial and the determination of guilt. Is that your fundamental claim? So it would be sound for DOJ to also seek in plea deals any and all waivers of any and all constitutional and statutory rights in any and all settings --- subject, as you said, to prosecutors keeping those waivers in the back pocket so that they have authority over whether a defendant can later exercise any rights? For a big government guy like you, this is quite the clever script for prosecutors having the chance to exercise king-like control over the little people. But I do not think it's the system the Framers gave us.

Fundamentally, I do think pleas erode our nation's commitment to trials by jury as the proper means of adjudicating guilt. But there is at least logic to the notion that a person prepared to admit guilt should be able to waive those rights related to the trial process for determining guilt. At issue with appeal waivers and CR waivers and others is whether DOJ should seek, and courts should enforce, waivers in pleas that have nothing to do with trials and guilt. Judicial approval of pleas that waive trial rights does not and should not logically determine whether non-trial rights should be waivable in pleas (though the appeal waiver jurisprudence shows judicial willingness to extend the king-like power of prosecutors to be back-pocket rulers of appeal rights).

The fundamental question for statutory rights is really whether you think prosecutors should try to faithfully execute all laws passed by Congress --- including those that allow for access to courts by defendants without a prosecutorial gatekeeping role --- or instead should only seek to follow those statutory provisions that they think are good policy and seek to prevent application of other laws because prosecutors as kings think they know better than Congress and all the little people involved our democratic process. All those little people in 2018 used the democratic process to give defendants the right to seek court access to request compassionate release, but you seemingly now endorse having executive kings/prosecutors using whatever tools they think they can to eliminate the right Congress just created.

Posted by: Doug B. | Feb 18, 2022 4:11:57 PM

Doug --

More on this later, since I'm pressed for time now, but very briefly:

1. You seem to be laboring under the quite odd notion that the defendant's bedrock right to have a jury alone determine his guilt, and thus the propriety of any sentence at all, is less important, and thus more amenable to negotiation, than his right to seek to have a court at some point down the road adjust his particular sentence. The gaping facial implausibility of that view is the reason I won Wiggins and the Wiggins line of cases and your side lost them -- lost them everywhere, I might add.

2. You say the Sixth Amendment trial right is at least arguably subject to negotiation "when defendants want to admit guilt." Well that's sure a new one! I've been lectured constantly on this blog that the admission of guilt is assuredly NOT something defendants want, but is something that's (figuratively, but routinely) beaten out of them by thuggy prosecutors.

Here's the way it actually works: There is almost never a case where the defendant wants to admit guilt. What he actually thinks is that he would dearly love to CONTEST guilt, but is at least with it enough to understand that he'll probably lose that contest because the evidence is massive, and therefore wants to get out of his jam at the lowest cost his lawyer can negotiate. You actually don't know this?

3. If plea bargaining is permissible, which you and The Elevated Minds of Academia doubt, but the Supreme Court doesn't, then here's how it works. The defendant has to give up something of value in order to get something of value. (This is also how adult life works). In this instance, the thing of value he gives up is his statutorily-created opportunity (not certainty, opportunity) to seek CR somewhere down the line. If in his sole discretion his views that opportunity as being worth less to him than the concessions the government is willing to make, than he'll sign the deal. If not, he won't. Most do, just as most understand now, as they did at they time of Wiggins, that the dicey prospects of winning a sentencing appeal are less valuable than the consideration he's getting now from the prosecutor (like, say, dropping a raft of charges on which he's ice cold).

So, yes, he has to give up something up value (something Congress provided him with the OPTION of seeking), in order to get something he views as having greater and/or more immediate value.

Why do you want to hamstring defendants from making their own choices?

Posted by: Bill Otis | Feb 18, 2022 4:47:53 PM

A fair point, Bill, that most defendants would like to invoke their constitutional trial rights rather than admit guilt. But prosecutors have helped to build sentencing systems that often formally and functionally ensure defendant will get many more years, sometimes decades more, in prison simply for invoking those rights. Facing the threat of decades more in prison --- not for the particulars of their crime, but for a decision to invoke their constitutional trial rights --- defendants are often willing to waive trial rights and the right to appeal and the CR right. Prosecutors likely could also demand waiving rights to go to church and rights to vote and rights to take tax deductions and all sorts of other rights and "things of value" because those rights do not seem meaningful when threatened with, say, 20 years in prison if they do not give up trial and other rights and only 5 if they do.

(Daniela Gozes-Wagner, who got a commutation from Trump, was sentenced to 20 years after trial while those who actually ran the fraud got only 5 years; for Weldon Angelos, who Trump pardoned, the trial penalty was 40 years from a 15-year plea offer that became a 55-year sentence after trial (though prosecutors asked for 60+); Alice Marie Johnson, who Trump also pardoned, got LWOP for a first non-violent drug offense after exercising her trial right. Many, many thousands more got or faced decades more prison time as a trial penalty in our federal system, in part because we have doctrines that say a federal sentence can be enhanced by years and even decades based even on acquitted conduct.)

For anyone who really believes in the system of jury trials and checks on government power that our Framers championed, these stories should be deeply troubling. But anyone who likes prosecutors wielding king-like power to distribute punishment and rights as only they see fit, perhaps these are stories to celebrate. I think I know what side I am on and what side you are on. And I will continue to advocate for a system with more checks on government power and less king-like actions by prosecutors.

All kinds of rights are important --- jury trial rights and court access rights and others --- and I would like to see executive officials working to preserve rights rather than seeking their waiver. But I fully acknowledge that allowing bargaining around trials/guilt has proved irresistible to our criminal justice systems which are often more focused on case-processing efficiency than on preserving the constitutional process the Framers championed. But the logic of including waivers on non-guilt rights as part of pleading guilty does not hold, it merely sustains as a form of raw, king-like power with no logical connection to the process of adjudicating guilt. But maybe I should just be grateful the DOJ king has not (yet) started demanding in plea agreements the waiving of rights to go to church and rights to vote and rights to take tax deductions and all sorts of other rights and "things of value."

Posted by: Doug B. | Feb 18, 2022 5:53:21 PM

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