Appeal Waivers and the Future of Sentencing Policy

Abstract:     
This paper reports the first empirical analysis of appeal waivers: clauses in plea agreements by which defendants waive their rights to appellate and post-conviction review of sentencing errors. Based on interviews and an analysis of data coded from 971 randomly selected cases sentenced under the United States Sentencing Guidelines, the study's findings include: 1) in nearly two-thirds of the cases settled by plea agreement, the defendant waived his right to review; 2) the frequency of waiver varies substantially among the circuits, and among districts within circuits; 3) the government appears to provide some sentencing concessions more frequently to those defendants who sign waivers than to defendants who do not, including agreeing to "C" pleas (binding sentencing terms), downward departures, safety valve credits, and a variety of stipulations; 4) many defendants who waive their rights to review obtain clauses in their agreements that limit their exposure to unexpected negative results at sentencing; 5) some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review; 6) three-quarters of the defendants who waived appeal also waived collateral review, and of these, fewer than one-third preserved the right to raise a claim of ineffective assistance; 7) 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. The observed trend of increased use of stipulations combined with no review raises 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.

Accepted Paper Series