Federal Prosecutors May No Longer Be Able To Demand Blanket Appeal Waivers

September 29, 2014Articles

Two weeks ago we posted here about a recent, fairly awful Third Circuit decision, United States v. Erwin, upholding boilerplate waiver-of-appeal clauses to the point of punishing a wayward appellant — who took a sentencing appeal in apparent violation of his waiver agreement — by setting his case down for resentencing and releasing the Government from its obligation to file a downward departure motion for cooperation. Now it appears that the Department of Justice is rethinking its prosecutors’ insistence on broad waiver clauses which bar defendants from appealing at all.

In its September 27-28, 2014 edition, the Wall Street Journal reported in a story entitled “U.S. Moves to Curb Use of Waivers in Guilty Pleas” (Section A4) that the DOJ is finally considering amending its policy. The Journal reports that fully a third of the 94 U.S. Attorneys’ Offices have moved to a standard waiver-of-appeal provision in all plea agreements. The story further reports that bar associations in twelve states have condemned the practice as unethical and improper. Normally, the DOJ does not much care what positions state bar associations take on a given subject, believing associations to be populated with criminal defense attorneys acting in their own clients’ interests. But the Journal reports that, drawing upon such bar association positions, federal judges are becoming increasingly critical of the widespread use of waivers. The DOJ cares a great deal more about what judges do, of course, than about what defense lawyers think.

The DOJ, according to the Journal, will this week announce that it will no longer allow its prosecutors to require defendants to waive all appeals, instead preserving for appeal any claim of ineffective assistance, presumably whether it occurs in the plea negotiation and hearing process or at sentencing. Mr. Erwin would not himself have benefited from this change, since his appeal issues did not encompass poor attorney performance. But this change, if it comes as reported, may at least stanch the momentum across the federal landscape in favor of standardized waivers.