Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers

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 models of judicial behavior and 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. 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. 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. Because a breaching defendant is generally no worse off than if she had adhered to her promise not to appeal, defendants are not effectively deterred from breaching their sentencing appellate waiver agreements. In response to these problems, this article proposes a system that moves the sentencing appellate waiver out of the plea agreement and into a separate post-sentencing agreement. After the sentencing hearing, the defendant and the government would be free to bargain over a sentencing appellate waiver in exchange for a sentence reduction subject to the approval of the district court. 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.