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Crime in the Suites An Analysis of Current Issues in White Collar Defense
September 5, 2012

Judge Was Right to Reject Plea Deal That Included Appellate Waiver

By: Rachel Hirsch

Earlier this summer, a U.S. district judge in Denver rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The decision sheds new light on the extent of prosecutorial power in the practice of negotiating plea agreements and the need for checks and balances to maintain a level of consistency in sentencing.

The concept of appellate waiver is simple. At the sentencing phase, the defendant gives up his right to appeal, simply because the prosecutors ask him to do so.

Timothy Vanderweff, the defendant in the Denver case, entered into such an agreement with the prosecutors. Facing up to 20 years in prison for the most serious of three charges against him, Vanderweff agreed to plead guilty to one of those charges and face no more than 10 years in prison. While agreeing in the deal not to ask for a sentence of less than five years, Vanderweff also agreed to waive his right to appeal, so long as the judge didn’t sentence him to more than the negotiated range.

It was this final detail of the plea agreement that gave Senior U.S. District Judge John Kane pause. Rejecting the plea deal — a rare occurrence in itself — Judge Kane noted that such waivers can do serious damage to the justice system.

Specifically, Judge Kane wrote: “Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.”

Undeterred by the fact that other courts, including the 10th Circuit that includes his district court, have found appellate waivers acceptable, Judge Kane further noted: “[S]acrificing constitutional rights at the altar of efficiency is of dubious legality.”

Although Judge Kane viewed appellate waivers dimly, a 2005 study in the Duke Law Journal found that they are common across the country, occurring in as many as 90 percent of plea deals in some jurisdictions. The frequency of appellate waivers, however, is more likely a reflection of the degree of power that prosecutors wield in plea bargains than anything else. By almost any measure, prosecutors are the most powerful officials in the criminal justice system. They decide whether to institute criminal charges, what those charges should be, and whether to offer the defendant the option of pleading guilty to those charges, and they exercise virtually limitless discretion in reaching those decisions.

While charging is a quintessential prosecutorial or executive decision, that power should not encroach upon traditional judicial powers. Appellate waivers undermine the role of appellate courts to review sentences for fairness and consistency, which is especially important given the lack of transparency in closed-door plea negotiations in general. With such waivers, it is almost impossible to challenge differential treatment in the types of deals that similarly-situated defendants receive.

Moreover, certain rights should be beyond bargaining. A defendant cannot bargain away his right to counsel or his right to a jury trial, so too he should not be able to bargain away his right to appeal. Such waivers may result in judicial efficiency in the short term, but they perpetuate an unequal and unbalanced playing field in the long run.

If more judges emulate Judge Kane and reject prosecutors’ unfair tactics, prosecutors may get the hint and stop using tactics such as this one.