It’s hard to remember the first time it was in there, hidden within the boilerplate rhetoric of a federal plea offer, but the feeling was unforgettable.  This stunk.  As a part of a plea deal in federal court, the defendant was required to waive his right to appeal, with the exception of a sentence in excess of that anticipated by the deal.  In other words, if you get the time you bargained for, the case was done.

On its surface, it seems like a fair trade.  A defendant who cuts a deal to get a ten year sentence when he faced 20 after trial makes his choice and, in return, the government gets finality and frees up its resources to make other people’s lives miserable.  But such a superficial understanding of federal plea deals leaves some ugly problems on the table.

First, the motivation for the deal is avoidance of outrageously draconian sentences under the United States Sentencing Guidelines,  Just because the Guidelines provide for 367 months for jaywalking doesn’t make such a sentence reasonable.  But the defendant, perhaps saddled with strong evidence against him and no defense, or a judge whose history shows he never met a Guideline sentence he didn’t love, has limited options.  Go to trial. Lose. Get sentenced to forever and roll the dice on appeal?  Sounds like a plan, right?

So when the government suggests it might consider a lower sentence (not an offer, of course, but rather a hint of a disposition which, if accepted, is technically characterized as the defendant’s idea rather than the government’s, the defendant has a choice. While there are negotiations that might make the deal more palatable, it;s usually still within the government’s paradigm of severity.  The defendant can always turn it down and face oblivion.  Or suck it up and take a deal rammed down his throat, reflecting an AUSA’s vision of fairness.

In the District of Colorado, Senior Judge John Kane has yet again broken ranks with the routine and said “no.”  Not to the numbers, but to the inclusion of the waiver of appeal of the sentence, even within the numbers, for reasonableness.  In other words, he would not accept the government’s determination of reasonableness to the exclusion of an appellate court’s review, a radical act.

From the Denver Post :

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.

Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison.  He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years.   Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn’t sentence him to more than the negotiated range.

It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system.  “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,” Kane wrote.

Before anyone applauds Judge Kane’s bold stance, consider the consequences.  It does not mean that the defendant gets the rest of the deal without the waiver of appeal.  It does not mean the government must now be more reasonable in its dealings. There is no duty to off a plea bargain, and the government can simply pull the deal off the table and tell the defendant to plead to the indictment or go to trial.

In a plea to the indictment, the defendant may get a two level adjustment for acceptance of responsibility, plus an additional one level adjustment for a timely plea.  But even with a downward adjustment of three levels, he faces everything the government can throw against the wall to see what sticks. He can challenge it at a Fatico hearing, but then the same old problems with challenging evidence (as in the defendant testifying, having his 404(b), his prior bad acts, thrown in his face and getting into a pissing match with a dozen federal agents) come into play.

So rather than enter into a plea with some level of certainty as to what will happen, a defendant is left to make a decision with a huge hole in his future and the potential of being sentenced to life plus acne instead of life plus cancer. He just doesn’t know, yet he’s supposed to make a decision or go full monty to trial.

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.

Vanderwerff’s attorney also urged Kane to accept the deal. “Both sides benefit from it,” Assistant Federal Public Defender Edward Harris wrote.

Kane, though, viewed the waiver dimly. “[S]acrificing constitutional rights at the altar of efficiency,” he wrote, “is of dubious legality.”

It’s hard to quibble with Judge Kane’s point. But it doesn’t offer a solution to the defendant’s dilemma.  Had the practice of requiring an appeal waiver been held unconstitutional, and the government precluded from including it in plea agreements, the problem would be solved. But it didn’t, and the government loves them. Most courts likely love them as well, removing a huge number of appeals from their docket that had little chance of going anywhere. You might be surprised to learn that most federal courts prefer fewer cases to more. Go figure.

So while Judge Kane’s concern about the legality of government imposed appeal waivers may be well-founded, it leaves the defendant in an untenable position.  As much as every criminal defendant becomes an overnight aficionado of conceptual constitutional rights, they are similarly a huge fan of shorter rather longer sentences.  Something has got to give, and as if usually the case, it’s likely to be bad for the defendant.

Update:  Judge Kane was kind enough to send over a copy of his opinion in United States v. Vanderwerff, together with a companion opinion relating to “fast track” dispositions in illegal re-entry cases, in United States v. Villanueva-Calderon.  Yet again, I pine for the fact that John Kane’s concerns aren’t universally shared by the bench.

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.

A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny.

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment. See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012). Ethical and moral values inevitably infuse the decision making process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e.,the fundamental values widely accepted by society and identifiable as such.

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Because of this, Judge Kane held that appeal waivers can only be permitted when the case-specific facts warrant. The key to appreciating where he was going doesn’t end with the rejection of the plea agreement for failure to provide an adequate justification for the appeal waiver, but with the Parsimony Clause, 18 U.S.C. §3553:

The parties also argue that the dismissal of charges 1 and 3 will result in a statutory sentencing range that better accommodates the interests of justice and the strictures of 18 U.S.C. § 3553. If found guilty of all charges, Mr. Vanderwerff would face a statutory sentencing range of five to twenty years of incarceration. This is clearly what Congress intended, yet his proposed plea bargain would result in a statutory sentencing range of probation to ten years. Although I could sentence Mr. Vanderwerff to any sentence within that range, as part of his proposed plea bargain Mr. Vanderwerff agrees not to actively seek a sentence of less than five years – the statutory minimum he would face if convicted of all charges. In effect, the parties seek to limit Mr. Vanderwerff’s sentence to a range of five to ten years of incarceration.

Although these sentencing consequences may have induced Mr. Vanderwerff to accept the government’s plea bargain, they do not justify including an appellate waiver. The interests of justice as I perceive them are best served by permitting the calm and deliberate review by the Court of Appeals of my decision and how it conforms to the requirements of 18 U.S.C. § 3553.

While the message here may be less clear than must defense lawyers would prefer, my take is that Judge Kane is telling the defendant that his solace isn’t in the plea agreement with the waiver of appeal, but rather the parsimony clause.  In other words, he doesn’t need the prosecution’s approval to achieve a fair sentence in a post-Booker world, and the defendant doesn’t need to forego appellate review to get there.

From the court’s perspective, since the decisions approving appeal waivers were pre-Booker, and afterward the nature of review changed from abuse of discretion to reasonableness, the prosecution should not be allowed to unilateral eliminate the possibility of review of sentences for reasonableness by fiat, the length of imprisonment.

Yet that’s not the end of the inquiry. Knowing Judge Kane, his prior decisions and how they reflect on his views toward the Guidelines and sentencing, one might take comfort in the Parsimony Clause in his hands. That cannot be said for all judge. To go a step further, there are a great many judges who either adore the Guidelines, are less than empathetic toward defendants or are just not inclined to concern themselves with §3553 at all.  Rather than find the Parsimony Clause in their hands, you’re more likely to find the executioner’s ax.  And betting on reasonableness review at the Circuit may not be worth the risk.

Update 2:  And the New York Times chimes in.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

All true, but until the appellate courts reject waivers per se, the only other option is trial, with the potential tax to be paid.