CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, May 17, 2013

Bennardo on Post-Sentencing Appellate Waivers

Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers on SSRN. Here is the 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 previous models of judicial behavior and available 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. With that information deficiency, the parties’ default valuation of the defendant’s sentencing appellate rights are often unaligned—the defendant overvalues her appellate rights out of fear of an unjust sentence and the government undervalues the same rights based on past experiences. This disparity is magnified by the disproportionate significance that a defendant places on an unfavorable sentencing outcome relative to an unfavorable outcome’s significance to the government. 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. Past research and behavioral modeling have demonstrated that the “ordinary” district court judge labors under an aversion to reversal and that this reversal aversion influences sentencing outcomes and procedures. 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. Under the current system, a breaching defendant who notes an appeal in violation of her appellate waiver suffers the consequence of having her appeal dismissed. In general, neither the government nor the court is willing to unravel the entire plea agreement as a result of the breach. Thus, the defendant’s breach renders her no worse off than if she had adhered to her promise not to appeal. The government’s impotence to impose meaningful additional sanctions beyond the prospect of dismissal fails to effectively deter defendants from breaching their sentencing appellate waivers.

This article proposes a post-sentencing appellate waiver system whereby the defendant and the government may bargain for a separate sentencing appellate waiver agreement after the completion of the sentencing hearing. 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.

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