Academic journal article The Journal of Law in Society

The Search for Consistency: The Interpretation of Plea Agreements and Appeal Waivers in the Face of Breach

Academic journal article The Journal of Law in Society

The Search for Consistency: The Interpretation of Plea Agreements and Appeal Waivers in the Face of Breach

Article excerpt

Table of Contents  I. INTRODUCTION II. BACKGROUND      A. Plea Agreements           1. Origins           2. Wide-spread Usage Today           3. Benefits to Parties: The "Typical" Plea Bargain      B. Appeal Waivers           1. Appeal Waivers in Federal Court           2. Appeal Waivers in Michigan      C. Effect of Breach on Enforceability of Plea Agreements           1. What Constitutes a Breach?           2. The Effect of Breach on the Enforceability of Appeal               Waivers           3. Breach Objected to by Counsel           4. Breach Un-objected to               a. Plain-error Review               b. Collateral Attack-Ineffective Assistance of Counsel III. ANALYSIS: THE PRUDENCE OF A CONTRACT BASED APPROACH     WITH HEIGHTENED SCRUTINY.     A. Mistake     B. Duress VI. CONCLUSION 


Since its inception, plea bargaining has been an integral part of the criminal justice system. Even though plea bargaining was a part of the process before the 1920s, alcohol prohibition was the harbinger for the rise of plea bargaining. The juxtaposition of ever-increasing federal laws and insufficient government resources that never compensated for the increase of prosecutions certain to follow, created the "perfect storm" for plea bargaining. While integral from its inception, plea bargaining today has become indispensable. Defendants, for varying reasons, decide to forego their constitutional protections for trial and agree to enter a plea of guilty. This decision is met with a promise from the government. Typically, the government will agree to request leniency in sentencing or drop charges and in exchange the defendant agrees to forego a trial and waive his right to appeal, among other things.

Problems arise when one of the parties either partially performs or wholly fails to perform. This Note highlights the origins of plea agreements, their wide-spread usage today, what bargaining tools the parties typically use, and what recourse is available to criminal defendants who find themselves in a position where they have not received what they believed they had bargained for. While this position is far from novel, in the face of a clear circuit split, this Note advocates for a contracts-based approach to the enforceability of plea agreements. This approach would provide for uniformity and predictability of decisions, which is currently lacking.


A. Plea Agreements

1. Origins

Our system has not always been, as the Supreme Court opined in 2012, a "system of pleas, not a system of trials." (2) The pieces that have created the present state of our criminal justice system were put in place long ago. According to one author, the "true age" of the discovery of plea bargaining dates back to the 1920s and 1930s. (3) Early scholars that confronted plea bargaining did so with hostility. (4) While subsequent case law would have likely quelled many of the fears they had regarding the plea bargaining process, these early scholars saw plea agreements as an "undercover system" that was "dangerous, both to the rights of individuals and to orderly, stable government." (5) Even in this early era, plea bargaining in the city of Chicago in 1926 accounted for 98.5% of felony prosecutions. (6) In searching for an explanation for the prevalence of plea agreements, it was surmised that it was due in large part to the increased caseloads of prosecutors. (7) This conclusion was echoed by the infamous Wickersham Commission report in 1931. (8) This report placed much of the onus on the propagation of alcohol prohibition since federal prosecutions increased exponentially following the law's passage. (9)

In the 1970s, a new wave of scholars approached the topic of plea bargaining. These new scholars were not content to simply build on and concede that the prevalence of plea bargaining was due to heavy caseloads. One of the more noteworthy theories during this time was laid out by John Langbein. …

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