During the summer of 1997, the Department of Justice issued a directive requiring all future federal plea agreements to include language providing that a defendant waive her statutory right to appeal the sentence imposed by a judge(1) guaranteed by the Sentencing Reform Act of 1984 (the "Act").(2) Various agreements in several federal jurisdictions previously had used similar waiver language on an ad hoc basis.(3) Twice during the summer of 1997, the issue arose in the U.S. District Court for the District of Columbia.(4) Although several circuits have deemed the waiver acceptable,(5) Judges Paul L. Friedman and Harold H. Greene ruled in separate hearings that the U.S. Attorney's office could not include such a condition in any plea agreement.(6) Though the U.S. Attorney's office subsequently withdrew the language and proceeded contrary to the Department of Justice directive,(7) many other jurisdictions not bound by the District of Columbia ruling continue to use waiver language as a precondition to any plea agreement.
This Note discusses the validity of plea agreement provisions that require the defendant to waive the right to appeal sentencing as a condition to making a plea agreement. The first section offers a brief historical review of the right to appeal sentencing, the Department of Justice directive, the Judicial Conference's consideration of the topic, and the specific history of the current controversy over waiver provisions. The second section examines legal issues, as reflected in cases and statutes. The third section investigates public policy considerations favoring and opposing enforcement of the waiver. In the fourth section, this Note presents another scholarly treatment of this issue, and concludes that the proposed alternative is deficient. The fifth section presents another alternative that relies upon Federal Rule of Criminal Procedure 11(e)(1)(C). This Note's proposed alternative complies with the legal and public policy considerations that forced a rejection of both the Department of Justice directive and the previous scholarly treatment of the issue. Finally, this Note concludes that the government should use Rule 11(e)(1)(C) to effectuate a plea in which a defendant sacrifices her right to appeal, rather than requiring each plea agreement to include a waiver of such right.
HISTORY OF THE RIGHT TO APPEAL SENTENCING AND OF THE PRESENT CONTROVERSY
Prior to November 1, 1987,(8) federal judges had nearly complete discretion in the imposition of sentences.(9) The criminal defendant did not possess the right to appeal sentencing except through a habeas corpus action or in other limited circumstances.(10) Habeas actions, however, were, and still are, limited procedurally, essentially to prevent defendants from having multiple opportunities to appeal.(11) The government also possessed limited appellate rights regarding sentencing.(12)
Members of Congress found this state of affairs unacceptable because it provided unfettered and unjustifiable judicial discretion.(13) Congress therefore sought to heighten the accountability of federal trial judges and to generate uniformity within the criminal justice system by creating a check on judges' sentencing powers.(14) Members who believed that a lack of uniformity often led to disparate treatment of particular defendants also were concerned about the rights of the accused.(15) To remedy these shortcomings, Congress drafted and passed the Sentencing Reform Act of 1984.(16)
Congress designed the Sentencing Reform Act to make sentences uniform and to afford all defendants the right to appeal a sentence.(17) Appellate review ensures uniformity because appellate judges do not substitute their discretion for that of a trial judge. Instead, appellate judges ascertain whether the trial court properly applied the guidelines(18) and whether the record justifies any departure from the sentence imposed by the trial court.(19) The Act does not indicate whether the defendant has the power to waive this appellate right. …