Sunday, February 25, 2018

What are you waiving in your client's plea agreement? And why?

Last week, the Supreme Court decided United States v. Class, holding that Mr. Class did not waive his right to challenge the constitutionality of the statute under which he pleaded guilty merely by pleading guilty.

Oh goody! Does that mean we don't have to explicitly reserve the right to appeal constitutional (or other) issues in our plea agreements?

No! No! Please, no.

Mr. Class was in a unique position. He had waived some specific rights and retained others, but his plea agreement did not mention his pretrial motion to dismiss the gun charges against him on due-process and Second Amendment grounds. This was a challenge to the validity of the statute of conviction that was simply outside the scope of the agreement's specific waivers. The only question before the Supreme Court was therefore whether the guilty plea itself implicitly waived the issue and barred his appeal. The Supreme Court held that it did not. Mr. Class would be in a very different position had he pleaded guilty under a slightly different agreement---for instance, one with a nonspecific appeal waiver.

What lessons can we learn from Class? Not many. As Justice Alito complains in his dissenting opinion, the majority does not offer much guidance on interpreting explicit waivers, and its loose language "will bedevil the lower courts." So where do we go from here?

First and foremost, make that plea explicitly conditional and expressly reserve the right to appeal any dispositive pretrial motions that you intend to appeal. Don't take the risk of relying on Class to open any appeal doors that have previously been closed. Those doors remain closed.

And consider kicking the waiver habit altogether. Not all jurisdictions use appeal waivers. A 2013 national waiver survey determined that prosecutors do not demand any appeal or collateral-attack waivers in their plea agreements in 17 out of the 94 federal judicial districts. Susan R. Klein, Aleza S. Remis, Donna Lee Elm, Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52 AM. CRIM. L. REV. 73 (2015). And many other districts use only limited waivers. Id.

What might a limited waiver look like? It might exclude (that is, reserve the right to appeal), for example, constitutional sentencing claims and plain guideline error. And it might reserve the right to file sentence-reduction motions based on future retroactive amendments to the guidelines. Remember, a plea agreement is just a contract---we can control its terms.

Finally, let's think about what we're getting in exchange for our waivers. Is that third acceptance point really worth waiving all future remedies for a sentence that has yet to be pronounced? No---your client should get that point if otherwise qualified. The application notes to USSG § 3E1.1 state that the government "should not withhold" a § 3E1.1(b) motion "based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal." USSG § 3E1.1, comment. (n.6).

Let's not shut any more doors than we absolutely have to, and not unless we're gaining a measurable benefit for our clients.

black-and-white, decision, doors

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