An Appealing New Ruling

This must-read NYT editorial is about an almost unheard of event: a federal judge’s rejection of a plea bargain. Judge John L. Kane of Colorado refused to accept the defendant’s plea of guilty, but not because he believed the defendant did not commit the offense. Rather, he could not endorse the appellate waiver (giving up the right to appeal) in the plea agreement.

Appellate waivers are all the rage in the prosecutorial community. Why would a defendant waive her constitutional right to appeal? Because the government insists on it as a condition of accepting the plea. Why do defendants care? Because the government frequently sweetens the deal, by agreeing to drop some of the charges and/or press for a lower sentence. This Times editorial calls it a process “close[] to coercion. Prosecutors regularly ‘overcharge’ defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence that the alleged crime would warrant or a guilty plea in exchange for a shorter sentence.”

So, hurray for Judge Kane. We hope, but do not expect, that his principled stand will convince the Attorney General to take a hard look at the shameful practice of forcing defendants to waive their constitutional rights of appeal when pleading guilty. Because, as this editorial points out, today “our system of pleas . . . looks more like a system of railroading.”

Mary Price

Vice President and General Counsel