Department of Justice Expected to End Insistence on Waiver of Appellate Rights

If reports are true, those of us that handle federal criminal cases here in Atlanta and elsewhere received some much welcomed news this morning. It is being reported by Law 360 that within the next week or so, Eric Holder is expected to announce that the Department of Justice will end its longtime policy of requiring individuals who desire to plead guilty to accept plea agreements that include appellate waiver provisions within those agreements. Quite justifiably, these waiver provisions have received a great deal of criticism over the years, and the time for ending this policy is long overdue.

Best I can tell, the DOJ policy of requiring appeal waivers in plea agreements officially began in 1997, when the Department issued a directive requiring prosecutors to include such a provision within plea agreements. Although these provisions are not included in every single plea agreement in federal court, waiver provisions are included within the large majority of federal plea agreements. Under the “standard” waiver provision, individuals are required to waive two statutory rights. First, except for very limited circumstances, an individual is required to waive his statutory right to direct appeal. Second, an individual is also required to waive his right to waive his statutory right to collaterally attack his conviction and sentenced under 28 U.S.C. ยง 2255.

Federal criminal lawyers have been fighting against and challenging these waiver provisions for many years now. In our District, the Federal Defender Office has been leading the fight, doing everything possible to educate lawyers about the problems with these provisions, as well as coming up with ways in which the pitfalls created with these provisions can be avoided. For example, charge bargaining and appeal waiver exceptions can help cure part of the problem but in most cases, even these solutions do not address all of the risks created by appellate waivers.

In 2012, the National Association of Criminal Defense Lawyers Ethics Advisory Committee officially joined the fight, issuing a formal opinion in which it concluded that it is unethical for a criminal defense lawyer to enter into a plea agreement that includes a collateral attack waiver provision. The following year, the American Bar Association’s House of Delegates followed suit, urging judges and prosecutors to reject plea agreements with appellate waiver provisions, unless certain steps are taken in connection with those waivers.

Despite this action, most prosecutors and judges (and some criminal defense lawyers) have ignored the stance of federal criminal lawyers and the ABA on this issue. In other words, day in and day out in federal court, judges routinely accept plea agreements that include the very provisions condemned by many of us for years. One notable exception is the Honorable William T. Moore, a federal district judge (and former federal criminal lawyer) in the United States District Court for the Southern District of Georgia. In fact, well before others began speaking out on the issue, Judge Moore simply refused to accept plea agreements that include appellate waiver provisions. By taking this courageous stand, Judge Moore essentially forced the U.S. Attorney’s Office to remove these provisions from all plea agreements involving cases over which he was presiding.

If the report that we are reading is correct (and I will believe it when I hear it), it looks like the Department of Justice may finally put an end to a practice that Judge Moore and many others have criticized for many years now. If that is the case, we applaud Eric Holder and the Department of Justice for finally coming around. It is “better late than never”, as they say. Those of you with plea hearings scheduled in federal court in the next few weeks may want to pay particular attention to upcoming news reports on this issue. If reports are indeed correct, the plea agreement that you are about to sign may be changing for the better.