PSD Responds to Attorney General Holder’s Memo by Proposing Legislation to Senate Judiciary Committee Concerning Misleading Appellate Waivers Imposed by Federal Prosecutors

In a letter dated June 15, 2015 to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, PSD has proposed legislation concerning appellate waiver clauses that federal prosecutors impose in plea agreements.

The legislation responds in part to a memorandum by Attorney General Eric Holder to all federal prosecutors validating the imposition of these waivers so long as an exception is carved out for ineffective assistance of counsel claims.

PSD Partner Barry Pollack explained that prosecutors are increasingly imposing appellate waivers in plea agreements, in white collar and other types of criminal cases. The letter added: “The typical appellate waiver language used in plea agreements has a tendency to mislead defendants into believing that they have given broader waivers than what the law recognizes.”

The letter explained it is also “common practice for federal prosecutors to include language that the U.S. Attorney has the power or discretion to determine whether a defendant has breached any provision of the plea agreement.”   As a result of this language, the letter explains that “defendants face the threat of various remedies that federal prosecutors reserve for their office,” which can intimidate defendants into refraining from taking permissible appeals.  The letter highlights the “uneven bargaining leverage” as the government generally retains its right to appeal.

The proposed legislation would require federal courts to inform the defendant that, despite the appellate waiver, the defendant can still bring an appeal based on a breach by the government of the plea agreement, a flaw in the entry of the plea that could deem it involuntary, or based on a claim of ineffective assistance of counsel.  The court would also have to ask counsel whether they have identified any constitutional grounds for an appeal and confirm that the defendant understands those grounds are being waived.  The legislation would also nullify language that purports to reserve for prosecutors the right to determine whether the defendant breaches the plea agreement, leaving such determinations to courts.