Every defendant who has ever entered into a plea agreement (roughly 94 percent of federal prisoners) has been subjected to a “appeal waiver,” which requires the defendant to agree not to appeal or file a post-conviction motion under Section 2255 of the United States Code, except in the most extreme of circumstances, according to the agreement. The waivers are frequently ignored or misunderstood by the defendant, and they are rarely effectively articulated by either defense counsel or the court in their entirety.

Nonetheless, they are beneficial to the government. A waiver ensures that the defendant will never be able to object on appeal or through habeas corpus about infirmities in the sentencing, regardless of whether the flaws were created by court error or the misconduct of the defense attorney. Some ingenious U.S. Attorneys were even taking steps to protect their convictions from future changes in the law or Guidelines that may otherwise entitle the defendant to a reduced sentence.

Doug Berman On Plea Deal And Appeal
Doug Berman

A few go so far as to prohibit the defendant from filing a Freedom of Information Act (5 U.S.C. § 552) request to law enforcement agencies. Doug Berman, a law professor at Ohio State University, describes an appeal waiver as nothing more than a “(government labor-saving) device” that should be “void as against public policy,” according to Berman.

The Department of Justice was forced to eliminate a nascent practice by some United States Attorneys only two months ago, which required a defendant to relinquish any future right to petition for compassionate release under 18 U.S.C. 3582(c)(1)(A)(i) if he or she wanted to be released sooner. Such motions are based on unusual changes in circumstances that render a revision of the sentence an act of compassion on the part of the court.

‘What, Mr. Tax Fraud prisoner, are you dying of cancer and would like to spend your final months at home instead of in a federal prison? Sorry, Charlie, but you relinquished your right to ask the judge for that as part of your plea agreement six years ago…

David Lawson
David Lawson

A small number of judges find appeal waivers so distasteful that they will not accept a plea deal that includes one of them. David Lawson, a federal judge who sits on the United States District Court for the Eastern District of Michigan, is one such federal judge. In a ruling last week, the 6th Circuit found him in contempt of court for rejecting a plea deal based on his “longstanding practice” of rejecting deals containing appeal waivers. The ruling was upheld by the Supreme Court.

When the parties appeared before Judge Lawson during a pretrial hearing in a federal drug prosecution involving Ashley Townsend, he stated that his “practice over the years has [been] not… to accept plea agreements that contain waivers of rights to collateral review or the right to appeal a sentence determination or sentencing issue that is disputed.”

U.s. Attorney Dawn Ison
U.S. Attorney Dawn Ison

Ashley agreed to a plea agreement with appeal waivers, either because U.S. Attorney Dawn Ison couldn’t give a damn what a federal judge wanted, or perhaps because she thought she had finally found the perfect test case. Regardless, Dawn’s office and Ashley signed the agreement regardless.

Judge Lawson was as bit as good as he was at his job. The suggested agreement was rejected by him.

Appeals and the ‘Extraordinary writ’

Earlier this year, the government filed a petition for writ of mandamus with the Sixth Circuit, requesting that an order be issued instructing Judge Lawson that his practice violated Federal Rule of Criminal Procedure 11, and that he be prohibited from imposing such a blanket policy. A writ of mandamus is referred to as a “extraordinary writ” because of its rarity. It’s a little like the obverse of the injunction coin in certain ways. An injunction is a court order that prevents someone from engaging in a particular action. If you want something done, you can have it done by getting an order from the court system or from a higher-level government official.

Given its ‘exceptional’ nature, obtaining an order of mandamus is not an easy undertaking. It is necessary for the party requesting relief to demonstrate that (1) it has exhausted all other available remedies, (2) its right to mandamus is “clear and unambiguous,” and (3) that the issuing of the writ was “appropriate under the circumstances” before the court will grant relief.

The Court of Appeals agreed that the United States Attorney was entitled to his writ. The 6th pointed out that the government had no legal right to file an interlocutory appeal of Judge Lawson’s denial of a plea deal, and that even if Ashley later pleaded guilty to the indictment, was convicted by a jury, or was acquitted after trial, the government would have no legal right to file a direct appeal in which the Judge’s practice could be called into question. As the Circuit noted, “mandamus is the only adequate means for the United States to either compel the district court to adhere to Rule 11 or compel the district court to reconsider its decision.”

As for the second point, the Sixth Circuit found that “the district court’s violation of Federal Rule of Criminal Procedure 11 was “obvious and undisputable.” The court is prohibited from intervening in plea negotiations under Rule 11… In unfinalized or hypothetical plea agreements, the Circuit determines that when a district judge expresses its preference for or against specific plea bargaining provisions, the court is in violation of Rule 11 because the court is participating in plea discussions.

Specifically, the Circuit found that the district court erred by rejecting the parties’ plea bargain without providing a “sound reason” unique to the facts of the case. In other words, if the court rejects Ashley’s plea offer due to the inclusion of the waiver, she would be sentenced to prison. It is necessary to provide a justification based on the specifics of Ashley’s situation.

Finally, the Sixth Circuit ruled that mandamus is appropriate in this situation. There had never been a decision on this subject previously, and it “involves important questions… that bear on the ‘efficient administration of justice,'” as well as raising “questions that may slip through the cracks if not addressed at this time.”

Carissa Byrne Hessick, a criminal law professor at the University of North Carolina at Chapel Hill, described this ruling as “bonkers.” She said this “astonishing decision curtailing trial courts’ power to reject plea bargains… I hope the 6th Circuit decides to hear this case en banc and to reverse this terrible panel decision. Plea bargaining has warped the criminal justice system. And if other courts follow the Sixth Circuit, it will get even worse.”

According to Professor Berman’s Sentencing Policy and Law blog, he “generally agree[s] with the District Court’s stated policy concerns with regard to all appeal waivers: ‘The court explained its belief that appeal waivers “embargo” trial court mistakes, “insulate” the government’s conduct “from judicial oversight,” effectively “coerce” guilty pleas with offers that are “too good to refuse,” and “inhibit[] the development of the Sentencing Guidelines”

As usual, the Volokh Conspiracy is succinct about it:

During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It’s a system that’s ripe for abuse and coercion. But, per the Sixth Circuit, that’s no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

Sentencing Law and Policy,  Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way (April 28, 2022)

In re United States, Case No 21-1318 (6th Cir. April 26, 2022) 

Twitter, Carissa Byrne Hessick (April 26, 2022)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (April 29, 2022)