Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance of Appellate Waiver Provisions Should Be Limited to Extraordinary Circumstances

Authors

Holly P. Pratesi

Abstract

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude the availability of judicial review for plea agreements and the validity of appellate waivers. Ultimately, this note argues that courts should only resort to the extraordinary remedy of specific performance if dismissal of the appeal would be insufficient to remedy the harm to the government or if the defendant has filed an appeal in bad faith.

Recommended Citation

Holly P. Pratesi, Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance of Appellate Waiver Provisions Should Be Limited to Extraordinary Circumstances, 81 Brook. L. Rev. (2016).
Available at: https://brooklynworks.brooklaw.edu/blr/vol81/iss3/7