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By Nancy Gertner

As The New York Times editorial noted, even in our uber-market economy, certain things should be beyond bargaining, but are not. You can waive your right to a trial by pleading guilty in exchange for concessions from the prosecutor. And 97 percent of federal defendants do just that.

But there have to be limits. You can’t bargain away your right to counsel in a guilty plea deal; you shouldn’t be allowed to bargain away your right to appeal. A defendant agreed to plead guilty before me in Massachusetts in exchange for a waiver of his right to appeal. The government insisted it was a limited waiver, fairly bargained for; the man had a lawyer. He could appeal if I sentenced above the parties’ recommendation or made an error in computing his criminal record. But if I or probation made other mistakes that could have resulted in a lower sentence, there was no review. Nor could he appeal based on new legal principles; none of the recent Supreme Court decisions that have had a seismic effect on sentencing or on evidence would affect him. Significantly, the government gave up none of its appellate rights. For them, my errors would be open season. 

The right to appeal should not be in the marketplace. Rejecting the appeal waiver, I said that however attractive "the idea of maximizing a defendant's power by allowing him to sell whatever he has, the market for plea bargains, like every other market, should not be so deregulated that the conditions essential to assuring basic fairness are undermined.” Judge John Kane put it even more strongly, looking at the impact of appeal waivers on the criminal justice system as a whole -- undermining the role of the appellate courts to review sentences for fairness and consistency. 

Having a lawyer is not enough. It can be a lawyer who didn’t communicate the prosecutor’s offer, or didn’t mention, say, the immigration consequences of the plea, or who simply cut corners. Indeed, under the current sentencing guidelines, if the lawyer is zealous, conducts a pretrial investigation, files motions asserting client’s rights, his client runs the risk of losing “points” under the federal sentencing system, which could result in a higher sentence. In fact, during my judicial tenure, it was not unusual to see probation staff dig up issues that the lawyer had missed in his rush to deal. Mistakes, in short, are bound to be made.

This market is no longer a marginal part of the criminal justice system. As Justice Anthony Kennedy noted recently, this bargaining is the system. Procedural protections are inadequate; the playing field, unequal. Still, every appeals court has found appeal waivers to be constitutional. They did not have to; the Constitution, after all, doesn’t even mention plea bargaining. It is an issue of fairness. Rather than being protective of a defendant as they should, the appeals courts have permitted an already well-armed government to demand even more.