Nancy King to deliver Brainerd Currie Memorial Lecture

Main Content

Brainerd Currie Memorial Lecture
Who Decides the Time for the Crime? Waiver and the Future of Sentencing Policy

Criminal procedure expert Nancy J. King focused on federal appellate review of sentencing when she delivered the annual Brainerd Currie Memorial Lecture at Duke Law School on Nov. 16. King is the Lee S. and Charles A. Speir Professor of Law at Vanderbilt University Law School, a member of the advisory committee on the Federal Rules of Criminal Procedure, and “one of the most prominent and productive scholars in criminal procedure today,” according to Duke’s Harry R. Chadwick Professor of Law Robert Mosteller, who introduced her.

King described how appellate review, crucial to consistency in sentencing, is being undermined by a variety of common practices that include waiver.

First, “fact bargaining,” which routinely accompanies plea bargains, means that punishment is often not based on facts found by judges, as was intended, but on the facts the parties could agree to. “The result [of these bargains] are stipulations that may very well violate sentencing law if revealed.”

A second hit against appellate review is Congress’s decision to give prosecutors, not judges, sole discretion to make certain departures from prescribed sentences. King offered the example of a prosecutor allowing a downward departure for substantial cooperation by a defendant.

Third, and the most dramatic limit on appellate review, she observed, is the Supreme Court’s recent ruling in Blakely v. Washington, stating that a judge can exceed a sentence cap only if the facts that allow the upward departure are proved before a jury beyond a reasonable doubt. A state law case, Blakely also called into doubt the federal sentencing guidelines; a definitive ruling by the Supreme Court in two cases on this subject is expected this term.

The crux of King’s talk focused on what she identified as the fourth significant limit to appellate review: appeal waivers. She described a waiver as a clause added to a guilty plea agreement under which the defendant waives the right to review claims that remain following the plea, such as errors in sentencing or serious constitutional questions.

First used in “fast track programs,” which offered charge and sentencing reductions in exchange for early guilty pleas, waivers quickly became popular among prosecutors who save time and money when appeals are avoided, and some judges hoping to relieve overcrowded appellate dockets. Even some defense lawyers looked to waivers as insulation against post-trial allegations of attorney incompetence.

Along with Mike O’Neil, a U.S. sentencing commissioner and a law professor at George Mason University, King is investigating the effects of appeal waivers on federal sentencing. She shared some preliminary findings from the study, which involves interviews with prosecutors and defenders, and data from 1,200 randomly sampled plea agreements at the Sentencing Commission.

On the positive side, she reported, appeal waivers seem to have effectively reduced the numbers of appeals; the rate at which appeals are being filed peaked in 1994 and has since declined. They have not proved to be a one-sided tool solely favoring prosecutors; many defense attorneys–most notably Public Defenders’ offices–report using them to gain significant concessions in charges and favorable stipulations. They are generally accepted and followed by trial judges, unless stipulations are obviously false.

On the negative side, King said that the study has supported concerns that waivers can shield defense attorneys from their own misconduct or incompetence. Many, though not all, waiver clauses exempt ineffective assistance, but recent lower courts of appeal cases have upheld the waivers unless the ineffective assistance affected the waiver itself.

Appellate waivers, like all forms of bargaining, also have the potential to distort the law, said King. It appears that uneven waiver use can insulate sentencing in some jurisdictions, but not in others, she continued, with whole fast track jurisdictions operating “under the radar” of scrutiny.

Regulating the sentencing process through appellate review is costly, acknowledged King, which is why parties are predisposed to “bargain it away.” But they are also trading away consistency–the intended purpose of the process.

“Appellate review of federal sentencing is at best inconsistent and crippled, at worst, instead of reducing disparity, it may be contributing to it,” King declared.

Because plea bargaining is “supreme” in American criminal justice, appellate judges are unlikely to combat bargaining directly by refusing to accept waivers, she observed. Another solution would simply be to “let the sentencing policy pendulum swing back” to a more discretionary system.

“At some point, the selective application of sentencing regulation that results from charge bargaining, from fact bargaining, from unreviewable departures and from appeal waivers is just as troubling. Sentencing policy has a way of repeating itself.”

The annual Brainerd Currie Memorial Lecture honors the late Duke Law scholar Brainerd Currie, who was known for his introduction of the concept of governmental interest analysis to the field of conflict of laws.