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Hastings Constitutional Law Quarterly

Abstract

Current plea bargaining practice increasingly includes a requirement that the defendant waive any right to appeal as a condition of the plea bargain. This relatively new negotiation tactic carries with it the potential for rendering criminal appeals nearly as rare a phenomenon- as criminal trials have become under the old model of plea bargaining. This could move us one step closer to an administrative model of criminal case resolution in which neither factual nor legal issues are resolved by the courts but rather by the parties through a process of negotiation.

This Article argues against this practice, maintaining that it violates the public policy inherent in the right to appeal. Current widespread judicial approval of such waivers essentially elevates concerns of calendar control over more important considerations of fairness, uniformity of treatment and accuracy of adjudication. In addition, this Article also explores the due process implications of the practice but concludes that until the Court is prepared to revisit the doctrinal underpinnings of plea bargaining, any due process attack on the practice is likely to fail.

Lastly, this Article explores the particularly troublesome practice of requiring waiver of future, unknown sentencing error. This Article concludes that this form of waiver not only violates public policy but also the most basic principles of knowing and intelligent waiver.

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