Private Bargains over Public Rights: Rethinking Appellate Waivers in Plea Agreements

Abstract

Appellate waivers have transformed from a marginal efficiency device into a structural tool that relocates control over legality from appellate courts to the plea bargaining table. In a system already dominated by guilty pleas, broad waivers create “no‑review zones” that insulate coercive plea practices, constitutional violations, unlawful sentences, and systemic errors from meaningful judicial scrutiny. Reconceptualizing criminal appellate review as a partly public right—held in trust to develop doctrine, supervise frontline actors, and maintain separation of powers—undermines the prevailing analogy between appellate waivers and ordinary contracts. Drawing on unconstitutional conditions doctrine and scattered pockets of nonwaivability, this article proposes a unified framework under which exchanges of appellate‑review rights for plea benefits are treated as inherently suspect and unenforceable except where they are administered in a way that does not unduly burden the exercise of constitutional rights.