This Article explores the legal and constitutional issues raised by appeal waivers. Section I analyzes the current state of the case law. Section II explores the due process challenge to appeal waivers, and concludes that such a challenge would be difficult to sustain given the current state of due process law. It, nonetheless, goes on to suggest that a key premise of due process theory as it relates to plea bargaining- the presumed equality of bargaining power between the prosecution and the defense-may be ripe for challenge. Section ill discusses the public policy arguments for and against appeal waivers, and argues that the public policy debate has been unduly skewed in favor of caseload concerns, without giving sufficient consideration to the essential role that the right to appeal plays in the criminal justice system. Section III argues that appeal waivers should either be disapproved or given very restricted scope. Finally, Section IV explores the particular problems raised by waivers of sentencing error. It concludes that waivers of future sentencing error are very difficult to reconcile with traditional definitions of knowing waiver or with the basic policies which inform the right to appeal. This section urges that even if appeal waivers are upheld generally, such approval should not extend to waivers of prospective sentencing error.
23 Hastings Const. L. Quarterly 127 (1995)