Understand the meaning of appeal waivers and how they affect direct appeals and postconviction cases

In federal court, the vast majority of cases end in a plea bargain. In 2003, 95 percent of cases were resolved by plea [1], and that statistic went up 20 years later according to a 2023 article. [2] Of those cases, approximately two-thirds included an appeal waiver. [3] Accordingly, it is important to understand what the meaning of an appeal waiver actually is and how it affects postconviction cases.

Most of the decisions in a criminal case are left to the attorney representing the defendant. Certain “fundamental decisions” belong to the defendant alone, including the decision to enter a plea or take an appeal. [4] However, these constitutional rights can be waived as long as the waiver is voluntary and knowingly entered into. [5]

Appeal waivers usually require the defendant to agree to forego the right to appeal his or her conviction and any sentence that the district court might impose despite the obvious fact that the defendant does not and cannot know what sentence will impose. [6] Naturally, this can be a frightening proposition to any person facing sentencing.

Are appeal waivers always enforceable?

The answer, like most things in the law, is that it depends on the circumstances. If the appeal waiver was not knowingly and voluntarily entered into or if it was the product of ineffective assistance of counsel, the waiver may not be enforceable. [7] The extent of the provisions waived also depends on the language of the waiver itself. [8] A “miscarriage of justice” exception to enforcing the appeal waiver also exists for extreme cases where an error is obvious and would undermine confidence in the justice system. [9]

Navigating an appeal waiver can be a complicated process. If you or someone you love needs help with an appeal, contact Peter Armstrong, Attorney at Law, for a free consultation.

References:

1.    Lindsey Devers, Ph.D., Plea and Charge Bargaining January 24, 2011, available at https://bja.ojp.gov/sites/bja/files/media/document/pleabargainingresearchsummary.pdf.

2.    Carrie Johnson, The vast majority of criminal cases end in plea bargains, a new report finds, February 22, 2023, available at https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice.

3.    Bex Warner, The "Miscarriage of Justice" Exception to Appeal Waiver Enforcement: Debunking and Demystifying the Circuit Split, 110 Minn. L. Rev. 1951 (2026). Available at: https://scholarship.law.umn.edu/minnlrev/vol110/iss4/6

4.    Jones v. Barnes, 463 U.S. 745, 750 (1983). (Available at https://supreme.justia.com/cases/federal/us/463/745/)

5.    See Brady v. U.S., 397 U.S. 742, 748 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”) (Available at https://supreme.justia.com/cases/federal/us/397/742/)

6.    See Hunter v. U.S., 146 S. Ct. 1702, 1719 (2026) (Gorsuch, J., concurring) (“Pursuant to an appeal waiver, a defendant usually must agree to waive not only any right he may have to contest his conviction on appeal. … Typically, he must also agree to waive his right to appeal any sentence a district court might issue after accepting his guilty plea. … A defendant must do so even though he does not yet know what that sentence will be. And he must do so even while the government retains its right to appeal any decision it doesn’t like.”) (Available at https://www.supremecourt.gov/opinions/25pdf/24-1063_diff_5h26.pdf)

7.    Id. at 1711 (“It is common ground that an appeal waiver, like the rest of a plea agreement, must be knowing and voluntary to be valid and thus to be enforceable. … Related to that settled rule is another: An appeal waiver, again like the rest of the agreement, is not knowing and voluntary if it was the product of ineffective assistance of counsel. … So an appeal waiver tainted by ineffective assistance is not enforceable.”)

8.    Garza v. Idaho, 586 U.S. 232, 238-39 (2019) (“That an appeal waiver does not bar claims outside its scope follows from the fact that, ‘[a]lthough the analogy may not hold in all respects, plea bargains are essentially contracts.’ … As with any type of contract, the language of appeal waivers can vary widely, with some waiver clauses leaving many types of claims unwaived. Additionally, even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver. … Accordingly, a defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.”) (Available at https://supreme.justia.com/cases/federal/us/586/17-1026/)

9.    Hunter, 146 S. Ct. at 1713 (“We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary.”)