In our upcoming February gathering, we will preview a critical criminal law case on the Supreme Court's docket, Beaird v. United States, which addresses whether a defendant's plea agreement waiver of the right to appeal remains enforceable when the government stays silent during the defendant's subsequent appeal. To lay the groundwork for this, it is necessary to examine the history of plea bargaining, appeal waivers, and the contract-law principles of waiver enforcement.
In the American legal system, plea bargaining has become the dominant method of resolving criminal cases, accounting for over ninety percent of convictions. To secure these agreements, prosecutors increasingly require defendants to sign appeal waivers—relinquishing their right to challenge their sentence on appeal in exchange for a reduced charge or a lighter sentence. Judges must conduct a thorough admonishment during the plea hearing to ensure that this waiver is knowing, voluntary, and intelligent, protecting the defendant's constitutional rights.
However, when a defendant files an appeal despite the waiver, and the government fails to raise the waiver in its initial brief, a complex procedural question arises. Does the government's silence constitute a waiver of the waiver? Criminal plea agreements are interpreted according to contract-law principles, where silence or inaction can signify the relinquishment of a known right. If the government fails to assert its contractual right to enforce the waiver, should the court step in to enforce it anyway, or does the government's silence free the defendant to pursue their constitutional appeal?
This February, we will discuss the boundaries of waiver enforcement. We will analyze the tension between judicial efficiency—wishing to enforce agreements as written—and the adversarial principle, which dictates that courts should not raise arguments that the parties themselves have chosen to omit, exploring how procedural silence shapes the rights of the accused.