Given the range of methods available to remedy the harms caused when parties circumvent procedural requirements and to deter undesirable agreements, an appellate court need not assume that the only, or even the best, means available to vindicate public interests undermined by the par- ties' agreement is an order voiding the agreement and returning the parties to their prebargaining positions. Rather, two other assumptions are in order.
First, although the judiciary is responsible for defining conditions under which parties may evade constitutional rules, courts should presume that the responsibility for policing the evasion of statutory requirements rests initially with the legislature, not the courts. Because the interests recognized and protected by statutory requirements are not of constitutional stature, legislatures are free to encourage, prohibit, or regulate waiver. Should waiver of a particular rule become more frequent than the legislature concludes is appropriate, it can require that appellate courts enforce that rule regardless of party preferences, or it can adopt other forms of regulation such as those described above in Part II.C. Without such a statement from the legisla- ture, it is fair to assume that it acquiesces in the degree to which parties use the statutory right as a bargaining chip. With bargaining now at the very heart of the criminal justice process, it makes little sense to assume that in the absence of clarifying legislative action, a right can be raised despite a negotiated promise not to raise it. This may have been an appropriate premise in the mid-1800s, or even before the legality of bargaining was
any principle of contract law that would require the Government to perform its obligations pursu- ant to a plea agreement, following breach of the agreement by the defendant"). If a defendant succeeds in challenging an agreement, normally the parties are returned to the trial court and the status quo that existed before the agreement. See, e.g., Patterson v. State, 660 So. 2d 966, 968-69 (Miss. 1995) (vacating an agreement to an invalid sentence, and noting that the parties should be returned to their positions before the agreement, with the state having the right to seek the death penalty and the defendant the right to contest it before a jury). But cf. Ty Alper, Note, The Dan- ger of Winning: Contract Law Ramifications of Successful Bailey Challenges for Plea-Convicted Defen- dants, 72 N.Y.U. L. REV. 841 (1997) (arguing that prosecutors should not be allowed to reinstate charges for defendants waging successful collateral attacks on the validity of their convictions).
88. See United States v. Goodman, 165 F.3d 169 (2d Cit. 1999); United States v. Martinez- Rios, 143 F.3d 662, 669 (2d Cit. 1998) (severing an invalid appeal waiver provision and proceed- ing to the merits of the appeal, and noting but not adopting an alternative remedy of giving the government the choice between foregoing the appellate waiver provision and having the entire agreement vacated).
142 47 UCLA LAW REVIEW 113 (1999) firmly established in the 1970s. But for well over twenty years, negotiated procedure in criminal cases has been the norm. Absent legislative action that clarifies the intent of the legislature regarding waiver, it is more reasonable to assume that the legislature considers its statutory guarantees to be subject to negotiation by the parties.
8 9A second principle applies to the plight of an appellate court faced with a defendant who seeks relief from a knowing and voluntary bargain to evade a constitutional rule, a bargain that he now claims is void as against public policy. For reasons discussed earlier, including the importance of the finality of settlements, courts normally should not disturb a conviction or sentence that results from a knowing and voluntary agreement by the par- ties.' Relief should be available only if other controls provide insufficient deterrence to counter the parties' incentives to enter into forbidden bar- gains or fail to ameliorate the harm created by the parties' evasion of a con- stitutional command.
9As I argue in the parts that follow, this analysis will vary depending on the type of error at stake. An approach that conditions relief for defendants who trade away entitlements upon the absence of alternative means of protecting third-party interests injured by the trade would have two important consequences. It would require courts to define, specifically, who is injured when criminal litigants agree to bypass the law, and it would focus attention on the existence of remedies for that injury other than relief for defendants who have changed their minds. It may even prompt courts to consider how their decisions about standing to object to criminal statutes and proceedings may affect the negotiability of error in the criminal process.
89. See United States v. Mezzanatto, 513 U.S. 196, 201 (1995) (noting that "absent some affirmative indication of Congress' intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties"); see also Shell, supra note 4, at 485-86 (collecting similar cases and concluding that the presumption of waivability is now accepted).
90. Recognition that granting relief may encourage sandbagging is quite common in opin- ions denying a defendant relief following an express waiver. See United States v. Baucum, 80 F.3d 539, 544 (D.C. Cir. 1996) (arguing that allowing review would "place a burden on trial courts to make threshold constitutional determinations without the benefit of briefing and argument," and would threaten the "finality of criminal rulings"); see also Freytag v. Commissioner, 501 U.S. 868, 900 (1991) (Scalia, J., concurring) (noting that the "maxim volenti non fit injuria has strong appeal in human affairs").
91. As Professor Richard Epstein has explained, "The proper office for restraints on aliena-
tion is to provide indirect control over external harms when direct means of control are ineffective to
the task." Epstein, supra note 6, at 970 (emphasis added).Nonnegotiable Features of Criminal Litigation 143 1II. DEFINING NONNEGOTIABLE ERROR-DESCRIPTIONS
THAT FAIL
The error-by-error analysis I advocate here would not be necessary if there were categories that described with some predictability groups of errors that should not be subject to waiver. The categories that seem to surface most frequently in discussions of invalid deals are (1) "jurisdictional" defects generally; (2) defects in "subject matter jurisdiction"; (3) the right to appeal, generally; and (4) errors that might occur in the future. None of these cate- gories provides any useful guidance.
A. "Jurisdictional Error"
"The error is jurisdictional"-this is probably the most common explanation given by courts for considering a claim that was once waived by a convicted defendant.
92The longevity of such an indeterminate concept is remarkable, especially considering the beating it has taken both on and off the Court. Decades ago, the Court discarded the concept of jurisdictional error as a limit on claims cognizable in federal habeas corpus proceedings.
It recognized that its attempt to enlarge and yet to constrain the meaning of "jurisdictional error" in that context had failed. Once the Court chose to describe mob domination and the lack of counsel as jurisdictional defects,
93the distinction between constitutional and jurisdictional error blurred beyond recognition. Eventually the Court abandoned the pretense of trying to dress up ordinary errors of constitutional criminal procedure as defects in jurisdiction, preferring instead to construe the habeas corpus statute as reaching a wide variety of constitutional errors.
94During the 1
9 80s, the Court again distanced itself from its former reliance on jurisdictional error when determining which claims are forfeited by guilty pleas. As the Court's
92. See, e.g., United States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994) ("[A] jurisdic- tional defect is one that calls into doubt a court's power to entertain a matter, not one that merely calls into doubt the sufficiency or quantum of proof relating to guilt."). State courts of appeal seem to rely more heavily than federal courts on the concept of jurisdictional error as a dividing line between error that can be waived either expressly or by guilty plea and error that is not waivable.
93. See Johnson v. Zerbst, 304 U.S. 458 (1938) (recognizing lack of counsel as a jurisdic-
tional error); Moore v. Dempsey, 261 U.S. 86 (1923) (recognizing mob domination as a jurisdictional
error); see also Anne Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575 (1993) (reviewing the Court's various uses of the term "jurisdictional" during the nineteenth century). "94. See Waley v. Johnston, 316 U.S. 101 (1942); Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441,495 (1963).