Plea agreements are governed by traditional contract principles —
but unlike ordinary contracts, they involve the waiver of fundamental
constitutional rights and demand heightened scrutiny. One such
principle is the requirement of consideration. While all circuits agree
that plea agreements must be supported by consideration, they are
divided on what that means in practice: Must the government's promises
actually confer a benefit the defendant could not otherwise receive, or is
it enough that the government makes nominal promises, even if those
promises have no practical value? The Second Circuit has held that an
appeal waiver is unenforceable when the plea agreement offers the
defendant no actual benefit. The Sixth, Tenth, and Eleventh Circuits
take a different approach, enforcing appeal waivers even when the
government's promises do not provide anything the defendant could not
have received by pleading guilty without an agreement. This
entrenched split has significant implications for due process and the
integrity of the plea -bargaining system, which resolves the vast majority
of federal criminal cases.

Whether an appeal -waiver provision in a plea agreement is
enforceable when the agreement provides no actual benefit to the
defendant beyond what he would have received by pleading guilty
without it.

Whether an appeal-waiver provision in a plea agreement is enforceable when the agreement provides no actual benefit to the defendant beyond what he would have received by pleading guilty without it.