‘The most important criminal case of the term'—SCOTUS takes on plea bargaining
U.S. Supreme Court Justice Anthony M. Kennedy put it succinctly in a 2012 decision that noted 97% of federal criminal convictions and 94% of state convictions at that time were the result of guilty pleas entered by defendants.
“Criminal justice today is for the most part a system of pleas, not a system of trials,” the now-retired justice wrote in the majority opinion in Lafler v. Cooper.
Those figures have ticked up to almost 98% of federal convictions and 95% of state convictions, according to the American Bar Association’s 2023 report The Cost of Plea Bargains.
Among the ABA report’s 14 principles are that “guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant;” and that “although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.”
On June 18, during the last weeks of its consequential term, the Supreme Court issued an opinion that cast new attention—and in a victory for defendants, new limits—on appeal waivers in federal criminal cases and the larger system of plea bargaining in the nation.
In Hunter v. United States, the court held 8-1 that a defendant’s agreement not to appeal a sentence—as part of an appeal waiver in a plea agreement—is unenforceable it it would result in a miscarriage of justice.
“Meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute,” Justice Elena Kagan wrote for the majority.
Defendant facing 300 years enters a plea bargain
The decision was welcomed by the criminal defense bar and other experts who suggested that, while modest in scope, it will allow more defendants to appeal their sentences despite having signed waivers.
“It was an excellent opinion and a step in the right direction,” says Justin D. Weitz, a partner with Morgan Lewis who co-wrote an amicus brief supporting Hunter for the National Association of Criminal Defense Lawyers.
“When a defendant signs on the dotted line for a plea agreement, they’re giving away constitutional rights, the right to trial, and their presumption of innocence,” Weitz says. “And they’re also giving away just a lot of certainty.”
He says that unlike state agreements, most federal plea agreements don’t specify the length of a sentence or other conditions of punishment.
“So that uncertainty is one of the really hard things in practice about pleading guilty” in the federal system, Weitz says. “The idea that you’re giving up your right to appeal, even if something outlandish happens—that was just a problem.”
The decision came in the case of Munson P. Hunter III, who pleaded guilty in 2024 in the U.S. District Court for the Southern District of Texas to one federal count of aiding and abetting wire fraud. In exchange, the government agreed to dismiss nine other charges of bank and wire fraud, for which Hunter had faced as much as 300 years in prison and a $10 million fine.
The plea deal included an appeal waiver, applying to Hunter’s conviction and as-yet-to-be decided sentence.
Hunter waived everything but his right to raise a claim of ineffective assistance of counsel. He was sentenced to just over four years in prison plus supervised release that included a requirement of mental health treatment and taking medications. Hunter appealed the mandatory medication condition, which he argued would interfere with his fundamental due process right to be free of unwanted medication.
Hunter argued his appeal waiver was unenforceable because, among other reasons, it dealt with an aspect of his sentence that violates a fundamental constitutional right. But the New Orleans-based 5th U.S. Court of Appeals ruled that his appeal waiver barred him from pursuing the appeal.
Hunter appealed to the Supreme Court, noting that most other federal appeals courts have adopted the miscarriage-of-justice standard, while the 5th Circuit and a few others allow appeal waivers to be set aside only in rare circumstances.
‘The justice system’s basic integrity is at stake’
U.S. Solicitor General D. John Sauer argued in a brief that Hunter knowingly and voluntarily waived his right to appeal. And Hunter’s argument for a substantive exception to enforcing appeal waivers “would have no limiting principle, because defendants who appeal their sentences following plea agreements routinely point to unanticipated developments.”
In its decision in Hunter, the Supreme Court vacated the 5th Circuit’s approach and sent Hunter’s case back for reconsideration.
Kagan, in an opinion signed by every other member of the court except Justice Clarence Thomas, said that because appeals courts decide whether to enforce an appeal waiver, “courts are in the middle of, and partly responsible for, appeal waivers and their results,” she wrote. “Because that is so, the standard for enforcing appeal waivers implicates the interests not only of the agreement’s parties, but also of the judiciary.”
Borrowing from a 1988 decision, she wrote, “The federal courts … have an independent institutional interest in ensuring that legal proceedings appear fair to all who observe them.”
The miscarriage-of-justice standard “sets a high bar,” Kagan added. “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.”
The point of the standard, she said, “is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.”
Rory C. Little, a professor at UC Law San Francisco, wrote in SCOTUSblog that the decision was the most important criminal case of the term and “may portend … seismic shifts in criminal law.”
Little’s observation was fueled more by the concurrence of Justice Neil Gorsuch than the majority opinion.
“In our times, the jury trial has given way to a conveyor belt of plea bargains,” wrote Gorsuch, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. He said the court had often condoned “coercive prosecutorial tactics designed to induce defendants to take plea deals.”
Gorsuch asked whether there are “even deeper problems lurking here” around the common standard of “voluntary and knowing” guilty pleas.
“How can a defendant ‘know’ and ‘fully understand’ at the time he signs a plea agreement that a court might later order punishment that defies the Constitution, a federal statute or this court’s precedents?” Gorsuch wrote.
That—along with a concurrence by Justice Amy Coney Barrett that also stresses the importance of voluntarily waiving a known constitutional right—has potentially “huge implications” for criminal law, Little wrote.
“Gorsuch pretty clearly suggests that many appeal waivers and plea bargains do not meet this standard because the defendants do not yet know the consequences regarding their rights,” Little added.
Justice Brett Kavanaugh, in a short concurrence joined by Justice Samuel Alito Jr. and Barrett, responds to Gorsuch by saying his colleague may be describing the miscarriage-of-justice standard as lower than the majority opinion does.
Thomas, in his dissent, argues that defendants are free to waive their appeal rights, but when they do so, the appeal waivers must be “strictly enforced.”
“Given that defendants can waive constitutional rights gratuitously, they can certainly waive statutory rights in exchange for enforceable benefits in plea agreements,” Thomas said, noting that defendants routinely waive their right to arraignment, to trial or to remain silent.
“At every stage, defendants waive rights despite uncertainty about the consequences,” he said.
ABA report addresses appeal waivers
Lucian E. Dervan, a professor at the Belmont University College of Law and the founding director of the Plea Bargaining Institute, called the Hunter decision “an important step forward as the court signals its willingness to provide important guardrails and limitations on plea bargaining practices.”
Justice Gorsuch’s concurrence is especially important “because it spoke more broadly about concerns regarding the coercive nature of plea bargaining, particularly where there are large sentencing differentials,” says Dervan, whose institute filed an amicus brief in support of Hunter.
Dervan was also an editor and task force co-chair for the ABA’s 2023 report on plea bargaining.
“The extraction of waivers of fundamental rights through the threat of legitimized coercion disgraces the American legal system,” the report said. “The trial penalty and the larger problem of coercive plea bargaining did not arise overnight. They were decades in the making. And it may take decades to restore a semblance of balance.”
Dervan notes that the report called on the Supreme Court to more closely examine plea bargaining practices, including waivers, “and create rational limitations to protect defendants and the integrity of the criminal system.”
“The court began some of that important work in Hunter,” he said.
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