Plea Bargaining Institute Files Amicus Brief with U.S. Supreme Court

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The Plea Bargaining Institute has filed its first amicus brief with the United States Supreme Court in the case of Hunter v. United States. The case involves a defendant who gave a blanket waiver of the right to appeal as part of a plea bargain but later sought to challenge his sentence as unconstitutional. The case raises important questions regarding what limits or guardrails should be imposed on plea bargaining. The brief included discussion of studies regarding the reliability of pleas of guilty, the forces leading defendants to plead guilty, the phenomenon of false pleas of guilty by the innocent, and defendants’ knowledge and understanding of plea bargaining and their plea agreements.

From the PBI amicus brief summary of argument section:

That the Hunter case concluded with a plea of guilty is not surprising.  As acknowledged by this Court in Lafler v. Cooper, 566 U.S. 156, 170 (2012), “[C]riminal justice today is for the most part a system of pleas, not a system of trials.”  It is also unsurprising that Hunter’s plea bargain included a waiver of the right to appeal his conviction and sentence.  As noted by the American Bar Association in the Plea Bargain Task Force Report (2023), demands for waivers during plea bargaining that go well beyond the trial right are common.  See ABA CJS, Plea Bargain Task Force Report, at 25 (Feb. 22, 2023).  In accepting the Hunter case, the Court has the important opportunity to consider the validity of waivers of rights, including appellate rights, in return for plea bargains.  In contemplating this issue, Amicus encourages the Court to recognize that plea bargaining is not inherently reliable and, therefore, the imposition of limitations and guardrails for plea bargaining practices is vital to the establishment of an accurate, just, and constitutional plea bargaining system.

Far too often in considering issues such as those presented in the Hunter case, the Court has conducted its analysis from the unsupported position that plea bargaining is inherently reliable.  In Brady v. United States, 397 U.S. 742 (1970), for example, the Court briefly considered the risk that plea bargaining might have an innocence problem but dismissed these concerns and concluded that there was no reason to doubt the accuracy of the plea.  See Brady, 397 U.S. at 758.  In 1975, in the case of Menna v. New York, 423 U. S. 61 (1975), the Court more explicitly described its starting point for analyzing how plea bargaining jurisprudence might evolve.  In Menna, the Court stated, “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.”  See Menna v. New York, 423 U. S. 61, 62 n.2 (1975).  From this flawed starting place of faith regarding the reliability of guilty pleas, it is easy to see why so few limitations and guardrails have been imposed on plea bargaining practices in the 55 years since Brady.

Research over the past decades, however, has now clearly demonstrated that individuals plead guilty for many reasons, some of which have little or nothing to do with their actual guilt.  This research has also added meaningfully to our understanding of plea bargaining’s innocence problem and the psychological forces behind the significant number of false pleas of guilty by the innocent.  Finally, research during this time has also raised troubling questions regarding defendants’ actual knowledge and understanding of the plea bargaining process and the deals into which they enter.  These findings lead squarely to the conclusion that plea bargaining is far from a reliable indicator of actual guilt.

In undertaking its review of the Hunter case, therefore, the Court should correct the unsupported assumption that plea bargaining is inherently reliable.  Instead, the Court should begin its analysis of this and all future plea bargaining cases by acknowledging that plea bargaining is not inherently reliable.  The Court should also take this opportunity to recognize, as encouraged by the American Bar Association Plea Bargain Task Force Report (2023) and ABA Resolution 502 (2023), that “innocent people sometimes plead guilty to crimes they did not commit.”  See ABA CJS, Plea Bargain Task Force Report, p.20 (Feb. 22, 2023); ABA Resolution 502 (2023); see also American Bar Association, The Cost of Plea Bargains: Reflections and Recommendations from the ABA Plea Bargain Task Force (Lucian E. Dervan, Russell D. Covey, & Thea Johnson eds. 2024). 

This new starting position from which to undertake plea bargaining jurisprudential analysis will have important positive impacts on the criminal system.  A plea bargaining system that is not inherently reliable, one in which innocent defendants falsely plead guilty, and one in which defendants lack true knowledge regarding the process and to what they have agreed is a plea bargaining system in need of meaningful limitations and guardrails.  That work can begin in the Hunter case as the Court considers how to protect a defendant’s constitutional rights and the Constitution itself in a system where most people, including the innocent, plead guilty to an agreement containing a non-negotiable blanket waiver of appellate rights.  Whatever result the Court ultimately reaches in Hunter regarding where the limits and guardrails should fall, Amicus urges the Court to deliver its opinion in a manner that acknowledges and considers the realities of our modern plea bargaining system.

The entire PBI amicus brief, along with other briefing in the case may be found on the U.S. Supreme Court docket.

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