Supreme Court Imposes Limitations on Appellate Waivers in Plea Bargains

In an 8-1 decision last week, the Supreme Court in the case of Hunter v. United States, 608 U.S. _ (2026) ruled that "an agreement not to appeal a sentence is unenforceable when 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."

As noted in an earlier post, the Plea Bargaining Institute filed an amicus in the case arguing for the imposition of limitations and guardrails on plea bargaining practices. The PBI wrote, "the imposition of limitations and guardrails for plea bargaining practices is vital to the establishment of an accurate, just, and constitutional plea bargaining system." The Court did exactly this in creating a new limitation on appellate waivers. 

While Justice Kagan’s opinion for the Court focused on the narrow issue presented, it is worth note that Justice Gorsuch, joined by Justice Sotomayor and Justice Jackson, took the opportunity to discuss concerns with the plea system more broadly.  He opened by stating, “In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course.” Justice Gorsuch then discussed, among other things, the historic rise of plea bargaining, a subject discussed in detail in the PBI brief. “At the Nation’s founding,” he noted, “the right to trial by jury was considered part of every American’s ‘birth-right and inheritance.’” 

Justice Gorsuch then went on to address many concerns in the plea system, including the use of "coercive tactics this Court became willing to stomach in the name of facilitating plea deals." In particular, he discussed the use of sentencing differentials, something also addressed in the PBI brief. "They threatened layers of additional charges and decades of additional prison time if defendants dared to exercise their right to trial by jury," he wrote. "Prosecutors sometimes promised charges against defendants’ spouses and parents too. '[T]hreats [that] would be deemed extortionate' '[o]utside the plea bargaining process' became 'par for the course' in our criminal justice system." (internal citations omitted). 

Justice Gorsuch closed by stating, “Two hundred years ago, it was likely unimaginable that almost every federal criminal case would be resolved by plea bargain. Forty years ago, it may have been no easier to foresee that plea bargaining defendants would be pressed to waive their statutory right to appeal sentences yet to be imposed. Let alone that the federal government would argue these waivers prevent defendants from appealing even blatantly unlawful or unconstitutional sentences chosen by an orangutan. This Court is not responsible for all these developments, but it has encouraged some of them and stood silent while others took hold. Today, the Court finally begins to correct course, taking an important step toward reining in appeal waivers. It is not a solution to all of plea bargaining’s excesses, and perhaps not even those associated with appeal waivers. But it is a start.”

In a 2018 article in the Cato Supreme Court Review titled "Class v. United States: Bargained Justice and a System of Efficiencies," I wrote: "We know today, based on the research described above along with a steadily increasing number of real-world examples, that the incentives to plead guilty can be overpowering—indeed, so overpowering that even innocent defendants will sometimes take this path. When the Court addresses the fundamental question of defendant decision-making, it will have to wrestle with this reality and decide how best to proceed with the development of its plea-bargaining jurisprudence. Recall that in Brady, the Court said, '[W]e would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.' Yet, that is exactly where we find ourselves almost 50 years later, waiting on the Court both to recognize and to address that fact in light of all that we now know."

Perhaps we are finally about to begin that journey as Hunter signals the beginning of a more exacting review of plea bargaining and plea bargaining practices.  Research on plea bargaining, defendant decision-making, and innocence will be vital as the courts begin this work.  As noted in a news release on the Plea Bargaining Institute website yesterday, "As the courts, including the Supreme Court, continue to examine the role of plea bargaining in our modern system of criminal law and determine the appropriate limitations and guardrails for imposition, the Plea Bargaining Institute remains ready to assist by providing the courts, practitioners, and advocates with access to the leading research in the field to help inform and guide their decision-making."