The Supreme Court Issued an 8–1 Ruling on Plea Deals. The Accord Won’t Last.

The Supreme Court issued an important criminal justice ruling on Thursday about the appropriate bounds of plea bargains. In an 8–1 opinion written by Justice Elena Kagan, the court held that some plea agreements that waive a defendant’s right to appeal a bad sentencing may lead to a manifest miscarriage of justice, and therefore can be declared void by courts. But while the 8–1 vote may make this case initially come across as noncontroversial, there are a series of disagreements between the justices, including among Donald Trump appointees, that could have a serious impact on the future rights of trial by jury.

The federal government charged a man named Munson Hunter with 10 counts of bank and wire fraud for a series of business transactions. As is often the case, the prosecutor hoped to get a guilty plea out of Hunter. The prosecution leveraged the sheer number of counts that they’d brought, saying to Hunter that they would drop nine of the 10 charges, which in total could combine to 300 years of jail time, if Hunter would plead guilty to one of the lesser offenses. Hunter agreed and signed a plea bargain.

The plea bargain contained a number of waivers. Most notably, Hunter agreed that he could not appeal the court’s ruling cementing his guilty verdict. Moreover, Hunter would not be able to appeal the sentencing that would happen after the plea was entered, meaning he would have to sign the plea agreement before knowing his ultimate sentence. The only area where his rights were explicitly retained was that Hunter could still appeal under a claim of ineffective assistance of counsel, which the Supreme Court had recognized as a constitutional right that could not be waived.

After he signed the agreement, something strange happened at Hunter’s sentencing. Instead of just receiving a sentence of about five years, the court also tried to impose a requirement that Hunter be required to start taking mental health medications in order to qualify for supervised release. Hunter appealed this medication component, arguing that he had a constitutional right to refuse medication under Supreme Court precedent. The 5^th Circuit disagreed and dismissed Hunter’s appeal, ruling that he had signed away his rights to appeal this issue. Under the 5^th Circuit’s view, an appeal waiver can only be voided under two limited circumstances: when the defendant did not knowingly enter into the plea bargain, or when the bargain exceeds the statutory maximum for the jail sentence imposed.

But the Supreme Court sided against the 5^th Circuit and ruled that this was the wrong standard. As Justice Kagan explained, there was another scenario in which an appeal waiver can be void, and that’s when enforcing the appeal waiver would lead to a miscarriage of justice. The reason has to do with the inherent role of the courts in the criminal justice system. All plea bargains must be approved by a trial judge and, if appealed, considered again by an appeals judge. When it comes to enforcing these bargains, “courts [are] in the middle of, and partly responsible for, appeal waivers and their results.” And so if “a court always carries out those waivers—no matter the kind or degree of error tainting a sentence—the judicial system’s integrity may come into question.” From this there carries a limited space for courts to reject grotesque or unconstitutional plea bargain terms. For example, if there was evidence that the trial judge imposed a particular sentence because the defendant was a racial or religious minority, an appeals court would not be required to throw out an appeal just because the defendant and prosecution struck an earlier bargain.

Not every small error would lead the court to void an appeal waiver, though. For instance, a discussion in the courtroom also seemed to play a role in suggesting that Hunter received an unfair process. At the sentencing hearing, the district judge specifically told Hunter: “You have a right to appeal.” And when the judge then gave the prosecutor, standing right there, a chance to make any objections, he said nothing. It therefore seems manifestly unfair after being told by the judge that he could appeal, that Hunter would then appeal and have his appeal dismissed based on the waiver. But the majority noted that smaller slip-ups like this, by themselves, were not enough to clear the high bar of this new miscarriage of justice rule.

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The court’s ruling was in some ways par for the course in that it marked yet another rejection of a 5^th Circuit’s ruling. These cases have been playing out the same way for a couple of years. First, the 5^th Circuit issues a manifestly wrong decision that conflicts with other courts of appeals. (Even in Hunter, other court of appeals courts had long applied the miscarriage of justice principle that the Supreme Court adopted.) Then, the Supreme court has to take the case up and reverse the 5^th Circuit’s decision. Hunter was the seventh reversal of the term.

Justice Kagan’s opinion, tidy and correct as it is, was made even better with Justice Neil Gorsuch’s genuinely strong concurring opinion. Joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Gorsuch points out how jury trials, once considered an essential constitutional protection, have been reduced to a kind of bargaining chip to waive against prosecutors eager to not take cases to trial. Despite their widespread nature in about 97 percent of cases today, plea bargains have only been around for less than a quarter of the U.S. criminal justice system’s history. Before the 1970s, courts were extremely skeptical of the uneven bargaining power and information between the government and defendant, and voided plea bargains, if they even had to consider them at all. Then in a series of cases, the Supreme Court seemed to change its mind and loosened the reins on “coercive prosecutorial tactics.” In 1978’s Bordenkircher v. Hayes for instance, the court allowed prosecutors to sentence a Kentucky man for life for forging an $88 check; prosecutors specifically sought that life sentence as punishment because the man refused to enter a plea bargain.

Gorsuch’s concurrence was strong enough to get the signature of two of his liberal colleagues in Sotomayor and Jackson. Sotomayor has long been an advocate for criminal defendants in her jurisprudence, and for her part, Jackson’s thesis in undergrad even covered coercive plea bargaining. It’s not uncommon for a justice’s past scholarship to still influence their views today. For instance, Justice Brett Kavanaugh’s past legal research on Batson jury exclusions at least arguably helped influence his surprisingly good racial jury selection opinion from two weeks ago.

But for Kavanaugh, the jury right only stretches so far. Joined by Amy Coney Barrett and Samuel Alito, Kavanaugh wrote separately to emphasize that the miscarriage-of-justice exception the court recognized only applies in narrow waiver cases. Moreover, Kavanaugh accused his colleague Gorsuch of going beyond what the majority opinion held in his broader mini-treatise about overly aggressive prosecutions. Still, even the three conservative justices signed onto Kavanaugh’s writing agreed that the appeal waiver here couldn’t stand.

Everyone on the court agreed, actually, except Justice Clarence Thomas. Writing alone, Thomas would have ruled that Hunter should be held to the plea bargain he signed, almost regardless of what the agreement says. This was part and parcel with a dissent he penned earlier this month, accusing the court of bending over backward to protect folks he considers to be criminals, while letting those he sees as law-abiding citizens (like conservative speaking on school campuses) to get the short end of the legal stick. More broadly, Thomas describes the majority as creating a new exception out of a general “policy concern” about unfair results.

But as the court explained, the legitimacy of the courts as institutions is not something to be shrugged off in favor of oppressively strict legal rules. That legitimacy is something to be carefully considered and incorporated into the court’s decision-making. When it does, even contentious issues can find eight of nine justices in agreement. That being said, there is “work still ahead” in resolving the problems and excesses of plea bargains, as Gorsuch said. And it’s not clear that the court will be in agreement on this issue for much longer.

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