{"id":274,"date":"2026-06-26T17:11:38","date_gmt":"2026-06-26T17:11:38","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=274"},"modified":"2026-06-26T17:11:38","modified_gmt":"2026-06-26T17:11:38","slug":"hunter-v-united-states-the-most-important-criminal-case-of-the-term","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=274","title":{"rendered":"Hunter v. United States \u2013 the most important criminal case of the term"},"content":{"rendered":"
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The term is not quite over, but I have no doubt that Hunter v. United States<\/em>, decided on June 18, is its most important criminal case. In Hunter<\/em>, the court ruled that there is a \u201cmiscarriage of justice\u201d exception to waivers of appeal, which have become standard in federal criminal plea bargains. The court\u2019s 8-1 decision drew little immediate media attention \u2013 as Adam Liptak writes, at the end of the term, \u201cimportant decisions can get overlooked.\u201d The lopsided vote in Hunter<\/em> masks deep divisions within a court that was really split 5-4, and a three-justice concurrence by Justice Neil Gorsuch suggests broad implications for much of our current criminal justice system. Twenty-six years ago, the court issued a similar little-noticed-at-first decision called Apprendi v. New Jersey<\/em>, which over time revolutionized much criminal law doctrine with reverberations still being felt. Four years later, Justice Sandra Day O\u2019Connor called Apprendi<\/em> a \u201cnumber 10 earthquake.\u201d<\/p>\n

Read more When justices wade into politics<\/a><\/p>\n

I think Hunter<\/em> may portend similar seismic shifts in criminal law.<\/p>\n

Facts and proceedings in Hunter<\/em><\/strong><\/p>\n

In 2024, a fraudster named Munson Hunter III pleaded guilty. As part of a plea bargain that dismissed nine of 10 criminal charges, Hunter signed (and also agreed in court) that he would not appeal his conviction or sentence. At , Hunter said he understood that his sentence had \u201cnot yet been determined\u201d and would be \u201cwithin the sole discretion\u201d of the judge. He nevertheless agreed that he \u201c the right to appeal.\u201d<\/p>\n

Weeks later, the court\u2019s probation office recommended that, in light of prior mental health issues, Hunter should be required (when on supervised release after any prison time) to \u201ctake all mental health medications that are prescribed by his [treating] physician.\u201d \u201cI don\u2019t drink. I don\u2019t use drugs. … I don\u2019t want to have to be forced to medicate.\u201d The sentencing judge imposed that condition anyway and, despite his waiver of appeal, Hunter filed an appeal arguing that compelled medication would violate his constitutional rights. The U.S. Court of Appeals for the 5th Circuit dismissed his appeal, relying on its precedent ruling that an appeal waiver controls even if a sentence is \u201cunconstitutional.\u201d The Supreme Court granted review to settle differing lower court views; many had ruled that appeal waivers could not be enforced if a miscarriage of justice would result.<\/p>\n

Eight justices agree: courts may correct a miscarriage of justice<\/strong><\/p>\n

Justice Elena Kagan\u2019s majority opinion vacated the 5th Circuit and adopted the prevailing lower court view (while remanding for consideration of Hunter\u2019s specific objection). For all but Justice Clarance Thomas, Kagan wrote that an appeal waiver is \u201cunenforceable when it would result in a miscarriage of justice\u201d \u2013 \u201cthe kind of egregious error that would bring the judicial system into disrepute\u201d and \u201cundermine public confidence in the judiciary.\u201d Quoting from a 1988 precedent, Kagan repeated that \u201c[t]he \u2018federal courts\u2019 … have an \u2018independent\u2019 \u2018institutional interest\u2019 in ensuring that legal proceedings \u2018appear fair to all who observe them.\u2019\u201d Or, as she quoted from a 2008 dissent by Justice Samuel Alito, \u201c[w]e have repeatedly stressed the importance\u201d of \u201cthe interest of the Judiciary and the public in correcting grossly prejudicial errors of law that undermine confidence in our legal system.\u201d<\/p>\n

Chief Justice John Roberts silently joined Kagan\u2019s opinion, while Thomas wrote a solo dissent. Justice Brett Kavanaugh \u201cjoin[ed] the Court\u2019s opinion in full\u201d (along with Alito and Amy Coney Barrett), and also penned a separate concurrence, joined by Alito and Barrett, while Barrett concurred alone. Finally, Gorsuch wrote his own lengthy concurring opinion, joined (in an unusual pairing) with Justices Sonia Sotomayor and Ketanji Brown Jackson. Thus, in my perhaps idiosyncratic vote-counting system, I would record the vote as 8 (2+3+3) to 1.<\/p>\n

The two competing three-justice concurrences expose what is actually a 5-4 court. Gorsuch\u2019s concurrence boldly takes to task the entire structure of modern criminal law plea bargaining. In sum (you really should read it in full), Gorsuch predicts that there is \u201cconsiderable work ahead to flesh out\u201d the implications of what he believes the court\u2019s opinion should lead to. In response, Kavanaugh\u2019s concurrence makes clear that he, Alito, and Barrett \u201crespectfully disagree\u201d with Gorsuch\u2019s \u201cunderstanding,\u201d which Kavanaugh says \u201cmay not be entirely consistent with the Court\u2019s opinion.\u201d<\/p>\n

That simple \u201cmay<\/em> not be\u201d may foreshadow huge doctrinal developments. Predicting voting alliances is far from an exact science. But one might speculate that, in a future case, Kagan could join the Gorsuch group with Sotomayor and Jackson, while Thomas might align more with Kavanaugh, Alito and Barrett. That division would leave a 5-4 court, with the chief justice silently in control. And the power of Gorsuch\u2019s willingness to disrupt settled doctrine should not be underestimated: It can produce results. Witness his doctrine-shifting impact on administrative law () and his push behind the ongoing right-to-jury-trial \u201crevolution\u201d (including next term\u2019s 12-person jury case, Kian v. Florida<\/em>).<\/p>\n

Kagan\u2019s opinion for the entire (almost) court<\/strong><\/p>\n

Let\u2019s go through several of the opinions. A few snatches from Kagan\u2019s straightforward precedent-laden analysis might lead some to describe Hunter<\/em> as \u201climited.\u201d Carefully written to carry eight ideologically different justices, Hunter<\/em> could be read to recognize only a narrow, \u201chard-to-meet\u201d miscarriage of justice exception, permitting judicial action only in \u201cextreme cases\u201d where a failure to consider an egregious situation, despite an appellate waiver, would cause the public to question \u201cthe judiciary\u2019s commitment to law.\u201d The idea that courts have the power to correct miscarriages of justice is so common, timeless, and frankly unspecific, that even the \u201cconservative\u201d justices were able to \u201cjoin[] the Court\u2019s opinion in full.\u201d<\/p>\n

As already mentioned, Barrett also filed her own brief concurrence to describe her view of the source of the court\u2019s power to \u201ccorrect\u201d errors \u2013 she previously published two articles as a law professor on the topic. Barrett seems to be responding to Thomas\u2019 claim that there is no constitutional right to appeal (a \u201ctrue fact\u201d that feels irrelevant today and yet always surprises law students) and claiming that there is no \u201csource of law\u201d to allow judicial intervention. While there may not be a source of law to allow judicial intervention, she believes that \u201cegregious\u201d and \u201cobvious\u201d errors can be corrected.<\/p>\n

But it is Gorsuch\u2019s three-justice concurrence that could lead to far-reaching changes and a deep 5-4 division in future criminal law cases. So let\u2019s turn to that.<\/p>\n

Gorsuch: \u201cthe jury trial has given way to a conveyor belt of plea bargains\u201d<\/strong><\/p>\n

That\u2019s the first sentence in a concurring opinion that is longer than the majority. In sum, Gorsuch writes that \u201cthe Court has often condoned\u201d various \u201ccoercive prosecutorial tactics designed to induce defendants to take plea deals.\u201d Yet at the founding, denial of jury trials was a centerpiece of objections in the Declaration of Independence, and the right was enshrined \u201cnot just once, but twice, in the Constitution.\u201d By contrast, \u201cplea bargains didn\u2019t begin to emerge as an alternative to trial\u201d until the 1850s, and \u201ceven then\u201d that new idea \u201cmet with intense judicial skepticism … well into the twentieth century.\u201d Since court precedents bear \u201csome responsibility\u201d for the current state of affairs, in Gorsuch\u2019s view Hunter<\/em> is merely a \u201cbegin[ning] to correct course.\u201d<\/p>\n

Read more Court rules on gun rights, immigration, and pesticide labels<\/a><\/p>\n

Gorsuch presents the 1978 decision in Bordenkircher v. Hayes<\/em> as illustrative of \u201cthe kind of coercive tactics this Court became willing to stomach.\u201d Hayes was threatened by the prosecutor with a life sentence for forging an $88.30 check, unless he accepted the prosecutor\u2019s offer of five years in prison. He refused, and the prosecution reindicted him and obtained a mandatory life sentence. The court affirmed, acknowledging that even if the result was not \u201cideal,\u201d \u201cthe fact is that … plea bargain[s] are important components of this country\u2019s criminal justice system.\u201d According to Gorsuch, such a result would have been \u201cunthinkable only a few decades earlier.\u201d Gorsuch also notes Brady v. United States<\/em>, which upheld in 1970 a plea bargain that the defendant agreed to only after being threatened with the death penalty.<\/p>\n

And that is not all. After describing the current plea bargain system as ahistorical and inconsistent with the framers\u2019 vision, Gorsuch examines \u201ceven deeper problems lurking\u201d in the court\u2019s common \u201cvoluntary and knowing\u201d standard for plea bargains. A century ago, the court wrote unanimously (with one unexplained concurrence) in Kercheval v. United States<\/em> that a plea agreement is not \u201cknowing\u201d unless made \u201cwith full understanding of the consequences.\u201d (A strong 2025 article by Professor Julian Cook may have influenced re-discovery of this case.) Before waiving constitutional rights, says Gorsuch, a person \u201cmust fully understand the consequences of that decision.\u201d In her concurrence, Barrett (who you will recall joined the court\u2019s opinion \u201cin full\u201d) echoes Gorsuch\u2019s concern, noting that under \u201clongstanding waiver principles,\u201d \u201c[i]t is well established\u201d that a defendant\u2019s waiver of \u201ca known right\u201d must be \u201cintentional\u201d (quoting from the court\u2019s 1938 decision in Johnson v. Zerbst<\/em>).<\/p>\n

I pause to note the huge implications of Gorsuch\u2019s and Barrett\u2019s mutual reliance on the meaning of \u201cvoluntarily and intelligently\u201d waiving a \u201cknown\u201d constitutional right. 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. Gorsuch also notes a potential impact of allowing unknowing waivers to support \u201cunreasonable searches and seizures\u201d of a defendant\u2019s home. Meanwhile, Barrett does not say exactly why she disagrees with Gorsuch\u2019s \u201cunderstanding,\u201d but she joins the court\u2019s opinion that Hunter may appeal his sentencing condition despite his waiver, citing Zerbst<\/em>. <\/p>\n

But the Zerbst<\/em> standard is not limited to plea bargains; rather it is often cited generally, and specifically, to support \u201cconsent\u201d searches in the Fourth Amendment context. Gorsuch says that the \u201cwork ahead\u201d regarding his views is for \u201clower courts\u201d to \u201cflesh [things] out.\u201d If they take him up on this, together with Barrett\u2019s views, a stricter (and I would argue, more realistic) application of an \u201cintentional,\u201d aware-of-the-consequences standard for \u201cknowing and voluntary\u201d waivers could have impacts well beyond the narrow appeal waiver context.<\/p>\n

Finally, Gorsuch\u2019s concurrence throws into doubt many current sentencing practices and the federal rules that govern sentencing, the Kagan wrote for all eight justices that a miscarriage of justice encompasses any \u201csentence exceeding what the relevant statute allows.\u201d Gorsuch expounds on this, writing that that \u201ccategory should likewise include\u201d other aspects of sentencing. He mentions at least four, supported by existing lower court decisions: (1) penalties imposed for \u201coffenses different than those of which the defendant stands convicted,\u201d such as expunged convictions (I think this might also reach United States Sentencing Guideline 2B1.1, which appears to have allowed Hunter\u2019s sentencing judge to consider all 10 counts that Hunter was charged with rather than just the one to which he pled guilty, something Gorsuch also criticizes); (2) remedies or mandatory minimum sentencings that \u201cthe law does not permit\u201d or \u201cfor which the defendant does not qualify\u201d; (3) \u201cconstitutionally infirm conditions of supervised release\u201d such as forced medication that Hunter alleged here; and (4) \u201cmarked departure[s] from mandatory sentencing procedures\u201d such as not providing \u201creasons for [a] chosen sentence\u201d or not addressing \u201cnon-frivolous arguments for a different one.\u201d <\/p>\n

Gorsuch also provides other \u201caspects of sentencing\u201d that he considers open to examination. Gorsuch\u2019s long list undoubtedly triggered Kavanaugh\u2019s brief critique that Gorsuch \u201cwould set a lower bar\u201d for miscarriages of justice that \u201cmay not be entirely consistent\u201d with Kagan\u2019s opinion. Gorsuch agreed that \u201cnone of these questions is before us in this case,\u201d but he said (portended?) that \u201call … may warrant further exploration.\u201d<\/p>\n

A few further thoughts about Hunter<\/em><\/strong><\/p>\n

Kagan\u2019s and Gorsuch\u2019s opinions raise other ideas that I have been writing about this term.<\/p>\n