I mentioned in Friday’s post that today’s post is indebted to the Divided Argument Podcast. I try to follow the U.S. Supreme Court (SCOTUS) pretty closely, but sometimes if the topic is criminal law, I don’t pay much attention, and so I missed that Hunter v. United States is really about the enforceability of plea bargains, and the briefing as well as the opinion, to a lesser extent, focused on contracts doctrine. Will Baude and Dan Epps dove deep, so I recommend their “Very Civilized Orangutans” episode, but here’s a summary.
The Federal Government secured a ten-count indictment against Munson Hunter. As Justice Gorsuch noted in his concurrence. Mr. Hunter faced up to 300 years in prison and a $10 million fine. He agreed to waive his right to trial and his right to appeal and to plead guilty to one count of wire fraud involving less than $40,000. The trial judge nonetheless took into account some of the dismissed charges as well as some transactions that were not mentioned in the indictment. The judge sentenced Mr. Hunter to 51 months in prison, the top of the sentencing guidelines, again according to Justice Gorsuch’s concurrence, for someone who stole $488,352.25 in 26 transactions. Based on his plea, the longest prison time should have been 21 months.
In addition, he was also subject to three years of supervised release during which time he was to be required to take medication to address his depression and anxiety. During a hearing on his plea, Mr. Hunter had objected to being forcibly medicated. During that same hearing, the judge had asked Mr. Hunter if he understood that he was agreeing to “any sentence that I impose.” Mr. Hunter answered in the affirmative, and so his plea was deemed knowing and voluntary.
Mr. Hunter had two grounds to appeal. First, notwithstanding the written waiver of the right to appeal, the trial judge told him he could appeal. That judicial error turned out not to matter. The written plea agreement had language that worked like a no-oral-modifications clause. Of course, some jurisdictions do not enforce no-oral-modifications clauses, but Justice Kagan has a stronger argument in pointing out that the judge’s mistaken statement coupled with the government’s silence does not evidence an agreement between the parties to modify the agreement. The prosecutor did not relinquish the government’s waiver rights through a “swallowed retort” in response to the judge’s inquiry as to whether either party had anything to add at the end of the hearing: “Your Honor, I believe—well, no. I—no.” Justice Kagan interprets this language as “not picking a fight,” and silence does not operate as a waiver.
In Class v. United States, 583 U. S. 174 (2018), the Court allowed an appeal despite an in-court colloquy in which the judge mistakenly informed the defendant that he was giving up his right to appeal, and the defendant agreed. I’m glad for the symmetry, but I’m not sure these circumstances are really identical. In Class, an attorney made a mistake, and we should not punish the client for a lawyer’s inadvertent error in a matter so weighty. Here, the government, through a judge, has made a representation about the nature of a plea agreement. Because the prosecutor did not correct the judge’s misstatement, and because the statement was of a kind that would be expected to induce and does induce real reliance, estoppel makes sense here in ways that it wouldn’t in Class.
Mr. Hunter’s second ground for appeal turned on the standard for when waivers of rights to appeal can be set aside. Most Circuit Courts allow waivers of appeals to be set aside if they result in a miscarriage of justice. The Fifth Circuit allows waivers only in cases of ineffective assistance of counsel and sentences in excess of the sentencing guidelines. Writing for eight Justices, Justice Kagan (below) adopted the miscarriage-of justice-standard. The case was remanded to allow for the Fifth Circuit to apply the appropriate standard.
Justice Kagan provided some guidance on what constitutes a miscarriage of justice:
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.
More specifically, Justice Kagan provides three non-exclusive situations where a waiver can be set aside: where the sentence (1) exceeds the statutory maximum; (2) involves “blatant constitutional error”; or (3) was imposed without “some minimum of civilized procedure,” such as a judge’s refusal to hold a hearing consonant with basic principles of law. As did the hosts of Divided Argument, I struggle to see how Justice Kagan’s example #3 is not a due process violation and hence an example of #2, but so be it.
There’s a lot going on in the concurrences and in Justice Thomas’s sole dissent. I will keep things brief here. Justice Gorsuch, writing for Justices Sotomayor and Jackson, treats the majority opinion as a “course correction,” even though the majority seems to have done nothing more than adopt the miscarriage-of-justice standard already embraced by most Circuit Courts. At the end of a sixteen-page lament on the scourge of plea bargains, the concurrence suggests that the majority opinion is a good start to reining them in, but that there is much more work still to be done.
Justice Kavanaugh, joined by Justices Alito and Barrett, adds a one-paragraph concurrence, which is really a rejoinder to Justice Gorsuch.
I appreciate JUSTICE GORSUCH’s thoughtful concurrence. But I respectfully disagree with his understanding of the miscarriage-of-justice exception. As I read it, his concurring opinion would set a lower bar for the miscarriage-of-justice exception than the Court’s opinion does. In my view, therefore, the concurrence may not be entirely consistent with the Court’s opinion.
Justice Kavanaugh concludes that the majority opinion speaks for itself, but maybe it doesn’t. I think the real problem is that Justice Gorsuch was really just concurring in the judgment, and he and Justices Sotomayor and Jackson perhaps should not have joined Justice Kagan’s opinion if they don’t think it goes far enough.
Justice Thomas’s dissent is the longest of the opinions, coming in at twice the length of the majority opinion. He does not think it possible that a waiver of an appeal could result in a miscarriage of justice when there was no right of appeal for the first 100 years of this country’s existence. Moreover, the majority can cite to no source of law for the miscarriage-of -justice standard. The Court is imposing its policy preferences, and Justice Thomas would prefer it if judges just applied the law.
Justice Barrett wrote separately to respond briefly to Justice Thomas, and their exchange is really interesting. She provides the legal doctrine that is missing in the majority opinion. While she, like Justice Thomas, is skeptical that the Supreme Court may exercise a general, supervisory authority over the lower courts, back when she was a mere academic, she developed a defense of the exercise of a more limited supervisory power through procedural common law. In her view, the majority’s embrace of the miscarriage-of-justice standard is an example of the Court’s recognition of an emerging consensus regarding such a procedural rule.
I love the elegance and brevity of her response. Unlike Justice Gorsuch’s concurrence, Justice Barrett’s opinion seems completely consistent with that of the majority. The position at which she arrives is not substantively distinguishable from that of Justice Kagan, but she is able to articulate that position as the product of doctrine, even though the doctrine allows judges to exercise discretion in determining when an error is “egregious” or “obvious.”
Recent Comments