Supreme Court: 'An agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice'

When people plead guilty to crimes, they typically give up the right to appeal any aspect of the outcome, including the sentence they ultimately receive. In Hunter v. United States, the Supreme Court recently imposed limits on such appeal waivers, which are improbably described as "knowing and voluntary" even when the defendant is acting under intense pressure and does not yet know what penalties and release conditions he will face, reported Reason.

"An agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice," Justice Elena Kagan writes in the majority opinion, which was joined by seven of her colleagues. The decision defines "miscarriage of justice" as "the kind of egregious error that would bring the judicial system into disrepute." It offers some examples, including a sentence that exceeds the statutory maximum, a sentence "infected with a blatant constitutional error" such as racial bias, release conditions that violate basic rights, and a prison term imposed by a judge who "let an orangutan pick a sentence out of a hat."

As Justice Neil Gorsuch explains in a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, the need for such intervention stems from a criminal justice system that resolves nearly all cases through plea deals. "In our times, the jury trial has given way to a conveyor belt of plea bargains," Gorsuch writes. "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."

The case involves Munson P. Hunter III, who was charged with participating in "a years-long scheme costing various financial institutions about half a million dollars" in unauthorized wire transfers. In February 2024, Hunter pleaded guilty to one count of aiding and abetting wire fraud. It is not hard to see why: He was also facing nine other felony charges, which federal prosecutors dropped in exchange for his guilty plea. Had he been convicted of all 10 charges, Gorsuch notes, Hunter would have faced "up to 300 years in prison and a $10 million fine."

As part of the plea agreement, Hunter gave up the right to appeal his sentence. He later had cause to regret that decision.

The crime that Hunter admitted involved the theft of $38,649 in a single transaction. But at sentencing in the Southern District of Texas three months later, Judge Sim Lake took into account the dropped charges—a variation on a disturbing practice that imposes punishment for conduct that was never admitted by the defendant or proven beyond a reasonable doubt. For purposes of sentencing, Lake assumed that Hunter had helped steal $488,352 in 26 transactions.

"This made a significant difference for Mr. Hunter," Gorsuch notes. "Had the district court sentenced him based on the amount he had pleaded guilty to stealing, he would have faced an advisory sentencing guidelines range of 15 to 21 months in prison. Now, though, he faced a recommended prison term of 41 to 51 months. And based on that calculation, the district court chose a prison sentence of 51 months." In other words, "a guilty plea to a single charge enabled prosecutors to secure a punishment based on other charges they had agreed to drop or had not even brought."

That was not Hunter's only unpleasant surprise. As a condition of his supervised release after his prison term, Lake ordered him to "participate in a mental-health treatment program" and "take all mental health medications that are prescribed by [his] treating physician." Hunter objected to the latter condition, which he argued violated his "constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs."

Confronted by that claim, the U.S. Court of Appeals for the 5th Circuit said Hunter could not raise it because he had waived his right to appeal his sentence. The Supreme Court disagreed, saying Hunter should have an opportunity to argue that his forced medication qualified as a "miscarriage of justice" because it was unconstitutional.

Gorsuch agreed with that result, as did all the justices except for Clarence Thomas. Under Hunter, Gorsuch notes, "prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal." But that issue, he emphasizes, is just one facet of the problems stemming from coercive plea deals.

"The most remarkable thing about Mr. Hunter's plea-bargaining journey may be how unremarkable it is," Gorsuch writes. "Our criminal justice system is no longer dominated by trials and sentences based on them, but plea bargains that work out in ways not unlike his own."

At the Founding, "the right to trial by jury was considered part of every American's 'birth-right and inheritance,'" Gorsuch notes. "Outraged by British efforts to deny that right in the colonies, those who fought the Revolution cited its suppression as one of their reasons for declaring independence. After the Revolution, too, the founding generation took care to secure the right to trial by jury in criminal cases not just once, but twice, in the Constitution and Bill of Rights they adopted."

Plea bargains "didn't begin to emerge as an alternative to trial in serious criminal cases until the mid-nineteenth century," Gorsuch writes. But today, around 95 percent of convictions are based on guilty pleas, making the right to trial more imaginary than real.

The Supreme Court was initially skeptical of that development, expressing concern about the power of prosecutors to coerce guilty pleas by threatening defendants with additional charges and penalties if they insisted on making the government prove its case. But by 1971, the Court was describing plea bargaining as "highly desirable," something "to be encouraged," and "an essential component of the administration of justice."

Why was it essential? "If every criminal charge were subjected to a full-scale trial," the Court worried in Santobello v. New York, "the States and the Federal Government would need to multiply by many times the number of judges and court facilities."

The Court reiterated that view six years later in Blackledge v. Allison. "Whatever might be the situation in an ideal world," it said, "the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned."

What does a "properly administered" plea bargaining system look like? The Court provided a clue in the 1978 case Bordenkircher v. Hayes, which considered what happened after a Kentucky man was charged with forging a check for $88.30.

Based on that charge, Paul Hayes faced a sentence of two to 10 years in prison. If Hayes pleaded guilty, the prosecutor said, he would recommend a five-year sentence. But if Hayes insisted on going to trial, the prosecutor warned, he would be charged under Kentucky's "three strikes" law, which authorized a life sentence. Uncowed, Hayes said he wanted a trial. The prosecutor delivered on his threat, and Hayes was sentenced to life in prison. The Supreme Court saw no problem with the prosecutor's tactics.

Appeal waivers add another dimension to this situation, and now the Court has recognized that justice may require overriding them. In addition to the examples offered in the majority opinion, Gorsuch says the "miscarriage of justice" rule should also apply to "sentences imposing penalties the law reserves for offenses different [from] those of which the defendant stands convicted." Hunter's 51-month sentence fits that description, and there are many other examples.

Under the Court's decision in Hunter, "a defendant may be able to appeal a sentence imposing a condition of release that violates his right to be free from forced medication, or a condition that violates his right to speak or worship freely, or any other condition that violates one of his recognized constitutional rights," Gorsuch says. "I would think a miscarriage of justice all but certain to arise whenever a sentence infringes a constitutional right that was 'firmly established at the time of sentencing.'"

The majority also said sentences "marred by serious procedural errors" should be appealable notwithstanding waivers, Gorsuch notes. In his view, that would include "not only a sentence chosen by an orangutan" but also penalties "reflecting a marked departure from mandatory sentencing procedures."

Even "aspects of sentencing that can require a degree of judicial discretion," such as "the application of the advisory sentencing guidelines," "the imposition of supervised release conditions within statutory and constitutional bounds," and the weighing of sentencing factors, could trigger the exception recognized by the Court, Gorsuch says. "A miscarriage of justice would seem to arise, as well, when a district court metes out punishment that is so substantively unreasonable that it would fail under the 'deferential abuse-of-discretion standard' that appellate courts already apply in sentencing challenges."

Gorsuch sees "deeper problems" with appeal waivers. "The Due Process Clause of the Fifth Amendment, this Court has held, tolerates only 'voluntary and knowing' guilty pleas," he notes. A guilty plea "must be made both 'voluntarily' and 'with full understanding of the consequences.'" But "how can a defendant 'know' and 'fully understand' at the time he signs a plea agreement that a court might later order punishment that defies the Constitution, a federal statute, or this Court's precedents?"

Gorsuch also notes that the Supreme Court "has found prospective waivers of
many other statutory rights invalid and unenforceable." He says the Trump administration, which urged the justices to uphold the 5th Circuit's decision in Hunter's case, "has offered no colorable explanation why a defendant's prospective waiver of his statutory right to appeal his sentence should be treated differently."

If a defendant "may prospectively waive the right to appeal his sentence," Gorsuch writes, "one might wonder what's to stop prosecutors from pushing their luck further yet. Might we eventually face plea agreements that include prospective waivers of the defendant's right to complain about future unreasonable searches and seizures of his home? Or prospective waivers of a defendant's right to seek a jury (rather than bench) trial in future proceedings if he ever is charged with another crime?"

Two centuries ago, "it was likely unimaginable that almost every federal criminal case would be resolved by plea bargain," Gorsuch says. "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."

Although the Supreme Court "is not responsible for all these developments," Gorsuch writes, "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."

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Lethal injection secrecy being challenged in South Carolina

How much a state secrecy law really hides from the public will be up to the state Supreme Court, which heard arguments Tuesday as part of a broader challenge on executions in South Carolina, reported States Newsroom.

The question arose as part of an ongoing federal lawsuit filed last year by the state chapter of the American Civil Liberties Union. The lawsuit as a whole argues the 2023 expansion of the law, which keeps secret almost all information about who carries out executions and how, violates people’s First Amendment right to free speech.

Legislators passed the law to help prison officials buy the drugs needed to carry out executions through lethal injection.

The boundaries of that law is what justices heard arguments on Tuesday. Under the law, violators can be sent to prison for up to three years.

Attorneys for the state and ACLU agreed on one thing: Any information already out in the open can be repeated without fearing arrest.

The secrecy law worked as intended. Four months after its passage, the Department of Corrections announced securing the drugs, and executions resumed in September 2024. Since then, seven men have been put to death. Four chose to die by lethal injection, and three selected the newly added firing squad.

No other death warrants are imminent, as inmates wait on appeals.

Public versus confidential

Under the interpretation attorneys for both sides proposed, only an employee who leaks restricted information about the execution process or the drugs could face punishment.

ACLU seeks halt to SC law that keeps execution information secret

The recipients of that information shouldn’t be liable, as long as they didn’t break any other laws to get it, attorneys said. That would include an employee’s spouse, a reporter writing an article, or an advocate trying to sway public opinion.

“Once the leak has been made, everyone else can keep talking about it,” said Grayson Lambert, an attorney for the governor’s office.

The law was clearly written with that interpretation in mind, said Lambert and Joseph Spate, who works in the attorney general’s office. Otherwise, enforcing the law would be impossible in some situations.

If, for instance, members of the execution team identify themselves in a viral social media post, the attorney general’s office couldn’t possibly go after every person who shared it, Spate said.

“The attorney general wouldn’t be able to prosecute potentially millions of violations of the statute,” he said. “The reason for that is because the General Assembly has not funded the attorney general’s office to prosecute millions of offenses against the shield statute.”

The ACLU read the law in a much stricter way.

The nonprofit didn’t want to put anything in the open that could lead to an employee’s arrest, and without clarification, the ACLU believed that could be anything, even information already made public through other means, said Allen Chaney, an attorney for the ACLU.

“South Carolina is executing people again, and the ACLU wants to talk about that without running the risk of being criminally prosecuted,” Chaney said. “All we’re seeking is clarity. We want to know what the act covers so that we and others don’t have to guess as to whether our speech might result in criminal liability.”

The interpretation of the law the attorneys agreed upon would give the ACLU the clarity it needed, Chaney said.

The nonprofit has nearly 3,000 pages of information about the execution process found through court documents, statements from prison officials and news reports that advocates compiled in the hopes of giving the public a fuller understanding of the execution process, Chaney said.

None of those documents would break the law, Lambert said.

“If the ACLU walked out of court this morning and handed a reporter on the courthouse steps that entire document production, the ACLU is not going to be prosecuted,” he said.

Even though the attorneys agreed, an opinion from the state Supreme Court would set precedent in case attorneys for a future attorney general interpret the law differently, Chaney said.

The state’s chief prosecutor will change in January, when Attorney General Alan Wilson’s replacement takes office. Wilson is running for governor this year.

“We need a definitive and clear opinion from this court,” Chaney said.

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SCOTUS unanimously limits government's ability to deny guns to marijuana users

In a rare unanimous decision, the US Supreme Court limited the federal government’s authority to take or deny guns to marijuana users, reported Juristnews. The court held that this restriction is a violation of the Second Amendment.

Ali Danial Hemani, a dual citizen of the US and Pakistan, was indicted in 2023 for violating the Gun Control Act. He had a 9mm handgun and 60 grams of marijuana when police with a warrant searched his home. He surrendered the gun and directed police to the marijuana, which he admitted to using “about every other day.”

The federal Gun Control Act, 18 USC § 922(g)(3), prohibits gun ownership or gun by anyone who “is an unlawful user of or addicted to any controlled substance” under the Controlled Substances Act (CSA) Hemani could have faced up to 15 years in prison and the permanent loss of his gun rights for a conviction.

The court’s ruling focused narrowly on the question of the danger posed by someone who uses illegal drugs. Justice Neil Gorsuch wrote:

We appreciate that drugs and guns can sometimes make for a dangerous mix… We do not question that sometimes an individual’s unlawful use of marijuana (or any other con­trolled substance) may render him a danger to others. But…the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically vio­lent and dangerous without any further showing.

Both the ACLU and the National Rifle Association celebrated the ruling, with ACLU legal director Cecillia Wang commenting that the ruling protects nearly half of Americans reporting use of marijuana at some point of time in their lives from arbitrary and discriminatory penalties.

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Newsom claims he is latest victim of DOJ political witch hunts

James Comey. Letitia James. Mark Kelly. Jay Powell.

According to Politico, the Justice Department has spent the last 18 months chasing President Donald Trump’s political adversaries in investigations that have more often than not crumbled under scrutiny. Now, California Gov. Gavin Newsom is adamant that he’s the next in a long line of vendetta cases brought at Trump’s direction.

And because of the recent prosecutorial misadventures of the Trump administration — which have dashed the Justice Department’s credibility in courts around the country — it’s become an argument that’s impossible to ignore. Even if it’s too soon to tell whether that’s actually what’s happening with the investigation surrounding Newsom’s wife Jennifer Siebel Newsom.

“This is a huge problem,” said Randall Eliason, former chief of the Public Corruption Section of the U.S. Attorney’s Office in Washington, D.C. “In any political corruption prosecution, the defense almost always claims it is a ‘political witch hunt,’ that prosecutors are targeting him or her for some political reason.”

“The best defense to that has always been DOJ’s tradition of independence from politics and long track record of pursuing corruption cases based only on the facts and law, without regard to political considerations,” Eliason added. “The Trump administration has abandoned that independence without even trying to hide it.”

Newsom preempted federal prosecutors with a four-minute video decrying an encroaching investigation — apparently aimed at his wife’s charity and his former chief of staff — as a politically motivated witch hunt. It mirrored a tactic Powell, the chair of the Federal Reserve, deployed earlier this year when he decried a nascent criminal probe as a baseless political attack.

A federal judge ultimately agreed and took the highly unusual step of blocking grand jury subpoenas in the probe, which was handled by Trump’s top prosecutor in Washington, D.C., Jeanine Pirro. Trump’s years of attacks on Powell’s fiscal policies, combined with flimsy allegations of misconduct, were clear evidence of a politically motivated probe, Chief U.S. District Judge James Boasberg concluded.

Newsom was quick to note that Trump has similarly spent years attacking him, even calling for him to be arrested. The California Democrat wants the world to equate him with Powell rather than another Trump adversary, former national security adviser John Bolton — who similarly claimed he was the target of a Trump-driven political probe only to later agree to plead guilty to mishandling classified information.

“Department of Justice prosecutors follow the facts and the law, not politics,” a DOJ spokesperson said. “This DOJ has returned to its mission of fighting crime, regardless of the name or status of alleged perpetrators. No bad actor is above the law.”

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Mangione disturbed by 'extreme emotional disturbance' defense?

In an abrupt reversal, Luigi Mangione’s lawyers said that they had withdrawn their intent to argue that he was experiencing “extreme emotional disturbance” at the time he was accused of killing a UnitedHealthcare executive in Midtown Manhattan in 2024, reported The New York Times.

The withdrawal came one day after the New York State judge overseeing the case, Justice Gregory Carro, revealed at a pretrial hearing that Mr. Mangione’s legal team had filed a motion in September of last year notifying the court that it was considering the defense.

In a one-sentence letter, Mr. Mangione’s lawyers wrote, “The defense respectfully withdraws CPL § 250.10 notice at this time,” referring to psychiatric evidence.

Because of the withdrawal, Justice Carro put the documents and transcript that exposed the defense strategy back under seal.

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Ohio's GOP Governor comes out against the death penalty

 The campaign to end the death penalty in the United States got an important new ally, Ohio Gov. Mike DeWine announced his opposition to capital punishment and called on his state’s legislature to abolish it. For a Republican leader of a red state who was a longtime supporter of the death penalty, the change of heart may have outsize influence beyond Ohio’s borders, reported MS Now.

DeWine, who is term-limited, is showing that opposition to capital punishment is no longer just the preserve of liberals and progressive reformers. It has gone mainstream.

DeWine’s decision to call for the abolition of the death penalty marks something of a sea change in his views.

Whether or not the Ohio legislature acts on DeWine’s call and abolishes the death penalty, the governor’s stance may help give political cover to governors in other states who are convinced that it is long past time to move past the practice of state-sanctioned executions.

As I have argued previously, Ohio is one of America’s most important death penalty states. The punishment is authorized by law, but it has been more than eight years since the state carried out an execution. And it has a long history of capital punishment, as well as a large death row population.    

That’s part of why DeWine’s announcement has a chance to resonate widely, though he has more to do. He needs to commute the death sentences of more than 100 people on Ohio’s death row. If and when he exercises that authority, his example may encourage his fellow chief executives in places like California, Kansas and Pennsylvania — each of whom also opposes the death penalty — to grant clemency to everyone awaiting execution in their state.

Commutations in all of those states would deliver a severe blow to capital punishment in this country.

DeWine’s decision to call for the abolition of the death penalty marks something of a sea change in his views. More than four decades ago, when he was a state senator, he led the effort to reinstate.

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CREATORS: Trump Administration Continues Onslaught On Diversity

Matthew T. Mangino
CREATORS
June 16, 2026

The United States of America is facing a full-throttle assault on the underpinnings of democracy. Since Jan. 20, 2025, freedom and diversity have been under attack.

On the Trump administration's first day, they went after diversity, equity and inclusion (DEI). A White House directive dated Jan. 20, 2025, announced, "The Biden Administration forced illegal and immoral discrimination programs, going by the name 'diversity, equity, and inclusion,' into virtually all aspects of the Federal Government."

The so-called "immoral" conduct of the Biden administration consisted of promoting opportunities for all people to have a seat at the table.

According to The Hill, "The attacks on DEI threaten a wide range of policies that seek to realize the promise of civil rights law: to advance equal opportunity for all Americans. These benefit not only women, people of color and gay and transgender individuals, but also military veterans, people from impoverished or rural areas, religious minorities and first-generation professionals. DEI policies combat harassment and retaliation. They open the workplace to pregnant and caregiving employees and to persons with disabilities."

The administration has terminated DEI programs at government offices, with government contractors and grantees of federal funding. The Department of Education went so far as to require school districts to sign "oaths" that they will comply with the federal government's effort to cancel diversity.

The U.S. Supreme Court got things rolling before President Donald Trump was elected for a second time. On June 29, 2023, the Court ruled that the race-conscious admissions policies of Harvard and the University of North Carolina were unlawful under federal law. The Court found that Harvard and North Carolina's affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

This past March, Trump signed an Executive Order eliminating "diversity, equity and inclusion" practices by Federal contractors and their subcontractors, ensuring merit-based and efficient contracting and employment.

A lawsuit was filed in federal court by the attorneys general of 19 states and Washington, D.C., alleging that more than two dozen federal agencies are adding new terms to federal contracts that bar "any racially discriminatory DEI activities" without notice or explanation of exactly what is prohibited.

The suit claims that the executive order violates contractors' free speech rights under the First Amendment to the U.S. Constitution. Massachusetts Attorney General Andrea Joy Campbell told Reuters, "This is yet another example of haphazard actions designed to confuse and intimidate rather than provide clear guidance to people and businesses — in this case federal contractors."

The administration has filed lawsuits and cut or threatened to limit billions of dollars in funding to coerce colleges and universities to capitulate on issues regarding diversity, equality and inclusion.

The Trump administration has threatened many elite institutions with "potential enforcement actions" for violations of Title VI, the federal statute prohibiting discrimination, relating to antisemitic discrimination and harassment.

The administration cut $400 million in funding to Columbia University, a focal point of pro-Palestinian demonstrations on campuses across the country. According to U.S. News and World Report, federal officials in April 2025 froze $2.2 billion in grants to Harvard University after warning the school that it was in violation of federal civil rights law.

Cornell University, Northwestern University, the University of Pennsylvania and Princeton University were among the schools that saw billions of dollars cut, frozen or suspended.

Secretary of War Pete Hegseth, the apparent point man in the effort to crush diversity, equity and inclusion, said some of the nation's top universities are "woke breeding grounds of toxic indoctrination." According to Inside Higher Ed, Hegseth canceled, through a War Department order, opportunities for service members to participate in fellowships at schools like Princeton, Columbia, Massachusetts Institute of Technology, Brown and Yale.

With the absence of diversity comes a loss of diverse perspectives, a reduction in creativity, decrease in innovation and a shocking reduction in critical thinking — creating in society, and maybe more specifically on college and university campuses, military bases and corporate boardrooms, silos of thought, values and beliefs.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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