Today, the Supreme Court heard oral arguments in Hunter v. United States. The case concerns whether a defendant can waive in advance his right to challenge an unconstitutional sentence later imposed by a judge. The Department of Justice argued that all appellate waivers are enforceable, even if a racist or sexist judge imposes a sentence based on blatantly unconstitutional considerations.

The justices appeared concerned about insulating unconstitutional sentences from appellate review. DOJ’s position was met with much pushback for being overly protective of the government at the expense of Americans’ rights.

Scholars at the Cato Institute filed a brief on the other side of the case. The brief was joined by a cross-ideological coalition made up of the national and Texas branches of the ACLU, Fair and Just Prosecution, Civil Rights Corps, and the Rutherford Institute. The brief argued that unconstitutional sentences should not be removed from judicial reviewability through plea bargaining.

The brief was cited by a lawyer and Justice Samuel Alito during today’s arguments. Mr. Hunter’s lawyer twice pointed to it for identifying a trial court that unconstitutionally sentenced twenty defendants, then relying on their appellate waivers to shield itself from scrutiny. Justice Alito also cited the brief for distinguishing guilty pleas from private contracts.

To speak with Matthew Cavedon, the main author of briefs and Director of Cato’s Project on Criminal Justice, contact Christopher Tarvardian.