Today’s Supreme Court decision in Hunter v. United States rejects the pernicious practice of allowing so-called “appeal waivers” in plea agreements to shield unconstitutional sentences from judicial review.

Scholars at the Cato Institute filed an amicus brief in this case arguing that constitutional protections are not mere bargaining chips and that no defendant can meaningfully “waive” the right to challenge a sentence whose illegality he cannot anticipate in advance, and that was imposed by virtue of a plea “agreement” that has all too often been extracted under conditions that black-letter contract law would reject as plainly involuntary.

“The majority’s adoption of the miscarriage-of-justice standard vindicates that position. But Justice Gorsuch’s powerful concurrence, joined by Justices Sotomayor and Jackson, deserves equal attention. Gorsuch notes that the Supreme Court bears ‘at least some responsibility’ for transforming the system of public, adversarial adjudication described and prescribed by the Constitution into ‘a conveyor belt of plea bargains’ that has almost entirely eliminated citizen participation from the administration of criminal justice. ‘Today,’ Gorsuch observes, ‘the Court begins to correct course.’ Cato will continue pushing for judges to confront the structural coercion baked into modern plea bargaining, and we welcome the opportunity to discuss both the decision and where the law needs to go next.”

To speak with Clark Neily, senior vice president for legal studies at the Cato Institute, further on the Hunter decision, contact Christopher Tarvardian.