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SCOTUS WAIVER CASE IGNITES ARGUMENT OVER WHAT CONSTITUTES A ‘MISCARRIAGE OF JUSTICE’

A Supreme Court decision from last term, Hunter v United States, may seem to be a yawner to many federal prisoners. But some legal commentators are suggesting that the decision, while “murky,” may be “the most important criminal case of the term.”

The importance of Hunter, which held that appellate and collateral attack waivers in plea agreements may not be enforced by the government where to do so would lead to a miscarriage of justice, has already led to a number of Supreme Court GVRs. (A ‘GVR’ is a single SCOTUS order that grants certiorari (the ‘G’), vacates the lower court decision (the ‘V’) and remands the case (the ‘R’) for consideration in light of a new Supreme Court decision that addresses the same issue that the GVR case raises).

An appellate waiver, in which a defendant waives his or her rights to appeal or file a collateral attack except in very limited cases, is a feature of virtually all of the 94% or so of federal criminal cases resolved each year by plea bargain. Some are bare bones. Others are breathtakingly expansive, waiving rights to direct appeal, habeas corpus under 28 USC 2241 and 2255, compassionate release motions, and even retroactive Guidelines changes.

Last month’s GVR list of 17 cases – an unusually large number – suggests that a lot of appellate cases will be exploring the limits of what constitutes a “miscarriage of justice” sufficient to set aside a plea agreement appellate waiver.

Last week, Ohio State University law professor Doug Berman listed “a notable group of early test cases for the ‘miscarriage of justice’ limit on the enforceability of sentencing appeal waivers” provided to him by a law professor reader of his blog:

• • A claim that the sentencing judge imposed sex offender registration for a non-registrable offense;
  • A claim that a restitution order was not supported by sufficient evidence;
  • A claim that the sentencing judge failed to give the defendant much less credit for substantial assistance to law enforcement than the government recommended;
  • A claim that defense counsel was ineffective in stipulating that a prior state conviction was a serious violent felony (increasing the federal sentence exposure), even though the ineffectiveness did not affect plea negotiations;
  • A claim that the defendant’s guilty plea to an offense (such as possessing a firearm as a drug user) after SCOTUS decisions (such as Hemani) undercut the constitutionality of the crime;
  • A claim that the sentencing judge erred in applying a Guidelines career offender enhancement to the defendant, which increased his guideline range by 60% or more; and
  • A claim that the sentencing judge imposed a substance abuse testing special condition on a defendant’s supervised release which delegated the frequency of testing to the Probation Office.

The Supreme Court did little more than say that a “miscarriage of justice” was something so outside the bounds of conscience as to call the entire “judicial system into disrepute.” William Otis, a former Assistant U.S. Attorney (and ex officio member of the Sentencing Commission) – a serial antagonist of Prof. Berman on the Sentencing Law and Policy blog site – complained, “I was an appellate lawyer in a big USAO for about 20 years, and I can tell you how many sentences fit that description — pretty darn close to zero.”

Being familiar with Mr. Otis’s positions over the years, I am hardly surprised that he never saw a draconian sentencing issue that shocked his conscience.

Another commentator observed that Hunter seemed to confirm validity of appeal waivers while noting problems with the “contract analogy” – the judicial fiction developed over years of plea agreement jurisprudence that such deals – including the defendant’s waiver of appellate and collateral rights – are just contracts between parties to be judged by the well-developed common law of contracts (leavened by some nod to the fact that the defendant is surrendering constitutional rights while the government is merely forgoing the chance to heap more punishment on its target).

Whether the Hunter “miscarriage of justice” is just a restatement of an existing standard or the dawn of an era where the fundamental balance between a defendant on the one hand and the might of the government on the other is, for now, as “murky” as Prof. Berman and Jonathan Wroblewski suggest it is in their excellent analysis of Hunter.

No doubt, we will see a lot of case-specific litigation in the coming years over when Hunter will let a defendant walk away from an appellate waiver.

Hunter v. United States, 608 U.S. —, 146 S. Ct. 1702, 2026 U.S. LEXIS 2558, 2026 LX 319193, 31 Fla. L. Weekly Fed. S 811 (June 18, 2026)

Sentencing Law and Policy, Early efforts in the hunt to understand Hunter’s new limits on the enforceability of sentencing appeal waivers (July 8, 2026)

Supreme Court, Order List (June 29, 2026)

Berman and Wroblewski, The Supreme Court Draws a Murky Line; The Sentencing Commission Should Help Clarify It  (June 22, 2026)

 ~ Thomas L. Root