We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HUNTER HAS NO CLOTHES
US District Judge Joseph Goodwin, who sits on the court in the Southern District of West Virginia, wrote a thoughtful Substack last week arguing that the Supreme Court’s Hunter v. United States decision last June, like Hans Christian Andersen’s Emperor, has no clothes.
Hunter held that a defendant’s waiver of appellate rights is enforceable except where to enforce it would constitute a miscarriage of justice. The Court left the question of what is serious enough to constitute a miscarriage of justice for another day.
Judge Goodwin argues that plea deals that waive appellate and 2255 rights are abominations (in the religious sense, here being something utterly repulsive to justice. He recounted how once,
talking off the record about one of these waivers, I asked what kept me from coming into the courtroom, announcing the sentence, and telling the defendant, ‘I’ll get you a good seat on the bus.’ I was being flip. I knew the answer. The law kept me from doing it. But the question is not as flippant as it sounds, because Hunter has to answer it. A waiver that reaches every error reaches that one too. So somewhere between a Guidelines miscalculation and the seat on the bus, the waiver stops working, and the Court has told us only that the first is too small to count. It has not told us what makes the second big enough.
Judge Goodwin points out that statutes, rules of criminal procedure and Guidelines all still apply at sentencing. The defendant still has rights, and the judge still has obligations imposed by law. The waiver means that there is just no way to enforce those rights and duties. “That is what has always seemed so odd about the appellate waiver,” the Judge wrote. “The judge remains bound by the law, while the parties agree in advance that some violations of that law won’t be reviewed.
Judge Goodwin states the obvious: the appeal statute, 18 USC § 3742, is not just some private benefit Congress granted a defendant, only to be traded away to the prosecutor. “Appellate review was built into the sentencing system,” Judge Goodwin writes. “It corrects errors, develops sentencing law and, importantly, gives district judges a reason to be careful about getting the law right. I do not see where the parties get the authority to bargain that away.”
The essay is thoughtful reading for anyone concerned that the intersection of justice and efficiency, efficiency may have t-boned justice.
Sentencing Matters Substack, How Lawless Is Too Lawless? (September 8, 2026)
Hunter v. United States, — U.S. —, 146 S. Ct. 1702, 225 L. Ed. 2d 272 (2026)
~ Thomas L. Root