As the Supreme Court hears arguments in Hunter v. United States, a case asking whether defendants can be compelled to waive appellate rights before sentencing even begins, the authors argue that Justice Ketanji Brown Jackson brings an unusual vantage point to the case: a 1992 college thesis that exposed the coercive power dynamics baked into plea negotiations from the start.<\/p>\n
The Supreme Court heard arguments today in\u00a0Hunter v. United States<\/a>, a case about when people can be forced to yield their rights through a plea \u201cagreement.\u201d It\u2019s a case that, for at least one of the Court\u2019s justices and a longtime critic of plea bargaining, is likely to resonate especially strongly: Justice Ketanji Brown Jackson, whose college thesis, \u201cThe Hand of Oppression<\/a>,\u201d took the practice to task in 1992. The\u00a0Hunter\u00a0case raises a narrow but troubling question: can people validly surrender their right to challenge unconstitutional aspects of their sentence even before that sentence is imposed?<\/p>\n The case before the Court<\/a>\u00a0started in February 2024, when Petitioner Munson Hunter entered a guilty plea to one federal count of aiding and abetting wire fraud. He did so pursuant to a written plea agreement containing a provision waiving nearly all of his rights to appeal his sentence. Three months later, he was sentenced. At that time, he objected\u00a0on constitutional grounds<\/a>\u00a0to a requirement that he take mental health medication while on supervised release. Though the district court imposed this condition, it assured him: \u201cYou have a right to appeal. If you wish to appeal, [your counsel] will continue to represent you.\u201d Directly after this, the district court invited any further comments from the lawyers, and the prosecutor demurred: \u201cYour Honor, I believe\u2014well, no. I\u2014no.\u201d The judge\u2019s statement that Mr. Hunter could appeal,\u00a0together with the prosecutor\u2019s failure to object,\u00a0reasonably led him to believe he could appeal the conditions of his sentence.<\/p>\n That proved not to be the case. Mr. Hunter did seek review from the Fifth Circuit, but that court dismissed his appeal, based on his appellate waiver and because it held that the district court\u2019s assurance was legally meaningless. Mr. Hunter has asked the Supreme Court to reverse, supported by a\u00a0Cato Institute amicus brief<\/a>.<\/p>\n As the Court considers the case, Justice Jackson may be thinking back to her thesis, which unmasks the power imbalance baked into plea negotiations at every stage of a case.\u00a0One relevant question: Was Mr. Hunter given an\u00a0offer\u00a0to trade away his rights\u2014or was he\u00a0threatened into surrendering them? Scholars sometimes say that whether a proposal is a threat or an offer depends on whether it improves or worsens an individual\u2019s situation relative to a baseline. Justice Jackson\u2019s thesis argued that there is no neat line between an offer and a threat. It\u2019s hard, she wrote, to pinpoint where a defendant\u2019s \u201cbaseline\u201d truly is\u2014in fact, that\u2019s inherently a judgment call. The thesis invokes a colorful example from libertarian philosopher Robert Nozick: if person Q is drowning and person P refuses to help unless Q first promises to pay $10,000 upon reaching shore, is P extending an offer or threatening to let Q drown if Q refuses?<\/p>\n That ambiguity is precisely what plea agreements exploit, as Justice Jackson\u2019s thesis makes clear. If a charge carries a sentence of\u00a0mandatory life imprisonment<\/a> without the possibility of parole, but the prosecutor can downgrade it in exchange for the defendant agreeing to a 10-year prison sentence, is the prosecutor making an offer or a threat? The accused\u2019s desperate position, and the catastrophic consequences of refusal, are coercive pressure that can make the proposal into a threat.<\/p>\n Prosecutors are not the only ones who pressure defendants into plea agreements.\u00a0Judges also\u00a0play a role\u00a0by signaling to defendants who plead guilty that they will receive more lenient sentences, denying bail and, in some cases, even engaging in\u00a0direct intimidation<\/a>. Judges can also manipulate their \u201cadministrative scheduling power\u201d to leave defense counsel without enough time to prepare for trial. While\u00a0it is illegal<\/a> for judges to try to sway plea negotiations in most American jurisdictions, Justice Jackson\u2019s thesis found that it happens anyway.<\/p>\n Even those tasked with representing the interests of the accused bear some responsibility for coercion. Defense attorneys may pitch plea options in a biased way,\u00a0fail to advocate\u00a0zealously for more favorable terms, and\u00a0withhold\u00a0critical information. For example, an attorney might not inform a client that sentences could be served concurrently, or\u00a0might seek adjournments even as the defendant lingers in jail.<\/p>\n Justice Jackson found that at every turn, court actors choose between pursuing their interests in efficiency, conformity, and networking\u2014and seeking justice. \u201cAssembly line justice\u201d is often the result.<\/p>\n Even after facing these realities, the future Justice Jackson did not surrender to cynicism. Rather, she urged citizens to commit to \u201cridding the system of unnecessary and unacceptable forms of coercion, at almost all cost.\u201d<\/p>\n When she handed in those words back in 1992, Justice Jackson was just setting out on her legal career. Now, she sits at its apex. Hopefully, in Mr. Hunter\u2019s case, she maintains her conviction that \u201cthe hand of oppression\u201d should be lifted.<\/p>\n Kayla Susalla is a Research Associate in the Cato Institute\u2019s Project on Criminal Justice and Matthew P. Cavedon is its Director.<\/p>\n \nOpinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.<\/p>\n","protected":false},"excerpt":{"rendered":"As the Supreme Court hears arguments in Hunter v. 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