Two criminal decisions today from the Supremes.
First, in Hunter v. United States, 608 U.S. ---, No. 24–1063 (2026), the Court considered whether plea agreement appellate waivers are subject to a general miscarriage of justice exception to enforceability. Good news, they are.
Plea agreements between a criminal defendant and the Government often include an appeal waiver—a promise by the defendant not to appeal his conviction or eventual sentence. In this case, we address a dispute about when such a promise is unenforceable in the sentencing context. We principally hold that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can. So a high bar is not the same as an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.The nature of the miscarriage-of-justice limit precludes any attempt to list all the situations in which it will overcome an appeal waiver. Extreme cases, after all, are hard to anticipate before they happen. But a few examples of the kinds of errors we mean—the kind that would bring the judiciary into disrepute—may provide guidance to lower courts. First, a defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. See, e.g., Kim, 988 F. 3d, at 810–811, and n. 1; supra, at 10. Second, a defendant may appeal a sentence that is infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). See, e.g., United States v. Elliott, 264 F. 3d 1171, 1173 (CA10 2001); supra, at 11. And third, a defendant may appeal if his sentence was imposed without “some minimum of civilized procedure” as in, yes, the “twelve orangutans” case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law. United States v. Adkins, 743 F. 3d 176, 192–193 (CA7 2014); see United States v. Behrens, 375 U. S. 162, 165–166 (1963). These examples are just examples, not intended to be exclusive, but they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.
Justice Gorsuch has a strong concurrence that begins:
In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. It rules that prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal. I agree and write separately to outline how we got here and some of the work still ahead.
Also of note, there is some helpful language on waiver in general: "Under ordinary litigation principles, a waiver of a right requires some affirmative signal of 'abandonment.' Staying silent—as here, not picking a fight—does not qualify. "
Next, in United States v. Hemani, 608 U.S. ---, No. 24–1234 (2026), the Court considered the constitutionality of 18 U.S.C. § 922(g)(3). Under its terms, anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” is automatically banned from possessing a gun. "Ali Hemani uses marijuana a few times a week. That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life. This case poses the question whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment." The Court held it was not.
In many respects, this case is a narrow one. We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hemani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use. The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance.To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.
