Hunter v. United States

JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, concurring.¶verify

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.¶verify

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.¶verify

I¶verify

Because the facts of this case are emblematic of many others, they are worth pausing over. In 2023, the federal government secured a 10-count indictment against Munson Hunter for his alleged role in various fraudulent transactions. Four of the charges focused on a single transaction, while the remaining six focused on others. Altogether, the government’s charges threatened Mr. Hunter with up to 300 years in prison and a $10 million fine. After bringing these charges, though, prosecutors offered Mr. Hunter a deal. If he agreed to waive his right to trial and plead guilty to one count of wire fraud based on a single transaction worth $38,648.77, prosecutors said they would drop the remaining charges against him. Unsurprisingly, Mr. Hunter agreed. Ultimately, the deal the parties struck also included an appeal waiver. By its terms, Mr. Hunter waived not only his right to appeal his conviction. He also waived his right to appeal whatever sentence the district court might later impose. App. to Pet. for Cert. 6a (Pet. App.).¶verify

After the district court signed off on the parties’ deal and accepted Mr. Hunter’s guilty plea, it turned to the question of an appropriate sentence. While Mr. Hunter pleaded guilty and admitted to stealing $38,648.77 in one transaction, the district court proceeded to sentence him as someone who stole $488,352.25 in 26 transactions. See id ., at 20a–21a; Presentence Investigation Report in No. 23–cr–85 (SD Tex.), ECF Doc. 125, pp. 10–13. Some of these additional funds and transactions were the subject of counts the government agreed to dismiss in exchange for Mr. Hunter’s guilty plea. Other funds and transactions were not even the subject of the government’s charges. See ibid .; Superseding Indictment in No. 23–cr–85 (SD Tex.), ECF Doc. 74 .¶verify

This made a significant difference for Mr. Hunter. Had the district court sentenced him based on the amount he had pleaded guilty to stealing, he would have faced an advisory sentencing guidelines range of 15 to 21 months in prison. See Pet. App. 25a; United States Sentencing Commission, Guidelines Manual §2B1.1(b)(1) (Nov. 2023); id ., ch. 5, pt. A (sentencing table). Now, though, he faced a recommended prison term of 41 to 51 months. Pet. App. 25a. And based on that calculation, the district court chose a prison sentence of 51 months. The result? A guilty plea to a single charge enabled prosecutors to secure a punishment based on other charges they had agreed to drop or had not even brought.¶verify

That was not all. The district court ordered Mr. Hunter to serve time on supervised release after leaving prison. As part of his supervised release, the court directed Mr. Hunter to comply with various conditions, one of which is of special relevance here. It arose this way. Before sentencing, Mr. Hunter met with a probation officer. There, he ''self-reported'' a history of mental health diagnoses. Brief for United States 7. As it turned out, that honesty came with a price. At sentencing, the probation officer urged the district court to require Mr. Hunter to ''participate in a mental-health treatment program’ and ‘take all mentalhealth medications that are prescribed by [his] treating physician'' while on supervised release. Ibid.¶verify

Mr. Hunter objected to one part of this recommendation. He did not dispute that he has suffered from mental health issues. He even said that he “want[ed] to take mental health programs.” Pet. App. 24a. But, he added, “I don’t want to take any medication. I don’t drink. I don’t use drugs. I don’t even curse. I don’t want to have to be forced to medicate.” Ibid . In response, the court did not find that forcing Mr. Hunter to take psychiatric medication against his will would further any particular goal of criminal punishment. But it imposed the condition anyway.¶verify

After sentencing, Mr. Hunter sought to appeal the district court’s forced-medication condition to the Fifth Circuit. There, he pointed to this Court’s decisions holding that individuals enjoy a “constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs.” Sell v. United States , 539 U. S. 166, 178 (2003) (internal quotation marks omitted). Under those precedents, he argued, the district court could not constitutionally force him to take psychiatric medication absent compelling evidence that it was necessary to promote a valid sentencingrelated interest. And, he submitted, the district court had no compelling evidence before it that forcing him to take psychiatric medication would advance a legitimate penological interest associated with his crime of stealing¶verify

$38,648.77. See Brief for Appellant in No. 24–20211 (CA5), pp. 10–11.¶verify

The Fifth Circuit dismissed the appeal. In doing so, it assumed that the district court had committed a constitutional error in ordering Mr. Hunter to take psychiatric medication. Even so, the Court of Appeals held, it was powerless to say so. Because Mr. Hunter had agreed to an appeal waiver, the court concluded, it couldn’t hear his case. See Pet. App. 2a.¶verify

The most remarkable thing about Mr. Hunter’s plea-bargaining journey may be how unremarkable it is. Our criminal justice system is no longer dominated by trials and sentences based on them, but plea bargains that work out in ways not unlike his own.¶verify

Of course, it was not always so. At the Nation’s founding, the right to trial by jury was considered part of every American’s “birth-right and inheritance.” 3 J. Story, Commentaries on the Constitution of the United States §1773, p. 652 (1833). Outraged by British efforts to deny that right in the colonies, those who fought the Revolution cited its suppression as one of their reasons for declaring independence. Declaration of Independence ¶20. After the Revolution, too, the founding generation took care to secure the right to trial by jury in criminal cases not just once, but twice, in the Constitution and Bill of Rights they adopted. Art. III, §2, cl. 3; Amdt. 6; see also Erlinger v. United States , 602 U. S. 821, 829–832 (2024).¶verify

Really, it seems plea bargains didn’t begin to emerge as an alternative to trial in serious criminal cases until the mid-nineteenth century. See C. McCoy, Plea Bargaining as Coercion, 50 Crim. L. Q. 67, 73–74 (2005). And even then, the practice usually met with intense judicial skepticism. Many judges considered the “idea that the jury right could become the subject of an agreement between the prosecutor and the defendant . . . abhorrent.” N. King, Priceless Process: Nonnegotiable Features of Criminal Litigation, 47 UCLA L. Rev. 113, 125 (1999) (collecting cases); see also A. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–22 (1979) (same).¶verify

That skepticism continued well into the twentieth century. In Walker v. Johnston , 312 U. S. 275 (1941), this Court held that a defendant is “deprived of a constitutional right” whenever he is “deceived or coerced by the prosecutor into entering a guilty plea.” Id ., at 286. The prosecutor’s alleged tactics there? Obstructing the defendant’s effort to hire a lawyer, showing the defendant “pictures of the scene of the alleged crime,” seeking to “persuade him that he would be proved guilty,” and “warning him that he would be sentenced to twice as great a [prison] term if he did not” agree to plead guilty. Id ., at 281–282.¶verify

The Court repeated the message in Machibroda v. United States , 368 U. S. 487 (1962). “A guilty plea . . . is void,” the Court ruled, when it is “induced by promises or threats which deprive it of the character of a voluntary act.” Id. , at 493. There, too, the Court expressed “no doubt” that a defendant “is entitled to have his sentence vacated” when a prosecutor promises a certain sentence in exchange for a guilty plea, discourages the defendant from communicating with his attorney about the plea offer, and threatens the defendant with additional charges if he “make[s] a scene” before sentencing. Id ., at 489–490, 493 (internal quotation marks omitted).¶verify

Eventually, though, this Court took a dramatic turn. In 1971, it proclaimed plea bargaining “highly desirable,” something “to be encouraged,” and “an essential component of the administration of justice.” Santobello v. New York , 404 U. S. 257, 260–261. “If every criminal charge were subjected to a full-scale trial,” the Court worried, “the States and the Federal Government would need to multiply by many times the number of judges and court facilities.” Id ., at 260; see also Brady v. United States , 397 U. S. 742, 745746, 749–753 (1970) (upholding the validity of a plea entered pursuant to a sentencing scheme the Court had invalidated as unconstitutionally coercive just two years earlier).¶verify

Bordenkircher v. Hayes , 434 U. S. 357 (1978), illustrates the kind of coercive tactics this Court became willing to stomach in the name of facilitating plea deals. That case began when authorities indicted Paul Hayes, a Kentucky man, for forging an $88.30 check. Id ., at 358. Punishable by 2 to 10 years in prison, the charge led to plea negotiations. Ibid . If Mr. Hayes would save the government from “the inconvenience . . . of a trial,” the prosecutor offered to recommend a 5-year prison sentence. Ibid. (internal quotation marks omitted). But if not, the prosecutor warned, he would return to the grand jury and seek a further indictment under a Kentucky three-strikes law carrying a life sentence. Id ., at 358–359. When Mr. Hayes refused the deal, the prosecutor proved true to his word. Id ., at 359. He sought and secured the new indictment as promised. Ibid . And, after a jury convicted, Mr. Hayes received a life sentence. See ibid .¶verify

In a decision perhaps unthinkable only a few decades earlier, this Court in Bordenkircher endorsed the prosecutor’s tactics. However things might work in ''an ideal world,'' the Court said, ''the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system.'' Id ., at 361–362 (quoting Blackledge v. Allison , 431 U. S. 63, 71 (1977)). As the Court saw things, prosecutors need room to issue threats in plea bargaining—even when it means threatening a life sentence for a forged check worth less than $100. 434 U. S., at 363–365.¶verify

Unsurprisingly, prosecutors quickly began taking full advantage of this new judicial latitude. See W. Stuntz, The Collapse of American Criminal Justice 259–260 (2011). They threatened layers of additional charges and decades of additional prison time if defendants dared to exercise their right to trial by jury. Ibid . Prosecutors sometimes promised charges against defendants’ spouses and parents too. See id. , at 260. “[T]hreats [that] would be deemed extortionate” “[o]utside the plea bargaining process” became “par for the course” in our criminal justice system. Ibid .¶verify

To be sure, this Court is not wholly responsible for these developments. Other causes are at play as well. Since the 1970s, the number of federal criminal laws has grown rapidly. The prison terms attached to federal crimes have also grown. Some now say there is not an adult American who has not committed one felony or another. D. Husak, Overcriminalization: The Limits of the Criminal Law 24 (2008). Federal sentencing guidelines, as well, currently recommend higher sentences for most defendants who “exercise [their] constitutional right to trial.” USSG §3E1.1, and comment., n. 2. And while prosecutors once felt constrained by “the traditional maxim that ‘an indictment should not include more than one felony,’ . . . today’s prosecutors [often] bring as many overlapping felony charges as they can in a single case.” Barrett v. United States , 607 U. S. 128, 150–151 (2026) (GORSUCH, J., concurring in part) (quoting Pointer v. United States , 151 U. S. 396, 403 (1894)).¶verify

Together with this Court’s approval of aggressive negotiating tactics, developments like these have made it easier than ever for prosecutors to cajole defendants into pleading guilty. So much so that perhaps 95 percent of convictions now come by way of plea bargains. See R. Barkow, Justice Abandoned 74–75 (2025). These days, plea bargaining is not just “some adjunct to the criminal justice system; it is the criminal justice system.” R. Scott & W. Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992).¶verify

III¶verify

If plea bargaining on this scale and in this manner is a modern phenomenon, appeal waivers represent a more recent development yet. Pursuant to an appeal waiver, a defendant usually must agree to waive not only any right he may have to contest his conviction on appeal. See 28 U. S. C. §1291; Class v. United States , 583 U. S. 174, 178182 (2018). Typically, he must also agree to waive his right to appeal any sentence a district court might issue after accepting his guilty plea. See 18 U. S. C. §3742. A defendant must do so even though he does not yet know what that sentence will be. And he must do so even while the government retains its right to appeal any decision it doesn’t like. Forty years ago, appeal waivers like these “were rare or nonexistent.” A. Alschuler, Plea Bargaining and Mass Incarceration, 76 N. Y. U. Annual Survey of Am. Law 205, 226, and n. 146 (2021). Today, they are commonplace. See Q. Sorenson, Appeal Rights Waivers, The Federal Lawyer, Oct./Nov. 2018, p. 33; S. Klein, A. Remis, & D. Elm, Waiving the Criminal Justice System, 52 Am. Crim. L. Rev. 73, 8587, 122 (2015).¶verify

Consider what this means. Because a defendant confronted with an appeal waiver during plea bargaining does not know what sentence a court will issue, he must negotiate in the dark. What if, as the Fifth Circuit assumed here, the sentencing judge imposes a punishment the Constitution does not tolerate? What if the judge fails to respect this Court’s precedents and Congress’s statutes governing how he must proceed at sentencing and what punishments he may lawfully issue? What if a judge goes so far as to allow an orangutan to pick the defendant’s sentence from a hat? As the government tells it, a defendant with an appeal waiver has no way to correct any of these errors on appeal (yes, even when it comes to the orangutan, see Tr. of Oral Arg. 65–66, 91–92). And yet, because an appeal waiver may often be bundled together with other terms in a plea deal in a take-or-leave package, a defendant may often have little choice but to accept risks like these—especially given the consequences prosecutors can visit on those who refuse.¶verify

Much as plea bargaining initially met with judicial skepticism, so did appeal waivers. Some district court judges refused to accept plea agreements that included appeal waivers or struck those waivers completely. See, e . g ., United States v. Raynor , 989 F. Supp. 43 (DC 1997) (Friedman, J.); United States v. Johnson , 992 F. Supp. 437 (DC 1997) (Greene, J.); United States v. Perez , 46 F. Supp. 2d 59 (Mass. 1999) (Gertner, J.); see also United States v. Melancon , 972 F. 2d 566, 571 (CA5 1992) (Parker, J., concurring specially). But with time, and subject to differing exceptions, Courts of Appeals largely came to accept appeal waivers, much as courts had previously come to accept plea bargains themselves. See United States v. Guillen , 561 F. 3d 527, 529, and n. (CADC 2009). For its part, this Court allowed debates over appeal waivers to proceed in the lower courts for years without comment, offering no statement on their legality or “on what particular exceptions may be required.” Garza v. Idaho , 586 U. S. 232, 239, n. 6 (2019).¶verify

IV¶verify

Today, the Court breaks its silence. Agreeing with Mr. Hunter and certain Courts of Appeals, it holds that an appeal waiver is unenforceable when a defendant seeks to appeal a sentence that represents a “miscarriage of justice.” Ante, at 11. To illustrate what this standard means, the Court offers some “examples.” Ante, at 12. At the same time, the Court takes care to emphasize that these examples are “not intended” to be “exclusive.” Ibid.¶verify

All that is a welcome first step. But it also leaves lower courts considerable work ahead to flesh out the standard the Court announces. Fortunately, it seems to me that decisions from Courts of Appeals that already apply the miscarriage-of-justice rule the Court “approve[s]” of today, ante, at 11, 4–5, n. 1, along with certain of our own existing precedents, can help illuminate the path forward.¶verify

Start with this Court’s first example of a miscarriage of justice, “a sentence exceeding what the relevant statute allows.” Ante, at 12. Or, put another way, a sentence “not authorized by law.” United States v. Phillips , 124 F. 4th 522, 528 (CA8 2024) (internal quotation marks omitted). This category of course embraces sentences that exceed the “maximum prescribed” by statute. Ante, at 12. But, consistent with lower court decisions, the category should likewise include sentences imposing penalties the law reserves for offenses different than those of which the defendant stands convicted. See Phillips , 124 F. 4th, at 527–528 (ban on receiving federal benefits). Or ones that order remedies the law does not permit. See United States v. Yung , 37 F. 4th 70, 82 (CA3 2022) (restitution). And perhaps mandatory minimum sentences for which the defendant does not qualify. See 18 U. S. C. §924(e).¶verify

Now take the Court’s next example, a sentence premised on “a blatant constitutional error.” Ante, at 12. As the Court explains, that includes not only sentences based on “constitutionally impermissible factor[s]” such as race, religion, or sex. Ibid . It also extends to “constitutionally infirm condition[s] of supervised release.” Ibid. Accordingly, a defendant may be able to appeal a sentence imposing a condition of release that violates his right to be free from forced medication, or a condition that violates his right to speak or worship freely, or any other condition that violates one of his recognized constitutional rights. Really, I would think a miscarriage of justice all but certain to arise whenever a sentence infringes a constitutional right that was “firmly established at the time of sentencing.” United States v. Carter , 87 F. 4th 217, 225 (CA4 2023) (internal quotation marks omitted); see also United States v. Del Valle-Cruz , 785 F. 3d 48, 56–57 (CA1 2015) (constitutional right to raise one’s child).¶verify

Next, consider the Court’s third example, sentences marred by serious procedural errors. Ante, at 12. That includes not only a sentence chosen by an orangutan, see supra , at 8–9, but others reflecting a marked departure from mandatory sentencing procedures. Ante, at 12; see also Gall v. United States , 552 U. S. 38, 49–51 (2007) (outlining sentencing procedures). Appreciating as much, Courts of Appeals have often declined to enforce appeal waivers when a district court breaks from rules requiring it to give reasons for its chosen sentence or address a defendant’s non-frivolous arguments for a different one. See, e . g ., United States v. Smith , 134 F. 4th 248, 261–263 (CA4 2025); United States v. Woltmann, 610 F. 3d 37, 39–40 (CA2 2010).¶verify

Consider also aspects of sentencing that can require a degree of judicial discretion: the application of the advisory sentencing guidelines, the imposition of supervised release conditions within statutory and constitutional bounds, and the weighing of 18 U. S. C. §3553(a)’s sentencing factors. I appreciate that “standard-fare” errors in those areas will not often clear the “high bar” the Court sets today. Ante , at 11. But some errors may. For example, and as we have held, the failure to correct a plain and nonharmless error in calculating an advisory guidelines range ordinarily “will seriously affect the fairness, integrity, and public reputation of judicial proceedings.” Rosales-Mireles v. United States , 585 U. S. 129, 145 (2018). Indeed, ''what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?'' Id ., at 141 (quoting United States v. Sabillon-Umana , 772 F. 3d 1328, 1333–1334 (CA10 2014)).¶verify

A miscarriage of justice would seem to arise, as well, when a district court metes out punishment that is so substantively unreasonable that it would fail under the “deferential abuse-of-discretion standard” that appellate courts already apply in sentencing challenges. Gall , 552 U. S., at¶verify

41, 51–52. Along those lines, lower courts applying the miscarriage-of-justice rule have acknowledged that “egregious” harm necessarily results from any supervised release condition, or any other component of a sentence, “wholly unrelated to legitimate sentencing purposes” or “lacking in rationality.” United States v. Boudreau , 58 F. 4th 26, 33 (CA1 2023) (internal quotation marks omitted); see also, e . g ., United States v. Velez-Luciano , 814 F. 3d 553, 564–565 (CA1 2016) (“a highly invasive [medical] procedure” that “has no efficacy”). 1¶verify

V¶verify

I wonder, too, if there are even deeper problems lurking here. Yes, as Mr. Hunter argues, an appeal waiver is unenforceable when a defendant seeks to appeal a sentence that represents a “miscarriage of justice.” And, yes, to resolve today’s case, that is all we need decide. But, as the Court recognizes, appeal waivers may raise other problems as well. See ante, at 7, n. 3. Consider just a couple of them.¶verify

The Due Process Clause of the Fifth Amendment, this Court has held, tolerates only “voluntary and knowing” guilty pleas. McCarthy v. United States , 394 U. S. 459, 466 (1969). That standard is met only if the defendant “intentional[ly] relinquish[es] or abandon[s] . . . known right[s] or privilege[s].” Ibid. (internal quotation marks omitted). A guilty plea thus must be made both “voluntarily” and “with full understanding of the consequences.” Kercheval v. United States , 274 U. S. 220, 223 (1927). It’s a rule that means a defendant signing a plea agreement containing an appeal waiver must voluntarily abandon not just his right¶verify

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1 To the extent JUSTICE KAVANAUGH believes the foregoing discussion contemplates “a lower bar” than is appropriate, post , at 1 (concurring opinion), his unexplained disagreement lies not with me, but with what many lower courts and this Court have said in the past about what kinds of errors represent miscarriages of justice or otherwise reflect adversely on the integrity of the Judiciary.¶verify

to trial but his right to appeal his conviction and sentence as well. And he must fully understand the consequences of that decision. Ante, at 7 (“[A]n appeal waiver, like the rest of a plea agreement, must be knowing and voluntary to be valid”); see also Garza , 586 U. S., at 239; United States v. Davis , 588 U. S. 445, 451 (2019) (the “first essential” of due process is “fair notice” (internal quotation marks omitted)).¶verify

Those principles may pose an independent problem for appeal waivers that purport to insulate sentencing errors from review. After all, and as the district court acknowledged in this very case, when defendants like Mr. Hunter sign plea agreements containing appeal waivers, “no one knows . . . what sentence the Court will impose.” App. 8–9. Given that, how can a defendant “know” and “fully understand” at the time he signs a plea agreement that a court might later order punishment that defies the Constitution, a federal statute, or this Court’s precedents? Don’t the parties generally expect that a sentencing court will act consistently with the rules of law then in force? Of course, district courts must discuss an appeal waiver’s general implications with a defendant before accepting a plea agreement containing one. See Fed. Rule Crim. Proc. 11(b)(1)(N); App. 10–11. But the colloquy in this case did not includenor does anything in the Federal Rules contemplate—a warning that the district court might later violate the law. For good reason. A legal system branded with a disclaimer that its judges might violate the law would be no legal system at all.¶verify

Notably, too, this Court has found prospective waivers of many other statutory rights invalid and unenforceable. We have held that a company’s prospective waiver of its right to remove lawsuits to federal court—extracted as a condition of doing business in a State—not just “void” but “repugnant to the Constitution and laws of the United States.” Home Ins. Co. v. Morse , 20 Wall. 445, 454, 457–458 (1874). We have held that an employee’s rights under Title VII of the Civil Rights Act of 1964 are not susceptible of prospective waiver. Alexander v. Gardner-Denver Co. , 415 U. S. 36, 51–52 (1974). The same goes for rights under the Fair Labor Standards Act and 42 U. S. C. §1983. Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728, 740 (1981); McDonald v. West Branch , 466 U. S. 284, 290 (1984). And we have similarly suggested on multiple occasions that a private agreement might not be enforced if it “operate[s] . . . as a prospective waiver of a party’s right to pursue” various other “statutory remedies.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614, 637, n. 19 (1985) (antitrust laws); see also 14 Penn Plaza LLC v. Pyett , 556 U. S. 247, 273 (2009) (Age Discrimination in Employment Act); Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer , 515 U. S. 528, 539–541 (1995) (Carriage of Goods by Sea Act).¶verify

So far, the government has offered no colorable explanation why a defendant’s prospective waiver of his statutory right to appeal his sentence should be treated differently. The government stresses that a criminal defendant “may always choose not to appeal” his sentence. Brief for United States 22. But a litigant may also choose not to exercise his right to remove an existing case to federal court or bring suit to vindicate a Title VII or antitrust injury. And none of that has prevented us from calling prospective waivers void in those contexts. The government also contends that prospectively waiving the right to appeal a sentence does not “implicate broader social interests that form part of [an] unalterable statutory policy.” Ibid. (internal quotation marks omitted). But it’s hard to see on what basis we might conclude that the Sentencing Reform Act’s promise to defendants that they may appeal their sentences implicates “social interests” and “statutory policy” any less worthy of respect than similar promises found in so many other statutory regimes where we have said prospective waivers are impermissible. Certainly, one would think a criminal defendant’s right to appeal his sentence ranks at least as highly as, for instance, a right to nullify a contractual provision ''relieving [a] carrier . . . from liability'' for damage to the goods it transmits. Vimar , 515 U. S., at 534 (quoting 46 U. S. C. App. §1303(8) (1994 ed.)).¶verify

If a defendant may prospectively waive the right to appeal his sentence, too, one might wonder what’s to stop prosecutors from pushing their luck further yet. Might we eventually face plea agreements that include prospective waivers of the defendant’s right to complain about future unreasonable searches and seizures of his home? See L. Gill, Virginia Governor Vetoes a Ban on Plea Deals that Waive People’s Constitutional Rights, Bolts (Apr. 14, 2026), https://perma.cc/3FL2-LBNB. Or prospective waivers of a defendant’s right to seek a jury (rather than bench) trial in future proceedings if he ever is charged with another crime? See P. Hamburger, Purchasing Submission 165 (2021). 2¶verify

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2 Two of my colleagues seek to bolster the government’s defense of prospective appeal waivers. But respectfully, their offerings have problems too. After admitting that some rights cannot be prospectively waived, JUSTICE BARRETT fails to provide any reason why a criminal defendant’s right to appeal an unconstitutional or unlawful sentence should not be among them. See post , at 2 (concurring opinion). Meanwhile, JUSTICE THOMAS seeks to distinguish between “procedural mechanism[s],” which he says can always be prospectively waived, and “substantive rights,” which he agrees (sometimes) cannot. Post , at 8, n. 4 (dissenting opinion). But that distinction cannot explain our cases. Morse involved a procedural right—the right to remove a lawsuit to federal court—yet we held it insusceptible of prospective waiver. 20 Wall., at 452–458. And in Alexander , the plaintiff did not prospectively waive substantive protections against racial discrimination by his employer. See 415 U. S., at 39. Instead, he waived a procedural mechanism to vindicate those protections, agreeing to arbitrate future claims of racial discrimination rather than litigate them. See id ., at 40–42. Yet there too, this Court held the prospective waiver void. See id ., at 51–52; see also Barrentine , 450 U. S., at 730–733 (similar). Given precedents like these, it would seem to follow, a fortiori , that a waiver like Mr. Hunter’s is also void, as it prospectively deprives a defendant of any forum (whether on direct appeal or through¶verify

Of course, none of these questions is before us in this case. All, however, may warrant exploration in future cases where they are presented, as may others besides. See, e.g. , Melancon , 972 F. 2d, at 577–579 (Parker, J., concurring specially) (discussing the potential application of the unconstitutional conditions doctrine); United States v. Gordon , 480 F. 3d 1205, 1207–1210 (CA10 2007) (applying contract principles to a plea bargain’s terms); United States v. Lajeunesse , 85 F. 4th 679, 692 (CA2 2023) (same).¶verify

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Two hundred years ago, it was likely unimaginable that almost every federal criminal case would be resolved by plea bargain. Forty years ago, it may have been no easier to foresee that plea bargaining defendants would be pressed to waive their statutory right to appeal sentences yet to be imposed. Let alone that the federal government would argue these waivers prevent defendants from appealing even blatantly unlawful or unconstitutional sentences chosen by an orangutan. This Court is not responsible for all these developments, but it has encouraged some of them and stood silent while others took hold. Today, the Court finally begins to correct course, taking an important step toward reining in appeal waivers. It is not a solution to all of plea bargaining’s excesses, and perhaps not even those associated with appeal waivers. But it is a start.¶verify

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collateral attack) to seek relief from an unconstitutional or unlawful sentence. See Pet. App. 6a; Penn Plaza , 556 U. S., at 269, 273 (holding an agreement to arbitrate ADEA claims generally enforceable in light of “[a]n arbitrator’s capacity to resolve . . . discrimination claims brought under the ADEA,” but conceding that such an agreement “will not be upheld” if a party could “block arbitration of [ADEA] claims”); Mitsubishi Motors , 473 U. S., at 636–637, and n. 19 (similar); Vimar , 515 U. S., at 539–541 (similar). Not only is JUSTICE THOMAS’s account difficult to reconcile with our precedents. Under his view, it would seem the government could go so far as to insist that defendants prospectively waive the “procedural” right to a jury in any future trial against them.¶verify