'Racist Sentencing Judge?': DOJ Stuns Supreme Court With Stance on Appeal Waivers

The U.S. Justice Department struggled to convince the justices that plea bargained waivers of appeal should be enforceable even in cases where the judge sentenced a defendant for a sexist, racist or other arbitrary reason.

The U.S. Department of Justice's hard line on enforcing plea bargained waivers of appeal took U.S. Supreme Court justices aback Tuesday.

The high court heard arguments in the case Hunter v. U.S., which deals with whether defendants can—in certain egregious circumstances—appeal a prison sentence notwithstanding having waived their appellate rights through a plea agreement with prosecutors.

Plea agreements are a relatively modern phenomenon that have become commonplace in the U.S. criminal justice system, with an estimated 98% percent of federal convictions now reached through these deals between defendants and prosecutors. Many plea agreements include provisions whereby defendants agree not to appeal the sentence handed down by the court.

The DOJ struggled to convince the Supreme Court on Tuesday that those appellate waivers should be enforceable even in cases where the judge sentenced a defendant for a sexist, racist or other arbitrary reason.

What about "a racist sentencing judge?" Justice Neil Gorsuch asked, incredulously.

"Our position is that it is enforceable," Assistant to the U.S. Solicitor General Zoe Jacoby responded on behalf of the government.

"A sexist sentencing judge?" Gorsuch said.

"Yes," Jacoby answered.

"Someone who is biased against religious minorities?" Gorsuch said.

"Yes," Jacoby responded. "The appeal waiver is enforceable."

Jacoby acknowledged that her position sounded "very harsh" but insisted it was necessary so that the government receives the full "benefit of the bargain" in a plea agreement. She said recognizing additional exceptions to appellate waivers would open the floodgates and defeat the purpose of those agreements in the first place.

But several justices appeared unconvinced.

Gorsuch suggested there should be exceptions to appeal waivers in circumstances that "bring disrepute on the federal judiciary." He hypothesized a sentencing judge who allowed an orangutan to pick a sentence out of a hat.

Jacoby did not dispute that that too would be covered by the appellate waiver.

The government appeared to lose ground following the exchange, with Justice Elena Kagan saying to Jacoby, "Just out of curiosity… what’s your back-line position?"

The high court is considering the case of Munson Hunter II, who entered into a plea agreement containing an appellate waiver in his financial fraud prosecution. Hunter is now seeking to challenge a condition later imposed at sentencing that requires him to take medication prescribed by a doctor, which goes against Hunter's religious beliefs.

His lawyer, Lisa Blatt of Williams & Connolly, argued it would be "absurd" to refuse to permit Hunter to assert a "contract defense" to his appellate waiver, while allowing business tycoons such as Elon Musk to make such arguments in contract disputes. She said sentencing judges would be allowed to impose egregious sentencing conditions, such as castration or forbidding extramarital pregnancy, adding such sentences have occurred in the past.

The sentencing judge said of Hunter that "it might be easier if this guy were medicated," Blatt told Chief Justice John Roberts Jr. during another colorful exchange during the hearing.

"That's preposterous," Blatt added. "I mean it might be easier if you [Roberts] were medicated, too, for my job. That’s not how you get to medicate people.”

The high court appeared broadly sympathetic to allowing defendants to get around appellate waivers beyond the two narrow circumstances identified by the U.S. Court of Appeals for the Fifth Circuit below: ineffective assistance of counsel and a sentence that exceeded the statutory maximum.

For example, Kagan suggested that the court recognize an additional exception for a "miscarriage of justice," making clear that is a high bar for lower courts to meet. She said the Supreme Court can, as the de facto supervisor of the federal judiciary, make sure that certain egregious sentences do not stand.
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The Supreme Court is expected to render its decision by July.