Criminal Justice

How the Right to Trial Became a Legal Fiction

Half a century after approving coercive plea bargaining, the Supreme Court is beginning to recognize its costs.

Jacob Sullum | 7.13.2026 10:30 AM

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Between 2013 and 2023, Munson P. Hunter III "used fraudulently obtained Social Security numbers to open 14 bank accounts, acquire at least 18 credit cards, and apply for loans from the Small Business Administration," the Justice Department says. "Those fraudulent acts ultimately cost others nearly half a million dollars."

After he was arrested in 2023, Hunter faced 10 counts of bank and wire fraud with combined maximum penalties of 300 years in prison. He also faced a choice. He could go to trial, risking convictions that might send him to prison for the rest of his life. Or he could plead guilty to a single count of aiding and abetting wire fraud, in which case prosecutors would drop the other nine charges. If he chose the second option, it looked like his prison term would be somewhere between 15 and 21 months, the range recommended by federal sentencing guidelines.

You can probably guess what Hunter decided to do. Given the huge difference in potential penalties, he did not really have a choice. Criminal defendants make similar calculations every day, which explains why about 95 percent of felony convictions in the United States are based on guilty pleas. In federal courts, the percentage is even higher: about 98 percent in fiscal year 2025, according to the U.S. Sentencing Commission.

It is not hard to understand why criminal defendants almost never opt for trials. "At the federal level," the National Association of Criminal Defense Lawyers reports, "trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher." The threat of a "trial penalty," which may include additional charges as well as longer sentences, has transformed a constitutional right into a legal fiction. While TV shows and movies still depict trials as the standard way criminal cases are handled, such showdowns have become vanishingly rare in the real world.

As the Supreme Court acknowledged in 2012, "criminal justice today is for the most part a system of pleas, not a system of trials." You might think the Court would have something to say about that situation. But for more than half a century, it was unfazed by the replacement of trials with plea bargains, which it described as "highly desirable" and "an essential component of the administration of justice." That attitude gave prosecutors free rein to coerce guilty pleas by threatening defendants with severe consequences if they insisted on making the government prove its case.

Despite that history, it looks like the Supreme Court is beginning to have qualms about the consequences of allowing coercive plea bargaining, and we can thank Hunter for that. When he pleaded guilty, Hunter not only gave up his right to a trial; he also gave up his right to challenge any aspect of his sentence, even though he did not know at that point what punishment or release conditions the judge would later impose. Federal plea agreements usually include such appeal waivers. But last month in Hunter v. United States, the Supreme Court ruled that "an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice."

A "miscarriage of justice," Justice Elena Kagan explained in the majority opinion, is "the kind of egregious error that would bring the judicial system into disrepute." She gave some examples, including release conditions that violate basic rights—the issue that Hunter had raised. A sentence that exceeds the statutory maximum also would qualify, she said, and so would a sentence "infected with a blatant constitutional error" such as racial bias. Her most colorful example was a prison term imposed by a judge who "let an orangutan pick a sentence out of a hat."

Justice Neil Gorsuch had mentioned that last hypothetical during oral argument in the case three months earlier, riffing on a 1985 opinion written by Richard Posner, then a judge on the U.S. Court of Appeals for the 7th Circuit. If both sides in a criminal case "stipulated to trial by 12 orangutans," Posner said, "the defendant's conviction would be invalid notwithstanding his consent." Concurring in Hunter, Gorsuch brought up orangutans again. He also added to Kagan's list of circumstances that might justify overriding an appeal waiver. But he emphasized that the issue is just one aspect of a broader problem.

"In our times, the jury trial has given way to a conveyor belt of plea bargains," Gorsuch wrote. "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." 

'Deeper Problems' With Appeal Waivers

The need for a course correction is clear from what happened after Hunter pleaded guilty. Although the crime he admitted involved the theft of $38,649 in a single transaction, his sentence was based on additional allegations—an example of a disturbing practice that imposes punishment for conduct that was never admitted by the defendant or proven beyond a reasonable doubt. At sentencing in the Southern District of Texas, Judge Sim Lake assumed that Hunter had stolen $488,352 in 26 transactions.

"This made a significant difference for Mr. Hunter," Gorsuch noted. "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. Now, though, he faced a recommended prison term of 41 to 51 months. And based on that calculation, the district court chose a prison sentence of 51 months." In other words, "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."

That was not Hunter's only unpleasant surprise. As a condition of his supervised release after his prison term, Lake ordered him to "participate in a mental-health treatment program" and "take all mental health medications that are prescribed by your treating physician." Hunter objected to the latter condition. "I want to take mental health programs, but I don't want to take any medication," he told Lake. "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."

On appeal, Hunter argued that Lake's order violated his "constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs." But the U.S. Court of Appeals for the 5th Circuit said Hunter could not raise that issue because he had waived his right to challenge his sentence. The Supreme Court disagreed, saying Hunter should have an opportunity to argue that forced medication qualifies as a "miscarriage of justice" because it is unconstitutional.

Gorsuch perceived another potential miscarriage of justice, saying the category includes "sentences imposing penalties the law reserves for offenses different........

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