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.
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 [from] those of which the defendant stands convicted." Hunter's 51-month sentence fits that description, and there are many other examples of punishment based on charges that were never validated by a guilty plea or a jury verdict.
Penalties "reflecting a marked departure from mandatory sentencing procedures" also might justify overriding appeal waivers, Gorsuch said. Even "aspects of sentencing that can require a degree of judicial discretion," such as the weighing of sentencing factors, "the application of the advisory sentencing guidelines," and "the imposition of supervised release conditions within statutory and constitutional bounds," could trigger the exception recognized by the Court, he suggested. "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."
Gorsuch saw "deeper problems" with appeal waivers. "The Due Process Clause of the Fifth Amendment, this Court has held, tolerates only 'voluntary and knowing' guilty pleas," he noted. A guilty plea "must be made both 'voluntarily' and 'with full understanding of the consequences.'" But "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?"
Gorsuch also noted that the Supreme Court "has found prospective waivers of
many other statutory rights invalid and unenforceable." He said the Trump administration, which urged the justices to uphold the 5th Circuit's decision in Hunter's case, "has offered no colorable explanation why a defendant's prospective waiver of his statutory right to appeal his sentence should be treated differently."
If a defendant "may prospectively waive the right to appeal his sentence," Gorsuch wrote, "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? 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?"
The Shift From Trials to Plea Deals
The ramifications of the Supreme Court's new restrictions on appeal waivers probably will not extend as far as Gorsuch would like, especially since he questions whether such agreements are valid at all. But the fact that the Court thought its intervention was necessary reflects the problems created by a criminal justice system that resolves nearly all cases through plea deals.
That system would have dismayed the Founders, who saw trial by jury—a right of Englishmen recognized since the Magna Carta—as a crucial safeguard against tyranny. The power of that safeguard was famously illustrated by the 1735 acquittal of John Peter Zenger, publisher of The New-York Weekly Journal, who was charged with seditious libel based on articles that criticized New York's royal governor. In the run-up to the Revolution, British laws restricting the right to trial by jury and threats to replace local trials with prosecution in England figured prominently in American grievances against George III's government.
Among other abuses, the Declaration of Independence faulted the king for "transporting us beyond seas to be tried for pretended offences" and "depriving us in many cases of the benefits of trial by jury." The Constitution included two provisions—the third clause of Article III, Section 2, plus the Sixth Amendment—aimed at preserving those benefits for criminal defendants.
Representative government and "trials by juries" are "the heart and lungs" of a system that aims to prevent "arbitrary" rule, John Adams declared in 1776. "In these two powers consist wholly the liberty and security of the people." In 1788, Alexander Hamilton noted that both sides in the debate over ratification of the Constitution saw the right to trial by jury as important, differing only on whether it was "a valuable safeguard to liberty" or "the very palladium of free government." Thomas Jefferson inclined toward the latter view. In a 1789 letter to Thomas Paine, he described trial by jury as "the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."
Today, thanks to plea bargaining, that anchor is hanging by a thread. How did that happen?
In a 1979 Law and Society article, legal historian John Langbein described an ironic tradeoff, arguing that plea bargaining, which puts defendants at a distinct disadvantage, emerged in response to the complications created by safeguards aimed at protecting defendants. "As late as the 18th century," he noted, the jury trial was a "summary proceeding" that was almost always completed within a single day. But "the rise of adversary procedure and the law of evidence injected vast complexity into jury trial," making it "unworkable as a routine dispositive procedure."
That same year in the Columbia Law Review, legal historian Albert Alschuler offered another explanation for the rise of plea bargaining: "striking political corruption" in "many urban courts" at the turn of the 20th century. Through intermediaries, courts literally sold lenience. A New York defense attorney who had made "financial arrangements with a magistrate," for example, reportedly would "stand out on the street in front of the Night Court and dicker away sentences in this form: $300 for ten days, $200 for twenty days, $150 for thirty days."
Law professor Lucian Dervan added to Alschuler's account in a 2019 Federal Sentencing Reporter article. For most of its history, "the common law has rejected plea bargaining as impermissibly coercive and an affront to the truth-seeking mission of the criminal justice system," he noted. "Plea bargaining as it is known today is actually a relatively recent American invention that appeared first around the time of the American civil war."
Initially, Dervan wrote, "courts faced with considering the validity of these deals struck them down with regularity," recognizing that the promise of mitigated punishment made such bargains suspect. In 1871, for instance, a Wisconsin court observed that plea bargaining was "hardly, if at all, distinguishable in principle from a direct sale of justice."
Despite such judicial objections, plea bargains proliferated in the early 20th century. In addition to the "striking political corruption" that Alschuler had noted, Dervan cited "unprecedented overcriminalization," which accelerated during Prohibition and expanded "both the number of criminal offenses and the volume of individual prosecutions." Because that added load "overwhelmed" the courts, Dervan wrote, "prosecutors began turning to plea bargaining to increase efficiency and clear dockets."
The relationship between overcriminalization and plea bargaining goes both ways. "It is no exaggeration to say that, without plea bargaining, mass incarceration could not occur," New York University law professor Rachel Elise Barkow writes in her 2025 book Justice Abandoned. "The mass numbers of cases require mass processing, and you cannot have that without plea bargaining. It is the rotten core of mass incarceration, and it exists only because the Supreme Court has allowed the government to coerce people into giving up one of the most sacred of constitutional rights."
Plea Bargaining Is 'Highly Desirable'
The Supreme Court was not always inclined to do that. In fact, it was initially skeptical of plea bargains, largely because it viewed the threat of extra punishment as coercive.
In the 1941 case Walker v. Johnston, the Court held that a defendant is "deprived of a constitutional right" when he is "induced to plead guilty" by "deception or coercion of the prosecuting attorney." The defendant in that case, who was charged with robbing a Texas bank, alleged that the district attorney discouraged him from hiring a lawyer, "asked him to plead guilty," showed him pictures of the crime scene in an effort to persuade him that he would be convicted by a jury, and warned him that his sentence would be twice as long if he insisted on going to trial.
The Supreme Court took a similar stance in the 1962 case Machibroda v. United States, which involved a robbery suspect who said a federal prosecutor had promised him a sentence of no more than 20 years if he pleaded guilty, threatened additional charges if he refused to do so, and discouraged him from talking to his attorney about the proposed deal. The Court had "no doubt" that "if the allegations contained in the petitioner's motion and affidavit are true, he is entitled to have his sentence vacated." Why? Because "a guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void."
Langbein made the same point in a 1978 University of Chicago Law Review article, likening plea bargains to confessions obtained under threat of torture in medieval Europe. "There is, of course, a difference between having your limbs crushed if you refuse to confess [and] suffering some extra years of imprisonment if you refuse to confess," he conceded, "but the difference is of degree, not kind. Plea bargaining, like torture, is coercive."
By that point, the Supreme Court had already shed its concern that guilty pleas are not truly voluntary when they are obtained by "promises or threats." In the 1970 case Brady v. United States, the Court rejected an alleged kidnapper's argument that his conviction should be overturned because he had pleaded guilty only to avoid the possibility of a death sentence. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences," Justice Byron White noted in the majority opinion. But he concluded that the defendant's guilty plea met that test.
When the Court decided that case, plea bargains accounted for "well over three-fourths of criminal convictions," and a "great many of them" were "no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial," White noted. "But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State."
The following year in Santobello v. New York, the Court made it clear that it viewed plea deals as not just acceptable but "highly desirable." Plea bargaining "is an essential component of the administration of justice," Chief Justice Warren Burger wrote in the majority opinion. "Properly administered, it is to be encouraged." Why? "If every criminal charge were subjected to a full-scale trial," Burger worried, "the States and the Federal Government would need to multiply by many times the number of judges and court facilities."
The Supreme Court reiterated that view in the 1977 case Blackledge v. Allison. "Whatever might be the situation in an ideal world," Justice Potter Stewart wrote for the unanimous Court, "the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned."
What does a "properly administered" plea bargaining system look like? The Court provided a clue in the 1978 case Bordenkircher v. Hayes, which involved a Kentucky man who was charged with using a forged check to buy $88.30 in groceries.
Based on that charge, Paul Hayes faced a sentence of two to 10 years in prison. If Hayes pleaded guilty, the prosecutor said, he would recommend a five-year sentence. But if Hayes insisted on going to trial, the prosecutor warned, he would be charged under Kentucky's "three strikes" law, which authorized a life sentence. Uncowed, Hayes said he wanted a trial. The prosecutor delivered on his threat, and Hayes was sentenced to life in prison after he was convicted. The Supreme Court saw no problem with the prosecutor's tactics.
"By tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty," Stewart wrote in the majority opinion. "The course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment."
The Supreme Court's gloss on plea agreements, which portrayed them as mutually beneficial arrangements reached "at the bargaining table," was more than a little misleading. That process, Alschuler noted in a 2013 Duquesne Law Review article, "benefits both parties only in the sense that a gunman's demand for your money or your life benefits you as well as the gunman."
Although defenders of plea bargaining sometimes liken it to "the working-out of a business contract," the Cato Institute's brief in Hunter noted, the result is more like "terms of surrender," since one side wields overwhelming power: "Prosecutors alone decide the 'price' a defendant will pay for his acts. They have no competitors to which defendants can turn for better terms. Defendants in criminal cases are trapped in a system that insists they make a 'deal' when they have no bargaining power."
Staggering Trial Penalties
Thanks largely to the Supreme Court's endorsement of plea bargaining, criminal defendants today face staggeringly high trial penalties. Although we should not feel too bad for Hunter Biden, whose paternal pardon shielded him from punishment for his gun and tax crimes, his case vividly illustrates the price that defendants can pay for exercising their Sixth Amendment rights.
President Joe Biden complained that prosecutors threw the book at his son after a proposed plea deal fell apart under judicial scrutiny in 2023. But that is par for the course when defendants insist on going to trial.
The gun case involved a Delaware firearm purchase that was illegal because Hunter Biden was a crack user at the time. After renewed plea negotiations proved unsuccessful, a single felony charge that Special Counsel David Weiss was initially prepared to drop after Biden completed a pretrial diversion program became three felony charges, all based on the same transaction. As a result, Biden faced up to 25 years in prison after he was convicted in June 2024. Although his actual sentence would have been considerably shorter, it still would have been quite a jump from zero time behind bars, which is what he was promised under the nixed diversion agreement.
In the tax case, two misdemeanors became three felonies and six misdemeanors, all of which were covered by a guilty plea that Biden entered in September 2024. That increased the maximum penalty to 17 years in a case where Weiss had been willing to recommend probation.
Weldon Angelos, a rap producer and part-time marijuana dealer in Utah, faced an even stiffer trial penalty. And unlike Biden, he did not have a well-placed father to spare him.
Angelos was not exactly a cannabis kingpin. His 2003 arrest, which stemmed from an investigation by a joint state and federal task force, was based on three eight-ounce marijuana sales to a childhood acquaintance who had become a police informant. The proceeds totaled about $1,000. But because Angelos owned guns, he was charged with possessing a firearm "during and in relation to" or "in furtherance of" drug trafficking.
The first such offense carried a five-year mandatory minimum sentence, which rose to 25 years for each subsequent offense, with all sentences to be served consecutively. Federal prosecutors counted each pot sale as a separate gun offense.
"I really didn't believe that this was even a possibility," says Angelos, who initially was not familiar with federal mandatory minimums. "I thought I was just being threatened because they were hoping that arresting me and putting pressure on me would lead to the arrest of famous rap artists. And when that didn't happen, they threw the book at me."
Angelos turned down a proposed plea deal that involved a 15-year sentence for one count of selling marijuana and the associated gun charge. He thought "15 years for $300 worth of marijuana as a first-time offender" was grossly disproportionate. He had "just signed a major record deal, had two young boys," and thought "this would ruin my life."
Prosecutors seemed determined to do that one way or another. After Angelos rejected their offer, they obtained an indictment that included a litany of 20 charges with combined potential mandatory minimums of 105 years.
"I was facing a hundred years," Angelos recalls, "but in my mind, you know, this is America. There's a judge that can intervene. I just felt that something would change. I was in denial." He "didn't start realizing" the full gravity of the situation until the trial. "My attorney tried explaining it to me, but I was really ignorant because I'd never been in the system," he says. "And once I was convicted, then it sunk in, like, OK, this is real; this does happen in America. My attorney looked at me and said 'that's 55 years' when I got convicted on those three [gun] charges. That's the point when I realized, OK, this is serious: I'm going to prison for 55 years."
That was in fact the sentence that Angelos received after a jury convicted him of the gun charges and 13 other crimes. It was nearly four times as long as the sentence that prosecutors had offered, and it would have been even longer if the judge, Paul Cassell, had not bent over backward to spare Angelos additional punishment for the 13 other counts, which did not carry statutory minimums.
In 2016, after years of lobbying by prominent legal, political, and cultural figures, Angelos was quietly freed from prison. He had served nearly 13 years and expected to serve 35 more, taking into account "good time" credit. His release was not the result of judicial intervention or the presidential clemency that Cassell had repeatedly recommended. It happened because Robert Lund, the lead prosecutor on the case, had second thoughts about the fairness of the sentence and agreed to support a reduction.
Another notorious case of prosecutorial overkill involved Aaron Swartz, a computer programmer, entrepreneur, and internet "hacktivist." In late 2010 and early 2011, apparently frustrated by limits on information he thought should be freely available, Swartz downloaded a large trove of articles from JSTOR, an online academic library. "The volume of activity, hundreds of downloads per minute, was having a negative impact on our servers," JSTOR later explained, "and therefore was prohibited by JSTOR's terms of service." When Swartz was caught, he returned the articles, and JSTOR considered the matter resolved, telling the U.S. Attorney's Office in Massachusetts it "preferred that no charges be brought."
Federal prosecutors nevertheless charged Swartz with wire fraud and three counts under the Computer Fraud and Abuse Act of 1986. When Swartz declined to plead guilty in exchange for a six-month sentence, prosecutors added another nine counts, threatening him with decades in prison and millions of dollars in fines. Swartz committed suicide in January 2013, a few months before his trial was scheduled to begin.
'Sentences Chosen by an Orangutan'
Gorsuch highlights Swartz's case in his 2024 book Over Ruled: The Human Toll of Too Much Law, which decries overcriminalization and the abandonment of the right to trial. "This newly aggressive reliance on plea bargaining to adjudicate guilt," Gorsuch and co-author Janie Nitze write, "represents a radical shift for a nation that professes to value trial by jury as the gold standard for testing culpability."
Gorsuch hopes the Supreme Court's concern about appeal waivers signals a new awareness of the damage that "radical shift" has done. "Two hundred years ago," he wrote in Hunter, "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."
Although "this Court is not responsible for all these developments," Gorsuch added, "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."
