Keith C. Kenyon v. Wisconsin

In Hunter v. United States, 608 U.S. __ (2026), 146 S.Ct. 1702, 1718, writing for three concurring justices, Justice Gorsuch criticized this Court’s silence on issues relating to plea bargaining which had contributed to a “conveyor belt of plea bargains” where prosecutors use “extortionate” pressure — threatening decades of imprisonment — to penalize defendants for exercising their right to a jury trial. In Hunter, the Court began to “correct course,” limiting some excesses by restricting compelled appeal waivers as a condition of plea bargaining when manifest injustice results. This case addresses the most coercive plea bargain abuse: the prosecutorial practice of overcharging defendants using statutes containing extreme mandatory minimum penalties to extort the waiver of their right to trial. This trial penalty punishes innocent defendants who choose to exercise a right which the law plainly guarantees, a due process violation of the highest sort. The experience of the past fifty years since the court legitimized plea bargaining in Brady v. United States, 397 U.S. 742, 749-53 (1970), shows that it is now necessary for this Court to further “correct course” and establish vital guardrails on prosecutorial charging discretion to preserve the fundamental right to trial. The questions presented are: I. Whether a prosecutor’s practice of overcharging a defendant with an offense which carries an extreme mandatory minimum sentence, which is decades longer than he would otherwise receive, solely with the intent to force a guilty plea to a charge with identical elements but no mandatory minimum, violates the Due Process Clause by presenting a choice so coercive that it functionally obliterates the Sixth Amendment right to a jury trial? II. Whether a statutory scheme violates the Due Process Clause when it allows the prosecutor to choose between two identical statutory provisions prohibiting the exact same conduct - one mandating a 25-year minimum prison term and the other imposing no mandatory minimum - and provides no guidelines to constrain the arbitrary or discriminatory enforcement of the statute, and empirical evidence shows a practice of prosecutors imposing a multi-decade trial penalty on defendants for asserting innocence? III. Whether it is a violation of the Due Process Clause and the separation of powers doctrine for a legislature to delegate unbridled and unguided authority to the prosecution to choose between identical offenses that grant the prosecution the power to predetermine the sentence in a case, thereby invading the core judicial function of sentencing?