Archive for the ‘U.S. Supreme Court’ Category

Eighth Amendment Protections for Adults — Revised

Tuesday, August 20th, 2013

A much-revised version of my forthcoming Eighth Amendment article is now available on SSRN.  In the article, I consider whether adults might benefit from the Supreme Court’s recent decisions in Graham v. Florida and Miller v. Alabama, which imposed new limitations on the ability of states to sentence juveniles to life without parole.  The new version reaches the same bottom-line conclusions (guardedly optimistic), but includes additional support for some of the arguments.  Also, I’ve completely reorganized the first half to make the analysis clearer.

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Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act

Friday, June 21st, 2013

Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984?  The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute.  The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology.  As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort.  A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.

The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540).  At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum.  The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.

And it turns out that California does have an idiosyncratic burglary definition.  (more…)

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So Long, Harris — Breyer’s on Board

Tuesday, June 18th, 2013

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States.  The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences.  Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed.  Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence.  Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum.  Thus, Breyer’s vote in Harris was simply another vote against Apprendi.  This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come.   (more…)

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SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Thursday, June 13th, 2013

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions.  If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul.  However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions.  Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule.  As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others.  And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.”  Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.”  At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.”  The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a plea would pretty clearly not fall into the category of harmless error.  What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

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SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections

Monday, June 10th, 2013

So just how advisory are the “advisory” federal sentencing guidelines?  That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.”  Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts.  Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences.  Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts.  Peugh nicely illustrates the problem.

(more…)

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Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

Sunday, June 2nd, 2013

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks.  The habeas petitioner won in two of the cases and lost in the third.  There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126).  Perkins was convicted of murder in state court, with the judgment becoming final in 1997.  More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel.  The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted.  The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court.  Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?  (more…)

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The Eighth Amendment and Life Without Parole for Adults

Wednesday, May 22nd, 2013

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN.  Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

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Justice Kennedy: Big Ideas, Little Packages

Monday, April 29th, 2013

At the conclusion of a semester spent discussing a mountain of Supreme Court opinions in my Constitutional Law class, one of my students asked a few days ago which Justice I identify with most closely.  The question caught me off guard; I’m not sure I’ve ever really thought about that before.  After a moment’s hesitation, and to my surprise, I found myself answering “Justice Kennedy.”

I’m no less exasperated by Kennedy’s Delphic pronouncements than the next guy, and I disagree strongly with many of his specific votes.  (For instance, his approval of life without parole for a first-time drug offender in Harmelin v. Michigan comes to mind.)

But here’s why I identify with Kennedy anyway: I think that he brings to the task of judging a particular moral vision that resonates a great deal with me.  To be sure, this moral vision often seems at war in Kennedy’s heart with the values of judicial modesty and restraint (competing values that also tend to resonate with me).  The tension contributes to the frustrating character of many of his opinions, in which high-minded rhetoric is combined with holdings that seem to get narrower and increasingly equivocal the more closely you examine them.

Consider, for instance, Kennedy’s opinion for the Court in Graham v. Florida (the subject of an article on which I have been working for the past few months).   (more…)

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Gay Rights and Sentencing: What Does Romer v. Evans Have to Do With Life Without Parole?

Monday, April 1st, 2013

My Constitutional Law class this semester has been focusing on Hollingsworth v. Perry, the California same-sex marriage case.  We’ve been following the case through the Supreme Court litigation process, and I’ve also assigned some of the key precedent, including Romer v. Evans, the 1996 decision in which the Supreme Court overturned a Colorado law prohibiting local governments from treating sexual orientation as a protected status.

At the same time, I’ve been hard at work on an article about the Court’s recent decisions limiting the sentence of life without the possibility of parole, Graham v. Florida (2010) and Miller v. Alabama (2012).  In doing so, I’ve been struck by the similarities between the Court’s opinions in Romer and Graham, both of which were authored by Justice Kennedy.  And, although it is certainly not obvious or conventional to do so, I am starting to see Romer as a case that is about punishment.

In order to appreciate the connections between Romer and Graham, it is important to realize that Romer was decided before Lawrence v. Texas (2003), which recognized for the first time a constitutional right for same-sex partners to engage in what the Court described as “certain intimate sexual conduct.”   (more…)

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Crime Elements and Mental States: A New Theory

Monday, March 25th, 2013

When legislatures create new crimes, they sometimes fail to specify what mental state must be proven with respect to each element.  These gaps in substantive criminal law give real significance to deafult rules or presumptions that certain levels of mens rea are required in certain circumstances.  The Model Penal Code, for instance, specifies that some form of mens rea (purpose, knowledge, recklessness, or negligence) must be proven as “each material element of the offense.”

The Supreme Court has also recognized a mens rea presumption, although in a somewhat more limited form than the MPC.  This was made clear, for instance, in Dean v. United States, 556 U.S. 568 (2009), in which the Court held that a ten-year mandatory minimum sentence could be triggered by the entirely accidental discharge of a firearm during a bank robbery.  The relevant statute did not specify any mental state, and Dean argued that the government should be required to prove that the discharge was knowing or intentional.  However, the Court indicated that its mens rea presumption only applied to elements that made a defendant’s conduct criminal, not to aggravating factors (like the discharge of a weapon) that merely made the defendant’s illegal conduct even worse.

Now, in an interesting new article, Eric Johnson seeks to defend and elaborate on Justice Stevens’ dissent in Dean.  (more…)

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