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LATEST NEWS

January 23, 2012

Supreme Court Limits Warrantless Use of GPS; Also Addresses Applicability of SORNA to Pre-Act Offenders

The Supreme Court today issued a groundbreaking opinion in United States v. Jones (No. 10-1259), holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor joined. Justice Sotomayor also filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer, and Kagan joined. As a result of the various concurrences, the Court’s ruling is likely to leave open many questions regarding the expectation of privacy one may reasonably have in future cases involving the use of similar technology. For an analysis of the opinion, see this SCOTUSblog post.

In another opinion issued today, Reynolds v. United States (No.10-6549), the Court held that the Sex Offender Registration and Notification Act (SORNA) does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them. Because the Third Circuit below did not address the validity of the Attorney General’s Interim Rule of February 28, 2007, in which the Attorney General specified that SORNA’s registration requirements apply to pre-Act offenders, the Court remanded the case for further proceedings.

January 19, 2012

Supreme Court Holds Habeas Petitioner Showed Cause to Excuse Procedural Default

Yesterday, the Supreme Court issued an opinion in Maples v. Thomas (No. 10-63), reversing the decision of the Eleventh Circuit and holding that death row inmate Cory Maples had shown the requisite “cause” to excuse his procedural default, which occurred when his lawyer missed a filing deadline in state court. As set forth by Justice Ginsburg, “The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case, there is 'cause' to excuse the default. Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state post conviction petition, and he lacked a clue of any need to protect himself pro se. In these circumstances, no just system would lay the default at Maples’ death-cell door. Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.”

Earlier this week the Court granted certiorari in another habeas case, Cavazos v. Williams (No. 11-465), in which it will decide whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.

January 11, 2012

Supreme Court Issues Opinions Addressing Brady Claim, Eyewitness Identification, and AEDPA Certificate of Appealability; Also Grants Certiorari to Hear Fourth Amendment Challenge to the Use of Drug Sniffing Dogs at the Front Door of a House.

Today, the Supreme Court issued an opinion in Perry v. New Hampshire (No. 8974) affirming the decision of the New Hampshire Supreme Court and holding that the Due Process Clause does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement.

In Smith v. Cain (No. 10-8145), issued yesterday, the Court held that the substantial Brady claims in the case required a reversal of the petitioner’s Louisiana state court conviction. For analysis of the opinion see this SCOTUSblog post.

Yesterday, the Court also issued an opinion in Gonzalez v. Thaler (No. 10-895), holding that under AEDPA, 28 U.S.C. Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a certificate of appealability to "indicate" a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. The Court further held, however, that where a state prisoner does not seek review in a state's highest court, the judgment becomes "final" for purposes of Section 2244(d)(1)(A) upon "expiration of the time for seeking such review." The petitioner's appeal in this case was therefore untimely.

On January 6, the Court granted certiorari in Florida v. Jardines (No. 11-564) to address the following issues: (1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers’ conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search. For more details on the case see this SCOTUSblog post.

November 28, 2011

Supreme Court Grants Certiorari to Decide Whether the Fair Sentencing Act of 2010 Applies in a Post-Enactment Sentencing for Pre-Enactment Conduct; Court Will Also Address Application of Apprendi to Criminal Fines, and Harmless Error Test and Its Impact on the Sixth Amendment Right to a Jury Trial.

Today, the Supreme Court granted certiorari in several federal criminal cases. In Dorsey v. United States (No. 11-5683) and Hill v. United States (No. 11-5721) the Court will address whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute's effective date if the offense occurred before that date. The Court consolidated the two cases for one hour of oral argument.

In Vasquez v. United States (No. 11-199) the questions presented are: (1) whether the Seventh Circuit violated the Supreme Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury; and (2) whether the Seventh Circuit violated Mr. Vasquez' Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case.

Lastly, in Southern Union v. United States (11-94) the Court will address whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

November 9, 2011

Federal Defenders, ABA, FAMM, ACLU, NACDL and the Constitution Project Oppose Proposals by the Commission and Others to Make the Guidelines More Mandatory:

On October 12, 2011, a hearing entitled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," was held in the House Subcommittee on Crime, Terrorism and Homeland Security. Two of the witnesses had institutional affiliations, Judge Saris, the Chair of the Sentencing Commission, called by the majority, and Jim Felman on behalf of the American Bar Association, called by the minority. The majority's other two witnesses were Bill Otis, an adjunct professor and former federal prosecutor, and Matthew Miner, a partner at a law firm and former Republican staffer in the Senate. Neither DOJ nor a representative of the Judiciary testified. (See hearing video.)

Mr. Otis proposed that the Commission be abolished and that Congress legislate sentencing rules to be charged and subject to jury factfinding. Mr. Miner agreed that the guidelines should be made mandatory with jury factfinding, but that in the meantime, Congress should adopt a standard of review to more strictly enforce the guidelines.

Jim Felman provided an accurate description of the current advisory guidelines system, and convincingly argued that no change should be made. (See Felman testimony.)

The Commission urged six proposals that alone and together would give "substantial weight" to the guidelines, and would suppress judicial variances and feedback about problems with the guidelines. The Commission's proposed presumptive guidelines system is unlikely to be constitutional. In support of its proposal, the Commission cited three "weaknesses" in the advisory guidelines system: (1) judges are increasingly sentencing outside the guideline range; (2) increased judicial discretion has resulted in racial disparity; and (3) there are differences in rates of judicial variances among districts. (See Saris testimony)

The Federal Public and Community Defenders were invited to comment, and provided a letter agreeing with the vast majority of judges that the advisory guidelines system best achieves the purposes of sentencing, and demonstrating that the Commission's account of the current system is inaccurate and incomplete. (See Defender letter.) In particular:

• Rates of below-range sentences increased after Booker because the guidelines were amended in a one-way upward ratchet during the mandatory guidelines era, consist of numerous aggravating factors, and exclude, discourage and prohibit most relevant mitigating factors.
• Courts now provide sentencing data and reasons that the Commission can use, and has used, to revise the guidelines to better achieve the purposes of sentencing.
• The rate of judicial variances has begun to drop concurrent with amendment of unsound guidelines.
• Sentence lengths remain high and the extent of decrease when judges depart or vary is small.
• The Commission's claim of racial disparity rests on a study that omits many relevant factors that judges legitimately consider at sentencing, omissions that make its results unreliable. A different study by the Commission found the greatest disparity when the guidelines were mandatory, and its most recent study shows that sentence length disparity has decreased since March 2010. The Commission's study has been refuted by a different study finding that "racial and gender sentence length disparities are less today, under advisory Guidelines, than they were when the Guidelines were arguably their most rigid and constraining." Differences in rates of judicial below-guideline sentences among districts stem from many legitimate sources, none of which the Commission addresses. Research performed by others shows that variation in sentence length among districts has decreased after Booker.

Defenders have also prepared Fact Sheets demonstrating that the advisory guidelines and current standard of review best achieve the purposes of sentencing; that the Commission's claims of race and inter-district disparity are unfounded; and that the Commission's proposals would radically change current practice, result in disruptive litigation, and likely be struck down by the Supreme Court.

Families Against Mandatory Minimums, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the Constitution Project also submitted letters supporting the advisory guidelines system and opposing a Booker fix. (See FAMM letter; ACLU letter; NACDL letter; Constitution Project letter.)

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