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October 12, 2010

Three intriguing SCOTUS cert grants on criminal justice issues

As detailed in this SCOTUSblog post, this morning the Supreme Court "issued an order list from last week’s Conference that included grants of certiorari, denials of certiorari, and an invitation for the Acting Solicitor General to file a brief expressing the views of the United States." The full order list is available here.  Three of the cert grants involve interesting criminal justice issues, as this cut-and-paste job from SCOTUSblog highlights:

Bond v. United States (Granted); Docket: 09-1227

Issue(s): Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment....

The following two cases were consolidated by the Court:

Camreta v. Greene (Granted); Docket: 09-1454

Issue(s): (1) Whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of the child in light of reports of child abuse, or whether instead a balancing standard should apply; and (2) whether the Ninth Circuit’s constitutional ruling is reviewable, notwithstanding that it ruled in the petitioner’s favor on qualified immunity grounds....

Alford v. Greene (Granted); Docket: 09-1478

Issue(s): Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused....

DePierre v. United States (Granted); Docket: 09-1533

Issue(s): Whether the term “cocaine base” encompasses every form of cocaine that is classified chemically as a base, or whether the term “cocaine base” is limited to “crack” cocaine.

The DePierre case looks like the most sentencing-focused of these cases, though the statutory issue to be considered is likely significant only in a small sample of cases. In contrast, the constitutional issues raised in these other cases make them both potential blockbusters.

UPDATE:  At Crime & Consequences, Kent Scheidegger provides more useful information about these cases and other aspects of the Supreme Count's work today in these posts:

October 12, 2010 at 11:56 AM | Permalink


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Bond looks pretty straightforward. Of course she has standing. Whether she should prevail on the merits is a more difficult question, but her attorney limited the QP to standing.

Posted by: Kent Scheidegger | Oct 12, 2010 12:45:51 PM

Kent, out of curiosity, why do you think this is an obvious issue? The courts of appeals are divided. Isn't the State the more appropriate aggrieved party, not the individual? If the state thinks its authority is being usurped, it can file suit on its own behalf. I don't have a sense of this area of law -- and I think, as a policy matter, you should be right -- but I'd be curious how a conservative such as yourself reaches that result.

Posted by: anon | Oct 12, 2010 2:23:28 PM

Kent, does a sex offender have standing to challenge the federal law forcing states to establish sex offender registries? I assume your answer would be yes, but, like anon, I'm curious why you think it's so obvious.

Posted by: dlg | Oct 12, 2010 2:50:58 PM

"I think, as a policy matter, you should be right -- but I'd be curious how a conservative such as yourself reaches that result."

My position is not based on my policy views on the underlying law but simply on the law of standing. The conservative-liberal dimension has little relevance, in my view. Does the person have a concrete interest in the case? Is she actually injured by the government action she claims is invalid?

For the defendant in a criminal action on a statute claimed to be in excess of the legislative authority to enact, these seem to be simple questions. The Third Circuit ruled against standing based on a civil case of an entirely different character.

The sex offender registry is a trickier question. If Congress uses the spending power to coerce a state to adopt a statute, and the state does so and then prosecutes the defendant for violating it, can the defendant challenge the federal law that caused enactment of the state law? I don't think so. The state law is still a valid enactment, within the state legislative authority, regardless of what motivated the legislature to enact it.

Posted by: Kent Scheidegger | Oct 12, 2010 4:19:14 PM

Kent, I was thinking more of the defendant charged with violating federal law (SORNA) by not registering with the state. Federal law criminalizes failure to register, but there is no federal registry. Instead, the offender must register with the state, which has been coerced by the feds to set up a registry. Does the federal criminal defendant have standing to challenge Congress' action?

Posted by: dlg | Oct 12, 2010 4:49:26 PM

Well, respectfully, there is a pretty serious liberal/conservative split on standing. Most conservatives support a very strict understanding of standing. Most liberals do not. Anyway, I was just curious, given the circuit split, why you thought it was obvious. Like I said, I think I agree with you, but I'm generally in favor of a very broad view of standing.

Posted by: anon | Oct 12, 2010 4:53:00 PM

A Lopez-type claim that a federal criminal statute is beyond the power of Congress to enact would not present a standing problem for a defendant prosecuted under that statute, in my view, regardless of the subject-matter of the statute.

Just to be very clear, standing to make the claim and the merits of the claim are very different questions.

Posted by: Kent Scheidegger | Oct 12, 2010 5:12:06 PM

use the sex offender has standing and so does ANYONE in one of the states who passed the law! since if this is true!

"If Congress uses the spending power to coerce a state to adopt a statute,"

The U.S. Govt has comitted the crime of FELONY EXTORTIION and BLACKMAIL.

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