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November 9, 2012

SCOTUS grants cert on post-Booker ex post facto issue and DNA collection from arrestees

As reported in this SCOTUSblog post, the Supreme Court granted cert in four cases on Friday afternoon, two of which involve interesting criminal justice issues.  Both the criminal justice grants will get much less attention than the Justices' decision to take up a Voting Rights Act case.  (And the cool post-Booker sentencing issue in one of the criminal justice grants will get less attention than the DNA issue in the other.)  Via SCOTUSblog, here are the basics of the two criminal justice grants:

** Maryland v. King (12-207): Whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample.  Chief Justice John G. Roberts, Jr., earlier had blocked a ruling by Maryland’s highest state court finding a Fourth Amendment violation when the individual has not yet been convicted of a crime.

** Peugh v. United States (12-62): Whether it is a violation of the Constitution’s Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed.  Lower courts are split on the issue.

In the weeks ahead, I will have a lot to say about Peugh, which raises interesting issues concerning the import and impact of the guidelines in the post-Booker federal sentencing system.

November 9, 2012 at 11:56 PM | Permalink


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Doug, thanks for the post about Peugh. This weekend I am working on an appeal in which one of the issues I am raising is whether North Carolina's structured sentencing law, which allows a def to be sentenced to a higher punishment than he was exposed to at the time of the offense, violates the ex post facto clause.. Our law counts the number of convictions a person has at the time of sentencing, not at the time of the offense, for purposes of calculating his prior record level.

The most egregious example of this practice, which I believe is unconstitutional, is that a defendant who could not receive the death penalty under his prior record history at the time of offense can receive the death penalty due to a conviction occurring after the date of the murder offense. In other words, suppose that at the time of the killing, there are no aggravating factors, but the defendant had a pending armed robbery charge. The state then decides to try the robbery charge before trying the murder charge in order to expose the def to death because of a prior crime of violence, the robbery. In my view the prior conviction has to be prior to the killing not prior to the trial for murder. In North Carolina, a crime which was noncapital when committed can be capital when tried.

The second case, King, also implicats a fight I am having about whether someone can violate their probation by being charged with committing a new offense, even though they haven't been convicted yet. As you know, I see Apprendi issues under every rock. In this case, I believe it violates Apprendi for a judge sitting without a jury to decide someone has committed a new offense, thereby violating probation, even though a jury has not convicted him.

You've given me a lot to think about today.

Posted by: bruce cunningham | Nov 10, 2012 11:10:32 AM

My cursory thoughts on these two cases

Peugh- I don't see it at as an Ex Post Facto violation unless the possible sentence itself was increased. As Booker tells us, the guidelines are advisory only, and indeed has a command that the judge should give no more than is necessary to achieve the 3553(a) factors. In theory that would mean the guidelines are meaningless. The sentencing judge wouldn't give less than what he gave (will give what is necessary to achieve the purposes) not higher than what he gave (presumption of regularity that s/he follows the law) regardless of the guidelines. Now I know that it doesn't work that way practically, but theoretically it does and if we are calling it unconstitutional I think we should look how it works in theory.

King- I think this is a clear 4th A. violation (unless it is for current identification purposes). From what I understand my parenthetical was ackowledged so that isn't an issue. I ask would it be a violation to go up to any citizen on the street and require them to give a blood sample? Obviously yes. We do have the whole innocent until proven guilty thing which mean someone arrested is no less innocent than the guy on the street. I also don't think you could say there is probable cause here. At this point all you can say is there is probable cause that the arrestee committed a crime. That can't constitute probable cause that he has committed or will commit another offense. Further it can't be likened to fingerprinting. You don't expose you blood normally and it is far more invasive to take blood than fingerprint someone. That makes it unreasonable.

Posted by: Matt | Nov 10, 2012 2:34:27 PM


I would agree with you on your death penalty case but not the probation circumstance. As far as I know probation revocation has never required proof beyond reasonable doubt. Indeed there are plenty of typical probation conditions that are not even crimes for a non-convict yet could potentially land someone back in prison were they to run afoul of it while on probation. (I am thinking of things like alcohol consumption, porn possession in some cases, and associating with felons). In the latter case the condition can be imposed despite a 1st amendment right of association.

I could see the mere fact of (legitimate) arrest as being enough to trigger revocation under the right circumstances, even with no follow up attempt to obtain any sort of conviction. Because the probationer has already proven themselves unwilling or unable to meet society's requirements in some manner the protections afforded to that person when they skirt the edge again are also lower.

I say 'legitimate arrest' because I can see the lawfulness of the arrest as being one of the issues to be heard at a revocation hearing.

Posted by: Soronel Haetir | Nov 10, 2012 5:44:59 PM

Soronel, thank you for your comments. I would mention that "being arrested" is not one of the permissible probation conditions enumerated in the probation statute. The condition is "not commit an offense." I think in addition to the Sixth Amendment issue, there is a due process presumption of innocence issue.

Here is another twist to the situation, assuming you are correct in your position that a judge can decide if a def probably committed an offense, before a jury has convicted the defendant of the offense. Suppose the judge decides the state failed to prove the allegation of a violation. Can the State take another shot at convicting the def in front of a jury? I'm arguing that the State elected to litigate the violation in front of the judge, and having failed, they cannot pursue the def in regular criminal court, because he has been made to run the gauntlet once in the probation violation context and he can't be placed in jeopardy twice.

what may seem like pushing the envelope to some of the folks on the blog who don't try criminal cases is really, in my opinion, a response to overreaching by prosecutors. The biggest change I've seen in forty years of defense work is how many prosecutors like to see how "clever" they can be by stretching the law beyond all notions of common sense.


Posted by: bruce cunningham | Nov 10, 2012 10:24:38 PM

The answer to Peugh should depend on whether or not the Supreme COurt overrules Harris.

The Harris majority only cares about if the fact as issue was essential to the punishment, in which cae there should be no ex post facto problem with a change from one advisory guideline to another.

The Harris dissent looks to see whether the range of punishment, or the maount of likely punishment is affected. That clearly is the case with a new guideline and you should then also have an ex post facto problem.

Posted by: Jacob Berlove | Nov 10, 2012 11:45:41 PM

*Court, *amount

Posted by: Jacob Berlove | Nov 10, 2012 11:47:01 PM


While I do see the situation of the state failing at a revocation hearing then pursuing a new criminal case as being a closer call I would nevertheless conclude that even that is permissible. The punishment attached upon conviction for the original offense and as I see it the probationer has agreed to waive many normal protections in return for the state not sending him to prison. I don't see double jeopardy being implicated because (1) the punishment has already attached, and (2) while the burden of proof is lower so too are the strictness of matching whatever it is the probationer is accused of with a criminal offense.

Basically, as I see it, because at a revocation hearing the state does not need to prove every element of an offense to be successful I don't see the probationer as having met the jeopardy jeopardy bar even though the same facts may be in issue in each proceeding.

Posted by: Soronel Haetir | Nov 10, 2012 11:58:08 PM

i think you have rocks in your head!

Based on this it is in fact and law an expost violation!

"Whether it is a violation of the Constitution’s Ex Post Facto clause for a federal judge to impose a criminal sentence based on federal Guidelines in effect at the time of sentencing, if that sentence is longer than the Guidelines had specified at the time the crime was committed."

So basicaly the Guidelines said one thing at the time his crime was comitted but in the time between that and has Conviction said time was increased!

Sorry that's a no-no and any judge; lawyer and politician should Know that!

Posted by: rodsmith | Nov 11, 2012 4:30:35 PM

Jacob: Harris is a Sixth Amendment case; Peugh is not.

Regarding news of the cert grant, I'm conflicted. The cert grant in Peugh is good news for sentencing law fans, like me, who are excited about the Court discussing such issues. At the same time, the cert grant in Peugh is bad news for defense attorney practitioners outside of the Seventh Circuit, like me, for which the outcome will either merely confirm the status quo or result in a significantly less favorable opinion.

Posted by: anon | Nov 12, 2012 10:25:01 AM

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