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December 2, 2013

What sentencing issues should SCOTUS be taking up to fill out its docket?

I have noted (and been disappointed by) the relative paucity of major sentencing cases on the Supreme Court docket this Term.  But, as highlighted by this new Washington Post article, headlined "Supreme Court busy looking for cases — but finding fewer than usual," SCOTUS is now facing a relative paucity of all cases on its docket.

That all said, this recent Politico article, headlined "Digital era confounds the courts," spotlights that a number of cases concerning the intersection of the Fourth Amendment and new technology likely to be on the SCOTUS docket soon:

[T]he nation’s top court is set to consider whether to take up three key related cases ... [with] big tech issues that could finally get decided:...

Lower courts have been split on the authority of police to search your technology [incident to an arrest]. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation.....

In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it.  So can police compel someone to provide a password or to unlock an account or decrypt a file?  Courts have in some cases ruled that individuals can refuse to provide a password under their Fifth Amendment right not to incriminate themselves....

Another nettlesome issue brought up in part by the ubiquity of cellphones and smartphones is the ability of police to track a person’s movements.  While the Supreme Court ruled last year that police cannot affix a GPS tracking device to a car without a warrant, it decided U.S. v. Jones based on a question of trespassing, which doesn’t apply when police get location information from a suspect’s devices or service provider.

The courts are also split on this issue.  In July alone, two courts made opposite rulings: The 5th Circuit Court of Appeals in Texas found that law enforcement may get cell location data from service providers without a warrant.  In a New Jersey case, a very different result -- the state supreme court held that the state’s constitution requires a warrant.

Like all criminal procedure issues, these constitutional search question are sure to have eventual sentencing echoes. But, of course, hard-core sentencing issues are the ones that really get me excited, and I think there are plenty the Justices should be taking up to fill out their docket.

Some of the most obvious sentencing issues seemingly ready for SCOTUS review are follow-ups to its recent Eighth Amendment work in Graham and Miller. Lower courts are deeply split over the retroactivity of Miller and also concerning what kinds of crimes and sentences fit within the categorical ban of juve LWOP sentences for nonhomicide offenses announced in Graham.

In addition, plenty of federal sentencing issues in the post-Booker world are still roiling district and circuit courts. I personally would like to see the Justices throw some more dirt on the worst guidelines by taking up, and then reversing as unreasonable, a poorly-justified, within-guideline sentence based on guidelines widely recognized to be badly broken (e.g., the crack or CP or fraud guidelines). But I doubt many Justices are eager to spend their spring further fighting with Justice Breyer over the mysteries of his Booker remedy.

I could go on issue spotting here for the Justices, but I am really eager to hear from informed readers about the question in the title of this post. What issues do folks working day-to-day in the sentencing vineyards believe the Supreme Court should take up ASAP?

December 2, 2013 at 09:11 AM | Permalink


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Would be nice to see some meat put on Rita's "explanation" requirement. Tired of seeing rote recitations of 3553(a) masquerading as sentencing rationales, and getting ratified by courts of appeals. A significant contributor to arbitrary, lottery-like sentencing.

Posted by: RWS | Dec 2, 2013 10:26:11 AM

While technically not sentencing, a little bit more clarity on Crawford -- particularly when can one expert rely on another expert's data and the line between testimonial and non-testimonial for "at the scene" police questioning.

On sentencing, resolution of the "de facto without parole" for juvenile sentencing, particular as states are still struggling with the issue of what period of parole ineligibility is too much as a minimum sentence for juveniles.

Posted by: tmm | Dec 2, 2013 5:02:00 PM

I would prefer that the court not simply take cases because they have docket space. If the justices were satisfied that all of the questions had already been answered I would not particularly complain.

Posted by: Soronel Haetir | Dec 2, 2013 5:54:19 PM

The error meter is whirring so fast at the Supreme Court, one prefers they ignore this field of public safety

Posted by: Supremacy Claus | Dec 2, 2013 6:18:44 PM

Well personally I think it's long past time to can all the so-called cut-out's to the 4th. They were created a long long long long time ago back when law enforcement officers were days or weeks from any higher authority. So they needed some leeway. That no longer applies every officer carries a smartphone at a minimum. Most have computers and portable printers in their cars. If they need a friggin warrant. GET ONE!

I know my response to any password for my phone would be "FUCK OFF" even if some govt fucktard judge said diff.

Posted by: rodsmith | Dec 2, 2013 6:49:32 PM

rodsmith --

"I know my response to any password for my phone would be "FUCK OFF" even if some govt fucktard judge said diff."

You are priceless, and I mean that as a compliment.

Posted by: Bill Otis | Dec 2, 2013 10:46:58 PM

Actually, most of the exceptions to the warrant requirement (itself a judicial creation) come from the 20th century when every officer was only hours away from a judge.

If every state permitted electronic filing of application for warrants and every state had enough judges (in my state, a warrant must be issued by a judge serving that county and over half of the counties only have one judge) to assure that a judge was always readily available at all hours of the day and night, then perhaps the exceptions would no longer make technological sense. (I would have to check with all of the departments in my county, but I am pretty sure that the smaller departments do not issue smart phones to their officers.)

Of course, you could go back to the intent of the framers when a warrant was not a requirement but merely immunized the search from a later challenge.

Posted by: tmm | Dec 3, 2013 9:29:08 AM

I would have liked them to take a case looking at Alabama's death penalty regime in light of Apprendi, Ring, Alleyne, et al. However, they clearly did not want to go down that road.

Graham/Miller issues probably need to percolate a bit more before they want to confront them again. I agree that they don't want to touch Booker issues with a ten foot pole. Alleyne might end up being more important than Apprendi because Apprendi now leaves judicial discretion to accomplish the same thing while Alleyne precisely returns discretion to the court and takes away the ability to remove that discretion unless a jury finds the requisite facts. I don't think they want to say that a within the guidelines sentence is an abuse of discretion unless it was done in a way that contravened the spirit of Apprendi. It's hard to imagine cobbling together five votes. Justice Scalia doesn't have a problem with the recommended sentence of the guidelines, he just wants the jury to find the facts. Justice Breyer likes judicial sentencing. You would almost certainly have to get Roberts, Alito, or Kennedy on board and that seems to be a huge stretch. I think this is an area that would likely stay dormant until there is major turnover in the Court.

Posted by: Erik M | Dec 3, 2013 9:29:25 AM

ah tmm that may be true but back during the framers time if you showed up on someone's property govt stooge or not and they didn't approve of your presence the odds were very very good you would shortly end up as fertilizer under the back 40!

Posted by: rodsmith | Dec 3, 2013 7:05:16 PM

thanks bill. I can still remember once at once we had a helper from the main part of the plant. Front office had done something stupid and I said so. He was like "you'd never tell them that". About that time my boss walked up and laughed and said. "Hell boy! he's told the president of the company that!"

Posted by: rodsmith | Dec 3, 2013 7:06:34 PM

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