June 11, 2018
SCOTUS keeps us waiting on remaining big (and little) criminal justice cases
The Supreme Court issued a new order list and opinions in four argued cases this morning, but this activity carried little of interest for criminal justice fans. There were no grants of certiorari on the order list, though there were, unsurprisingly, a handful of cases in which the judgment was "vacated, and the case is remanded ... for further consideration in light of Hughes v. United States." Hughes, readers should recall, was the case decided last week (discussed here and here) in which the Court embraced a broadened interpretation of who is eligible for sentence modification under retroactive guideline reductions in certain plea settings.
Lacking a new SCOTUS case to review, I figured it might be useful to review the still-pending SCOTUS cases that should be of interest to criminal justice fans. SCOTUSblog is reporting that the Court has already announced an added decision day for this coming Thursday, so some of these cases might be decided before the end of this week. And all should be resolved over the next few weeks. I believe there are a total of 21 SCOTUS cases outstanding, with these on the criminal side of the docket (links and descriptions via SCOTUSblog):
Carpenter v. United States: Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.
Currier v. Virginia: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.
Rosales-Mireles v. United States: Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”
Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.
Chavez-Meza v. United States: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.
So, roughly speaking, about a quarter of the cases still on the docket involve criminal justice matters. The real big one of this bunch, of course, is Carpenter; that case has been identified as a potential Fourth Amendment "game changer" even before a cert petition was filed in this case nearly two years ago. And if sentencing fans are looking for a "sleeper" among this quintet, I am inclined to nominate Chavez-Meza. Though I am not expecting or predicting a major opinion in Chavez-Meza, the Justices could directly or indirectly jolt federal sentencing procedure and practice if it happened to say something consequential about the preferred form or substance of sentencing explanations for district courts. (Notably, I might be inclined to predict something significant in Chavez-Meza if Justice Gorsuch was involved in this case, but on this one he is recused because the case comes from the Tenth Circuit.)
June 11, 2018 at 10:55 AM | Permalink
As to Lazman, we each have probable cause for 3 federal crimes a day, especially if we have a job. So, without a real victim complaint, all probable cause is pretextual.
Posted by: David Behar | Jun 11, 2018 12:13:51 PM
For state court practitioners, obviously Carpenter is the biggy followed by Currier. Lozman will depend upon whether the Supreme Court rules broadly or narrowly. The other two are federal issues, but how the Supreme Court handles those issues could influence how state courts handle similarly issues even though they will not be bound by the Supreme Court decision.
Posted by: tmm | Jun 13, 2018 5:33:30 PM