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February 23, 2009

SCOTUS action in assortment of interesting criminal justice cases

As effectively detailed over at SCOTUSblog, the Supreme Court returned from its month-long break with a bunch of cert grants.  And, as this post details, four of the six grants involve interesting criminal justice issues:

In addition, Justice Scalia  has a lot to say about federal criminal justice issues in this potent dissent from the denial of certiorari in a case concerning federal "honest services" fraud. Here is how the raving criminal justice liberal, Justice Brennan Scalia, concludes his latest dissent:

It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly.  But “[b]ad men, like good men, are entitled to be tried andsentenced in accordance with law.”  Green v. United States, 365 U.S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346.  Indeed, it seems to me quite irresponsible to let the current chaos prevail.

February 23, 2009 at 10:34 AM | Permalink


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I know your comment about Scalia being liberal is somewhat tongue-in-cheek, but the reality is that Scalia believes that the rights that are actually in the Constitution are to be enforced. That doesn't make one a liberal (or a conservative).

The rules are the rules. Judges enforce them.

Posted by: federalist | Feb 23, 2009 12:06:17 PM

In Johnson, SCOTUS granted cert on "Questions 1 and 2 presnted by the petition." I am curious what the TWO issues are. Looking to the 11th Cir. opinion only one issue seems obvious:

Whether Florida's battery statute has "as an element the use, attempted use, or threatened use of physical force against the person of another." US v. Johnson, 528 F.3d 1318, 1319-21 (11th Cir. 2008). The 11th Cir. holds that it does, but there is an indirect Circuit split on this issue. See US v. Hays, 526 F.3d 674 (10th Cir. 2008) (WY battery statute does not have force as an element).

According to SCOTUSBlog, the Court did not grant cert on the 3rd issue (i.e. overturning Amendarez-Torres). And, in Rodriguez, SCOTUS already decided that a prior conviction is a "felony" even if it is so only due to a recidivism statute.

The only other issue I see that the 11th Cir. addresses is whether Mr. Johnson's sentence is cruel and unusual. See Johnson at 1322. I doubt that this was the second issue granted.

Anyone know what the specific two issues are in Johnson?

Posted by: DEJ | Feb 23, 2009 12:24:59 PM

The Court should not overturn AT. The fact of a prior conviction was subject to the jury trial right. So why would the criminal need a second bite?

Posted by: federalist | Feb 23, 2009 12:29:50 PM

Elaborating on the Circuit split presented by Johnson:

The 11th Cir. panel in Johnson essentially holds that it is bound by its prior holdings in Llanos-Agostadero and Glover. In Glover, the panel engages in virtually zero analysis on whether FL's battery statute has the use of force as an element. US v. Glover, 431 F.3d 744, 749 (11th Cir. 2005). And in Llanos-Agostadero, the panel felt bound by Glover and another prior decision: Griffith. US v. Llanos-Agostadero, 486 F.3d 1194, 1197 (11th Cir. 2007).

Logically, therefore, the virtual entirety of the 11th Cir's analysis on this issue is found in and rests upon US v. Griffith, 455 F.3d 1339 (11th Cir. 2006).

In U.S. v. Hays, 526 F.3d 674 (10th Cir. 2008), the Tenth Circuit explicitly rejected the 11th Cir's Griffith analysis. The 10th Cir. evened out a now 3-3 Circuit Split on the issue. The 1st, 8th, and 11th Circuits hold that any contact, however slight, is “physical force.” The 7th, 9th, and 10th Circuits hold that something more than mere contact is required to come within the federal phrase “use of force,” when the phrase is defining violent prior convictions.

Although I believe the latter group has the better side, this should be an interesting issue for the Court. (And I'm still curious what the second issue is).

Posted by: DEJ | Feb 23, 2009 12:51:57 PM

The controversy over the "honest services" law does not split on liberal/conservative lines. The law was thoroughly denounced at a panel discussion on the question at last November's convention of the Vast Right-Wing Conspiracy Federalist Society. (We had tried to get a balanced panel but did not succeed.)

Although the law needs to be narrowed, outright corruption in state and local government needs to remain a federal offense, as the recent Pennsylvania judge scandal illustrates all too well.

Posted by: Kent Scheidegger | Feb 23, 2009 1:00:40 PM

Kent, wouldn't other federal statutes pick up the Pa. judge scandal? Probably not as easily though?

Posted by: federalist | Feb 23, 2009 1:10:29 PM

federalist, you've simply begged the question: how do we know that a jury previously found the defendant had committed a crime beyond a reasonable doubt? Now, typically, this is an easy fact to determine because we have the judgment of conviction. But that's not always the case, and sometimes it isn't clear whether the defendant had actually previously been convicted.

Posted by: AT should be overruled | Feb 23, 2009 1:40:26 PM

So now recordkeeping is an issue?

Posted by: federalist | Feb 23, 2009 2:24:11 PM

Record keeping should be an issue. California keeps its old internal/external audits of its criminal history repository locked up tighter than Fort Knox.

Posted by: Someone | Feb 23, 2009 3:02:04 PM

It should be an issue--but does the jury trial right turn on it? Not so sure.

Posted by: federalist | Feb 23, 2009 3:08:54 PM

The 1st issue in Johnson is "[w]hether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force [here Florida simple battery], that holding is binding on federal courts courts in determining whether the same offense qualifies as a 'violent felony' under ACCA..." 2nd issue is what you alluded to above: is simple battery always a violent felony for ACCA purposes, or does the act require more than just "Newtonian" force?

I agree with you that the 9th circuit camp seems to have the better argument about "violent felony" needing to be something more than a simple battery where only a touch was involved. As for the first issue, I like the idea of deferring to state courts' and legislatures' judgment as to what is a violent felony. However, I guess that creates some issues as to consistent application of ACCA nationwide (but I still think at least it would be better than the seemingly ad hoc approach currently taken). Any way, I'm still just a student, so I don't suppose my opinion is all that relevant.

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