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May 27, 2009

Constitutional criminal procedure doctrine and the force of stare decisis

Wine The import and force of stare decisis is often discussed in the context of Roe and other hot-button non-criminal constitutional rulings.  But, in a fascinating little concurring opinion authored by Justice Alito (which Justice Kennedy joined) in yesterday's ruling in Montejo v. Louisiana, the import and force of stare decisis is discussed in the context of criminal procedure doctrine.  Toward the end of Justice Alito's opinon, he gets in this particularly amusing swipe at the Montejo dissenters' emphasis on stare decisis:

I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, at 23, is in its prime, whereas Belton, at 28, had turned brownish and vinegary.

Though Justice Alito's concurring opinion in Montejo seems mostly intended to call others to task for now finding stare decisis religion, the fundamental story is the Supreme Court's recent work overruling two significant constitutional criminal procedure rulings (both Jackson and Belton).  That reality has me thinking a bit more about whether, descriptively or normatively, stare decisis is of different (and lesser?) nature and force in the arena of constitutional criminal procedure doctrine.

Turning these issues toward sentencing doctrine, I suspect I am not the only sentencing fan who might hope that stare decisis might be given less weight in the arena of constitutional criminal procedure.  For example, I wish the Court might be willing to reconsider its now 60-year-old sentencing due process ruling in Williams v. New York (as well as more recent variations on Williams in McMillian and Watts).  And I suspect some other sentencing fans might want and wish the Supreme Court to be willing to reconsider the much younger rulings like Blakely and Booker.  I have little doubt that different folks have different views as to which constitutional criminal precedents seem now to have turned brownish and vinegary.

May 27, 2009 at 05:19 PM | Permalink


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Alito is being disingenuous. The Court did not overrule Belton. So long as the defendant and the scene are not secured, it's still good law. Gant merely corrected the broad scope most lower courts placed on Belton.

The best evidence that Gant did not "overrule" Belton is that the AZ Supreme Court was affirmed in Gant. If someone is going to argue that Gant was anything more than a narrow interpretation of Belton (and not an overruling of it), then they would have to think the AZ Supreme Court was overruling Supreme Court precedent, which of course, is not what it was doing.

Posted by: DEJ | May 27, 2009 5:40:07 PM

"That reality has me thinking a bit more about whether, descriptively or normatively, stare decisis is of different (and lesser?) nature and force in the arena of constitutional criminal procedure doctrine."

Yes, the Court has said expressly stare decisis has less weight in constitutional matters. Also, in matters of procedure there are less likely to be strong reliance interests.

Sometimes there are strong reliance interests, though, and yet the Court still gives short shrift to stare decisis. In Ring v. Arizona, multiple states had massively relied on a clear precedent rejecting the same argument Ring made, yet the Court overruled the precedent without even mentioning the reliance.

Posted by: Kent Scheidegger | May 27, 2009 7:09:01 PM


4 The dissent posits a different reliance interest:“the public ’s interest
in knowing that counsel,once secured,may be reasonably relied upon
as a medium between the accused and the power of the State,”post ,at
9.We suspect the public would be surprised to learn that a criminal
can freely sign away his right to a lawyer,confess his crimes,and then
ask the courts to assume that the confession was coerced —on the
ground that he had,at some earlier point in time,made a pro forma
statement requesting that counsel be appointed on his behalf.

"how many would be?The answer
is few if any."

Posted by: George | May 27, 2009 8:16:21 PM

Stevens thoroughly exposes Alito's dishonesty:

"In his concurrence, JUSTICE ALITO assumes that my consideration of the rule of stare decisis in this case is at odds with the Court’s recent rejection of his reliance on that doctrine in his dissent in Arizona v. Gant, 556 U. S. ___ (2009). While I agree that the reasoning in his dissent supports my position in this case, I do not agree with his characterization of our opinion in Gant. Contrary to his representation, the Court did not overrule our precedent in New York v. Belton, 453 U.S. 454 (1981). Rather, we affirmed the narrow interpretation of Belton’s holding adopted by the Arizona Supreme Court, rejecting the broader interpretation adopted by other lower courts that had been roundly criticized by judges and scholars alike. By contrast, in this case the Court flatly overrules Jackson—a rule that has drawn virtually no criticism—on its own initiative. The two cases are hardly comparable. If they were, and if JUSTICE ALITO meant what he said in Gant, I would expect him to join this opinion."

I'm tired of right-wing manipulation, whether robed or no. As for Kennedy and Breyer, they're merely the dimmest of bulbs getting in the way and mucking things up. Let's hope Sotomayor isn't another Breyer, but I'm not holding my breath.

Posted by: DK | May 28, 2009 12:32:15 AM

Stare decisis is when someone wants to change a cult criminal's decision, and there is no recourse. Evolving values is when a cult criminal just makes up unauthorized law because lawyer privileged group wants it, or cult criminals need more jobs.

Posted by: Supremacy Claus | May 28, 2009 2:47:42 AM

What about Almendarez-Torres? Justice Stevens says stare decisis is why he won't vote to grant cert to reconsider in light of Apprendi, even though there are (or were) five justices (the Almendarez-Torres dissenters plus Justice Thomas) who think Almendarez-Torres is wrong! I wonder where Almendarez-Torres would fall in the Alito-Stevens spectrum today?

Posted by: Randall Hodgkinson | May 28, 2009 11:02:32 AM

Of course the public generally has very little "interest in knowing that counsel, once secured, may be reasonably relied upon as a medium between the accused and the power." Until any particular member of the public is accused of a crime. *Then*, that particular person has an enormous interest in such reliance. This is why we have a Bill of Rights, because civil liberties are by definition non-majoritarian, and would rarely pass a plebiscite. Duh.

Also, what is up with the tit-for-tat nature of Alito's opinion. It's as if he's saying that, because he thinks stare decisis was ignored in Gant, it is OK for him to ignore stare decisis in Montejo. I mean it's one thing to think stare decisis doesn't apply; it's another to think it does apply, but vote otherwise just because you are in a snit about another case.

Posted by: Anon | May 28, 2009 1:44:54 PM

Smooth move, Alito, dissing the dissent for respecting stare decisis in the instant case but not in a different case... when you yourself are doing the exact same thing, just with the cases reversed! Zing!

Posted by: CN | May 28, 2009 3:19:55 PM

Almendarez-Torres is correctly decided. With respect to prior criminal history, the defendant has already had a jury trial right . . . .

Posted by: federalist | May 28, 2009 3:40:40 PM

No, the defendant has not had a right to jury trial when juvenile adjudications are used as "prior" convictions. Especially, old, old juvenile adjudications which occured when the juvenile justice system was a distinctly different institution than it has now beomce. Long ago, it was informal, was meant to help a child achieve maturity, and was not a punitive, revengeful institution, designed to extract blood. Parents and authorities cooperated towards the goal of the "good of the child." Often, attorneys were not even used. Now, the sentencing laws in many states use these old, old accusations in order to double a sentence of a middle aged man who had no criminal history from the childhood accusation to his, now middle aged accusation. Double the sentence!

Posted by: DL | May 30, 2009 12:52:16 PM

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