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October 4, 2009

The 10 biggest cases to watch for sentencing fans in the new SCOTUS term

In honor of the upcoming First Monday of October, I have quickly reviewed the SCOTUSwiki case index for October Term 2009 and provide below my sense of the 10 biggest cases to watch for sentencing fans (with links and discriptions from SCOTUSwiki):

  1. Graham v. Florida (08-7412)— constitutionality of life prison sentence for juvenile convicted of a non-homicide crime (to be argued Nov. 9)

  2. Sullivan v. Florida (08-7621) — same basic issue as in Graham v. Florida; the Court, however, has not consolidated the cases for hearing or decision (to be argued Nov. 9)

  3. Carr v. United States (08-1301) — Ex Post Facto Clause application to sex offender registration law (to be argued in early 2010)

  4. United States v. O’Brien and Burgess (08-1569) —  trial findings on a weapon that triggers a higher criminal sentence (to be argued in early 2010)

  5. Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea (to be argued Oct. 13)

  6. McDonald, et al. v. City of Chicago (08-1521) — incorporation of Second Amendment against the states (to be argued in early 2010)

  7. Johnson v. U.S. (08-6925) — battery as a “violent felony” for sentence enhancement (to be argued Oct. 6)

  8. United States v. Comstock (08-1224) — the constitutionality of continued imprisonment of a sex offender, after that individual has completed serving a prison sentence for the crimes (to be argued in early 2010)

  9. Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime (to be argued Oct. 14)

  10. Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case (to be argued Oct. 13)

Significantly, this top 10 does not include a host of very big criminal law cases, many of which could have profound sentencing echoes, on topics ranging from habeas review standards (two cases) to the constitutionality and application of certain federal crimes (four cases).  There are also big cases on the SCOTUS calender involving possible prosecutorial liability, jury selection and police practices.  Exciting times.

October 4, 2009 at 01:06 PM | Permalink


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Yes, the President was elected, and the Congress approved his choices for the Court.

Objectively, how are any of the birds sitting on that Court in any way competent or qualified to resolve these important questions? They have no more knowledge, and much less common sense than a random member of the jury pool. The clarity of their decision writing would shoot up if they were replaced by a juror.

One simple way to reduce the damage done by these pompous, insufferably arrogant incompetents is to change their number to an even number, such as eight or ten, or 1000. The decisions would become more conservative by eliminating those 5-4 decisions, most of which are wrong. The 4-4 decision would be more conservative by letting stand the lower court decision. The latter is likely just in compliance with prior decisions, anyway.

Posted by: Supremacy Claus | Oct 4, 2009 1:27:54 PM


Bad links for a few of these cases. I would disagree with you in one regard, Padilla has the potential to be huge as far as the numbers it impacts. Today with well over 95% of criminal cases ending well short of trial, and overwhelmingly by means of plea bargain, Padilla's potential holding on IAC for those of us laboring away in the trial trenches is breath-taking.

Posted by: karl | Oct 4, 2009 1:28:12 PM

Karl, it is probably unreasonable for attorneys to know the full consequences of any plea, but how can the plea be knowing and intelligent then? California has a sentencing calculator that looks like a cell phone. Presumably, there is updatability.

There is also A free U.S. Federal Sentencing Guidelines calculator.

Hopefully it will be possible to instantly fully advise clients rather than finding they need not be fully advised.

Posted by: George | Oct 4, 2009 7:16:13 PM

I fail to see Padilla as all that big of deal. I tend to agree with the Solicitor General's amicus brief. Even accepting that the attorney's performance was deficient meeting the prejudice prong of Strickland is going to be a tall order for such mis-advice claims.

I do not accept that just because the law now makes such removal more or less automatic that it moves from being a collateral to a direct result of the conviction. If that were the case many other results that are considered collateral such as loss of voting rights etc would also have to be direct and I don't see the court going there.

I see Alvarez as a much bigger issue than Padilla, and the fact that the court took it after the CoA ruled for the plaintiffs is worrisome.

Posted by: Soronel Haetir | Oct 5, 2009 12:39:33 AM

I agree, Padilla could effect all lot more people than what this post makes it seem. It has wide-changing reach. I read about it on this blog: http://lawblog.legalmatch.com/ . It was an interesting take.

Posted by: Tenrou Ugetsu | Oct 5, 2009 3:38:08 AM

As to Spisak, "The prohibited Mills instructions required unanimity as to the existence of specific mitigating factors, whereas the instructions at issue here only required unanimity in the ultimate finding that, on the whole, the mitigating factors did or did not outweigh the aggravating factors."

"Second, the Sixth Circuit improperly granted relief on Spisak’s ineffective assistance of counsel claim. Although the lower court articulated the proper standard for ineffective assistance of counsel under Strickland v. Washington, it actually applied the less demanding standard of United States v. Cronic."

Did these mistakes cause an unjust result, such as the false conviction of an innocent person? Is the murder of three people not deserving of the death penalty based on a misstatement in the jury instructions? I understand the state is trying to reverse the Sixth Circuit obstruction. The Supreme Court should not only reverse the decision of the lower court, but sanction the judges for this lawyer gotcha and pretextual obstruction of justice. Pretextual means, false use of the law, and is unprofessional conduct. Then they should sanction themselves for their unclear language causing the confusion. Inadequate counsel claims should be accompanied by evidence of a false conviction of an innocent person. Not even the Dream Team can come up with perfection, or as the lawyer calls it, adequacy. If there is a finding of inadequate representation, it should allow a negligence per se finding in legal malpractice.

Posted by: Supremacy Claus | Oct 5, 2009 4:34:11 AM

This brings up the issue of why the America-hating lawyer is the real troll under the feminist criminal loving bridge to 10th grade civics.

Posted by: Redundancy Clause | Oct 5, 2009 10:43:10 AM

Soronel Haetir. I disagree with you. I don't see it as an all or nothing proposition. My problem with the KY SC decision is that I think it is simply too narrow. I agree completely that there is no way for a lawyer to know all the collateral consequences of a decision. But that doesn't mean that he can play dumb or give misadvice either. Lawyers use the concepts of materiality and relevance all the time. I fail to see why those concepts can not be applied here. His immigration status was both material and relevant; we don't even have to guess on that point; we know it was because he specifically asked about it.

As for the prejudice part, that's self evident. He has a right to a trial by jury. If that right was taken away by a deficient performance of the lawyer, it was by definition prejudicial. Stickland in that sense is ultimately a case about sentencing, not plea bargains.

To me this is an open and shut case.

Posted by: Daniel | Oct 5, 2009 12:31:17 PM


Did you read the Solicitor General's brief? I agree completely with the assertion that a rational defendant, even knowing the likelihood of removal would have plead in this case. Prejudice is based on both a rational defendant and rational fact finder. A rational fact finder would have convicted this defendant and he would still face removal. There would have been no benefit in his rejecting the plea offer. I expect this challenge to fail under something like harmless error analysis and that the minority view held by Kentucky will prevail.

That is not to say that the attorney should not face some sort of disciplinary action, just that any such action is of no assistance to Padilla.

Posted by: Soronel Haetir | Oct 5, 2009 2:06:57 PM

Things have certainly changed in this case - try an inmate lookup to see where the hosting prison will be

I also calculated his good time credit at www.jailguide.com - its going to be a very long time...

Posted by: Pete Maxwell | Feb 24, 2010 4:46:37 AM

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