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May 31, 2011

A SCOTUS day for criminal procedure, lots of federal sentencing opinions to come in June

Thanks to the live-blogging by the folks at SCOTUSblog, I can provide this brief summary of the Supreme Court's criminal justice work this morning:

[Cert is granted in] Perry v. New Hampshire [which] presents a question involving identification of criminal suspects.  Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?

Ashcroft v. al-Kidd is [decided; the] opinion is by Justice Scalia. The decision of the Ninth Circuit is reversed; the vote is eight to zero with Justice Kagan recused.  The Court holds that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstititional on the basis of allegations that the arresting authority had an improper motive.  In al-Kidd [available here] there are three concurring opinions. 

I am a bit surprised and a bit disappointed that we did not get any sentencing opinions this morning from the Justices.  This reality in turn means that June is to now sure to be a busy SCOTUS sentencing month.  Here is my list of sentencing cases still pending (with links to SCOTUSblog page):

I suspect Sykes and McNeill will come down together, which itself perhaps helps explain why Sykes has not yet been decided nearly five months after it was argued.  Similarly, Freeman and DePierre may come as a pair even though they involve distinct statutory issues.  And I suspect we will not see Tapia, which likely could be the most consequential of this pending bunch because it concerns application of 3553(a)(2) factors at sentencing, until the tail end of the Term in late June.

An additional note about the SCOTUS docket:  Add all the pending sentencing cases to the already decided Abbott and Pepper and Plata cases and we discover that roughly one-tenth of the decisions in argued cases in the October 2010 Term deal with sentencing issues and that this sizeable portion of the SCOTUS OT2010 docket involves mostly "technical" statutory federal sentencing issues and does not involve the death penalty in any way.  In my view, these interesting new docket realities probably reflect the impact and input of Justices Alito and Sotomayor, both of whom have a notable professional history with, and an obvious continued interest in, statutory federal sentencing issues.

May 31, 2011 at 10:45 AM | Permalink


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I would add Plata to the list of death penalty cases. It most assuredly sentences namely citizens to death.

Posted by: federalist | May 31, 2011 11:24:00 AM

Classic Scalia, I like the cherry picker comment myself...he's right on.

The Court of Appeals also found clearly established law lurking in the broad “history and purposes of the Fourth Amendment.” We have repeatedly told courts—and the Ninth Circuit in particular, see Brosseau v. Haugen, (per curiam)— not to define clearly established law at a high level of generality. While featuring a District Court’s footnoted dictum, the Court of Appeals made no mention of this Court’s affirmation in Edmond of the “predominan[t]” rule that reasonableness is an objective inquiry. Nor did it mention Whren’s and Knights’ statements that subjective intent mattered in a very limited subset of our Fourth Amendment cases; or Terry’s objective evaluation of investigatory searches premised on reasonable suspicion rather than probable cause; or Bond’s objective evaluation of a suspicionless investigatory search. The Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established.

Posted by: DeanO | May 31, 2011 12:05:21 PM

Capital cases were surely a reduced portion of the docket this term, but Pinholster is a case about the sentencing phase of a capital case.

Posted by: Kent Scheidegger | May 31, 2011 12:05:22 PM


Cleve Foster rehearing denied today. No comments from the justices.

Posted by: DaveP | May 31, 2011 3:17:04 PM

It's not a sentencing case, but today's patent opinion (Global Tech Appliances) contains a summary of the "willful blindness" doctrine that will affect the trial of any federal offense involving a "knowingly" element.

Justice Kennedy, in dissent, questioned the wisdom of issuing an opinion with such broad criminal implications in a patent case, but he was alone.

Posted by: Def. Atty. | May 31, 2011 3:56:28 PM

Hey federalist: How many folks do you expect to die because of Plata? Is it a greater number than are likely to die because states fail to require ignition-locks for all drunk drivers? How about due to the failure to ensure negligent doctors can no longer practice? Indeed, what of the California inmate per week who now dies unnecessarily because the state is unwilling or unable to build enough prison facilities to house all the persons they wish to incarcerate?

Lots of government tasks, especially if/when done poorly, costs "statistical" lives. Indeed, one might figure out how lives are at stake in the patent case decided today or the immigration case decided last week. I do not think this makes those cases death penalty cases.

Please understand that I am not disputing that Plata will create challenges for California and that some number of citizens may get hurt/killed -- indeed, likely will get hurt/killed --- if California does a poor job dealing with order affirmed in Plata. But Plata can to pass because it was well-established that some number of prisoners were hurt and were dying because California was running its prisons so poorly. All Plata really demands is that the state do better. Whether the state will succeed is an important issue to follow in the months and years ahead.

Posted by: Doug B. | May 31, 2011 5:01:18 PM

"All Plata really demands is that the state do better."

No, I believe it demands that California reduce its population of prisoners.

I don't know how many people will die/be victimized as a result of this rigged game masquerading as a federal case. But there will be victimization fairly traceable to this outrage.

"Lots of government tasks, especially if/when done poorly, costs 'statistical' lives. Indeed, one might figure out how lives are at stake in the patent case decided today or the immigration case decided last week. I do not think this makes those cases death penalty cases."

Sarcasm being a foreign concept to you?

"Indeed, what of the California inmate per week who now dies unnecessarily because the state is unwilling or unable to build enough prison facilities to house all the persons they wish to incarcerate?"

Fact is that I don't care nearly as much about them as I do the safety of people who are being protected from these guys. You have to be a pretty bad guy to wind up in the Cali prison system. To the extent the 8th Amendment was violated--fine, deal with the individual issues--but the release of thousands, whether or not, they were harmed. That's nuts. The violations (some of which I would dispute, perfect care is not a constitutional demand, as errors happen in the real world too) seem to be talismanic to many people. Unfortunately, PLRA requires more than just saying "well, California wouldn't be in this position if it followed the law". PLRA seems to understand (until mangled by Justice Kennedy and the gang of four) that you can't just point to some violations, take some expert testimony, and come out with a release order.

We've seen what happens with prisoner release orders. Philly. Kenneth Macduff.

Perhaps there will be some blood on the hands of California officials if they mismanage this new challenge. But there will certainly be blood on the hands of those that created the challenge. And Obama joins in that too, since he appointed two of the votes.

By the way, has anyone been able to figure out Sotomayor's half-witted comment that Ginsburg's dissent would have affirmed the Second Circuit in Ricci?

Posted by: federalist | May 31, 2011 5:29:17 PM

DaveP, thanks. I had seen that. Still waiting on the Cook case though. Supreme Court's handling of Foster is questionable, and I, for one, would have liked to have seen something in writing explaining why they chose to delay an execution for an out-of-time rehearing motion.

Posted by: federalist | May 31, 2011 5:50:52 PM

I would have liked to have seen something also from SCOTUS on that rare stay for Foster.

The Missouri Supreme Court upheld Nunley and Taylor's death sentences today 4-3. I knew it was going to be tight because arguments were held in early January. It was a close call.

Posted by: DaveP | May 31, 2011 6:41:59 PM

Everyone read Kozinski's concurrence and Reinhardt's response to it in Beaty v. Ryan, released today at the 9th.

Judge Reinhardt: "We have no greater duty than to decide such cases fairly and properly." What a joke. Reinhardt doesn't decide any case either way. His record speaks for itself.

Posted by: DaveP | May 31, 2011 6:52:53 PM

The Nunley stay was a head-scratcher. They did a stay to allow the Mo. Supreme Court to relook at the case? Something which is definitely not ok.

Thanks for the tip. I think Missouri is probably mucked up with LI, so unlikely to see a date soon.

Posted by: federalist | May 31, 2011 7:02:20 PM

@DaveP: Another jurist whose record speaks for itself in terms of his not deciding cases fairly and properly is Alito. His record, at least in criminal cases, of simply deciding cases based on what result he wants is truly a joke. (And Scalia's joining him in this -in Plata - and even admitting that that's what he was doing - was also amusing.)

Posted by: ------ | May 31, 2011 7:11:32 PM


Can you back that up with some evidence. We have the evidence for Reinhardt, and I offer it when I pillory judges. Can you?

Posted by: federalist | May 31, 2011 7:16:20 PM

The idea that the Supreme Court can legislate from the bench, violating Article I Section 1 of the constitution, and have no accountability to the victims of their incompetence, carelessness, and total ignorance of a highly technical, complex subject is morally repugnant. Impeach all of them, replace them with random members of the Virginia jury pool, or even with wine besotted bums puking in the street for an immediate upgrade in logic, lawfulness, and modesty of decisions, not to mention clarity of decision writing. Their Ivy indoctrinated, Hate America, Destroy America ethos and arrogance has no upper limit.

This is a stunning and decisive victory for the pro-criminal, anti-victim left wing. They will be able to hide behind the lag time between their decision and the hideous consequences, claiming they had nothing to do with each other. They have signed the death warrants of thousands of minority young males. The KKK lynched 5000 people over 100 years. They will increase the murder rate by that number every year or two. The KKK lynched rich people and took their assets to enrich and empower its lawyer and judge KKK leadership. They received full immunity from prosecution for their very open and public extra-judicial executions. These feminists will do the same, but much more efficiently, to two orders of magnitude more people, and generate lawyer jobs worth several orders of magnitude more than the assets of the KKK lynching victims.

Posted by: Supremacy Claus | Jun 1, 2011 4:26:35 AM

I anticipate that matters will get worse. The current Court was Ivy indoctrinated in the 1970's and earlier, just the beginning of the Hate America ideology period. As the 1980's, 1990's rolled around the Ivy schools developed zero tolerance for patriotism, religion, and any belief not politically correct to the left wing. Even the most conservative appointees in the pipeline from the Ivy league will have truly devastating left wing, rent seeking, pro-criminal beliefs. Feminism will be a deeply embedded assumption, not even open to discussion. A Taliban was admitted in the Ivy league. We will get Taliban nominees to the Supreme Court to show how politically correct we are. This Taliban will no longer believe in Sharia, which generates very low crime rates, but in feminism. We will have an Iranian Supreme Court seat, especially if they detonate an atomic device in a major city, and kill thousands of our citizens.

Posted by: Supremacy Claus | Jun 1, 2011 4:42:53 AM

Prof. Berman believes that a death a week in the California prison is cruel punishment when it results from poor health care. The death rate inside that crowded and underfunded system is substantially lower than that of a matched population on the street, where they get no health care until medivac'ed after getting shot. AIDS, hep c, overdoses, murders, aggravated assaults are less frequent in prison. So comparing this population to itself on the street, the death rate is actually low. The use of this rate is pretextual, a false use of the law in left wing gotcha bad faith.

This is not statistical nitpicking but a message from your loving ambassador from Earth. One should have a denominator before commenting on a rate. I fully understand lawyer math stops at the fourth grade, that needed to count money, and that fractions are a fifth grade subject.

Posted by: Supremacy Claus | Jun 1, 2011 4:51:25 AM


Yup. Alito has never voted for the defendant in a criminal case that wasn't 9-0. Not once.

Posted by: ------ | Jun 1, 2011 11:03:52 AM

5 minutes and I already found one case: ------ is all wet!!!!

09-367 DOLAN V. UNITED STATES; BREYER, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which STEVENS, SCALIA, and KENNEDY, JJ., joined.

Posted by: DeanO | Jun 1, 2011 3:52:36 PM


DeanO - You need to work on your reading comprehension skills. Alito ruled for the prosecution in Dolan.

Posted by: ------ | Jun 1, 2011 4:48:17 PM

Ooopsss. My mistake...Whenever I see Ginsburg and Sotomayor on ANY opinion I expect a ruling for the Defendant. But then again this was a restitution case...there was never any doubt on his guilt.

Posted by: DeanO | Jun 2, 2011 8:07:35 AM


Thanks for admitting your mistake. And now you've seen for yourself that, unlike is the case with Alito, you can't just look at the names Ginsburg and Sotomayor and automatically know which way they've ruled. Alito is the king of result-orientedness. No one else even comes close.

Posted by: ------ | Jun 2, 2011 12:47:24 PM

Feminism will be a deeply embedded assumption, not even open to discussion.

Posted by: Human Resource Recertification | Jan 18, 2012 12:00:35 PM

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