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December 5, 2017

Lots of juicy SCOTUS relists for sentencing fans

Over at SCOTUSblog, John Elwood does regular yeoman's work via his "Relist Watch" postings that highlight cases that the Supreme Court considered but did not resolve during its recent certiorari review conferences.  Often (though not always), the relisting of a case is a precursor to a grant of certiorari or at least some notable ruling or commentary by some Justices.  And this week's installment of "Relist Watch" has all these exciting tales for sentencing fans:

The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment.  The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances -- such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 -- and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated.  The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment....

There’s plenty for nerds to love about the remaining eight cases....  Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.”...

That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e).  The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  Several courts of appeals have adopted that view.  These four petitions seek to challenge that conclusion.

Though the Hidalgo cert petition has already gotten lots of attention for lots of reasons, I consider the § 3582(c)(2) federal sentencing issue to be the one of this bunch most like to result in a actual grant of certiorari.   I certainly expect Justice Breyer and maybe other Justices will have something to say about the Hidalgo case if (when?) cert is denied, and gosh knows a grant in that case would add a lot of extra capital intrigue to this SCOTUS Term (which many think will be Justice Kennedy's last).

December 5, 2017 at 04:41 PM | Permalink


Driving slowly in the left lane deserves the death penalty. An aggravating factor should be doing so in a Subaru. Doing so, in Prius, oh my God, double aggravation. Slow, obstructionist, and morally superior.

Posted by: David Behar | Dec 5, 2017 4:44:15 PM

I'm rooting for Lindsey v. Virginia.

Posted by: justme | Dec 6, 2017 10:03:31 AM

The increase in aggravating factors is one of the biggest things, but they also need to cut down on the broad standard for "especially heinous, cruel, or depraved" as well. Early case law suggested things like torture killings, but it now includes practically anything because murder is obviously cruel and depraved.

Virginia's old jury instructions have a ton of "unless you hear evidence to the contrary" instructions, but they've been slowly phased out. My guess is this specific statute doesn't have a more recent version. If it had, it would probably have said "you may infer the defendant intended to steal based on willful concealment of an item." There's another larceny instruction most are careful not to use that says, "Proof of the exclusive personal possession by the defendant of recently stolen goods is a circumstance from which you may reasonably infer that the defendant was the thief unless the defendant offers a reasonable account of possession consistent with innocence which the Commonwealth has failed to prove untrue."

I hope the Supreme Court upholds Sandstrom and kicks these sloppy instructions for good. I suspect if Justice Scalia were on the court, he'd be in favor of that.

Posted by: Erik M | Dec 6, 2017 11:51:13 AM

Doubtful that the Court will grant cert in Hidalgo. Relist is potentially to give Breyer a chance to write a dissent.

Could see a summary reversal in Lindsey. While the rule against burden shifting is not expressly found in the Constitution (and arguably would not even by recognized by the Framers), it is too much settled law to be put aside -- even if it makes little sense to non-lawyers. (After all, if the evidence against a defendant consisted of DNA placing him at a robbery and the victim had made a positive ID, it would probably be ineffective assistance to not present some evidence refuting the State's case. However, we require instructions and arguments to dance around that elephant in the room and parse whether an instruction or argument implies that defendant had a legal obligation to present evidence.) This language seems to cross the line that we have created.

Posted by: tmm | Dec 6, 2017 2:40:15 PM

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