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March 18, 2019
SCOTUS takes up Miller retroactivity, unanimous juries, the insanity defense and criminal preemption in latest order list!
The Supreme Court is back in action this morning and today's order lists includes a list of four cases in which certioriari is granted. Four criminal grants would enough to warm a chilly morning for me, but all four cases involve fairly "big ticket" concerns. With the help of SCOTUSblog, here is the list of granted cases:
Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.
Issue: Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.
With so many Graham and Miller follow-up cases in the pipeline, I am not especially thrilled to see the Justices now decide to take up the Malvo case involving a government appeal of a (high-profile) defendant's win on a Miller retroactivity issues. Still, in the wake of the interesting mess that was Montgomery (see my little commentary, "Montgomery's Messy Trifecta), and the addition of two new Justices since then, I am grateful that these enduringly important issues are getting any at all.
Meanwhile, as the Malvo case might only cover a little issue, Ramos, Kahler and Garcia all cover big issues on a big canvas (though the result in Ramos seems easy to predict). And, as always, I welcome reader input on what to expect or look forward to in these arenas.
March 18, 2019 at 10:07 AM | Permalink
Comments
I looked at the Kansas opinion in Garcia. It's a little hard to tell from the opinion: 1) which use(s) of the falsified social security number were the basis of the conviction; and 2) which evidence the Kansas Supreme Court thought was improper. The theory of the Kansas Supreme Court seemed to be that, because the I-9 form required the production of the social security card, all charges related to the falsified social security number were banned even if defendant might have had to produce the same information for other forms (like the defendant's W-4 and its state equivalent).
My hunch is that the U.S. Supreme Court will not adopt the very broad reading of preemption adopted by the Kansas Supreme Court. Given that there are three cases with slightly different fact patterns, I am not sure if the Supreme Court will reverse the Kansas Supreme Court or will merely vacate and remand for application of whatever rule of preemption the Supreme Court establishes to the individual cases. Given that question 2 (asserting that a broad reading of preemption might be unconstitutional) was asserted more in the nature of arguing for a narrow reading on the principle of avoiding an interpretation that would make a statute unconstitutional and was unclear if it was raising an Article I claim or a Tenth Amendment claim (not that the two are necessarily different), I am not shocked that the Supreme Court only took the first question.
Posted by: tmm | Mar 18, 2019 12:38:47 PM
It is hard to view the Malvo grant as anything but a really, really bad sign for the Graham-Miller doctrine. Not only is it a state appeal, but analyzing the rights of criminal defendants or prisoners in the context of the most atrocious possible offenses is Page 1 of the Rehnquist/Thomas/Alito playbook.
Posted by: Anon | Mar 18, 2019 2:52:07 PM
In order.
(1) no interesting opinion.
(2) I think only one state now allows for non-unanimous juries so this seems to be a moot case. Because of this I think the court will also answer Yes to the question.
(3) This is a difficult case; I can see the court going either way...my own answer is yes but I haven't thought about it too deeply.
(4) i agree with TMM. This is the fun case of the bunch because it will pit a strict textualist reading against a pragmatic understanding of the law. Strictly speaking the Kansas court is spot on. It is stupid and I don't think it was what Congress intended but the law says what is says. I further suspect that TMM is correct that the court will find some way to fudge the issue. if you like logical contortions this is the case for it.
Posted by: Daniel | Mar 18, 2019 2:53:49 PM
@tmm
"The theory of the Kansas Supreme Court seemed to be that, because the I-9 form required the production of the social security card, all charges related to the falsified social security number were banned even if defendant might have had to produce the same information for other forms (like the defendant's W-4 and its state equivalent)."
Yep. But that is what the law says. It refers to the *information* produced, not the form itself. This is the problem. The lower courts have been treating the law as regulating the flow of *documentation*. But the law does not refer to the flow of documentation, it refers to the use of information and information doesn't need any documentation to still be information. A SSN is information even if there is no documentation of it at all.
Posted by: Daniel | Mar 18, 2019 3:00:08 PM
