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July 10, 2022

Some initial thoughts on some SCOTUS criminal justice work with OT21 now complete

The Supreme Court recently completed a truly historic Term, though the blockbuster cases were not on the criminal side of the docket. (That said, as noted in prior posts, the big rulings in Dobbs (reversing Roe) and Bruen (expanding the Second Amendment) will have many criminal justice echoes.)  Still, based on this helpful list from Crime & Consequences, about a third of the OT21 SCOTUS docket dealt with criminal justice issues, with many interesting and important stories to be found within these nearly two dozen cases.  Here are some initial thoughts on the criminal justice Term that was (with an eye on Terms to come):

1. Federal defendants who were not the Boston Marathon Bomber did quite well.  All the talk about SCOTUS being now so conservative does not reflect this Term's outcomes in federal statutory criminal cases.  Though Dzhokhar Tsarnaev had his federal death sentence reinstated and a few other federal defendants lost on procedural issues, a number of federal defendants prevailed on an array of statutory issues (see Concepcion, Ruan, Taylor, Wooden).  The considerable success of these federal defendants on various statutory claims is surely a function of selective certiorari grants, but it is still notable and a trend to watch.

2. State defendants pursuing federal habeas actions have real reason for real pessimism.  There were significant losses for state defendants as federal habeas petitioners in Davenport and Shinn and Twyford.  These rulings all included an unmistakable tone and notable dicta signaling that a super-majority of the Justices are quite eager to restrain the authority of federal courts to review and reverse state convictions via habeas.  We shall see if the conservative block of Justices will continue to look for opportunities to rein in lower federal courts seeking to give state prisoners habeas relief.  

3. Murderers, deference/comity, bites at the apple, and a coming test case.  Tsarnaev and Davenport and Shinn and Twyford all involved defendants convicted of serious murders (all but Davenport were capital cases).  A few capital defendants did prevail on distinctive issues: Ramirez provided clergy access at execution; Nance preserved 1983 as a robust mean to contest execution protocols.  A possible through-line here is that the Court is particularly troubled when federal courts fail to show deference or comity to give serious criminals multiple "bites at the apple," but they still will protect an initial "bite."  These themes add intrigue to the collateral review case already on the SCOTUS docket for next Term, Jones v. HendrixNo. 21-857, which involve statutory avenues for federal defendants to raise issues that were previously legally unavailable.

4.  A dynamic conservative block in criminal cases (with KavaRob as the new Kennedy?).  Among the conservative Justices, one can usually expect in criminal cases that Justice Alito will be the most likely to vote for the government and Justice Gorsuch will be the most likely to vote for the defendant.  But, in capital cases, Justice Gorsuch is a consistent vote against defendants while CJ Roberts and Justice Kavanaugh seem a bit more "defense friendly."  Interestingly, in two notable 5-4 rulings this Term, it was Justices Gorsuch and Thomas providing the key votes for a federal defendant in Concepcion and it was CJ Roberts and Justice Kavanaugh providing the key votes for a state capital defendant in Nance.

Before Justice Barrett replaced Justice Ginsburg, Justice Gorsuch alone could be a swing vote joining the liberal block to give a criminal defendant a win in closely divided cases (McGirt from 2020 is a notable example).  But now Justice Gorsuch's vote for a defendant may just be a fourth vote in dissent (as in Castro-Huerta and Twyford this Term).  Consequently, CJ Roberts and Justice Kavanaugh, who voted together this Term in 100% of cases, may now need to be the focal point for advocates in closely divided criminal cases.  (I call this pair "KavaRob" because I sense Justice Kavanaugh may care a bit more about the criminal side of the docket than does the Chief; I call them the "new Kennedy" because for many years criminal litigants knew that Justice Kennedy was the key swing vote they needed to target.) 

5. Justices Barrett seems mostly in line, so far, with Justice Alito in criminal cases.  I had been hoping that Justice Barrett might prove likely to vote with Justice Gorsuch on various criminal justice issues.  But this Term, Justice Barrett was more likely to vote with Justice Alito than even other conservative Justices, and that seemed particularly true in criminal cases (see Ruan), even though they were not always in sync (see Taylor).  I gave a talk not long after Justice Barrett joined the Court where I suggested she might follow Justice Gorsuch's path; some Seventh Circuit practitioners responded that I should not count on it.  The practitioners' perspective seems to have been more astute than my view from the ivory tower.

6. Might new Justice Jackson created a whole new Court in criminal cases?  One often hears that every new Justice makes for a whole new Supreme Court.  That aphorism is, of course, technically true; but most folks, myself included, expect new Justice Jackson to approach and vote on issues quite similarly to how retired Justice Breyer did.  That said, Justice Jackson might not track Justice Breyer on some criminal justices issues (such as Apprendi rights), and perhaps she might encourage the Court to take up more or different types of criminal justice cases.  Stay tuned.

July 10, 2022 at 10:06 PM | Permalink


Coming storm: defendants with legitimate Taylor claims (i.e., now innocent of the 924(c) b/c there is no COV) who have previously filed a 2255.

Can't get a second or successive for a statutory interpretation claim.

If Jones v. Hendrix shuts down the 2241 escape hatch......then that's a whole lot of innocent people left in the cold without a procedural vehicle

Posted by: Zachary Newland | Jul 11, 2022 11:20:15 AM

And this reflects the catch-22 of habeas.

As a state prosecutor, my concern are:

1) that allowing 2241 to be used to get around the bar on successive petitions on federal convictions will also open the door for review of state conviction;
2) while Taylor claims involve defendant who are now "legally" innocent due to a reinterpretation of the law governing the offense, would Jones-type claims be limited to new decisions that show that defendants are actually innocent or would it also open up the door to what otherwise would be Teague-barred claims about other legal errors.

As a state prosecutor, our concerns (and interest in limiting review) is that it is very difficult to retry a case after ten or fifteen years. (All of the reasons why there is a right to a speedy trial.) As such, after trial, we need a system that gets all potential challenges to convictions reviewed and decided in a prompt manner. That way, if the conviction is set aside, it is possible to retry the case (assuming that the reason for reversal is not one that makes us conclude that the charge is not valid). When a lengthy period of time passes, rather than being able to retry the case in a fair trial, we often have to dismiss the charges because it is no longer possible to retry the case. (Yes, in theory, we can read the prior testimony from the transcript, but, for critical evidence, juries really need to see a live person before they will credit that evidence. And, especially in urban areas, it can be hard to find lay witnesses if too much time passes and some witnesses will die during the interim. Even if witnesses are still available, memories fade making the witness much less persuasive.)

This case creates a hard circumstance. There are good reasons for making a narrow exception for these cases. But if such an exception is made, there will be a lot of litigation by inmates seeking to use this exception to swallow the rule. Admittedly, there are some inmates who will keep on filing things regardless of how many times that they are told that they do not have a viable claim. The rules on successive petitions makes it easy for courts to quickly dispose of such frequent flyers. Every exception to those rules will make a lot of work for lower courts to sort through a large number of meritless petitions to potentially grant relief to a small number of valid claims. Not that the Supreme Court ever uses "burden" as more than a throw away line, but I would be interested in knowing how many people out there might have valid claims.

Posted by: tmm | Jul 14, 2022 12:17:06 PM

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