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October 3, 2022

Not much for sentencing fans as SCOTUS starts a new Term and releases first big order list

Law nerds like me always get excited for the return of the Supreme Court on the first Monday in October.  But, despite all of the drama and jurisprudential change of the last Term (OT21) and the possibility of more of the same in the Term ahead (OT22), the sentencing nerd in me cannot completely suppress a yawn on this SCOTUS opening day.  Among the OT22 cases on which cert has already been granted, there are relatively few criminal matters and many of those involve only intricate procedural issues.  (That said, for federal prisoners, Jones v. HendrixNo. 21-857, to be argued on November 1, is a big deal.)

I was hoping there might be at least a smidge of sentencing or criminal justice excitement in today's first OT22 Order List after the so-called "long conference" last week.  The list starts with a smattering of GVRs based on last Term's later criminal cases, particularly the sentencing case Concepcion.  But then we get to the list of cert grants, and only two of the nine grants involve criminal matters  — and both the new SCOTUS cases involve matters that are a very long way from the day-to-day issues involved in the millions of criminal cases and sentencings that transpire every year in the US.

That all said, I know that there are some notable sentencing cases not yet fully briefed for cert consideration (including the McClinton acquitted conduct case for which I helped filed one of a number of amicus briefs).  So it is certainly possible that OT22 will end up having some juicy sentencing cases — and it certainly will end up having at least a few more (perhaps many more) criminal cases.  Moreover, given the current composition of the Court and its recent work in the Eighth Amendment arena, I suspect some folks  likely see a light SCOTUS sentencing docket in OT22 as a development to be celebrated.  But, perhaps biased by my own eagerness to have interesting matters to cover on this blog, while so many others are so troubled these days by what the current Court is doing, I find myself compelled to complain here about what the Court is largely failing to do.

As always, an especially on this opening day for SCOTUS "first pitch," I welcome comments of the state of the Court's sentencing and criminal docket.  Predictions about cases the Court might still take up or expected future developments or just about any concerns and complaints about its activities in this arena are welcome.  (Notably, after extraordinary SCOTUS personnel transitions over the last six years, I am inclined to predict that the current Court may not see another change in membership for the next six or longer.) 

October 3, 2022 at 10:57 AM | Permalink


I must have missed one of the criminal law cases in the list of grants. All that I saw was the grand jury case, and the issue there is very tangential to the ones that most of us in state courts handle on a day-to-day basis (whether communications between a law firm and its corporate clients about taxes was too much business advice and not enough legal advice to trigger attorney-client privilege).

I know that there are probably some additional grants coming, but right now Reed on the deadline to file federally for DNA testing, Cruz on when state ground bar federal review, and Jones on when the inability to file a successive petition under 2255 (and arguably 2254) permits a petition under 2241 seem to be the only cases that have any implication for state prosecutors and defense attorneys. Barring something soon, state practitioners can push the snooze button until late February.

Posted by: tmm | Oct 3, 2022 4:56:16 PM

Never mind, on closer review of the grants, I found two others that include issues under Title 18 (one apparently civil, but the other criminal). Ultimately, neither involve any issues that would impact state prosecutors or state defense attorneys and involve such narrow subspecialties that almost any attorney interested in the issue is likely to be on one of the briefs (either for a party or an amici) by the time that all briefing is done.

Posted by: tmm | Oct 3, 2022 5:08:58 PM

I counted TURKIYE HALK BANKASI A.S. V. UNITED STATES as a criminal case with this QP: "Whether U.S. district courts may exercise subjectmatter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1441(d), 1602-1611." But that is in keeping with your snooze advice.

Posted by: Doug B. | Oct 3, 2022 5:09:32 PM

For equitable tolling fans, there's Arellano v. McDonough, although I admit there's not much crossover in AEDPA tolling jurisprudence and other areas of equitable tolling. zzzz

Posted by: John | Oct 3, 2022 11:25:11 PM

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