Supreme Court

  • July 10, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina. The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.

    Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.

    If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”

  • July 5, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    Given all of his “tough-on-crime” rhetoric and crime-related fear-mongering on the campaign trail, it is no surprise that President Trump—primarily through his attorney general, Jeff Sessions—has doubled down since taking office. What we have seen so far suggests that the Trump-Sessions brand of justice has at least two core components: an aggressive charging strategy (consistently charging the most serious offenses) and the continued exploitation of unfettered prosecutorial power. Blessed with extraordinary power himself, AG Sessions is acting on his bizarre and unfounded belief that prosecutors are somehow disadvantaged in the criminal justice system. For months, commentators have wondered aloud whether the judiciary—most importantly, the Supreme Court—will stand up to the executive branch and act independently to protect constitutional norms. The Court’s weighty travel ban order issued last week provides a metric ton of tea leaves on this question for those inclined to read them. Less obvious, but nonetheless significant, are two recent decisions the Court has made regarding the due process obligation prosecutors possess to disclose exculpatory evidence to criminal defendants. Inspiring concern, these decisions point to the possibility that the Court (or a near-majority of the justices) will sign off on the administration’s expansive view of prosecutorial authority.         

    Last week, the Supreme Court issued its opinion in Turner v. United States. This was a fact-intensive case that I wrote about for the ACSblog here back in March. As several court-watchers anticipated, the Court decided the case in a narrow fashion; it took the opportunity to—as I characterized it three months ago—use its familiar and “well-worn minimalist approach in the Brady due process context.” What was surprising, however, was the outcome. Amy Howe, a wise spectator at SCOTUSblog, wrote in an oral argument preview that it appeared the “justices granted review to reverse the men’s conviction.”

  • July 5, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press. 

    This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.

    The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.

    What a mess.

  • July 5, 2017

    by Dan Froomkin

    The Supreme Court term that ended last week was fairly tame – at least by recent standards. But top Court observers on an American Constitution Society panel on Thursday said that beneath the collegiality and calm were signs of major fissures likely to deepen and become more acrimonious when the Court reconvenes in October.

    And nothing may have made that more clear than the Court's parting decision, crafting a compromise of sorts that lifted a stay on major parts of President Trump's hugely controversial travel ban.

    "It is muscular. It is the court drawing its own line – not based in statute, not based in executive order -- about how this semi-stay is going to be accomplished," said Lee Rowland, senior staff attorney for the ACLU's Speech, Privacy, and Technology Project. "I think that's an indicator that the Court is willing to wade in to some serious controversy, including making foreign policy itself."

    Paul Clement, a former solicitor general now at Kirkland & Ellis LLP, said the Court's travel ban decision was "a good way to think about the transition from this last term, which was kind of sleepy, and they decided a lot of things with eight justices, and didn't make any waves" to "a term full of blockbusters."

    And there's no question that Trump's addition to the Court, Justice Neil Gorsuch, will be a key element in that transformation.

    For now, said Tom Goldstein, the co-founder and publisher of SCOTUSblog, "I think that one of the things that's going on is what we call the left on the Court is trying to be relatively tactical and trying to accommodate what they think is the inevitable pivot of the Court still further to the right… and trying to build some sort of consensus."

  • June 29, 2017
    Guest Post

    by Rachel Meeropol, Senior Staff Attorney and Associate Director of Legal Training and Education at the Center for Constitutional Rights

    Having litigated the case that would become Ziglar v. Abbasi for the last fifteen years, since the summer I graduated from law school, my first impressions of the Supreme Court’s 4-2 decision were somewhat provincial. I represent six men who were detained after 9/11 for minor immigration violations. Though there was never any reason to suspect my clients of ties to terrorism, they were beaten, harassed, kept from contacting lawyers and loved ones, denied the ability to practice their religion, deprived of sleep and held in solitary confinement until they were cleared of any potential connection to terrorism by the FBI and deported. Last week’s Supreme Court decision denying them an opportunity to sue for monetary damages against the former federal officials that designed the policies that led to their restrictive confinement marks a low point in their long struggle for justice and compensation. Perhaps unsurprisingly, my first thoughts were how they would be impacted and where the case could go from here. With the benefit of a few days distance, I have forced myself to undertake the decidedly unpleasant task of considering the bigger picture: Just how badly does Justice Kennedy’s opinion eviscerate the Bivens doctrine? Spoiler alert: quite a lot.  

    Some background first: unlike constitutional violations by State officials, there is no statute that allows people to sue federal officials for damages for constitutional violations. Instead, civil rights plaintiffs have relied on a trio of Supreme Court cases, stating with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, that implied a damages cause of action directly under the Fourth Amendment, the Equal Protection Clause and the Eighth Amendment. Since 1980 the Supreme Court has consistently rejected attempts to “expand” the Bivens doctrine to allow damage actions against federal agencies, private corporations and private actors and to limit its application where Congressional action in the field leaves no room or no need for an implied cause of action. But over the same period, the Supreme Court and the circuits assumed the availability of many other Bivens claims that met the central purpose of the doctrine: compensating victims of federal officer wrongdoing where such compensation would otherwise be unavailable, and deterring individual federal officers from future illegality. Abbasi stands in sharp contrast to these decades of precedent.