Supreme Court

  • September 7, 2017

    By Lena Zwarensteyn, ACS Director of Strategic Engagement

    Our federal judiciary is in jeopardy. Courts are often the last defense for our Constitution. Federal courts make decisions about how we are treated in the workplace, how the law regards women, racial minorities, and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote, and our immigration system – just to name a few issues. 

    And yet, we have a President that has attacked individual judges and courts.

    Indeed, he campaigned with a list of potential nominees to the Supreme Court that he repeatedly emphasized would be the most conservative jurists he could find, and he was certain they passed a series of litmus tests, including on reproductive rights and gun safety laws.

  • August 21, 2017
    Guest Post

    by Dr. Caroline Poplin, Counsel & Medical Director, Guttman Buschner & Brooks PLLC

    This Supreme Court apparently believes it should never question a presidential claim of national security, no matter how weak, no matter how broad, even if it involves refugees fleeing war and persecution.

    Lest we forget, the United States was founded by the Pilgrims, a heretical Protestant group fleeing threats of imprisonment and execution in Jacobean England.

    In Trump’s first executive order, popularly called the Muslim travel ban, the president suspended the United States Refugee Admissions Program (USRAP) for 120 days, halted admission of Syrian refugees indefinitely and reduced the total number of refugees to be admitted for 2017 to 50,000 from the 110,000 authorized by President Obama.

  • 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.