September 29, 2010

Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency

A significant note from the Duke Law Journal by Joanna Huang with the above title has been posted today September 29 on the Sentencing Law and Policy blog According to Ms. Huang, " 1987 the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the Federal Sentencing Guidelines." She goes on to observe that in 2005 trust was restored in the judiciary when United States v. Booker made the Sentencing Guidelines advisory; and that, although Booker provides for increase in judicial discretion, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively.

For more, we recommend that you go to the Sentencing Law and Policy blog


Readers interested in this topic may also be interested in Final Report on the Impact of United States v. Booker on Federal Sentencing, United States Sentencing Comission, March 2006.

June 30, 2010

ABA Case Update: U.S. Supreme Court Case Related to Criminal Justice

A Service from the ABA Criminal Justice Section (CJS) *,*


United States Supreme Court Decision: Decided: June 28, 2010

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment of the US Constitution protects an individual’s Second Amendment right to keep and bear arms from interference by state or local gun control legislation.

In 2008, the Court ruled in District of Columbia v. Heller, 554 U. S. ___ that the Second Amendment right for an individual to keep and bear arms for self-defense was infringed upon by a District of Columbia gun control law banning the possession of guns in the home. Immediately following the Heller ruling, this federal suit was filed in Chicago, alleging that the city’s law banning possession of unregistered handguns was violating the Second and Fourteenth Amendments. Petitioners argued that the Second Amendment right to keep and bear arms was protected by both the Privileges or Immunities clause and the Due Process clause in the Fourteenth Amendment. Noting that the Heller ruling had refrained from deciding whether the Second Amendment applied to state and local legislation, the District Court upheld the Chicago law while citing precedent from several previous handgun ban cases. The Seventh Circuit Court of Appeals affirmed.

The Court’s decision traced the evolution of previous Supreme Court rulings which sought to determine which elements within the Bill of Rights were protected by the Fourteenth Amendment against state and local infringement. The Court’s 1873 decision in Slaughter-House Cases, 16 Wall. 36, called for a very narrow view of the Fourteenth Amendment’s applicability to state law. Using Slaughter-House as precedent, the Court decided during the late 19th century in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535 that Second Amendment rights were not covered under the Fourteenth Amendment. Over time, the Court gradually widened its interpretation, later holding that an element in the Bill of Rights that was “fundamental to our Nation’s particular scheme of ordered liberty and system of justice” would be protected by the Fourteenth Amendment (Duncan v. Louisiana, 391 U. S. 145, 149). The Court also cited Heller’s holding that the right to self-defense, protected by the Second Amendment, was held to be a “fundamental” right as defined in Duncan. In addition, the Court noted that Congressional debates over the Fourteenth Amendment’s ratification “referred to the right to keep and bear arms as a fundamental right deserving of protection.” Accordingly, the Court held that the Fourteenth Amendment protects the Second Amendment right to keep and bear arms against infringement by state or local legislation.

Judgment reversed and remanded.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Decision available at:

Authored by: Caleb W. Skeath, CJS Intern
*We both acknowledge and appreciate the efforts and dedication of the CJS Legal Intern Caleb W. Skeath in preparing the above commentary.

June 25, 2010

ABA: U.S. Supreme Court Summaries - Mail Fraud and "Honest Services" - Three Cases

Supreme Court Case Summaries: Professor Rory Little’s Perspective

A Service from the ABA Criminal Justice Section,

These summaries are written by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010

Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States,

Black v. United States,

Weyhrauch v. United Sates,

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.

Continue reading "ABA: U.S. Supreme Court Summaries - Mail Fraud and "Honest Services" - Three Cases" »

June 18, 2010

U.S. Supreme Court Case Briefs: The Perspective of Professor Roy Little

NOTE: This posting includes Professor Little's perspective on City of Ontario v. Quon, the cfase whch includes interesting discussion about whether public employees have a reasonable expectation of privacy regarding text messages went on government owned equipment during working hours.

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases

Two decisions: June 18, 2010

Dillon v. United States;

City of Ontario v. Quon

On June 17, the Court issued two decisions related to criminal law. In Dillon, the majority’s opinion presents what would appear to be a straightforward account of federal sentencing statutes and guidelines to affirm an old, 23-year guidelines sentence. But Justice Stevens in dissent raises much larger separation-of-powers questions, post-Booker, to challenge (on very sympathetic facts) “what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.”

Meanwhile, in Quon the Court addresses, but then avoids deciding, the sensitive issue of expectations of privacy regarding electronic text messaging. In a fact-specific setting of a law enforcement officer using his government-provided pager during work hours to send personal messages, the Court rules that an employer review of the messages for budgetary reasons is “reasonable” under the Fourth Amendment.

1) FEDERAL SENTENCING (upholding mandatory limit on sentence reductions for new, retroactive guidelines).

Dillon v. United States, No. 09-6338, 130 S.Ct. ___ (June 17, 2010), affirming 572 F.3d 146 (3d Cir. 2009).

Holding (7-1, Alito not participating, presumably because it is an old case from his Circuit): The Sentencing Commission policy statement that limits the amount of reduction a defendant can receive, when the Commission later revises a guideline and makes it retroactive, is not made “advisory” by Booker.

Facts: [Ed. Note: There are always more ways than one to present “facts.” One way is to start with the “legal facts” (statutes and such); another is to start with the defendant’s personal facts. The majority takes the former approach, but I’ll try the latter here. Most of the sympathetic facts come from Justice Stevens’ dissent. See if it makes a difference to you.]

Dillon was convicted in 1993, when he was 23, of a crack cocaine offense and a § 924(c) firearms offense, which by statute required a mandatory minimum of 15 years total (10 for the crack, consecutive 5 for the gun). The Sentencing Guidelines, however, recommended a higher 262-327 months for the crack offense, based on the amount of drugs and criminal history (Dillon had two prior misdemeanor convictions). The sentencing judge gave the bottom of the range (22 years), plus 5 years for the gun, for a total of 322 months, and the Third Circuit affirmed. But at Dillon’s original sentencing, the district judge said “I personllay don’t believe that you should be serving 322 months, but I feel I am bound by those Guidelines. ….I don’t think they are fair.” The Guidelines are “entirely too high for the crime committed,” and a five-year sentence would be appropriate, said the judge.

Of course, two decades later in Booker the Court made the guidelines “advisory, and in 2007 in Kimbrough the Court ruled that disagreement with the crack guidelines could support a “reasonable” below guidelines sentence. If Dillon had received the mandatory minimum 15 years, he would be out of prison today. Meanwhile, in prison Dillon has been a pretty extraordinary “good” prisoner. He has participated in the development of youth outreach programs, with two different universities, to steer youth away from drugs and violence. “Without his insight and advice, our project would not have succeeded and grown,” said one program coordinator. Dillon also completed a GED degree, taken vocational classes, “and has job prospects awaiting him upon release.”

After Kimbrough, the Sentencing Commission amended the Guidelines to reduce the crack offense levels by two points, and ordered that the amendment be retroactive. But the Commission also issued a “policy statement” directing that any reduction must not be “less than the minimum for the amended guideline range.” The amended Guidelines that permit a retroactive reduction for crack offenses are an exception to the normal statutory rule that a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).

Dillon moved for the sentencing reduction, and the district judge reduced his 262 months for crack to 210 months, the bottom of the amended range. But Dillon asked the court to go lower, arguing that the guidelines were now advisory under Booker and that the new sentencing proceeding permitted the court to sentence freely under Kimbrough and § 3553. The district court, however, found no authority permitting it to ignore the mandatory limit on the sentencing reduction found in the policy statement, and the Third Circuit affirmed.

Sotomayor (joined by all Justices except Stevens, who dissents, and Alito who did not participate in the review of his old Circuit’s decisions): The limited sentencing reduction permitted for a retroactive amended Guideline is not a general “resentencing,” so the wide-open, discretionary sentencing authority under § 3553 and Booker does not come into play. Congress has made it clear that an imprisonment sentence may not be modified except in limited circumstances, and the exception for reductions when Guidelines are amended is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Section 3582(c) authorizes a reduction only “if such a reduction is consistent with applicable policy statements.” Here, the policy statement limits the reduction to the bottom of the amended guideline range. Booker does not require or permit us to eliminate the mandatory limits on reductions that Congress and the Commission have announced. (“We do not respond” to Justice Stevens’ separation of powers discussion, which was not briefed and is not within the question presented here.) There is no constitutional right to a reduction, and the reduction proceeding itself does not implicate Booker or Apprendi, because the judge in a reduction proceeding only exercises discretion within the statutory range. “None of the confusion or unfairness that led us” to the Booker remedy is present here. The constitutional errors, if any, in Dillon’s original sentencing (i.e., basing the Guidelines sentence on facts not found by the jury such as the amount of drugs, and thinking that the Guidelines were mandatory) “are outside the scope of the [sentencing reduction] proceeding.”

Stevens dissenting: “Neither the interests of justice nor commonsense” support this result. “I thought Booker had dismantled the mandatory Guidelines regime. The Court ought to finish the job.” Moreover, the idea that the Commission can, in a mere “policy statement,” mandatorily order district courts in this instance, despite Booker, is of “dubious” constitutionality -- Justice Scalia’s criticisms of the Commission on separation of powers grounds in Mistretta might well apply here. “I do not think the Commission’s authority encompasses the ability to promulgate binding guidelines via policy statements.” [Ed. Note: However, neither Justice Breyer, who wrote Booker, nor Justice Scalia, who dissented in Mistretta saying the entire Sentencing Commission was unconstitutional on separation of powers grounds, joins or comments on Justice Stevens’ discussion of those two cases here.]

Although I joined the majority in Mistretta, “it became apparent during the next two decades” that the mandatory guidelines “produced a host of excessively severe sentences” and also deprived defendants of “long-settled constitutional protections” (thus leading to Apprendi and Booker). And although I dissented in Booker, the fact that Congress has allowed it to stand “demonstrates not only that Justice Breyer is more clairvoyant than I … but also that Congress has acquiesced to a discretionary Guidelines regime.” We should not leave in place the “narrow sliver” of mandatoriness in the policy statement at issue here. Finally, the Commission makes the “subtle threat” that if we remove its limit on sentencing reductions, it won’t make amended Guidelines retroactive in the future. We ought not be influenced that in our decision here, and it seems unlikely.

2. FOURTH AMENDMENT (reasonableness of searching electronic text messages of public employees sent on government–owned equipment during work hours)

City of Ontario, California, v. Quon, No. 08-1332, 130 S.Ct. ____ (June 17, 2010), reversing 529 F.3d 892 (9th Cir. 2008).

Holding (9 (7-1-1) to 0): Without deciding generally whether public employees have a reasonable expectation of privacy in their text messages sent on government-owned equipment during work hours, the review of Quon’s messages here, for a legitimate work-related purpose and not excessive, was reasonable under the Fourth Amendment.

Facts: Quon’s city police department employer gave him a text-messaging device for use in his work as a member of the SWAT team. The city made it clear that texts could be monitored and that he should have no expectation of privacy regarding them. However, when the city became concerned that it was paying too much for “overages” on its plan, Quon’s supervisor told Quon that, if Quon paid for the overages, then his texts would not be “audited.” Quon then started paying monthly overage charges himself, and says this created a “reasonable expectation of privacy” that his messages would not be reviewed. Later, however, the city became tired of being a “bill-collector” and decided to audit the texts to see whether the level of messages paid for was adequate for the policing job. The city restricted its review to text messages sent during work hours, and only for two months. Still, it found that Quon was sending lots of texts for personal reasons (they revealed his romantic, and sometimes sexually explicit, messages), and he was disciplined. Officer Quon and other people he messaged with sued, alleging their Fourth Amendment rights were violated by this government “search” of their messages. The district court rejected the claim after a jury found that the audit was conducted for a legitimate government purpose, but the Ninth Circuit reversed and remanded, finding that “less intrusive means” could have been used to achieve that purpose.

Kennedy (for all Justices except Scalia in one Part): This case “touches issues of far-reaching significance,” and we “must proceed with care when considering the whole concept of privacy expectations in” modern electronic mechanisms. “It is not so clear that courts are at present on so sure a ground” so as to opine authoritatively on these issues. “Prudence counsels caution before the facts of this case are used to establish far-reaching premises.” (The Court cites to Olmstead, which early on held that wire-tapping was not a constitutional issue, which took some 45 years to reverse in Katz (1967).)

Meanwhile, this Court has disagreed as to the proper analysis for workplace Fourth Amendment concerns. In O’Connor v. Ortega (1987), the Court agreed that a worker in a government office does not necessarily lose all privacy expectations. However, only a plurality said that “operational realities of the workplace” must be examined. Justice Scalia rejected this idea, and said that “reasonable” workplace searches should simply be upheld. We do not resolve this dispute here. Even assuming that Quon had a reasonable expectation of privacy in his text messages here, we think the review of his messages was reasonable. It was for a “legitimate work-related” purpose, and it was not excessive. Quon had only a “limited expectation of privacy” at best, because “a reasonable employee” in a law enforcement job would know that his messages might be reviewed. [Ed note: Here the Court appears to be answering the questions, at least in part, that it said it would not answer, above.] It was error for the Circuit to rule on a “less intrusive means” analysis, because a hindsight court “can almost always imagine some alternative means,” and we have “repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment” (Vernonia, 1995).

Stevens, concurring: I want to point out that Justice Blackmun, in dissent in O’Connor, offered a third approach, more protective of workplace privacy, and his approach is not yet “foreclosed.” However, “Quon, as a law enforcement officer who served on a SWAT team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny.”

Scalia, concurring in part and in the judgment: First, Justice Blackmun’s approach is foreclosed, he was the losing dissenter in O’Connor. More importantly, the “operational realities rubric” of the O’Connor plurality is “standardless and unsupported,” so I can’t join that part of the majority’s discussion. And finally, the Court’s “digression” on the general issue is “unnecessary,” “exaggerated,” and “self-defeating” because it “underscores the unworkability of that standard.” [Ed. Note: Justice Scalia is particularly unhappy with the majority’s speculation that electronic “gadgets” might be necessary, even in the workplace, for “self-expression, even self-identification,” which does indeed seems like an unnecessary, and typically Kennedy-ian, poetic description.]


June 8, 2010

ABA: U.S. Supreme Court Updates

A Service from the ABA Criminal Justice Section,

Received: June 8, 2010.

· Barber v. Thomas (No. 09-5201)

· United States v. Juvenile Male (No. 09-940)


Barber v. Thomas (No. 09-5201)

United States Supreme Court Decision: Decided: June 7, 2010

In a 6-3 decision today the Supreme Court determined that the Bureau of Prison’s (BOP) current method for calculating good time credit proscribed in 18 U.S.C. §3624(b)(1) is both lawful and correct. The government maintained that under §3624 time for good behavior is calculated at the conclusion of each year. In contrast, petitioner argued that calculation should be based upon the term of imprisonment that the sentencing judge imposes, not the length of time actually served.

The Court noted that the movement under the Sentencing Reform Act of 1984 towards a retrospective reward* of reduced time justified the current reading of ‘term of imprisonment’ whereby good behavior is awarded at the end of each term served. Currently under the BOP methodology well-behaved prisoners are given 54 days of credit for each full year of imprisonment and these days are compounded to reduce the overall length of a prisoners stay based on a deduction of these days at the end of a prisoner’s term.

Petitioners, two federal inmates, argued instead that the days should be credited right away and therefore recalculate the start of the prisoners second year by 54 fewer days. The underlying question was whether ‘term of imprisonment’ should be construed to mean the entire term imposed by the judge (resulting in a prospective overall sentence reduction of 15%) or the time already served (resulting in a yearly reduction of a up to 54 days). Petitioners maintain that on average, prisoners lose seven days of good behavior per year under the current model.

The Court rejected this argument noting the plain language of §3624 contemplated that the prisoner would receive credit “of up to 54 days at the end of each year subject to the determination of the BOP that, during that year, the prisoner” had behaved in an exemplary fashion. Barber v. Thomas, 560 U.S. ___ (2010). Additionally, the Court noted that the BOP’s methodology furthers the objectives of awarding good behavior credits for the preceding year of imprisonment, or time served.

Judgment affirmed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, ALITO, and SOTOMAYOR, JJ., joined. KEN-NEDY, J., filed a dissenting opinion in which STEVENS and GINSBURG, JJ., joined.

Decision available at:

June 3, 2010

U.S. Supreme Court Case Briefs (Berghuis, Carr): Professor Rory Little's Perspective

Berghuis v. Thompkins June 2, 2010

United States v. Carr

A Service from the ABA Criminal Justice Section,

Introduction by ABA Criminal Justice Section:

This summary has been created by Professor Rory K. Little , U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

Professor Little's Summaries:

June 2, 2010.

Yesterday the Court issued opinions in two criminal cases, summarized below. Perhaps not coincidentally, both had opinions authored by Justice Sotomayor. In Carr, she wrote the majority, while in Thompkins, she wrote a vigorous dissent. The Justices seem to be “courting” the newest Justice, dropping stray compliments for her opinions (a tactic embedded some 35 years ago by Justice Brennan’s early praise of Justice Blackmun’s opinions, including Brennan’s favorable (and usually unnecessary) citation of Justice Blackmun’s Eighth Circuit decisions). Thus Justice Scalia, while not entirely agreeing with Justice Sotomayor’s majority in Carr, mentions “the Court’s thorough discussion,” and Justice Kennedy remains respectful of her dissent in Thompkins, even as Justice Sotomayor (who clearly is not holding back) describes Justice Kennedy’s majority as “a substantial retreat,” one that “flatly contradict[s] our longstanding views.” Only Justice Alito (himself relatively new to the Court) seems not to be showing the newest Justice any deference, saying that Justice Sotomayor’s conclusion in Carr “makes no sense” (twice), is “thoroughly unsound,” and “flies in the face” of accepted statutory drafting principles.


Berghuis v. Thompkins, No. 08-1470, 130 S.Ct. ___ (June 1, 2010), reversing 547 F.3d 572 (6th Cir. 2008) (on habeas), thereby affirming 683 N.W.2d 676 (Mich 2004, table).

Holding: (1) A person in custody must clearly invoke his right to remain silent after Miranda warnings, or police may continue questioning; and (2) after a suspect has been informed of his Miranda rights and indicates understanding, an uncoerced statement by the suspect “establishes … waiver” (even here, where the suspect refused to answer interrogation questions for almost three hours before saying something incriminating).

Facts: Thompkins was arrested on suspicion of murder, and was interrogated by two officers for about three hours. [Can we deny that the fact that there was a lot of other evidence indicating Thompkins guilt, not mentioned until the last page of the Court’s opinion, that inevitably colors our assessment of this case?] He was fully advised of his Miranda rights, and he declined to sign the rights form. However, he also did not say that he wished to remain silent. Instead, Thompkins simply sat “largely silent” for 2¾ hours, offering non-committal one-word responses (and one remark that “the chair he was sitting in was hard”). Finally, an officer asked Thompkins if he believed in and prayed to God, and when Thompkins said “yes” and started to cry, the officer asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins said yes, looked away, and refused to make any written statement. The officers ended the interrogation and used the final remark against Thomkins at trial, where he was convicted for murder and sentenced to life without parole.

A secondary issue was that a compatriot of Thompkins (Mr. Purifoy) was previously tried as an accomplice to the same murder but acquitted. Purifoy then testified at Thompkins’ trial, and the prosecutors asked the jury “did Purifoy’s jury make the right decision?” The defense did not object or request a limiting instruction, and Thompkins now claimed ineffective assistance.

The Michigan appellate court affirmed, the Michigan Supreme Court denied review, and on federal habeas, the district court denied relief. But the Sixth Circuit reversed, finding no valid waiver of Miranda (thus suppressing the “pray to God” response), and finding ineffective assistance on the jury issue.

Kennedy (for five Justices):

The Sixth Circuit was bound to apply the deferential federal habeas standard (“unreasonable application of clearly established federal law”). But because we find that the Circuit was wrong even under de novo review, we don’t examine the habeas standard further. [Ed Note: The dissent says that this procedural dodge makes the rest of the Court’s opinion “unnecessary to the decision,” that is, dicta. Says Justice Sotomayor, if the Circuit was not properly deferential, and the state court’s application of federal law was not “unreasonable,” then the Court should reverse and not rule finally on the substantive questions presented. It is highly unlikely, however, that anyone will view the next 12 pages of Justice Kennedy’s majority opinion as non-binding “dicta.”]

First, it is settled under Miranda that custodial questioning must cease once the “right to remain silent” is “invoked.” However [and this is a new ruling], silence alone is not “invocation” of the right not to be questioned. A suspect must “unambiguously” invoke his right to remain silent, just as we have held regarding the right to have an attorney present (Davis 1994).

Second, although Thompkins declined to sign a waiver form or make a written statement, his incriminating response to the police after 2¾ hours of questioning demonstrates an “implied waiver.” When proper Miranda warnings have been given and understood, the right to remain silent has not been invoked, and there is no other “coercion,” a response “establishes [a] waiver.” There is no authority for the claim that an interrogation of under three hours, after full Miranda warnings, is “inherently” coercive, and the “police are not required to rewarn suspects from time to time.” We have not previously answered this question, although Miranda itself did say that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or … the fact that a confession was in fact eventually obtained.” The “heavy burden” to show waiver remains on the prosecution. But Butler (1979) established that a “course of conduct” can show waiver; and there is no rule that a waiver must be obtained before questioning can occur (even though a number of police manuals say this). “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived.”

[Editor’s opinionated note: Up to this point, Justice Kennedy’s opinion is straightforward. However, on page 16 he engages in what can only be described as an unrealistic civics lesson (not to mention truly dicta) about police interrogations. “Interrogation provides the suspect with additional information” so that he “has the opportunity to consider the choices he or she faces, and to make a more informed decision.” Given that police are permitted to lie to suspects about the evidence, this is simply silly – “informed” decisions require accurate information, not trickery. It is possible to imagine that Justice Scalia is actually responsible for the ideas in this paragraph, which discusses the perceived benefits of custodial interrogation without telling the suspect any more than the initial Miranda warnings. It sounds like Scalia ideas expressed in Kennedy language.]

On the second question, “it seems doubtful that the failure to request the [limiting] instruction … was deficient representation, but” even if it was, Thompkins cannot show prejudice in the sense of a “reasonable probability that the outcome would have been different.” It would not “have made any difference in light of all the other evidence of guilty,” including a victim ID of Thompkins, a surveillance camera photo, a friend who said Thompkins confessed to him, and other evidence showing consciousness of guilt.

Sotomayor, dissenting (joined by Stevens, Breyer and Ginsburg): The Court’s opinion is a “substantial retreat” from Miranda protections, is “inconsistent with fair-trial principles,” and “bodes poorly for the fundamental principles that Miranda protects.”

First, the Court should not even make the substantive rules it announces today. All it properly should do is reverse because the Circuit was wrong under the deferential principles of AEDPA habeas review. Also, the Sixth Circuit ruled only on the waiver question, and did not answer the invocation question, so we should remand to them rather than rule in the first instance on invocation.

On waiver, there was no express waiver and the police never asked for one. Thompkins “remained almost completely silent and unresponsive” for three hours. This clearly indicated his desire not to talk, and the prosecution did not sustain the “heavy burden” to prove a “voluntary and knowing” waiver. The Court’s ruling contravenes statements in Miranda (such as “a waiver will not be presumed simply from silence”) as well as other such precedents. We said in Miranda that “the fact of lengthy interrogation … is strong evidence that the accused did not validly waive. …[T]he fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of voluntary relinquishment….” For the Michigan courts to conclude otherwise was, in fact, “objectively unreasonable under our clearly established precedents.” And the majority’s contrary rulings (unnecessary to decision as they may be) “flatly contradict” these precedents. The Court “overrules sub silentio” some essential aspects of Miranda.

Regarding invocation, it is true that it might be “difficult to include” that the Michigan court’s decision was “unreasonable,” since we have never answered the question. However, I “cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking.” This “invites police to question a suspect at length” without waiver, “in the hopes” of getting something incriminating. Extending Davis, which was about the right to counsel, to this different right under Miranda, is wrong as well as unnecessary. “The Miranda warnings give no hint that a suspect should use … magic words” to invoke. A rule more faithful to Miranda and its fairness rationales would be to require the police to ask for a clear answer to the question whether a suspect wants to talk, and to not allow questioning until a clear response is received.

2. FEDERAL STATUTES (sex offender registration crimes)

Carr v. United States, No. 08-1301, 130 S.Ct. ____ (June 1, 2010), reversing 551 F.3d 578 (7th Cir. 2008).

Holding (6-3), Sotomayor (Scalia not joining the legislative history subsection); Alito dissenting with Thomas and Ginsburg: As a matter of statutory construction, the federal law making it a crime for sex offenders to fail to register after travelling in interstate commerce requires that the interstate travel occur after the date the federal statute was enacted.

Facts: This is purely a case of statutory construction. In 2006, Congress enacted a statute making it a federal crime for person who is (1) required to register as a sex offender and (2) who “travels in interstate or foreign commerce,” to (3) knowingly fail to register in the new State. 18 U.S.C. § 2250(a). These elements undisputedly have to happen in sequence; the only question presented is whether the “travel” has to happen after the date of enactment, or whether a sex offender who moves to another state before the date of enactment, and then fails to register, can also be reached by this federal law. Carr was convicted in 2004 in Alabama and registered there, but then moved to Indiana before 2006 and did not re-register there. The Seventh Circuit created a Circuit split by ruling that the travel did not have to occur before the date of the federal law, so long as the failure to register did (and that this construction also presented no ex post facto problem, a question not reached by the Court today).

Sotomayor (for six Justices, although Scalia does not join the legislative history subsection): The plain language of the statute, using the present tense “travels” as opposed to “has travelled,” settles the issue: the travel must occur after the date of enactment. [Interesting side-note: Justice Sotomayor uses the word “omnitemporality” in footnote 5 to describe the rejected argument that the present tense can also include the past and future tenses.] Statutory context and legislative history confirms this view. The government’s argument that our reading leaves a “gap” unintended by Congress (sex offenders who escape state sex registration requirements by moving out of state before 2006) does not overpower this clear text – moreover, we think it is consistent with Congress’s apparent decision to leave most sex offender registration issues to the States. This is materially different than the federal firearms statute that permits the interstate element of “felon in possession” to occur at any time (Scarborough 1977).

Scalia, concurring in part: I don’t join the subsection that addresses legislative materials, because “the Court’s thorough discussion of text, context, and structure demonstrates that the meaning of [the statute] is plain” and we should examine “only the text Congress voted on.”

Alito, dissenting, joined by Thomas and [surprisingly?] Ginsburg: The Court “misinterprets” the statute and “hobbles” Congress’s clear intention to track down and criminalize sex offenders who move between States to avoid registration requirements. Why would Congress have wanted to criminalize only those offenders who moved after 2006, as opposed to all such persons who knowingly fail to register after that date? The offense that causes the registration requirement can occur before the date of enactment – why not the interstate travel? As for the present tense of the verb “travels,” “modern legislative drafting” manuals recommend drafting this way: the tense refers to the date on which the statute is read (not the date of enactment). [This is not a reach: Justice Alito cites the U.S. Senate Legislative Drafting Manual and two pages of similar authorities that support the proposition.] The Court’s conclusion to limit the reach of the federal statute “makes no sense,” and it is “perverse” to allow offenders like Carr to escape federal prosecution. The legislative history shows that Congress was clearly concerned about all sex offenders who move out of state and then fail to register. “Interstate travel was dangerously undermining the effectiveness of state sex-offender-registration laws.”

May 26, 2010

A U.S. Supreme Court Case Brief: Professor Rory Little's Perspective

United States v. Marcus, No. 08-1341, 130 S.Ct. ___(may 24, 2010).

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

FEDERAL RULES – Plain Error Doctrine, Federal Rule of Criminal Procedure 52(b).

United States v. Marcus, No. 08-1341, 130 S.Ct. ____ (May 24, 2010), reversing 538 F.3d 97 (2d Cir. 2008) (per curiam) (with Sotomayor, J., concurring [and hence recused in USSCt).

Holding (7-1), Breyer; Stevens dissenting (Sotomayor recused): “Plain error” review -- for errors not objected to in the trial court but raised for the first time on appeal -- requires a “reasonable probability that the error affected the outcome of the trial,” not just “any possibility no matter how unlikely” as the Second Circuit stated. (Interestingly, while on the Second Circuit, Justice Sotomayor had concurred in the judgment while pointing out the panel’s error (but following Second Circuit precedent). Here, although Justice Sotomayor recused herself, the Supreme Court effectively instituted her concurrence as its near unanimous holding.)

Facts: Marcus was indicted on federal charges that he had committed forced labor and sex trafficking between January 1999 and October 2001. He was tried on evidence showing coercive sexual bondage and dominance conduct with a number of women during this period, and convicted on both charges. On appeal, he raised for the first time the fact that the federal statute he was charged under had not gone into effect until October 2000, in the middle of the period charged by the government. The government argued that this was not “plain error” under Fed.R.Cr.Pro. 52(b), because the conduct was a continuing offense and the evidence of criminal conduct after October 2000 was sufficient. But the Second Circuit reversed and remanded for a new trial, invoking CA2 precedent that said when such a potential “ex post facto” event occurs, retrial is necessary if there was “any possibility, no matter how unlikely,” that the jury could have convicted based exclusively on pre-enactment conduct.

Justice Breyer (for 7 members of the Court): The CA2 legal standard is “inconsistent with this Court’s” plain error precedents. Rule 52(b) allows an appellate court to reverse a conviction for even an unobjected-to error, when it is “plain error that affects substantial rights.” The Court has specified a four-step inquiry to determine “plain error”: “that (1) there is an error; (2) the error is clear or obvious,…; (3) the error affected the appellant’s substantial rights,….; and (4) the error seriously affects the fairness, integrity, or public reputation” of the judiciary. (Also (5), there may (rarely) be types of “structural error” that require reversal even without this four-poart showing – but we think the error here is no more important than other errors involving constitutional rights that we have found not to be “plain” error.) The third step requires a Strickland-like showing: “prejudice,” meaning a “reasonable probability” that the error affected the outcome. Here, there was no real “ex post facto” error; rather, the error was not instructing the jury that Marcus’s conduct was not unlawful until October 2000. For this, a “showing of individual prejudice” is required. While not “intend[ing] to trivialize” the claim, this case is remanded for CA2 to apply the more demanding plain error analysis we describe.

Stevens dissenting: Although the court of appeals did (“curious[ly]”) misdescribe the test, “I find nothing wrong with [its] judgment.” To me, “the post-enactment evidence appears to have been insufficient to prove guilt beyond reasonable doubt” (citing Judge Sotomayor’s concurrence below). There is “a very real possibility” that the jury convicted Marcus “solely on the basis of preenactment conduct.” I think this “seriously undermined the integrity of the proceedings.” In addition, I think the Court’s complicated five-step analysis has “both muddied the waters and lost sight of the wisdom embodied in the Rule’s spare text.” Courts of appeal need discretion here, because they “repeatedly confront” errors that occur but were not perceived below AND [Ed. Note: this next is an unusually candid, if also accurate to practitioners, admission] “[t]hey become familiar with particular judges.” The court’s “ever-more intensive efforts to rationalize plain-error review” has “trapped the appellate courts in an analytic maze” that “is more liable to frustrate than to facilitate sound decisionmaking.”

May 25, 2010

ABA: U.S. Supreme Court Update

A Service from the ABA Criminal Justice Section,

Received: May 25, 2010.


In an opinion by Justice Kennedy, the United States Supreme Court ruled the fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt and not a sentencing factor to be proved to the judge at sentencing.

Respondents O’Brien and Burgess carried firearms during an attempted robbery. They were indicted under 18 U.S.C.§924(c)(1)(A)(i) - using a firearm in furtherance of a crime of violence, which carries a mandatory minimum of 5 years in prison. They were also indicted with a violation of §924(c)(1)(B)(ii) - use of a machinegun in furtherance of that crime, which carries a 30 year mandatory minimum prison term. The government went on to dismiss the latter count on the basis that they could not establish the count beyond a reasonable doubt. However, the government maintained that §924(c)(1)(B)(ii)’s machinegun provision should be a sentencing enhancement to be determined by the court after conviction of §924(c)(1)(A)(i). The District Court dismissed the machinegun count and rejected the government’s sentencing enhancement position. Respondents then plead guilty to the remaining counts.

The Supreme Court granted cert and the case was argued on February 23, 2010. The Court relied largely on Castillo v. United States, 530 U. S. 120, which held that in an earlier version of §924(c), the machinegun provision was an element of the crime and not a sentencing factor (which only needs to be proved by a preponderance of the evidence). The Court previously held when Congress is not clear on whether a factor is an element or a sentencing factor, courts should examine a statute’s framework and provisions for direction. The Court followed the determination in Castillo that the machinegun provision in §924’s prior version is an element and that a substantive modification of the statute should not be inferred absent a clear sign from Congress of a change in policy. Grogan v. Garner, 498 U. S. 279, 290 (1991). The Court found that nothing in the amendment of §924 indicates such a substantive change. Ultimately, the Court held that the machinegun provision is an element that needs to be proven beyond a reasonable doubt.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Case is available at:

Written by Chaz Lehman, CJS Research Attorney

United States v. Marcus, No. 08-1341

United States Supreme Court Decision: May 24, 2010

In a 7-1 opinion by Justice Breyer, the United States Supreme Court held that the 2nd Circuit’s interpretation of Federal Rule 52(b) was inconsistent with the Supreme Court’s interpretation of the plain error rule.

Glenn Marcus was convicted of unlawful forced labor and sex trafficking in violation of 18 USC §§ 1589 and 1591(a)(1) between January 1999 and October 2001. Upon appeal, Marcus raised the defense for the first time that his statutes relating to his convictions became law on October 28, 2000. The indictment and all of the evidence used against him at trial took place earlier. Marcus argued that his conviction, therefore, violated the Ex Post Facto Clause. Marcus argued that his conviction must be overturned because the constitutional error constituted “plain error” according to Federal Rules of Criminal Procedure, Rule 52(b).

The 2nd Circuit held that plain error exists if there is any possibility, no matter how unlikely, that a jury convicted a defendant exclusively on the basis of the actions the defendant took before the statute criminalizing his conduct was enacted. The Supreme Court granted cert to decide whether the 2nd Circuit’s “plain error” approach was consistent with the Supreme Court’s own interpretation.

Federal Rule 52(b) authorizes the appellate court to recognize “plain error that affects substantial rights” even if that error was not raised in the district court. The Supreme Court held the 2nd Circuit’s interpretation improper because Marcus failed to demonstrate that “the error ‘affected the appellant’s substantial rights’”, meaning it “affected the outcome of the district court proceedings”, and that “the error seriously affect(s) the fairness, integrity or public reputation of judicial proceedings.” The 2nd Circuit’s “any possibility, no matter how unlikely” analysis is inconsistent. Reversed and remanded.

Justice Breyer delivered the opinion of the Court, joined by Roberts, C.J., and Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ.. Justice Stevens dissented. Judge Sotomayor took no part in the consideration or decision of this case.

Case is available at:
Written By: Afua A. Osseo-Asare, CJS Intern

Jefferson v. Upton No. 09-8852

United States Supreme Court Decision: Decided: May 24, 2010

In a per curiam opinion issued today the Supreme Court ruled that the appellate court (11th Cir.) failed to apply all eight exceptions to a state court factual findings (regarding constitutionality of representation) and the judgment was vacated to consider several remaining potentially applicable exceptions. See 28 U.S.C. §§2254(d)(1)-(8) (1994 ed.).

Lawrence Jefferson was facing a death sentence and claimed in both state and federal court that his lawyers were constitutionally inadequate because they failed to investigate a previous brain injury which may have impacted his impulse control. As a child Jefferson suffered a serious brain injury and at the district court level expert testimony demonstrated that the injury caused “abnormal behavior” over which he had “no or substantially limited control”. Jefferson v. Terry, 490 F. Supp. 2d 1261 at 1321. In addition, testimony from Dr. Gary Dudley prepared for trial court noted that although Jefferson’s decision making capacity was not impaired, he thought it worthwhile to conduct further evaluations to rule out brain damage which could impair behavioral patterns. Jefferson’s attorneys failed to pursue such testing noting that in later conversations Dr. Dudley had told them that further investigation would be a waste of their time (a sworn affidavit by Dr. Dudley denied such statements). Relying on findings crediting the trial attorneys own testimony with regards to their efforts to investigate Jefferson’s mental condition the trial court held that the attorneys made a reasonable investigation into his mental health. The Georgia Supreme Court affirmed, despite noting that court’s opinion relied on a witness “who did not testify” or participate in the proceedings. Jefferson v. Gant, 263 Ga. 316, 318.

A federal district court substantiated factual findings of the state court but held that counsel was ineffective and on appeal Jefferson defended these findings and argued that the state court’s factfinding was ‘dubious at best’. Noting an exception enumerated in Townsend v. Sain the Court emphasized that if a habeas applicant did not receive full and fair evidentiary hearing then federal court may hold such a hearing. 372 U.S. 293 (1963). The opinion specifically states that if any of the eight exceptions are applicable (as outlined in Townsend and later codified in §2254(d)) then the state courts factfinding is not presumed correct and the federal court is not duty-bound to accept any and all state-court findings that are supported by the record. The Supreme Court held that by only considering one of the eight exceptions the appellate court failed to correctly consider the legal status of the state court’s factual findings.

Judgment vacated and case remanded.

SCALIA, J. filed a dissenting opinion in which THOMAS, J. joined.

Decision available at:

Written by: Caitlin Huggins, CJS Summer Intern

Robertson v. United States ex rel. Watson No. 08–6261.

United States Supreme Court Decision: May 24, 2010

In a per curium decision with four dissenters, the United States Supreme Court ordered the petition dismissed as improvidently granted. Chief Justice Roberts wrote a dissent joined by Justices Scalia, Kennedy, and Sotomayor. Justice Sotomayor also wrote separately and was joined by Justice Kennedy.

Petitioner Robertson was convicted in the District of Columbia of criminal contempt initiated and prosecuted on behalf of Respondent Watson for violating a protective order after he assaulted her. However, before contempt proceedings were initiated, Robertson made a plea agreement dismissing any further action against him relating to the assault. Robertson appealed the conviction because it was barred by his plea agreement. The Court of Appeals affirmed the conviction, holding that Watson was acting in a private capacity and therefore not bound to the government’s plea agreement.

The Court originally granted cert to decide “[w]hether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” Although the Court gave no reason for its dismissal in the per curium order, it apparently agreed with the Solicitor General, supporting the respondent, Watson. The Solicitor General argued for dismissal because the issue presented was not properly argued or developed by the petitioner in the present litigation. Arguing before the lower appellate court, the United States asserted that Watson was acting in a purely private capacity in bringing the criminal contempt action against Robertson and therefore no constitutional protection applied. Although the lower court found that reasoning persuasive, the Solicitor General abandoned that argument before the Supreme Court—foreshadowing the Court’s eventual dismissal.

Case is available at:

Written By: Erin Magary, CJS Research attorney

May 24, 2010

Findlaw Case Summaries: U.S. Supreme Court

To view the full-text of cases you must sign in to All summaries are produced by Findlaw

May 24, 2010.

American Needle, Inc. v. Nat'l Football League, No. 08–661
In an antitrust action challenging the NFL's grant to Reebok of an exclusive license to create apparel incorporating the NFL's intellectual property, the Seventh Circuit's affirmance of summary judgment for defendants is reversed where the alleged conduct related to licensing of intellectual property constituted concerted action that was not categorically beyond the coverage of Section 1 of the Sherman Act. ..

Hardt v. Reliance Std. Life Ins. Co., No. 09–448
In an action alleging that defendant violated the Employee Retirement Income Security Act of 1974 (ERISA) by wrongfully denying her benefits claim, the Fourth Circuit's order vacating the district court's award of attorney's fees to plaintiff is reversed where: 1) a fee claimant need not be a "prevailing party" to be eligible for an attorney's fees award under 29 U.S.C. section 1132(g)(1); and 2) a court may award fees and costs under section 1132(g)(1), as long as the fee claimant has achieved some degree of success on the merits.

Continue reading "Findlaw Case Summaries: U.S. Supreme Court " »

May 18, 2010

U.S. Supreme Court Update: Graham v. Florida No. 08-7412:

A Service from the ABA Criminal Justice Section,

Graham v Florida No. 08–7412.

United States Supreme Court Decision: May 17, 2010

In a 5-4 opinion by Justice Kennedy, the United States Supreme Court ruled that sentencing juveniles to life without the possibility of parole for non-homicide cases is impermissible under the Eighth Amendment’s cruel and unusual punishment clause.

Petitioner Terrence Graham was charged as an adult at 16 years old for the armed robbery of a barbeque restaurant in Jacksonville, Florida. Mr. Graham subsequently entered into a plea agreement and was sentenced to three years of probation. Less than six months later, Mr. Graham was arrested again for participation in a home invasion robbery. Mr. Graham’s probation officer filed a violation of probation affidavit alleging that Mr. Graham violated his probation by possessing a firearm, committing crimes and associating with persons engaged in criminal activity. Although Mr. Graham denied his involvement in the home invasion robbery, the trial court found him in violation of his probation for the aforementioned allegations and sentenced him to that maximum penalty, life in prison. Since Florida had abolished its parole system in 2003, Mr. Graham had no possibility of release unless he was granted executive clemency.

The Supreme Court granted cert and the case was argued in November 2009. The court, armed with amicus briefs from the American Medical Association , the American Physiological Association and the American Bar Association, discussed the developmental differences between adults and juveniles. The court held that “ the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that the sentencing practice at issue is cruel an unusual”. The court referred to its holding in Roper v. Simmons 543 U.S. 551 (2005) where it found that juveniles were less culpable than adults and further concluded that because life with out parole is the maximum penalty for an adult nonhomicide offender having the exact same maximum penalty for a juvenile is impermissible under the eighth amendment.

The court did not address the constitutionality of life without parole for juveniles convicted of homicide offences. reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to Parts I and III. ALITO, J., filed a dissenting opinion.

Case is available at:


Sullivan v. Florida 560 U. S. ____ (2010)

The United States Supreme Court also issued the following per curium opinion in a companion case to Graham. The case of Joe Sullivan, a thirteen year old sentenced to life without possibility parole, was dismissed but it is understood that ruling in Graham will allow Mr. Sullivan’s to re-appeal his case according to a statement by Mr. Sullivan’s Attorney Bryan Stevenson to the New York Times. “Mr. Sullivan’s lawyer, Bryan Stevenson, said his client and everyone else in his situation would be entitled to challenge their sentences under the Graham decision”

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

American Bar Association | 321 N Clark | Chicago, IL 60654 | 1-800-285-2221

For news commentary on this decision also see:


Justices Limit Life Sentences for Juveniles
Published: May 17, 2010
The ruling forbids sentences of life without parole for juveniles who do not participate in homicides.


Supreme Court restricts life without parole for juveniles
By Robert Barnes
Washington Post Staff Writer
Tuesday, May 18, 2010

Juveniles may not be sentenced to life in prison without parole for any crime short of homicide, the Supreme Court ruled yesterday, expanding its command that young offenders must be treated differently from adults even for heinous crimes.


Justices Rule on Prison Time for Juveniles, Sex Offenders
ByTony Mauro and Marcia Coyle
The National Law Journal
May 18, 2010

May 17, 2010

U.S. Supreme Court Case Update: U.S. v. Comstock

A Service from the ABA Criminal Justice Section,

United States v. Comstock (No. 08-1224)

United States Supreme Court Decision: May 17, 2010

In United States v. Comstock (08-1224), the Court reversed and remanded the lower court’s decision ruling that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete. Today’s Supreme Court opinion upholds the law passed by Congress allowing civil commitment of a federal prisoner who is a sex offender to continue beyond the date the inmate otherwise would be released.

The Adam Walsh Child protection and Safety Act, signed into law by President George W. Bush in 2006, authorized, in 18 U.S.C. § 4248, the civil commitment of “sexually dangerous” federal inmates already held in custody. This act provides authority to the government to have individuals either completing federal prison sentences or incompetent to stand trial, to remain in federal custody indefinitely if they are found through clear and convincing evidence to be a person who is legally “sexually dangerous.”

The Adam Walsh Child Protection and Safety Act was challenged by four men, who served prison terms for possession of child pornography or sexual abuse of a minor. When these four men were completing terms in federal prison, the federal government initiated civil-commitment proceedings stating they would be a risk of sexually violent conduct or child molestation if they were released. The four men moved to dismiss the proceedings on constitutional grounds that 18 U.S.C. § 4248 exceeded Congress’ powers under the Commerce Clause, the “clear and convincing requirement” did not meet due process standards, and that the section violated the Fifth, Sixth and Eighth Amendments of the U.S. Constitution. The federal district court ruled in their favor and granted a motion to dismiss.

The issue before the Supreme Court was narrowed to whether congress had the constitutional authority to enact 18 U.S.C. 4248 under the Necessary and Proper Clause and whether congress could authorize the civil commitment of a “sexually dangerous” person who is already in the custody of the Bureau of Prisons (but who are coming to the end of their federal prison sentences) or who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial. The United States argued that this potential civil commitment is a “necessary and proper” exercise of federal power. Justice Stephen Breyer, writing the majority opinion stated, "[T]he statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others." Thus the Supreme Court concluded that the United States Constitution does provide legislative power for Congress to enact 18 U.S.C. § 4248.


A 7-2 decision with an opinion written by Justice Breyer. Justice Thomas dissented, Justice Scalia joined in part on Justice Thomas’ dissenting opinion. Justice Kennedy concurred in the judgment only, joined by Justice Alito.

April 21, 2010

Professor Rory Little's Perspective: United States v. Stevens, A Case Brief

The following is presented as a service of the ABA Criminal Justice Section

The ABA Section of Criminal Justice is pleased to provide Professor Rory Little's Perspective, a Case Brief in U.S. v. Stevens which includes the Holding, Facts, and Analysis in the case.



Statute Criminalizing the Creation, Sale, or Possession of Depictions of Intentional Killing or Wounding of Animals is Unconstitutionally Overbroad.

United States v. Stevens, No. 08-769, 130 S.Ct. ____ (April 20. 2010), affirming 533 F.3d 218 (3d Cir. 2008 en banc).

Holding (8-1), Roberts; Alito dissenting: A statute that criminalizes the creation, sale, or possession of a “depiction of animal cruelty” (as opposed to criminalizing the underlying harmful conduct) is invalid as facially overbroad under the First Amendment, because (first) the statute’s definitions do not actually restrict its application to “cruelty” and (second) thus construed, “a substantial number of its applications are unconstitutional” because it would apply, for example, to many hunting magazines, shows, and videos that are marketed today.

Facts: Title 18 U.S.C. § 48 criminalizes the “creation, selling or possession” of “a depiction of animal cruelty” if done for “commercial gain” in interstate commerce. Stevens was convicted of selling “videos of pit bulls engaging in dogfights and attacking other animals,” and he received a three-year imprisonment sentence. The district court rejected his First Amendment challenge to the statute, holding that depictions of animal cruelty are “categorically unprotected” just like obscenity or child pornography. A divided en banc Third Circuit reversed, however, rejecting the categorical exception and finding the statute invalid under a strict scrutiny analysis (applied to content-based speech regulations).

Chief Justice Roberts (for 8 members of the Court): First, we reject the idea that a new “categorical exception” for animal cruelty visuals can be created. There is no history to support it, and a “free-floating” balancing test is the wrong analysis. “Maybe there are some categories of speech” exempted from the First Amendment but not yet identified, but this is not one of them.

The majority does not affirm the Third Circuit’s strict scrutiny analysis, but instead applies “existing doctrine” to the broad reach of the statute as the Court construes it. The “first step” is to determine the statute’s meaning, and the Court’s somewhat surprisingly broad view of the statute turns out to decide the issue.

Although the statute explicitly condemns “depictions of animal cruelty,” its definitional section makes clear that it applies to “any … intentional[] wound[ing] or kill[ing]” of an animal. Thus the statute does not “require[e] cruelty.” Moreover, the Court reads the statute to apply to any depiction of animal wounding that is unlawful in the state where the selling or possession occurs, even if the conduct was lawful in the State where the depiction was created. Thus the Court finds that the statute applies to depictions of hunting, for example, that are entirely lawful in many states, if the depiction is found in a state where such hunting is unlawful. (For example, “[t]he sharp-tailed grouse may be hunted in Idaho, but not in Washington.”) Because “there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed,” the statute reaches a vast amount of First-Amendment protected activity, even if “crush videos” (see the opinion at page 2 for a description of “crush videos,” which undoubtedly were the object of Congress’s attention.) are also prohibited.

Finally, the statute’s exceptions clause, protecting depictions for which there is “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” does not save it. Lots of hunting magazines and videos have only “recreational” or “entertainment” value. Even though the Department of Justice promises to apply the statute only to depictions of “extreme animal cruelty,” the First Amendment does not depend on such prosecutorial discretion. And we won’t re-write the statute to only apply to such depictions where its plain language is plainly broader.

Alito dissenting: (Interestingly, only Justice Alito does not agree with the majority of his former Third Circuit colleagues.) There is no need to strike down in its entirety this “valuable statute,” and thus leave “depraved entertainment” such as crush videos legalized. Instead, the case should be remanded to see whether Stevens’ dog-fight videos can survive an “as applied” First Amendment challenge.

On a pure overbreadth analysis, the statute should be sustained. The majority does not fairly apply the doctrine that statutes should be construed narrowly, if possible, to avoid constitutional problems. Its application to a small number of differentiated hunting regulations across the country is “seriously flawed” and fanciful. We should simply interpret the statute to not apply at all to hunting in general, but rather only to “acts of animal cruelty” that violate state laws. (In an act marginally cruel to trees, Justice Alito appends an eight-page, 50-state survey of animal cruelty laws to his opinion.) Moreover, we should construe the exceptions clause to protect hunting magazines and videos. There is no “substantial overbreadth” here (emphasis in the original), even if a few hypothetical or rare examples can be imagined.

Moreover, the conduct depicted in crush videos is violent and depraved, and has no constitutional protection. Congress reasonably concluded that a statute banning the commercial market for such videos was necessary, because the actual makers of the videos often could not be located. This 1999 strategy worked; by 2007 it was reported that the “crush video industry [was] dead,” even “overseas websites shut down.” A similar strategy has been constitutionally employed against child pornography, and we held in Ferber (1982) that depictions of child pornography are unprotected by the First Amendment. We should hold the same for depictions of crush videos and “brutal animal fights.”

[Editors Note: This summary has been created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco. . It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.]

April 20, 2010

ABA: U.S. Supreme Court Update - U.S. v. Stevens

A Service from the ABA Criminal Justice Section,

United States v. Stevens (No. 08–769)

United States Supreme Court Opinion Decided: April 20, 2010

Respondent Robert Stevens, a 68 year old author and documentary producer, owned and operated a business and associated website which sold videos of pitbull fights and pitbulls attacking other animals. Respondent Stevens was arrested and convicted of three counts of knowingly selling depictions of animal cruelty, with the intention of placing them in interstate commerce for commercial gain, following a jury trial in the District Court for Western Pennsylvania. This conviction came under 18 U.S.C. 48, which defines animal cruelty as a depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” §48(c)(1). The law exempts any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The goal in enacting 18 U.S.C. 48 was to limit distribution of animal fighting and “crush” videos (videos of people crushing small animals to death, which allegedly appeal to a certain sexual fetish).

Prior to conviction, respondent Smith motioned to dismiss charges on the ground that 18 U.S.C 48 was facially unconstitutional as it was in violation of the first amendment protection of free speech. His motion was denied on the grounds that depictions subject to §48, like obscenity or child pornography, are categorically unprotected by the First Amendment. 2:04–cr–00051–ANB (WD Pa., Nov. 10, 2004), App. to Pet.for Cert. 65a–71a. The Third District Court of Appeals reversed. The Court of Appeals rejected the District Court’s analogy to child pornography. Further, the Court found 18 U.S.C. 48 facially unconstitutional as the statute lacked a compelling government interest and was neither narrowly tailored to preventing animal cruelty nor the least restrictive means of doing so 533 F. 3d 218.

The Supreme Court affirmed the ruling, finding that the banned depictions are categorically protected by the constitution, stating, “However ‘growing’ and ‘lucrative’ the markets for crush videos and dog fighting depictions might be, they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment”.


ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion.

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January 26, 2010

U.S. Supreme Court Update: McDaniel v. Brown

A Service from the ABA Criminal Justice Section,

The U.S. Supreme Court has ruled against a defendant convicted of the rape of a 9-year-old girl after a night of heavy drinking.

The Supreme Court said in a per curiam opinion that overstated estimates of a DNA match at trial did not warrant reversal of a conviction when there is still “convincing evidence of guilt.”

The defendant, Troy Brown, had alleged on appeal that the state mischaracterized the probability that his DNA matched that of someone in the general population. He also claimed that a prosecution expert had misstated the chances of a DNA match between himself and his two brothers. All three lived near the victim.

“DNA evidence remains powerful inculpatory evidence even though the state concedes [its expert] overstated its probative value,” the Supreme Court wrote in McDaniel v. Brown.

The court remanded for consideration of Brown’s claims of ineffective assistance.

The court had granted cert in the case last January, SCOTUSblog reports. Oral arguments set for October were later canceled by the court.

According to SCOTUSblog, the decision was “based mainly on a legal ground that neither side in the case believed remained in issue—the sufficiency of the DNA evidence, under Jackson v. Virginia.”

According to the opinion, the court had granted cert to consider two issues: the proper standard of review for a Jackson claim, and whether such a claim may rely upon evidence outside the trial record that goes to the reliability of trial evidence.

January 26, 2010

Findlaw Case Summaries: U.S. Supreme Court

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McDaniel v. Brown, No. 08-559
In habeas proceedings arising from a rape conviction, a circuit court of appeals' order affirming the grant of petitioner's habeas petition is reversed and remanded where: 1) the court of appeals' analysis failed to preserve the factfinder's role as weigher of the evidence by reviewing all of the evidence in the light most favorable to the prosecution, and it erred in finding a state court's resolution of petitioner's claim to be objectively unreasonable; and 2) petitioner forfeited his claim that a prosecution expert incorrectly described the statistical implications of certain DNA evidence.

Smith v. Spisak, No. 08–724
In capital habeas proceedings, a grant of petitioner's habeas petition is reversed where a state court's rejection of claimed errors regarding jury instructions and verdict forms, as well as ineffective assistance of counsel, was not contrary to, or an unreasonable application of, clearly established federal law as: 1) the jury instructions and forms in the penalty phase made clear that, to recommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously; and 2) even assuming that defense counsel's closing argument was inadequate in the respects claimed by petitioner, there was no reasonable probability that a better closing argument without such defects would have made a significant difference.

NRG Power Mktg., LLC v. Maine Pub. Utils. Comm., No. 08–674
In a petition for review of the Federal Energy Regulatory Commission's (FERC) approval of a settlement agreement establishing rate-setting mechanisms for the sale of energy capacity in the New England region, circuit court's partial grant of the petition is reversed where: 1) the Mobile-Sierra presumption does not depend on the identity of the complainant who seeks FERC investigation, and the presumption is not limited to challenges to contract rates brought by contracting parties; and 2) contrary to the ruling below, the Mobile-Sierra presumption applies when a rate challenge is brought by a non-contracting third party

Kucana v. Holder, No. 08–911
In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceedings, the court of appeals' denial of the petition is reversed where 8 U.S.C. section 1252(a)(2)(B)'s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation. .

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S. Carolina v. N. Carolina, No. 138
In an original jurisdiction action by South Carolina seeking an equitable apportionment with North Carolina of the Catawba River's waters, the special master's grant of three nonparties' motions to intervene is affirmed in part as to two of them where: 1) the Catawba River Water Supply Project was properly permitted to intervene because it showed a compelling interest in protecting the viability of its operations, which were premised on a fine balance between the joint venture's two participating counties; and 2) Duke Energy was also properly allowed to intervene because it was likely that any equitable apportionment of the river would need to take into account the amount of water that Duke Energy needed to sustain its operations. However, the order is reversed in part where the interest of Charlotte, North Carolina was not sufficiently unique and would be properly represented by North Carolina.

Citizens United v. FEC, No. 08–205
The Court rules that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Specifically, in an action brought by a nonprofit corporation, the makers of a documentary critical of Hillary Clinton's presidential candidacy, challenging the constitutionality of a federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech that was an "electioneering communication" or for speech that expressly advocated the election or defeat of a candidate, a denial of a preliminary injunction for plaintiff is reversed in part where Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), is overruled, and thus provides no basis for allowing the government to limit corporate independent expenditures. Hence, the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2007), that upheld the Bipartisan Campaign Reform Act section 203's extension of section 441b's restrictions on independent corporate expenditures is also overruled. However, the order is affirmed in part where BCRA sections 201 and 311 were valid as applied to the ads for the documentary and to the movie itself because disclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities, or prevent anyone from speaking.

January 12, 2010

U.S. Supreme Courrt McDaniel v. Brown

January 11, 2010 No. 08-809.

The defendant, Troy Brown, had alleged on appeal that the state mischaracterized the probability that his DNA matched that of someone in the general population. He also claimed that a prosecution expert had misstated the chances of a DNA match between himself and his two brothers. All three lived near the victim.

“DNA evidence remains powerful inculpatory evidence even though the state concedes [its expert] overstated its probative value,” the Supreme Court wrote in McDaniel v. Brown.

The court remanded for consideration of Brown’s claims of ineffective assistance.

From: Per Curiam:

" In Jackson v. Virginia, 443 U. S. 307 (1979), we held that a state prisoner is entitled to habeas corpus relief if afederal judge finds that “upon the record evidence adducedat the trial no rational trier of fact could have found proofof guilt beyond a reasonable doubt.” Id., at 324. A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent’s DNA pro-file. Nevertheless, relying upon a report prepared by aDNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and grantedthe writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorarito consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude that they clearly did".

July 15, 2009

U.S. Supreme Court Decision Requires Forensic Analysts to Testify in Court

David Badertscher

Legal experts and prosecutors are quite concerned about possible results of the June 25, 2009 U.S. Supreme Court decision Melendez-Diaz v. Massachusetts 07-591. In this decision the Court has ruled that forensic analysts conducting tests must be in court to testify about their test results and that lab sheets that identify a substance as a narcotic, or breath test printouts describing a suspect's blood-alcohol level are no longer to be considered as sufficient evidence. A person is now required to be in court to talk about the test results. The basic question the Supreme Court addressed in this opinion was: "Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. Washington?"* In its ruling the Supreme Court answered, yes.
*The above quote was taken from discussion of this opinion in the U.S. Supreme Court Oyez website at. . This site also includes links to the text of the opinion as well at to the Syllabus, dissent, concurrance, and argument. For additional information see discussion in a July 15, 2009 Washington Post article by Tom Jackman, and follow the link on the U.S. Supreme Court website.

June 3, 2009

Findlaw Case Summaries: U.S. Supreme Court

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June 1, 2009.

CSX Transp., Inc. v. Hensley, No. 08-1034
In an action brought under the Federal Employers' Liability Act, based on Plaintiff's fear of developing cancer due to asbestos exposure, judgment for Plaintiff is reversed where the trial court denied an instruction that Plaintiff must have a "genuine and serious fear" to recover damages, because that instruction was required by the Court's prior decision in Ayers v. Norfolk & Western R. Co., 538 U.S. 135 (2003). Read more...

Bobby v. Bies, No. 08-598
In a capital habeas matter, the Court of Appeals' order prohibiting the state court from holding a post-conviction hearing on whether Defendant was mentally retarded is reversed where the Double Jeopardy Clause did not bar the state court from conducting a full hearing on Defendant's mental capacity after trial.

May 27, 2009

ABA: U.S. Supreme Court Updates

May 27, 2009.

A Service from the ABA Criminal Justice Section,
MONTEJO v. LOUISIANA (No. 07-1529)

Mr. Montejo was arrested on September 6th, 2002, in connection with the robbery and murder of Mr. Lewis Ferrari. During police questioning of Mr. Montejo, which lasted from late afternoon on the 6th to early morning on the 7th, Mr. Montejo repeatedly changed the account of the crime, ultimately confessing to having shot and killed Mr. Ferrari during a failed burglary. Later, after being read his Miranda rights for a second time, Mr. Montejo agreed to accompany police in retrieving the alleged murder weapon. During this excursion, Mr. Montejo wrote a letter of apology to Mr. Ferrari’s widow. Mr. Montejo did not have access to his court-appointed attorney until his return to jail, who was upset that his client had been interrogated in his absence and subsequently objected to the apology letter’s admission as evidence at trial.

The jury convicted Mr. Montejo, who was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence, relying on Montoya v. Collins, 955 F.2d 279 (1992), explanation of the rule in Michigan v. Jackson, 475 U.S. 625, 636 (1986), reasoning that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. At a hearing where a judge ordered the appointment of counsel, Mr. Montejo did not explicitly request a meeting with his counsel, but rather, remained mute.

The USSC held, in deciding whether courts must presume that a waiver of an accused’s Miranda rights is invalid under certain circumstances, that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. The USSC explains that the rule laid out in Jackson was designed to prevent police from badgering defendants into changing their mind about their rights, but a defendant who has never asked for counsel, such as Mr. Montejo, has not yet made up his or her mind.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, J.J., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, J.J., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

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No. 08-192 (May 26, 2009)

After tapping the phone of suspected drug dealer Mohammed Said, FBI agents recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine in two separate transactions, each time for a single gram. Under §844 of the Controlled Substances Act, Abuelhawa’s purchases were misdemeanors, and Said’s two sales were felonies. However, the government charged Abuelhawa with six felonies on the theory that each phone call violated §843(b), which makes it a felony "to use any communication facility in… facilitating" felony drug sales.

Abuelhawa moved for acquittal on the grounds that his efforts to commit the misdemeanor could not be treated as facilitating Said’s felonies, but the motion was denied and Abuelhawa was convicted on all six counts. Abuelhawa argued the same point before the Court of Appeals for the Fourth Circuit, which upheld the conviction, reasoning that Abuelhawa’s use of a phone counted as facilitation because it “undoubtedly made Said’s cocaine distribution easier.”

The Supreme Court reversed the decision, holding that using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug sales in violation of §843(b). Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be “odd” to speak of one party as facilitating the other’s conduct. The Court relied on holdings in similar cases in which adding to the penalty of the party on one side for facilitating the actions by the other would upend the “legislature’s punishment calibration.” See Gebardi v. United States, 287 U.S. 112, 119.

Furthermore, since the word “facilitate” is generally synonymous with “aid,” “abet,” or “assist,” it is likely that Congress had an equivalent meaning in mind when it enacted §843(b). Any broader reading would for practical purposes destroy the distinction between the possession of drugs and the distribution of drugs. Finally, the fact that Congress had previously downgraded possession from a felony to a misdemeanor shows that Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Therefore, Abuelhawa’s actions could not be considered “facilitation” of Said’s felonies.

Souter, J., delivered the opinion for a unanimous court.

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May 26, 2009

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May 26, 2009.

Haywood v. Drown, No. 07-10374
In a 42 U.S.C. section 1983 action by a prisoner, judgment for Defendant-Officers is reversed where Correction Law section 24, as applied to Section 1983 claims, violates the Supremacy Clause, because New York's policy of shielding correctional officers from liability for conduct performed in the scope of their employment is contrary to Congress's judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages.

Abuelhawa v. US, No. 08-192
Drug distribution conviction is reversed and the case remanded, where Defendant's drug purchases from a third party over the phone constituted misdemeanors, because using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug distribution in violation of 18 U.S.C. section 843(b).

Montejo v. Louisiana, No. 07-1529
Capital murder conviction is vacated, where Michigan v. Jackson, 475 U.S. 625 (1986), is overruled, because requiring an "initial invocation" of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant.