January 2003

The U.S. Supreme Court and Criminal Law: 2001 Term (Part One)

[click here for part two]

by Craig Hemmens

During its 2001 term, the U.S. Supreme Court decided a total of 88 cases, issuing 76 signed opinions. These figures are in line with recent terms, the 2000 term having 77 opinions and the 1999 term, 74 opinions. More than 9,100 cases reached the Court, the vast majority being denied review. More than a third involved criminal-justice-related issues; several significant death-penalty cases were decided; and a number of important Fourth Amendment rulings were issued.

As usual, there were a significant number of unanimous decisions, and 52 decisions (59 percent) were decided by at least a 7-2 majority. This statistic may lead the casual observer to assume members of the high court are in ideological agreement, but it should be noted that there were 36 cases (41 percent) decided by either a 5-4 or 6-3 margin.

There were a number of bitter dissents filed, from both majority opinions and denials of certiorari (the latter being a relatively uncommon practice). There was even a dissent by Justices Breyer and O'Connor, and a reply by Justice Scalia, from the Court's transmission to Congress of proposed amendments to the Federal Rules of Criminal Procedure (the issue was whether allowing the limited use of two-way video transmissions in criminal trials ran afoul of the confrontation clause). The frequency and tone of some of these dissents suggest that members of the Court often do not share the same ideological viewpoints.

Justice O'Connor continues to serve as a crucial "swing" vote, appearing in the majority in 17 of the 21 5-4 decisions. Fourteen of these 21 cases had the familiar alliance pattern of the Chief Justice, and Justices Scalia and Thomas, against Justices Stevens, Breyer, Ginsburg and Souter. Justice O'Connor joined the conservative bloc in 10 of the 14, and joined the liberal bloc in the other four. O'Connor also filed fewer dissents than any other justice; Stevens dissented most often (23 dissenting votes and 13 dissenting opinions, including three solo dissents); and Scalia authored the most opinions (27, including 10 concurring opinions, also the most by any justice). Justices Scalia and Stevens disagreed the most, in 46 percent of all cases. Majority-opinion authorship was very evenly divided, continuing a trend under the leadership of Chief Justice Rehnquist.

Several justices made interesting public statements while away form the Court. Justice Kennedy, in the wake of the September 11 attacks, created a "Dialogue on Freedom" program aimed at teaching high-school students about democratic values. Kennedy said he was inspired to begin the program when he read that students at a Washington-area Muslim school were "unmoved" by the events of 9/11. Justice Scalia, a devout Catholic, publicly criticized the Catholic Church for opposing the death penalty, and called on Catholic judges who believe the death penalty is wrong to resign.

Following is a summary of significant criminal-justice-related decisions of the 2001 term, arranged alphabetically by subject matter. The case history, rationale of the Court, and vote totals are included.

Lee v. Kemma, 70 USLW 4104 (2002). Lee was charged with murder in Missouri. He made it known to the trial court that he intended to put on several family members as alibi witnesses who would testify he was with them in California at the time of the murder. Three family members traveled to Missouri for his trial, but were not in the courtroom when the defense began its case. The defense attorney verbally asked for a day's continuance to locate the witnesses, but the trial judge refused, stating he had another trial scheduled to start and that the defendant's family had "abandoned" him. The trial went on without the alibi witnesses, and Lee was convicted and sentenced to life in prison.

On appeal, Lee argued the denial of his continuance motion constituted a denial of due process. The state supreme court ruled that the denial was proper because Lee's attorney failed to make the motion in the correct manner (in writing, with a supporting affidavit). The state court did not address Lee's claim that he had been denied his federal right to due process. Lee filed a federal habeas petition, which the district court denied. The 8th Circuit Court of Appeals affirmed the district court, stating that Lee had procedurally defaulted in not complying with state rules by making a written continuance motion at trial.

The Supreme Court, per Justice Ginsburg, vacated the 8th Circuit and remanded the case. The majority acknowledged the general rule that federal courts will not entertain a petition presenting a federal question if the state court's decision rests on "independent and adequate state grounds." The majority also acknowledged that the state rules regarding the proper form of a motion would normally fall into this category. But, Ginsburg asserted on behalf of five other justices, this case was one of a narrow class of cases that are an exception to the general rule. Other Missouri cases did not require perfect adherence to rules of court, the defect in the motion was not noted at trial where it could have been easily corrected, and, most important, Lee had "substantially complied" with the state rules. Given these circumstances, the majority determined that enforcing a procedural bar would be fundamentally unfair. The dissent by Justice Kennedy argued that the majority was creating new law and weakening the principles of federalism and state sovereignty by allowing federal courts to become involved in state court matters. 6-3 decision.

Carey v. Saffold, 70 USLW 4558 (2002). The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted by Congress in 1996. The AEDPA requires an inmate seeking federal habeas relief to file his petition either within one year after his state conviction becomes final or one year from the date of passage of the AEDPA, but excludes from the one-year period the time during which an application for state collateral relief is "pending."

Saffold was convicted and sentenced in a California state court in 1990 for murder and several other crimes. His conviction became final on direct review in 1992. Saffold filed a state habeas petition one week before the federal deadline passed in 1997 (that being one year from the passage of the AEDPA). The state court denied his petition, and five days later Saffold filed a new petition with the state appellate court. This petition was also denied. Almost five months later, Saffold filed a new petition with the state supreme court, which was denied.

One week later, in June 1998, Saffold filed a habeas petition in federal court. The district court noted the AEDPA required Saffold to file his federal habeas petition within one year of the AEDPA's passage, and that Saffold's petition was not filed within that year. The district court noted the one-year period was tolled while state review was pending, but determined that the intervals between the various filings in state courts were not part of the time period included in the definition of "pending." Thus, the district court determined that Saffold was procedurally barred from filing his federal habeas petition because the one-year time period had passed. The 9th Circuit Court of Appeals reversed, stating that the intervals between filings in state court should be considered "pending" so as not to apply to the time limit.

The Supreme Court, per Justice Breyer, upheld the ruling by the 9th Circuit, and held that a petition for state collateral review is "pending" during the periods between a lower court's ruling on the petition and the filing of notice of appeal with a higher state court. The Court noted that a narrow interpretation of the word "pending" would encourage state prisoners to file federal appeals while their state appeals were still pending, which would conflict with the AEDPA's stated goal of reducing federal filings and allowing states to fully review appeals. The dissent by Justice Kennedy took issue with the majority's interpretation of the California appeals process and argued that the decision would lead to further abuse of the appeals process by inmates. 5-4 decision.

Kelly v. South Carolina, 70 USLW 4068 (2002). Kelly was convicted of first-degree murder. During the sentencing phase of his trial, the jury was asked to determine whether any "aggravating factors" existed which would justify imposition of the death penalty. The prosecutor presented evidence that Kelly had made a knife while in prison, taken a hostage in a failed escape

The prosecution argued this evidence went to Kelly's character, while the defense claimed the evidence demonstrated his "future dangerousness." Both the character and future dangerousness areas statutorily listed aggravating factors. The defense sought a jury instruction that a capital defendant who faces the possibility of either death or life in prison without the possibility of parole is entitled to a jury instruction informing the jury of just that — that life without parole means defendants will never be released.

The Supreme Court in Simmons v. South Carolina (1994) held that such an instruction was constitutionally required when imposition of the death penalty is based on "future dangerousness." The trial court refused to give such an instruction, on the ground that the evidence and comments presented by the prosecutor went not to the issue of future dangerousness, but to the issue of the defendant's character and his ability to adapt to prison life. Kelly was sentenced to death, and the state supreme court affirmed the conviction and death sentence on the ground that future dangerousness was not at issue.

The Supreme Court, per Justice Souter, narrowly held that Kelly was entitled to a jury instruction stating he would be ineligible for parole if sentenced to life in prison. Clearly, future dangerousness — evidence "with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms" — was in fact at issue. Evidence of a demonstrated propensity for violence is clearly evidence of future dangerousness, as well as evidence of inability to live in prison. Writing in dissent, the Chief Justice argued the prosecution in this case did not argue future dangerousness "in any meaningful sense of the term." 5-4 decision.

Atkins v. Virginia, 70 USLW 4585 (2002). Atkins was convicted of capital murder by a Virginia jury. During the penalty phases of the trial, an expert witness testified that Atkins was "mildly mentally retarded." Atkins nonetheless was sentenced to death, and his sentence was upheld by the state supreme court, which relied on the Supreme Court decision in Penry v. Lynaugh (1989) that executing mentally retarded people was constitutional because there was no societal consensus against the practice.

Writing for a 6-3 majority, Justice Stevens held that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishment. He asserted that there now exists a national consensus that executing retarded people is inappropriate, given their reduced culpability and greater vulnerability to wrongful conviction. Eighteen of the 38 death-penalty states bar the execution of the mentally retarded, up from two states in 1989, when the Court last addressed the question in Penry v. Lynaugh. This trend demonstrates the "evolving standards of decency."

Even more significant than the number of states banning the execution of mentally retarded people was the consistency of the trend — no states had passed legislation making it lawful to execute the mentally retarded since 1989; instead states had acted only to outlaw the practice. The Court left the definition of "mentally retarded" to the states. Stevens went on to point out that societal consensus was not the only consideration — other factors supporting a ban on the execution of mentally retarded people were: questions of their competency to stand trial, their ability to assist in their own defense, their lowered moral culpability, and the increased likelihood of wrongful convictions. Justices Scalia, Thomas and Chief Justice Rehnquist dissented, arguing that the evidence did not justify the claim that there was national consensus and that the majority was improperly engaged in lawmaking. 6-3 decision.

Ring v. Arizona, 70 USLW 4666 (2002). Ring was convicted by an Arizona jury of first-degree felony murder. Under Arizona law, the sentencing phase of a capital murder trial is conducted before the judge alone, without the jury. The judge is responsible for making all factual determinations regarding aggravating and mitigating factors. After the sentencing phase, the judge concluded Ring was the killer and that several aggravating factors existed. He consequently sentenced Ring to death. On appeal, Ring argued that the capital sentencing scheme violated his Sixth Amendment right to a trial by jury because it entrusted to the judge the finding of a fact (in this case, whether Ring was the actual killer or just a participant) that raised the maximum penalty from life in prison to death. The Supreme Court had previously upheld the Arizona sentencing scheme, but then held, in Apprendi v. New Jersey (2002), that juries rather than judges must find the facts that lead to a sentence higher than the ordinary statutory maximum. The Arizona Supreme Court nonetheless upheld Ring's death sentence.

The high court held that death sentences issued by judges violate a defendant's Sixth Amendment right to a jury trial. Justice Ginsburg wrote the opinion for an unusual alliance of conservative and liberal justices. Ginsburg noted that the decision in the instant case was mandated by the holding in Apprendi v. New Jersey (2000), and that the prior Supreme Court decision upholding the Arizona death-penalty statute was effectively overruled by Apprendi. The majority determined that capital defendants, like noncapital defendants, are entitled to a jury determination of any fact which results in an increase in the maximum punishment. Justices Thomas and Scalia joined the majority, but also wrote separately to emphasize their belief that the use of so-called "sentencing enhancements" has weakened the right to a jury trial. Justice O'Connor, a dissenter in Apprendi, dissented here as well, noting the decision would likely invalidate the death sentences of defendants sentenced by a judge acting alone or on the recommendation of the jury. Five states currently allow a judge or panel of judges to make the decision, while four states allow the jury to make a recommendation to the judge. 7-2 decision.

United States v. Vonn, 70 USLW 4181 (2002). Vonn was charged with several federal offenses, including bank robbery and weapons possession. After being advised by a judge of his rights, including the right to be represented by counsel, he waived his rights. In two subsequent proceedings he pled guilty, first to the robbery and then to the weapons charge. At neither of these later hearings did the judge inform him of his right to counsel at trial. Notification of this right is required by Federal Rule of Criminal Procedure 11. Several months later, Vonn sought to withdraw his guilty plea on the weapons charge, but the court denied his motion and sentenced him. On appeal, Vonn sought to have his convictions set aside, arguing for the first time that the failure to advise him of his right to counsel at trial constituted reversible error. The 9th Circuit Court of Appeals refused to apply the "plain error" standard for reviewing errors not objected to at the time they are made. The reviewing court instead applied the "harmless error" standard, agreeing there had been error and that Vonn's failure to object was irrelevant.

The Supreme Court, per Justice Souter, held that a district court's violation of Rule 11 may be reviewed only for "plain error" if the defendant fails to lodge a contemporaneous objection to the violation. The court refused to apply the lower court's more generous harmless-error standard. 8-1 decision.

United States v. Ruiz, 70 USLW 4677 (2002). Ruiz was charged with drug possession. The federal prosecutor offered her a reduced sentencing recommendation in return for a guilty plea, waiver of indictment and trial, and, most significantly, a waiver of some disclosure rights. This was referred to as a "fast track" plea bargain. Defendants retain the right, under Brady v. Maryland, to disclosure of exculpatory evidence, but waive their right to impeachment-related material. Ruiz refused the fast-track plea bargain and pled guilty. She then received the standard sentence rather than the reduced sentence originally offered by the prosecution. She sought the reduced sentence, but the trial court refused to grant it. On appeal, the 9th Circuit Court of Appeals vacated the sentence on the ground that the U.S. Constitution requires prosecutors to make impeachment evidence available, and that fast-track plea bargains requiring waiver of the right to this information are therefore unconstitutional.

The Supreme Court unanimously reversed the 9th Circuit. Writing for the Court, Justice Breyer held that the Constitution does not require that impeachment material be disclosed by the prosecution prior to the entry of a guilty plea. There is no support in Supreme Court precedent for such a ruling, and a due-process balancing test also favors no such requirement. While the right to a fair trial requires disclosure of impeachment evidence, a guilty plea need only be voluntary, knowing and intelligent. A plea bargain is just that — a bargain, and not something a defendant is compelled to accept. 9-0 decision.

Correctional Services Corporation v. Malesko, 70 USLW 4012 (2002). Malesko, an inmate in a halfway house operated by Correctional Services Corporation (CSC), under contract with the Federal Bureau of Prisons, was assigned to a cell on the fifth floor of the facility. CSC had a policy requiring inmates in rooms below the sixth floor to use the stairs rather than the elevator, but Malesko was exempted from this policy because he had a heart condition. A CSC employee nonetheless refused to allow Malesko to use the elevator, and while using the stairs Malesko suffered a heart attack and fell, further injuring himself. Malesko then filed suit against CSC, claiming negligence.

The district court treated his lawsuit as a Bivens action, which allows individuals to bring suit against federal officials for deprivation of their constitutional rights (similar to a Section 1983 action, which is cognizable against only state actors). The court then dismissed the suit on the ground that a Bivens action may only be brought against individuals, not corporate entities. The 2nd Circuit reversed on the public-policy ground that corporations should be held liable under Bivens in order to accomplish the goal of Bivens — providing a remedy for constitutional violations.

In a 5-4 decision penned by Chief Justice Rehnquist, the Supreme Court refused to extend the Bivens cause of action to inmates suing corporations, even when those corporations are acting under color of federal law. While Section 1983 authorizes lawsuits for the deprivation of constitutional rights against state actors and state agents, the Chief Justice noted that the extension of Section 1983-style remedies to plaintiffs suing federal officials has been severely limited to the particular situation in Bivens. The Chief Justice, long a critic of Bivens, took the opportunity to refuse to extend Bivens to corporate defendants contracting with the federal government. The purpose of Bivens, Rehnquist noted, was deterrence of the individual federal officer; no such individual deterrence would be accomplished by holding a corporation liable. The dissent by Justice Stevens accused the majority of attempting to narrow the reach of Bivens by misreading prior precedents. 5-4 decision.

Barnes v. Gorman, 70 USLW 4548 (2002). Gorman, a paraplegic, was arrested after a dispute in a Kansas City, Missouri, nightclub. He suffered serious injuries while being transported in a police van that was not equipped to handle disabled arrestees. He filed a lawsuit against the police, alleging discrimination on the basis of his disability, in violation of the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973. A jury awarded him both compensatory and punitive damages, but the trial court vacated the 1.2 million-dollar punitive-damages award on the ground that such damages were not permitted under the ADA or the Rehabilitation Act. The 8th Circuit reversed, and reinstituted the punitive-damages award, finding the power of federal courts to "award any appropriate relief" available (Franklin v. Gwinnett County Public Schools, 1992).

The Supreme Court unanimously reversed the 8th Circuit and held that individuals suing cities for discrimination under the ADA may not receive punitive damages. Justice Scalia wrote an opinion joined by five other justices. He noted that punitive damages were not specifically available through either the ADA or the Rehabilitation Act, and that it would be unfair to allow such remedies against cities which unknowingly exposed themselves to such liability when they accepted federal funding, a condition of which is adherence to ADA requirements. Three justices concurred in the judgment but disagreed with the mode of analysis used to reach the decision. This decision relieves municipalities and police departments from liability for punitive damages under the ADA, but leaves them exposed under alternative causes of action, such as tort. 9-0 decision.

Ashcroft v. Free Speech Coalition, 70 USLW 4237 (2002). Prosecution of those engaged in the manufacture, dissemination and possession of child pornography has been a priority for the Justice Department since the Reagan administration. Congress has passed legislation making it a federal crime to possess photographs of underage children engaged in sexual conduct, and this legislation has been upheld by the Supreme Court. The Child Pornography Prevention Act of 1996 (CPPA) went a step further, making it a crime to create, distribute or possess child pornography that "appears to be" or "conveys the impression" of an underage child engaged in sexual conduct. The Free Speech Coalition filed suit alleging the federal statute was overbroad and vague, in violation of the First Amendment freedom of speech. The district court granted summary judgment for the government, but the 9th Circuit Court of Appeals reversed, holding the CPPA overbroad because it banned material that was neither obscene nor the result of exploitation of actual children. This ruling was in conflict with four other circuit courts.

The Supreme Court, in an opinion by Justice Kennedy, upheld the 9th Circuit and struck down the CPPA as unconstitutionally broad, in violation of the free-speech clause of the First Amendment. Justice Kennedy rejected the government's argument that the broad language of the statute was necessary to prevent pedophiles from gratifying their illegal sexual appetites for images of children engaged in sexual activity. The majority opinion also noted that the statute failed to incorporate the "contemporary community standards" test, which requires consideration of the artistic merit of the work as a whole. The statute went beyond prior legislation which banned depictions of children engaged in sexual activity, and banned "the visual depiction of an idea." Writing in dissent, Justice O'Connor argued that the "appears to be" provision could be construed narrowly to prohibit only images that are "virtually indistinguishable" from actual children while not banning youthful-looking adults. 5-4 decision.

Ashcroft v. American Civil Liberties Union, 70 USLW 4381 (2002). The 1998 Child Online Protection Act (COPA) made it a crime to place material on an Internet Web site available to those under 17 years of age if the material was "harmful to minors." Whether material was harmful to minors was defined by reference to the Miller v. California (1973) test for obscenity: whether the average person, applying contemporary community standards, finds the material taken as a whole appeals to a prurient interest in sex. The ACLU and a number of other organizations obtained an injunction against enforcement of the act. The 3rd Circuit Court of Appeals upheld the injunction on the ground that since Web-site publishers could not limit the viewing of their Web site to a specific geographic area, the community-standards test would be based on the standards of the least tolerant community in the entire country.

The Supreme Court vacated the decision of the lower courts and remanded the case. There was no majority opinion, but eight justices agreed that the ruling by the lower courts that the COPA violates free-speech rights simply because it relies on "contemporary community standards" to identify what online materials are harmful to minors was improper. The case is likely to return to the Court once the lower court has fully addressed the substantive provisions of the COPA. 8-1 decision.

Porter v. Nussle, 70 USLW 4155 (2002). Nussle filed a Section 1983 action claiming correctional officers, among them Porter, had violated his Eighth Amendment rights by using excessive force against him. The district court dismissed Nussle's lawsuit, relying on a provision of the Prison Litigation Reform Act (PLRA) of 1995, which requires inmates to exhaust "such administrative remedies as are available."

Nussle had bypassed the grievance process established by the Connecticut Department of Corrections and instead filed the Section 1983 action. The 2nd Circuit Court of Appeals reversed, holding that the exhaustion of remedies requirement applied only to claims involving prison conditions, not isolated instances of abuse (such as excessive use of force). This decision was in conflict with several other circuits.

The Supreme Court, in a unanimous opinion by Justice Ginsburg, reversed the 2nd Circuit. The Court interpreted the PLRA's exhaustion requirement as applying to all inmate lawsuits about prison life, regardless of whether they involve systemic conditions or isolated acts of wrongdoing. The Court refused to treat excessive use of force claims differently than claims under the PLRA, even though the Court has treated excessive-force claims differently in other situations, such as pleading and mens rea requirements. 9-0 decision.

McKune v. Lile, 70 USLW 4502 (2002). Lile was convicted of rape and incarcerated in Kansas. Kansas prison officials created a sexual-offender treatment program, in which participants are required to accept responsibility for crimes for which they have been convicted, as well as any other unprosecuted/undetected crimes they may have committed. The information obtained from the inmates is not privileged, and may be used in subsequent criminal prosecutions. Lile was told that if he refused to participate in the treatment program he would lose a number of privileges (such as visitation and television) and be transferred to a maximum-security prison. Lile sought an injunction under Section 1983, alleging the required disclosure of his criminal history violated his Fifth Amendment privilege against self-incrimination. The district court granted him summary judgment, and the 10th Circuit affirmed, saying the loss of privileges and possible transfer to another prison for refusing to participate in the treatment program constituted penalties, and that Lile could not be compelled to incriminate himself.

The Supreme Court reversed the lower courts. There was no majority opinion, although five members of the Court agreed that there was no Fifth Amendment violation. The opinion by Justice Kennedy stated that an inmate's liberty interest must be weighed against the legitimate governmental interest in reducing recidivism among sex offenders, and that the treatment program in question was a key ingredient in recidivism reduction. He proposed a test for determining when compulsion existed based on Sandin v. Connor (1995): so long as a prison treatment program "bears a rational relation to a legitimate penological interest, the Fifth Amendment is not violated if the adverse consequences inmates face for refusing to participate are related to program objectives and are not significant hardships."

Justice O'Connor felt the Sandin test was too narrow, but the burdens faced were not significant enough to implicate the Fifth Amendment. The four dissenters, led by Justice Stevens, argued that this case represented a major inroad on the protections of the Fifth Amendment. 5-4 decision (plurality opinion).

Hope v. Pelzer, 70 USLW 4710 (2002). Hope, an inmate assigned to an Alabama chain gang, was twice handcuffed to a so-called "hitching post" for an extended period of time for disciplinary reasons. The first time he was handcuffed to the post for two hours; the second time, for seven hours, he was forced to stand in the sun shirtless, given water only twice, and not allowed to go to the bathroom. Hope filed a Section 1983 Action against three correctional officers who had handcuffed him to the hitching post. The district court did not address the constitutionality of the hitching post, instead holding that the officers were entitled to qualified immunity, and dismissed the lawsuit. The 11th Circuit Court of Appeals determined that while the use of the hitching post did violate the Eighth Amendment, the officers were entitled to qualified immunity, thus affirming the dismissal.

In an opinion by Justice Stevens, the high court held that use of the hitching post was punishment, rather than a way of forcing an inmate to work or for safety, and that handcuffing an inmate to a hitching post for an extended period of time as punishment for misconduct was an "obvious" constitutional violation as it involved the "unnecessary and wanton infliction of pain." Additionally, the defense of qualified immunity is not available at the summary-judgment phase of a lawsuit.

Qualified immunity is designed to protect officers from suit if it is not clear to them that their conduct is illegal. If they have notice of their illegal acts, then they may be liable. Here the officers clearly should have known they were acting unlawfully. Eleventh Circuit precedent and Alabama DOC regulations made it clear; thus summary judgment was inappropriate. The dissent by Justice Thomas accused the majority of misstating the facts of the case and misinterpreting the 11th Circuit's opinion. 6-3 decision.

The second part of this article will run in the February issue of Bar News. [click here for part two]