December 2001

Major Criminal Law Decisions of the United States Supreme Court 2000 Term

by Craig Hemmens

During its 2000 term, the United State Supreme Court decided a total of 85 cases, issuing 77 signed opinions. This continues a downward trend in signed opinions, as the 1998 term had only 75 opinions, and the 1999 term, 74 opinions. Almost 9,000 cases reached the Court, the vast majority being denied review. While this term of Court will undoubtedly always be remembered as the year of Bush v. Gore, there were a number of other significant decisions, particularly in criminal justice.

There were a significant number of unanimous decisions, and 49 decisions (58 percent) were decided by at least a 7-2 majority. This statistic suggests the members of the high court are in ideological agreement, but it should be noted that there were 26 cases with 5-4 decisions (31 percent), and the dissents were rather acrimonious at times. Clear ideological blocs exist, with Chief Justice Rehnquist and Justices Scalia and Thomas frequently aligned in opposition to Justices Breyer, Ginsburg, Souter and Stevens.

Justices Kennedy and O'Connor continue to be crucial "swing" votes, both appearing frequently in the majority in the 5-4 decisions (each being in the majority 20 out of a possible 26 times). Chief Justice Rehnquist and Justices Scalia and Thomas were each in the majority 17 times in 5-4 decisions. The remaining four justices were in the majority in 5-4 cases much less frequently, between nine and 11 times each. Justices Kennedy and O'Connor also filed far fewer dissents than any of the other justices. Justice Stevens dissented most often (25 dissenting votes and 16 dissenting opinions), and was the only justice to file more than one solo dissent (he filed four). Majority opinion authorship was very evenly divided, continuing a trend under the leadership of Chief Justice Rehnquist. Justices Scalia and Stevens disagreed the most, in 40 percent of all cases. In contrast, Justices Scalia and Thomas disagreed in only one case.

More than a third of the written opinions handed down by the high court dealt with criminal law and procedural issues. The Court decided several significant corrections-law cases and issued a number of important Fourth Amendment rulings. As usual, several cases involved the interpretation of federal criminal statutes. Following is a summary of the significant criminal justice-related decisions of the 2000 term, arranged alphabetically by subject. The case history, rationale of the Court, and vote totals are included.

AEDPA

In 1984, Bennett was convicted of several offenses in New York. After his state appeals were unsuccessful, in 1998 he sought to file a pro se habeas petition raising claims which he was procedurally barred by New York state laws from raising in a state habeas petition. One law barred raising an issue that had been settled on direct appeal, the other barred raising a claim that Bennett had the opportunity to raise, but chose not to raise, on direct appeal.

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) requires a federal habeas petition to be brought within one year of the latest of several dates. The district court dismissed Bennett's federal habeas petition as untimely, relying on 28 USC 2244 (d)(1), which requires filing within one year. Bennett's habeas petition was not filed until approximately one year and nine months after his state petitions were dismissed. The 2nd Circuit reinstated Bennett's habeas petition, relying on 28 USC 2244(d)(2), which states that the time during which a "properly filed" application for state or other review is pending tolls the running of the one-year time limit.

The Supreme Court, in a unanimous opinion by Justice Scalia, upheld the 2nd Circuit, and held that a petition is "properly filed" so long as it comports with procedural requirements such as when it is delivered, whether the filing fee was paid, and whether the proper form was used. The high court rejected the claim that "properly filed" referred to the substance of the claim — the fact that the issues raised by Bennett are banned from state review did not mean the habeas petition was not "properly filed." Additionally, only claims in a petition, not the petition itself, can be procedurally defaulted. Claims are raised, whereas petitions are filed.

Walker filed a federal habeas petition in 1996, four days before his state robbery conviction became final. The petition was dismissed three months later on the ground that Walker had not yet exhausted his state remedies, a requirement imposed on federal habeas by the AEDPA. Eleven months later, he filed a second petition. This was dismissed by the district court as "untimely," since the AEDPA requires that federal habeas petitions be filed within one year of state review becoming final. The 2nd Circuit reversed, holding the one-year time limit was tolled during the three months the first appeal was pending. At issue was the meaning of 2244(d) (2)'s phrase "application for state post-conviction or other collateral review." The 2nd Circuit felt "other collateral review" referred to federal habeas review.

Justice O'Connor, writing for a 7-2 majority, disagreed with the 2nd Circuit's reading of the AEDPA and held that the one-year time limit was not tolled during the consideration of the first petition, thus Walker was procedurally barred from filing his second petition. The majority opinion noted that in other portions of the AEDPA, Congress used the phrase "state and federal"; therefore, if Congress meant to include "federal" within the phrase at issue here, it would have expressly done so. The dissent by Justice Breyer argued the statutory language was ambiguous, and that Congress could not have intended to deny Walker an opportunity to be heard in federal habeas review because he mistakenly filed early and the district court took a long time dismissing the early filed petition. He argued that the ambiguity in the statute should be resolved in Walker's favor.

In Cage v. Louisiana (1990) the Supreme Court held unconstitutional a particular definition of "reasonable doubt." In Sullivan v. Louisiana (1993) the Court further held that providing an unacceptable definition of reasonable doubt to the jury was never "harmless error" and instead would likely mandate the reversal of a conviction and a retrial. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which limited the ability of inmates to bring successive habeas petitions.

Tyler was convicted of murder in a 1975 trial utilizing the reasonable-doubt instruction later held unconstitutional in Cage. He failed to challenge the instruction in a habeas petition filed after passage of the AEDPA. Section 2244(b)(1) of the AEDPA bars claims in a second habeas petition not presented in the first petition. An exception to this rule is 2244(b)(2)(A), which permits the claim if it "relies on a new rule of constitutional law, made retroactive by the Supreme Court, that was previously unavailable." Tyler argued this exception applied to him, as Cage constituted a new constitutional rule regarding due process, and that Cage had been made retroactive by lower courts and by the Supreme Court in Sullivan and other cases. The 5th Circuit disagreed, putting it at odds with a number of other federal circuit courts.

The Supreme Court, in a 5-4 decision authored by Justice Thomas, held that the Supreme Court had not made Cage retroactive in Sullivan, and thus the second habeas petition was barred. Sullivan said a reasonable-doubt error was a structural error, but such a holding was not necessarily retroactive. After consulting dictionary definitions of "made," Justice Thomas concluded that these definitions required that the Supreme Court expressly "hold" that Cage was to be applied retroactively. The Supreme Court had not done so previously, and declined to do so here. The dissent by Justice Breyer argued that Sullivan and Teague v. Lane (1989), dealing with retroactivity and habeas petitions, taken together, logically mandated Cage's retroactivity, even if they did not expressly so hold.

Appeals

Ohio inmate Becker filed a pro se Section 1983 action, alleging the conditions of his confinement violated his constitutional right to be free from cruel and unusual punishment. The district court dismissed for failure to state a claim. Becker filed a notice of appeal, using a court-provided form. On the line "counsel for appellate" he typed rather than signed his name. For a notice of appeal to be valid, Federal Rule of Civil Procedure (FRCP) 11(a) requires a signature on the form. The 6th Circuit Court of Appeals dismissed Becker's appeal on the ground that a handwritten signature was required and its absence constituted a jurisdictional defect. Becker then filed a signed motion for reconsideration, which was also denied.

The Supreme Court unanimously reversed the 6th Circuit. While agreeing with the courts below that FRCP 11(a) requires a signature, and that a typed name does not constitute a signature, the Court also noted that FRCP 11(a) provides that an omitted signature may be "corrected promptly after being called to the attention of the attorney or party." Becker had signed the notice of appeal when notified of his error, and this should have saved the notice of appeal.

Daniels and Coss both sought to challenge the validity of prior convictions which were used in a subsequent sentencing proceeding for enhancement purposes. In Daniels' case, the federal prosecutor sought to introduce evidence of four prior state convictions during sentencing for a federal firearms offense. These prior convictions qualified Daniels for a sentence enhancement under the Armed Career Criminal Act, 18 USC 924(e). After a failed direct appeal, Daniels sought habeas relief on the ground that one of the prior convictions was tainted by ineffective assistance of counsel. The 9th Circuit relied on a Supreme Court decision, Custis v. United States (1994), to hold that a collateral attack could not be maintained, except for the ineffective-assistance-of-counsel claim. Coss had been convicted in state court, and had his sentence enhanced based on a prior state conviction. He also argued that the prior conviction should not be used at sentencing because he had previously received ineffective assistance of counsel. The 3rd Circuit Court of Appeals permitted his appeal.

The Supreme Court, in a pair of 5-4 decisions penned by Justice O'Connor, held that habeas petitioners are not permitted to challenge the use of prior convictions in sentencing hearings, and that the appropriate forum for challenges is on direct appeal. The Supreme Court stated that ease of administration and the need for finality justified the ban on habeas attacks. Justice O'Connor pointed out this ruling did not eliminate challenges based on ineffective-assistance-of-counsel claims, but merely limited those challenges to the direct appeal. The holding in this case merely restricted the use of federal habeas to relitigate the issue. The dissent by Justice Souter argued that the concerns of ease of administration and finality did not justify denying defendants the opportunity to challenge the use of prior convictions in federal court.

Criminal Law

In 1996, California voters passed the Compassionate Use Act, which authorized the possession and use of marijuana for medical purposes if so approved by a licensed physician. Other states had passed similar laws. This law was in conflict with 21 USC 841, the Controlled Substances Act, which made it a federal crime to "manufacture, distribute or dispense" a controlled substance. Marijuana was listed as a Schedule I controlled substance, meaning the only exception to the general ban was for government-approved research projects. The government sought to enjoin the Oakland Cannabis Buyers' Cooperative from distributing marijuana to its members, and AIDS and cancer patients. The cooperative admitted the research exception did not apply to them, but argued that medical necessity provided a defense to criminal liability. The necessity defense allows a defendant to break one law if doing so is necessary to avoid a greater harm.

The Supreme Court, in an 8-0 decision, rejected the cooperative's medical-necessity defense. Writing for the Court, Justice Thomas noted that Congress, by including marijuana as a Schedule I drug, had determined that marijuana has no generally accepted medical benefits. The Supreme Court was unwilling to override a legislative act which was not clearly wrong. Three justices concurred only in the judgment, and declined to join the portion of Thomas's opinion which said the defense was per se unavailable, waiting until presented with the issue to decide if the defense applied to a seriously ill patient seeking to avoid "extraordinary suffering."

Rogers stabbed a man in an altercation. Fifteen months later, the man died as a result of the effects of the stab wound; Rogers was then prosecuted and convicted of murder. On appeal, Rogers argued that his prosecution was barred by the common law year-and-a-day rule, under which a defendant could not be convicted of murder if his victim died more than a year after the defendant initially harmed him. The Tennessee murder statute made no reference to the year-and-a-day rule, but there were old state cases discussing the rule. The state appellate court affirmed Rogers's conviction and formally abolished the rule, on the ground that advances in medical science made it unnecessary. Rogers then sought review in the Supreme Court, arguing that abolition of the year-and-a-day rule after he had been convicted constituted a denial of due process because it violated the ex post facto clause of the U.S. Constitution.

The Supreme Court narrowly upheld the decision of the Tennessee court. Writing for a 5-4 majority, Justice O'Connor held that there was no due-process violation because the ex post facto clause applies only to legislation, not the actions of courts. Furthermore, abolition of the year-and-a-day rule was neither unanticipated nor indefensible. O'Connor noted that the vast majority of states that have considered the issue have abolished the rule, as advances in medical science have made it obsolete. The rule existed at a time when it was more difficult to link an injury to a subsequent death. Today, the cause of death is more easily established. Additionally, the rule had never served as the basis for a decision in Tennessee, and the current statute makes no reference to it. Thus, the court determined, individuals were on notice that the rule likely did not apply. Writing in dissent, Justice Scalia argued that the ex post facto clause should be applied to judicial actions.

Death Penalty

In Penry v. Lynaugh (1989), the Supreme Court declared the Texas death-penalty statute unconstitutional. The statute under which Penry was tried required the jury to answer "yes" or "no" to three questions, none of which allowed the jury to consider mitigating evidence. The Supreme Court held that the jury must be provided with an opportunity to consider any potential mitigating evidence. Penry was retried in 1990, before the Texas Legislature changed the death-penalty statute. The trial judge read the same three-item jury instruction as at first trial, and added a supplemental question concerning mitigating evidence. Penry was again convicted and sentenced to death.

On appeal, he argued that the jury instruction was still inadequate because it required the jury to falsely answer "no" to one of the three required questions if it answered "yes" to the supplemental question. In addition, he argued that the prosecution had improperly been allowed to introduce incriminating statements from a pretrial competency evaluation in violation of his Fifth Amendment privilege against self-incrimination. The Texas Court of Criminal Appeals denied Penry's appeal; the federal district court held that the state's decision was not an "unreasonable application of clearly established federal law." The AEDPA limits habeas corpus review to such situations. The Supreme Court held in Williams v. Taylor (2000) that a state court decision is not an "unreasonable application of clearly established federal law" just because it conflicts with federal precedent — the conflict must be unreasonable.

The Supreme Court, in an opinion by Justice O'Connor, ruled unanimously that introduction of psychological evidence at Penry's second trial did not constitute an "unreasonable application of clearly established federal law," and even if it did, the error in this case was harmless. More significantly, a 6-3 majority held that the modified jury instruction still violated due process, and that the state courts' failure to so hold did constitute an "unreasonable application of clearly established federal law." Justice O'Connor noted that the jury instruction was "internally contradictory" and confusing.

In 1991, the Texas Legislature changed the jury instruction to allow the jury to consider mitigating evidence. The dissent by Justice Thomas claimed the jury instruction was not confusing.

In Simmons v. South Carolina (1994), the Supreme Court held that whenever the prosecution asserts that "future dangerousness" justifies imposition of the death penalty, the jury must be informed when the sentencing alternatives are limited to either death, or life without the possibility of parole. In response, the South Carolina Legislature amended its death-penalty sentencing statute to provide a third option to death or life without parole: if the jury failed to find an aggravating factor, the judge could sentence the defendant to life without parole or 30 years fixed.

In 1997, Shafer was tried and found guilty of capital murder. At sentencing, the prosecutor did not specifically argue "future dangerousness" as an aggravating factor, but did mention several post-arrest assaults by Shafer, the sort of thing typically used to show "future dangerousness." The trial judge then refused to inform the jury that a life sentence meant life without parole, instead telling them: "[L]ife means until the death of the offender." During deliberations, the jury asked whether someone convicted of capital murder could be paroled, but the judge refused to clarify or explain that the only choices, if an aggravating factor was found, were death, or life without parole. The jury found the existence of an aggravating factor and recommended the death penalty. The South Carolina Supreme Court upheld the sentence on the ground that the existence of a third sentencing option made the Simmons rule inapplicable in this case.

Writing for a 7-2 majority, Justice Ginsburg reversed the South Carolina Supreme Court and held that a jury instruction explaining that "life" means life without the possibility of parole is required by the Due Process Clause. Justice Ginsburg noted that life without parole was a relatively new sentencing option, one that juries are likely to be unaware of; the jury's question in this case supported her point. Justice Ginsburg also said the presence of a third option did not relieve the trial court of the obligation of informing the jury that life means life without parole. Only when the jury finds aggravating circumstances must it choose between the death penalty or life without parole, so the third option is inapplicable in such circumstances. Furthermore, even before aggravating circumstances are established, any time future dangerousness is a potential issue, the jury must be informed of the meaning of life without parole. The dissent by Justice Scalia said no such instructions were required at common law, and that the jury was adequately informed by the trial judge.

Due Process

Young, a convicted rapist, was confined in 1990 pursuant to a Washington statute permitting the civil confinement of individuals found to be sexually violent predators suffering from a mental abnormality or personality disorder. He filed a habeas action challenging his confinement as violative of the prohibition on double jeopardy. While Young's appeal was proceeding, the Supreme Court in Kansas v. Hendricks (1997) held that the civil commitment of sexual predators was permissible so long as the confinement was nonpunitive in nature. The district court subsequently dismissed Young's habeas petition. The 9th Circuit Court of Appeals reversed, on the ground that while the Washington statute was nonpunitive on its face, as applied to Young it constituted punishment.

The Supreme Court, in an 8-1 decision authored by Justice O'Connor, reversed the 9th Circuit and refused to allow a civil commitment act to be deemed punitive "as applied" to a single individual. O'Connor noted that the court in Hendricks had expressly upheld the constitutionality of civil-commitment statutes. The "double jeopardy clause" bars successive punishments, but a commitment pursuant to a civil statute is by definition nonpunitive. Using an "as applied" analysis rather than focusing on the language of the statute would be unworkable, as confinement is not a fixed, unchanging event that can be measured at one point in time. Furthermore, such an analysis would remove the finality of the act and leave it open to repeated challenges. The civil-commitment act gives persons confined under it the right to treatment and rehabilitation. If a person is not receiving treatment and rehabilitation, then he or she may seek such in state court. Thus, there is an appropriate remedy other than holding the commitment unconstitutional.

Federal Statutes

The Racketeer Influenced and Corrupt Organizations Act (RICO) allows for both criminal prosecution and civil liability. Kushner sued King, a rival boxing promoter, alleging King violated RICO through acts of mail fraud and bribery. King was the president and sole shareholder of his corporation. 18 USC 1962(c) makes it unlawful for a corporate employee to engage in racketeering activities in the course of the corporation's affairs. King argued that RICO was inapplicable to him because he and the corporation were not sufficiently "distinct" entities — he was the corporation and its sole employee. The trial court and 2nd Circuit Court of Appeals agreed with King and dismissed the lawsuit.

On appeal, the Supreme Court unanimously reversed the lower courts and reinstated the lawsuit. The high court held, per Justice Breyer, that while RICO does require two distinct actors or entities, that requirement was met here. King, the president/employee, and King's corporation were separate legal entities, with distinct legal rights and responsibilities. King's activities as employee benefited King's corporation, and RICO was intended to apply to situations where one entity benefits from the criminal acts of another.

The defendant, a lawyer, participated in a conspiracy to bribe Louisiana state legislators in an effort to obtain a license to operate video poker machines. The defendant was convicted of multiple violations of 18 USC 1341, the federal mail-fraud statute, which makes it a crime to use the mail to obtain money or property via false misrepresentations. On appeal, the defendant argued that the statute did not apply to the fraudulent obtaining of a license, as it was neither "money" nor "property" as required by the statute. The 5th Circuit Court of Appeals rejected Cleveland's interpretation of the statute, and joined a number of other circuit courts in holding such licenses were "property."

The Supreme Court, in a unanimous opinion penned by Justice Ginsburg, reversed the 5th Circuit and held that a state license was not "property." Justice Ginsburg said the video poker licensing system was regulatory in nature, and did not convey a property interest. Since the state had no property interest in the regulatory scheme, it could not be defrauded of property by someone who violated the statute. The Supreme Court stated that to hold otherwise would depart from common concepts of what constitutes property, and result in a major expansion of federal criminal law. The Court was unwilling to so hold without a clear statement by Congress that such was its intent when it enacted the statute.

Immigration

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Immigration Reform Act (IIRIRA), both passed by Congress in 1996, contain provisions restricting the judicial review of deportation orders. In a pair of cases decided by a narrow 5-4 margin, the Supreme Court, per Justice Stevens, held that federal habeas corpus jurisdiction was not affected by the AEDPA and IIRIRA provisions.

St. Cyr was a Haitian alien who pled guilty to selling drugs prior to the enactment of the 1996 legislation. His conviction made him eligible for deportation, but under pre-AEDPA law he was eligible for a waiver of deportation. The United States argued that the AEDPA applied, and eliminated the authority of a judge to issue a deportation waiver. While in custody awaiting a decision on whether he would be deported, St. Cyr filed a habeas corpus petition, alleging the AEDPA's restriction of judicial authority to consider a waiver was not retroactive. The district court and the 2nd Circuit Court of Appeals found for St. Cyr, but other circuits had held otherwise. Calcano-Martinez was one of three permanent residents subject to deportation who challenged their removal via habeas corpus.

The Supreme Court, per Justice Stevens, held that the AEDPA did not eliminate habeas jurisdiction, so federal courts could examine the merits of the plaintiffs' claims. Language limiting "judicial review" in the AEDPA did not apply to "habeas corpus review," as these two items are historically distinct. Furthermore, Justice Stevens asserted that were Congress to attempt to limit habeas corpus via the passage of a statute, it would raise serious constitutional issues. Looking at the merits of petitioners' claims, the Supreme Court rejected the retroactive application of limiting discretion.

The dissent by Justice Scalia asserted that the IIRIRA was ambiguous in repealing habeas corpus jurisdiction, and that it did not violate the constitution.

These two cases involved habeas petitions filed by resident aliens who were being detained indefinitely pursuant to 8 USC 1231(a)(6). Under this statute, aliens who are found eligible for deportation because they have been convicted of crimes may be detained indefinitely if removal is impossible. Zadvydas was convicted of drug possession. After he finished his sentence, the INS detained him and attempted to have him deported, but no country would accept him. He filed a habeas petition, and the district court ordered him released under community supervision. The 5th Circuit reversed. Ma was convicted of manslaughter and ordered deported, but Cambodia refused to take him. He also filed a habeas petition, which resulted in the 9th Circuit ordering his release.

The Supreme Court, in a pair of 5-4 decisions by Justice Breyer, held that the statute should be construed to prevent indefinite detention, as such detention would raise Fifth Amendment due-process issues, since the only procedural protection provided these petitioners was an administrative hearing with the burden on the inmate to show he was not dangerous and therefore suitable for release under community supervision. Breyer conceded the statute's use of "may" permitted a reading that allowed indefinite detention, but given the severity of such, felt the ambiguity must be construed in the alien's favor. If Congress truly sought to allow indefinite detention, the statute must clearly so state. The majority further held that if removal was "not reasonably foreseeable," continued detention beyond six months is presumptively unreasonable. The dissent by Justice Kennedy argued the majority should read the statute literally and not substitute its judgment for that of Congress, particularly in the area of foreign policy.

Prisons

Bozeman was serving time in a federal prison in Florida when Alabama state authorities filed a detainer against him, and sought temporary custody in order to arraign him and appoint counsel for him on a state charge. Bozeman was released into the custody of Alabama officials, who transported him to a county jail where he was housed for one night. The next day, he was arraigned, counsel was appointed, and he was returned to federal prison in Florida. A little over one month later he was tried and convicted in an Alabama state court. On appeal, Bozeman argued the day he spent in custody on the detainer violated the Interstate Agreement on Detainers (IAD).

The IAD is designed to minimize the amount of time already incarcerated persons spend being shipped to another jurisdiction for the resolution of outstanding criminal charges. There was a concern that such detainers could obstruct/interrupt the treatment and programming of the inmates. Thus, article IV(e) of the IAD contains an "anti-shuttling" provision that requires the state that receives an inmate on a detainer to try him within 120 days of his arrival in the receiving state, and that if the inmate is returned to the original jurisdiction before such trial, the indictment is void. It was a common practice for states to violate this language for a short period, as Alabama admittedly did in this instance. Alabama conceded the violation of the literal language of the IAD, but argued there was an implied exception since the purpose of the IAD was to protect rehabilitation, and a one-night stay was better than keeping Bozeman in an Alabama jail for 120 days until trial.

The Supreme Court, in a unanimous opinion per Justice Breyer, held that Bozeman's conviction was invalid because it was obtained in clear violation of the IAD's explicit prohibition on "shuttling." The Court held that there was no implied exception to the clear language of the IAD, nor, as the state argued, such a thing as de minimis or "technical" violations. The language "shall" in the IAD is mandatory, and left no room for doubt.

Booth, a Pennsylvania inmate, filed a Section 1983 action seeking money damages for an assault he alleged was committed by prison employees. The Prison Litigation Reform Act (PLRA) bars an inmate from bringing a Section 1983 action "until such administrative remedies as are available are exhausted." Administrative remedies available to Booth (not surprisingly) did not include money damages. Booth filed the Section 1983 action before exhausting his administrative remedies. The 3rd Circuit Court of Appeals dismissed the lawsuit as barred by the PLRA's exhaustion requirement. Other lower courts had allowed similar lawsuits to proceed if the administrative remedies did not include the relief sought by the inmate.

In a 9-0 decision written by Justice Souter, the Supreme Court affirmed the 3rd Circuit's interpretation of the PLRA and held there was no "futility exception" to the exhaustion requirement. The Supreme Court determined that "exhausted" in the PLRA referred to procedures, not remedies. Thus, the fact that the sought remedy is not available does not affect the PLRA's requirement that the administrative procedures be completed before going to the filing of a Section 1983 action. This interpretation is in keeping with the spirit of the PLRA, which was intended to reduce inmate litigation.

Murphy, an inmate with training as an inmate law clerk, was denied permission to assist another inmate in a disciplinary hearing. He nonetheless sent a letter containing legal advice to the other inmate. Prison administrators then commenced disciplinary action against Murphy, for attempting to provide legal advice. Murphy filed a Section 1983 action alleging the denial of his efforts to provide legal assistance to a fellow inmate was a violation of his First Amendment rights. The 9th Circuit Court of Appeals agreed with Murphy, stating the four-part test for when an inmate's constitutional rights may be limited by prison officials enunciated in Turner v. Safly (1987) must be modified when a First Amendment claim is raised. Under Turner, a prison may limit an inmate's constitutional rights so long as the limitation is justified by a legitimate penological interest, such as institutional security.

The Supreme Court, in a 9-0 opinion by Justice Thomas (no friend to inmate plaintiffs generally), reversed the 9th Circuit and held that the Turner standard applied to all constitutional rights of inmates, including First Amendment claims. Instituting disciplinary proceedings for trying to provide legal assistance is acceptable if reasonably related to a legitimate penological interest. Carving out a special exception concerning the provision of legal advice to fellow inmates would unnecessarily complicate prison administration and draw courts into prison oversight. The case was remanded for application of the standard Turner analysis.

Summary - Part 1

The Supreme Court's 2000 term was marked by some significant decisions involving criminal justice. While there was no case that had the immediate impact of Apprendi v. New Jersey (2000), which dealt with sentencing enhancements handed down by judges rather than juries, several cases have interesting implications.

The decision in Seling v. Young suggests the Court will look favorably on the use of indefinite civil confinement for sexual offenders who have completed their prison sentences. The decision in Shaw v. Murphy may dramatically reduce the ability of inmates to assist each other in the preparation of their appeals, which is made especially significant when coupled with the Court's recent decision eliminating the requirement that prisons have law libraries available to inmates.

In Part Two of this article I examine the Supreme Court decisions involving privacy, right to counsel, section 1983 liability, sentencing, and search and seizure. Several of these decisions will likely have a significant impact on the administration of criminal justice.

Part Two - originally published in the January 2002 Bar News

Bartnicki v. Vopper, 69 USLW 4323 (2001)

An official of a teacher's union, engaged in contract negotiations with the local Pennsylvania school board, suggested, during the course of a cell-phone call, "blow[ing] off the . . . front porches" of the homes of several school-board members. Unbeknownst to the official, the phone call was intercepted and recorded by an unknown person, who provided a tape of the conversation to the president of a taxpayer organization that opposed the union. He in turn played the tape for the school board and gave it to a local radio station, which aired the tape.

The tape was made in violation of state law and the federal wiretap statute, 18 USC 2511 (1)(c), which subjects individuals to both civil and criminal liability for the intentional disclosure of unlawfully obtained electronic communications. The teachers' union sued the taxpayer group and the radio station. The defendants argued that while they knew of the illegal interception, they did not participate in it, and that they had a First Amendment right to disclose the contents of the tape since it involved a public issue. The district court said there was no First Amendment right since the federal and state wiretap statutes were content-neutral laws of general applicability. The 3rd Circuit Court of Appeals reversed.

Justice Stevens, writing for a 6-3 majority, upheld the First Amendment claims of the defendants. Even assuming the interception was intentional, defendants knew it to be unlawful and that disclosure violated the law, the First Amendment shielded them from either civil or criminal liability. This was because of the unique facts of the case; the taxpayer organization and the radio station were not involved in the illegal interception, they obtained the tape lawfully, and the subject matter of the tape was a matter of public concern. Supreme Court precedent provides board protection for dissemination of information regarding public affairs. The purpose of the wiretap statute, to deter interception, is not served here, where the defendants took no part in the interception. Furthermore, while the majority conceded this might have a chilling effect on private speech, the greater concern was the possible chilling effect on dissemination of public knowledge. The dissent by Chief Justice Rehnquist criticized the majority for effectively overturning the judgment of Congress and 41 states that had criminalized such conduct.

Glover v. United States, 69 USLW 4058 (2001)

Glover was convicted of a variety of federal offenses, including money laundering. At sentencing, the prosecution opposed grouping the money-laundering conviction with the other convictions, arguing instead that the convictions should be separated for sentencing purposes. This had the effect of increasing Glover's sentence by six to 21 months. Glover's defense attorney did not object, either then or on appeal, to separating the offenses. Glover subsequently filed a habeas petition, asserting that he received ineffective assistance of counsel at the sentencing hearing. The district court and 7th Circuit Court of Appeals upheld the sentence and denied the ineffective assistance claim on the ground that the sentence increase was not "significant" enough to constitute prejudice.

The Supreme Court, in a unanimous ruling, reversed the lower courts. Writing for the Court, Justice Kennedy held that the 7th Circuit had misapplied the standard for determining when prejudice existed. Any amount of additional incarceration constitutes evidence of prejudice; it cannot be said that incarceration, however short, is ever insignificant.

Texas v. Cobb, 69 USLW 4213 (2001)

A mother and infant daughter disappeared from their home in Huntsville, Texas. Cobb, who was indicted for burglarizing the home but denied any knowledge about the disappearances, was provided with counsel after being indicted for the burglary. Over a year later, while the burglary charge was still pending, Cobb's father notified police that his son had confessed to killing the missing mother and daughter. Police then arrested Cobb, read him his Miranda rights, and obtained a waiver.

During the subsequent interrogation, Cobb confessed to the double murder. These statements were introduced at his trial, and he was convicted. On appeal, Cobb argued that his confession was obtained in violation of his 6th Amendment right to have counsel present.

While he had waived that right when rearrested, the Supreme Court had held in Michigan v. Jackson (1986) that such a waiver is invalid if the accused has previously obtained counsel, and police then initiate an interrogation. However, in McNeil v. Wisconsin (1991), the Supreme Court held that the Sixth Amendment does not bar interrogation after counsel is obtained for an uncharged and unrelated offense. The Court made clear in McNeil that the right to counsel was "offense specific." A number of lower courts subsequently approved an exception to the McNeil rule barring interrogation for uncharged offenses that are "factually interrelated" to the charged offense. The Texas Court of Criminal Appeals reversed Cobb's conviction based on this exception.

The Supreme Court declined to adopt the exception. In a 5-4 decision written by Chief Justice Rehnquist, the Court instead held that a police officer may initiate the interrogation of a suspect who has counsel so long as the interrogation does not concern the offense for which counsel was obtained, even if the interrogation is about a factually related but uncharged offense. The chief justice used a definition of "offense" from Blockburger v. United States (1932), previously used to resolve double-jeopardy issues

Under this definition, offenses are not the same if each requires proof of a fact not required for the other. Since murder and burglary have different elements, they are different offenses, and so assertion of the right to counsel for the burglary did not preclude interrogation for the murder. Writing in dissent, Justice Breyer asserted the Blockburger test would be difficult for police to apply, and that the result in this case limits the intent of prior decisions, which was to establish that once a suspect has requested counsel, the government is barred from re-initiating interrogation without counsel present. He cautioned that police and prosecutors could play games with the charging decision in an effort to circumvent the suspect's invocation of counsel.

Atwater v. Lago Vista, 69 USLW 4262 (2001)

A Texas police officer on routine traffic patrol observed Atwater and her two young children driving without wearing their seat belts. Failure to wear a seat belt is a misdemeanor in Texas, punishable by a maximum $50 fine. Because there is no possibility of incarceration, it is referred to as a citation-only offense. The police officer nonetheless chose to arrest rather than cite and release Atwater. Texas authorizes police to arrest or cite for all offenses, even nonjail misdemeanors.

Several hours after being booked and jailed, Atwater posted bail and was released. She eventually pled no contest to the seat-belt violation and paid a $50 fine. She then brought a Section 1983 suit against the officer and his employer, alleging her arrest violated her Fourth Amendment right to be free from an "unreasonable" seizure. The district court dismissed the lawsuit, and the 5th Circuit Court of Appeals affirmed the dismissal.

The Supreme Court, in a 5-4 decision authored by Justice Souter, upheld the dismissal of Atwater's lawsuit and said it was per se reasonable for a police officer, with probable cause to believe a crime has been committed in his presence, to make an arrest for "even a very minor criminal offense." Justice Souter asserted that such an arrest was reasonable regardless whether so authorized by state law; the gravity of the offense is irrelevant in determining the authority of the police to arrest. He dismissed Atwater's argument that the common law allowed an arrest only for "breach of the peace" offenses, as not supported by history either prior to or since.

He also stated that it would be difficult to create such a rule today, as police officers cannot be expected to be aware of the details of sentencing schemes or sentencing factors which impact on whether incarceration is a sentencing option, and so can't make a determination whether the crime is a "citation-only" offense at the crime scene. The dissent by Justice O'Connor took issue with the majority's assertion that the historical record did not support a "breach of peace" limitation on an officer's arrest authority, and noted that qualified immunity would protect officers who mistakenly make an arrest for a citation-only offense, so long as it could be shown that the mistake was reasonable under the circumstances.

Ferguson v. Charleston, 69 USLW 4184 (2001)

In 1989, a state university hospital, concerned by an increase in cocaine use by pregnant women, began ordering warrantless, nonconsensual drug tests for pregnant patients suspected of drug use. The hospital later began cooperating with a police task force, which established criteria for who should be tested, and listed offenses that women testing positive for drugs could be charged with. Ten arrested mothers challenged the policy as violative of the Fourth Amendment prohibition on "unreasonable" searches. Four prior Supreme Court cases dealing with drug tests had generally upheld such tests under the "special needs" exception to the warrant requirement. Under this exception, the court balances the degree of intrusion on the privacy interests of the suspect against the public interest served by the drug test. Drug tests for high-school athletes, railroad workers, and customs employees have been upheld by the high court, while drug tests for state legislative candidates have been struck down.

The Supreme Court, in a 6-3 decision by Justice Stevens, invalidated the drug tests. The majority opinion noted that the prior drug tests upheld by the Court under the special-needs exception did not have law enforcement as their primary purpose; rather, they were designed to protect the public from impaired public employees or to protect children from each other. The Court also noted that the invasion of privacy was greater here than in the previous drug-test cases, since patients assume their test results are private and won't be turned over to a third party. The primary purpose of the drug tests in this case was to single out drug-using mothers for prosecution, not treatment. This did not constitute a special need of law enforcement, but was instead a typical criminal investigation. The dissent by Justice Scalia argued that the special-needs justification was met here, as the hospital also used the results of the test to help mothers get treatment and to protect the children of the drug-using mothers.

Illinois v. McArthur, 69 USLW 4096 (2001)

Two police officers went to McArthur's trailer with his estranged wife while she removed her belongings. After she had taken what she came for, she mentioned to the police that McArthur had marijuana hidden in the sofa. The police then asked McArthur for consent to search his trailer, which he refused. One of the officers left to obtain a search warrant. The remaining officer informed McArthur, who was standing on his front porch, that he could not re-enter the trailer alone. During the two hours it took for the first officer to return with a search warrant, McArthur and the second officer waited outside the trailer. McArthur went in the trailer several times during this period, but the officer stood in the doorway and observed him each time. When the first officer returned with a search warrant, the trailer was searched and marijuana was found in the sofa.

At trial and on appeal, McArthur argued the police officer's refusal to allow him to re-enter his home alone constituted an unreasonable seizure in violation of the Fourth Amendment. In Welsh v. Wisconsin (1984), the Supreme Court balanced the gravity of the offense with the exigent circumstances and held that it did not permit the warrantless entry of a home to arrest a DWI suspect.

In considering Welsh, where a DWI was a civil rather than criminal charge, the Court consequently felt that the gravity of the offense was not sufficient to justify a warrantless entry of the home. McArthur argued that since marijuana possession was a nonviolent crime, the offense was not serious enough to justify a warrantless entry of the home.

The Supreme Court, in an 8-1 decision penned by Justice Breyer, upheld McArthur's seizure as reasonable. The majority noted that the police officers in this case: (1) clearly had probable cause to search the trailer; (2) reasonably assumed that McArthur might destroy evidence if he entered the trailer alone; and (3) chose the less intrusive option of restricting McArthur's re-entry over conducting an immediate, warrantless search. In addition, the two-hour wait for the search warrant was not unreasonable. Furthermore, Justice Souter distinguished Welsh, noting that in that case there was no possibility of incarceration, but that in this case incarceration was possible, and thus while drug possession was nonviolent, it was a more serious offense than the DWI in Welsh. Justice Stevens, in dissent, argued the offense was not serious enough to justify police interference with McArthur's expectation of privacy in his home.

Indianapolis v. Edmond, 69 USLW 4009 (2001)

Indianapolis police set up road blocks, referred to as "narcotics checkpoints," for the admitted primary purpose of catching drivers with drugs in their car, although police also looked for potential DWI offenders and checked driver's license and registration papers. While a car was stopped and the driver's documents examined, police walked a drug-sniffing dog around the car, looked in the windows, and sought consent to search the vehicle. If the dog alerted, the police saw contraband in plain view, or consent to search was obtained, the car would be fully examined.

Police asserted the checkpoints were valid based on Michigan Dept. of State Police v. Sitz (1990), in which the Supreme Court upheld brief roadblocks to check for possible DWI violators. The Court in Sitz balanced the great public interest in removing drunk drivers from the highways against the de minimis intrusion of a brief traffic stop, and determined that random stops based on less than probable cause were reasonable.

However, in Delaware v. Prouse (1979), the Supreme Court noted that stops based on less than probable cause would not be allowed for the purpose of "general crime control." Indianapolis drivers brought a class-action lawsuit to stop roadblocks. The district court refused to grant an injunction, but the 7th Circuit Court of Appeals granted it.

The Supreme Court, in a 6-3 decision authored by Justice O'Connor, invalidated the drug-interdiction roadblocks. Justice O'Connor noted that DWI checkpoints are an exception to the general rule requiring individualized suspicion, and that such exceptions are justified only when there is a great public interest at stake.

Apprehension of DWI violators, the Court felt, constituted a significant public-safety justification. Here, the Court asserted that the police had failed to establish a "direct public-safety" justification. Drug possession is different and less likely to pose an immediate public-safety issue than operating a vehicle while under the influence of alcohol. Indianapolis argued that Whren v. United States (1996), holding an officer's subjective intent irrelevant, allowed drug checkpoint, since the secondary purpose of the Indianapolis roadblocks was DWI investigation.

The Supreme Court disagreed, noting that allowing such checkpoints would permit police to operate checkpoints for anything so long as they also looked for evidence of DWI. (It is unclear what the Supreme Court would do if the stated primary purpose was DWI enforcement and the secondary purpose was to check for drugs.)

Justice O'Connor's opinion suggested that such a checkpoint might pass constitutional muster. The dissent by Chief Justice Rehnquist said the only difference from Sitz was the presence of the drug-sniffing dog, which is not any greater intrusion. Justice Thomas argued in dissent that all suspicionless roadblocks are unconstitutional.

Kyllo v. United States, 69 USLW 4431 (2001)

Federal agents without a search warrant used a thermal imager to scan Kyllo's home and detect signs of marijuana cultivation inside. Thermal imagers measure the amount of heat radiating off the surface of a structure and reveal any "hot-spots" which indicate unusual activity, such as growlights commonly used for inside marijuana gardens. A number of lower courts had upheld the use of thermal imagers as outside the Fourth Amendment definitions of a "search," since Supreme Court precedent holds that there is no "reasonable expectation of privacy" in items a person exposes to public view. Here, the police argued they were simply using the thermal imager to "see" the excess heat given off by the house, not seeing inside the house. The district court denied Kyllo's suppression motion, and the 9th Circuit Court of Appeals affirmed the lower court.

The Supreme Court, in a narrow 5-4 decision penned by Justice Scalia, disagreed with the interpretation of the lower courts, and held that there is subjective expectation of privacy in the home and that society would always consider it reasonable (the two-part "expectation of privacy" test enunciated in Katz v. United States (1967)). Justice Scalia explained that a search warrant is needed before police may use uncommon, sense-enhancing technology that reveals "intimate" details that could otherwise be revealed only if police actually entered the home. The dissent by Justice Stevens, joined by Chief Justice Rehnquist, and Justices Kennedy and O'Connor, argued that the "waste heat" measured by the thermal imager on the exterior of the home was in plain view, and thus Kyllo enjoyed no expectation of privacy. All that the thermal imager revealed was the presence of heat, not any "intimate" details of activity within the home.

Nevada v. Hicks, 69 USLW 4528 (2001)

Nevada game wardens conducted two searches of Hicks' home on an Indian reservation for evidence of state game-law violations. Hicks, a tribal member, filed a Section 1983 action in Indian tribal court against the game wardens, alleging the search was a violation of his Fourth Amendment rights. The defendants challenged the jurisdiction of the tribal court, but the tribal court determined that it had jurisdiction because the searches occurred on the reservation. The 9th Circuit Court of Appeals affirmed the tribal court's finding of jurisdiction.

The Supreme Court, in a 9-0 decision by Justice Scalia, reversed the 9th Circuit, and held a tribal court does not have jurisdiction over Section 1983 suits, under either tribal or constitutional law. The Supreme Court stated that the fact that the allegedly unlawful search occurred on tribal land was not necessarily dispositive, but just one factor to consider.

While Montana v. United States (1981) held that tribal courts generally have regulatory authority over nonmembers, this does not mean the state is prevented from also exercising regulatory authority. Thus, the state has the authority to issue the search warrants for property on a reservation. Furthermore, the tribal court is not a court of "general jurisdiction" similar to a state trial court, so a Section 1983 action cannot be filed there, as the statute requires the action be initiated in a court of general jurisdiction. Therefore, the tribal court lacks the authority to hear Section 1983 cases. While the Court voted 9-0 to reverse the lower courts, seven justices concurred under a different rationale, saying Justice Scalia misinterpreted Montana to some degree.

Saucier v. Katz, 69 USLW 4481 (2001)

Katz was injured by Saucier, a military policeman who shoved him into the back of a police van after Katz engaged in a protest during a speech by then-Vice President Gore at a military base. Katz filed a lawsuit, pursuant to Bivens v. Six Unknown Agents (1971), alleging his injury was the result of excessive force in violation of the Fourth Amendment.

Saucier asserted qualified immunity in a summary judgment motion, which was denied by the district court. The 9th Circuit Court of Appeals reversed, after examining both the issue of qualified immunity and the reasonableness of the officer's conduct. The 9th Circuit determined that the qualified immunity issue duplicated the reasonableness issue, and thus consolidated the inquiry.

The Supreme Court, in an 8-1 decision, reversed the 9th Circuit. The majority opinion, by Justice Kennedy, held that the proper mode of analysis when a police officer raises the defense of qualified immunity is to first ask whether a constitutional right would have been violated if the officer's acts were as alleged, and then to ask whether the right was clearly established at the time of the incident. If so, then the conduct was unreasonable; if not, then the officer is entitled to immunity. Collapsing immunity and reasonableness inquiry into one stage is inappropriate, and would not serve the purpose of the qualified-immunity defense, which is to eliminate frivolous lawsuits as early in the process as possible.

Buford v. United States, 69 USLW 4182 (2001)

Buford was sentenced as a "career offender" under the Federal Sentencing Guidelines. To qualify as a career offender, a defendant must have at least two prior violent or drug-related felony convictions. The sentencing guidelines require that "related" convictions count as one conviction, and that related convictions include convictions that are consolidated for sentencing. Buford had five prior state convictions (four for robbery and one for drug possession), all of which she claimed were related. The federal prosecutor argued the drug-possession conviction was unrelated. There was only one sentencing hearing for all five offenses, but the sentencing court entered two judgments — one for the robberies and one for the drug possession. The district court determined the drug conviction was not related, and therefore Buford had two prior felony convictions and was eligible for sentencing as a career offender.

The 7th Circuit Court of Appeals, expressly applying a deferential standard of review, affirmed the district court's findings. Other courts of appeal have used the more exacting de novo standard of review in determining whether convictions were related.

The Supreme Court unanimously affirmed the deferential approach taken by the 7th Circuit. Writing for the Court, Justice Breyer, who participated in the drafting of the Federal Sentencing Guidelines, held that 18 USC 3742(e) requires courts of appeal to give "due deference" to the district court's application of the sentencing guidelines. This statutory language, he reasoned, foreclosed appellate courts from undertaking de novo review. Consolidation is an issue trial judges, who are intimately familiar with the underlying facts of the case, are best suited to decide.

Lopez v. Davis, 69 USLW 4067 (2001)

Congress, in an effort to promote drug-rehabilitation programs in prison, authorized the Federal Bureau of Prisons (BOP) to grant a sentence reduction of up to one year to inmates convicted of a "nonviolent offense" if that inmate successfully completes a substance-abuse program during his incarceration.

In 1995, the BOP issued a regulation defining "nonviolent offense" to include a variety of offenses, including drug sales while in possession of a weapon. The BOP later amended the regulation, making ineligible for release any inmate whose conviction involved "the carrying, possession, or use" of a weapon.

Lopez sought early release, but was excluded by the amended BOP regulation. He argued that when Congress passed 18 USC 3621(e)(2)(B), stating that violent offenders were ineligible for early release, it barred the BOP from further defining who was eligible, and therefore, the BOP regulation making ineligible drug traffickers who possessed a weapon was beyond the scope of the agency's authority.

Writing for a 6-3 majority, Justice Ginsburg upheld the authority of the BOP to issue a regulation defining "nonviolent offender" as within the scope of the agency's discretion. Justice Ginsburg noted that the statute at issue granted the BOP the discretion whether to grant or deny a sentence reduction, and the categorical exclusion of certain inmates is within the exercise of the agency's discretion, so long as the basis for the exclusion is reasonable. Excluding persons who possessed a weapon during the commission of a drug crime was a reasonable exercise of the BOP's discretion.

Summary

The Supreme Court's 2000 term was marked by some significant decisions involving criminal justice. Law enforcement still fares well in the high court, as demonstrated by decisions such as Atwater v. Lago Vista. Atwater is a tremendous victory for law enforcement, and Justice O'Connor's dicta in Edmond holds out hope for law-enforcement efforts to use roadblocks as a means of general crime control.

Decisions such as Kyllo, Ferguson and Edmond, however, indicate that while the Court is generally supportive of law-enforcement interests, there exists a new-found skepticism toward law-enforcement claims of necessity. This may be a reflection of the fact that the crime rate has continued to decrease over the past five years, thus reducing the apparent inclination to defer to law-enforcement interests.

There are a number of potentially significant criminal-law-related cases already being considered by the Court for its 2002 term. These include: a reconsideration of the question whether retardation bars the imposition of the death penalty, the extent of liability for private prisons, and the validity of a probationer's consent to search as a condition of probation.

Given the narrow margin in so many cases, the composition of the Supreme Court is of great importance. Several of the justices are reported to be contemplating retirement; others have serious health concerns. The current Court has been together for better than seven years, the longest period of stability since the 1820s. The country will likely see significant changes in the Court in the coming years. How these changes impact on the Court's decisions is anybody's guess.

Craig Hemmens is an associate professor of criminal justice administration at Boise State University. He has a J.D. from the North Carolina Central University School of Law and a Ph.D. in criminal justice from Sam Houston State University. He has published two books and more than 80 articles on a variety of criminal justice topics.

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