Results matching “thomas”

Epstein Jail Guards Indicted

November 19, 2019 9:00 AM | Posted by Kent Scheidegger
Rebecca Davis O'Brien reports for the WSJ:

Two federal corrections workers who were on duty the night Jeffrey Epstein killed himself in a Manhattan detention cell have been indicted on federal charges in connection with the disgraced financier's death, according to charges unsealed Tuesday.
Continue reading Epstein Jail Guards Indicted.

Initial Thoughts on the Malvo Argument

October 16, 2019 3:26 PM | Posted by Kent Scheidegger
Here are some initial impressions after reading the transcript in the D.C. Sniper case of Mathena v. Malvo, argued today in the U.S. Supreme Court. (See yesterday's post for background and links.)

The Court is in a difficult situation because of the Montgomery opinion's dishonest misrepresentation of what Miller actually held. To make Miller retroactive under the Teague rule, Montgomery had to pound a round (procedural) peg into a square (substantive) hole. I don't think they want to publicly admit that the Court did that only a few years ago, but the difficulties are becoming apparent.

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing. I would be surprised if she has a majority for that. I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery. I doubt they have a majority for that. Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing. The Fourth Circuit assumed that was correct. They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

Amy Howe's report of the argument is here.

Brainless Experts to the Rescue

October 9, 2019 8:59 AM | Posted by Michael Rushford
In a recent post, we reported on a new guidance by the New York Commission on Human Rights that declared that use of the term "illegal alien" was a form of harassment and that offenders could be fined $250,000.  Former civil rights attorney Hans Bader noted that this is a clear violation of the First Amendment, and that the term is commonly used in both federal statutes and Supreme Court decisions.  In a story in the Chicago Tribune reporter Cindy Dampier went to an "expert," Professor Claire Thomas, director of the Asylum Clinic at New York Law School, to correct this fallacy, "....it's commonplace knowledge that the term 'illegal alien' is pejorative," she says, "and that a person who wants to spread hate in this city of immigrants will face consequences."  The "expert" also pointed out another common misconception: That the term supposedly is not used in statutes and in legal circles. "The term illegal alien isn't a term that comes up in our laws," she says, noting that it does appear very rarely in pieces of federal legislation. "However, the term 'alien' is in our statutes, and you will hear people referred to as 'the alien,' when you are representing them."  Apparently, Professor Thomas' expertise does not include an understanding of Title 8 of the United States Code at 8 USC 1365 and 8 USC 1611. "Illegal alien" is also found in other statutes, like 6 USC 240, 13 USC 141, and 18 USC App. 1201 to 1203. That's at least 5 federal statutes, not to mention state laws as well. She also must have missed its use in Supreme Court rulings, such as Arizona v. United States (2012). 

Update:  In response to being called out for misleading the public in its story about the use of the term illegal alien, the Chicago Tribune prominently reposted the story as reported here.

Behaving Badly

September 23, 2019 9:41 AM | Posted by Kent Scheidegger
Matt DeLisi and John Paul Wright have this article in the City Journal on the actual "root cause" of crime, poverty, and "mass incarceration": bad behavior.

Pointing out this inconvenient truth is a sure-fire way to get savagely attacked.
Continue reading Behaving Badly.

News Scan

July 15, 2019 9:03 AM | Posted by Michael Rushford
Gorsuch Seen as a Maverick:  In several cases over the just-ended Supreme Court term, Associate Justice Neil Gorsuch has parted ways with conservatives to buttress the rights of individuals over government authority.  David Savage of the Los Angeles Times reports on how Gorsuch has strayed from the court's conservatives, mostly writing dissents, in cases including one involving an Alabama man who was prosecuted twice for carrying a gun in his car, and another involving two African American men from Texas who were sentenced to more than 50 years in prison for robbing gas stations. But the reporter also included Gundy v. United States, where Gorsuch wrote a 33-page dissent, joined by Thomas and Roberts arguing to rein in the administrative state.  While, on the surface, one might expect the conservatives to drop the hammer on a sex offender convicted of failing to register with the state of Maryland under a law adopted two years after his crime.  But it was the liberals, led by Justice Kagan and joined reluctantly by Alito, who upheld Gundy's conviction in a holding which strained to preserve the administrative state..  Gorsuch and company noted that it was unconstitutional for Congress to delegate to the Attorney General the authority to restrict someone's liberty.    

Courts Split on CA Accomplice Murder Law:  A 2018 law signed by Governor Jerry Brown (SB 1437), which severely limits a prosecutors ability to charge accomplices to homicide with first-degree murder, is being held unconstitutional by judges in some California counties and is allowing judges in other counties to free accomplices.  J.K. Dineen of the San Francisco Chronicle reports that a bay area judge cited SB 1437 to release a 29-year-old accomplice to a 2008 robbery-murder, while 400 miles to the south, San Bernardino County judges are rejecting petitions for release from accomplices, finding that new law is unconstitutional.  In some counties local judges are divided on the validity of the law.  Gretchen Wenner and Megal Diskin of the Ventura County Star report that last Friday a Ventura County judge refused the petition of an Oxnard woman convicted of being an accomplice to a 2008 robbery and murder.  Weeks earlier, another Ventura judge upheld a gang-murderer's petition for resentencing under the new law.  Prosecutors argue that SB 1437 violates initiatives adopted by voters in 1978 and 1990 which included accomplice murder.  The issue is almost certain to end up before the California Supreme Court.     

Warrantless Blood Draw From Passed-Out Drunk (Mostly) Upheld on Exigency Theory

June 27, 2019 8:24 AM | Posted by Kent Scheidegger
The U.S. Supreme Court case of Mitchell v. Wisconsin, No. 18-6210, was supposed to be about the validity of "implied consent" laws, resolving a lingering question from the 2016 case of Birchfield v. North Dakota. Today, the Court decided the case, but on an "exigent circumstance" theory.

The plurality opinion says that the driver passing out is generally sufficient to create the needed exigency for an exception to the Fourth Amendment warrant requirement. Justice Thomas concurs in the judgment based on his view that "the natural metabolization of alcohol in the blood stream ' "creates an exigency once police have probable cause to believe the driver is drunk," ' regardless of whether the driver is conscious." Under the "narrower grounds" rule of Marks v. United States, the plurality opinion controls.
Continue reading Warrantless Blood Draw From Passed-Out Drunk (Mostly) Upheld on Exigency Theory.

An Odd "Supervised Release" Law Bites the Apprendi Dust

June 26, 2019 7:20 AM | Posted by Kent Scheidegger
In most American jurisdictions, there are provisions by which a person who could be incarcerated for an offense can be released but subject to supervision under conditions. If he violates the conditions, he can be sent to jail or prison with a more expedited procedure and lower burden of proof than would be required for a new criminal conviction. These arrangements include probation, parole, and, in the federal system, "supervised release."

In most cases, the time that the conditions-violator spends behind bars is time he could have spent there for the original offense. However, in 18 U.S.C. §3583(k), Congress provided that violators found to have committed certain new offenses, including possession of child pornography, must receive an additional prison term of five years, not limited by the term for the original offense.

Not surprisingly, the Supreme Court held today that this term is more like a new conviction than a traditional parole/probation revocation, and it is subject to the requirements of trial by jury and proof beyond a reasonable doubt under the Apprendi line of cases. The case is United States v. Haymond, No. 17-1672.
Continue reading An Odd "Supervised Release" Law Bites the Apprendi Dust.

Puzzling Holding in Rehaif

June 21, 2019 10:12 AM | Posted by Michael Rushford
Six Justices joined Justice Breyer's opinion today in Rehaif v. United States, a 12-page ruling overturning the conviction of an illegal alien in possession of a firearm.  The court held that while defendant Hamid Rehaif was indeed in the country illegally and did possess firearms, he may not have known his immigration status or that it was unlawful for an illegal alien to possess firearms. After acknowledging that "The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Government to establish a defendant's knowledge of his status in the analogous context of felon-in-possession prosecutions," (emphasis added), the Court cites 18 U.S.C. § 924(a)(2) which states, "Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10, years, or both."  Section 922(g) specifies that it is unlawful for an illegal alien to possess a firearm. From this, the Court announced that the prosecution is required to prove that a defendant knew both his status and that he possessed a gun. In a dissent, Justice Alito, joined by Justice Thomas, notes that the majority's holding "overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years."
Continue reading Puzzling Holding in Rehaif.

Flowers v. Mississippi

June 21, 2019 7:29 AM | Posted by Steve Erickson
Today, SCOTUS handed down the decision in Flowers v. Mississippi, which dealt with the state's use of peremptory strike of prospective black jurors.  I have not followed this case closely and I am still making my way through the opinions, but Justice Thomas's dissent states these rather important facts:

Confirming that we never should have taken this case, the Court almost entirely ignores--and certainly does not refute--the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. Two of these prospective jurors knew Flowers' family and had been sued by Tardy Furniture-- the family business of one of the victims and also of one of the trial witnesses. One refused to consider the death penalty and apparently lied about working side-by-side with Flowers' sister. One was related to Flowers and lied about her opinion of the death penalty to try to get out of jury duty. And one said that because she worked with two of Flowers' family members, she might favor him and would not consider only the evidence presented.

Those seem like good reasons.  Perhaps I will change my mind as I read all of the opinions more closely. 

No Standing For You

June 17, 2019 7:34 AM | Posted by Kent Scheidegger
The U.S. Supreme Court today drop-kicked the Virginia House of Delegates' challenge to a decision striking down the state's reapportionment law. The state's Governor and Attorney General had declined to appeal.* The Court ruled that a single house of the legislature has no standing to appeal such a decision.

CJLF had filed an amicus brief in the case, Virginia House of Delegates v. Bethune-Hill, No. 18-281, concerned that narrow standing rules impact the ability of victims of crime to seek redress in federal civil cases affecting state criminal judgments. On a quick read, this opinion seems largely limited to legislative cases.
Continue reading No Standing For You.

"Remaining-In Burglary" and the ACCA

June 10, 2019 10:22 AM | Posted by Kent Scheidegger
The common-law judges of Olde England defined burglary very narrowly because it was a capital offense and they wanted to avoid hanging people for it. That produced the multi-element definition so popular* on law school criminal law exams. Once we stopped hanging people for burglary, legislatures broadened the definition, but they did not all broaden it in the same way or to the same extent.

This creates a problem for punishing habitual criminals prosecuted for a new crime by a different jurisdiction than the one in which the prior crime was committed. In the federal Armed Career Criminal Act, a felon who illegally possesses a gun and has three designated priors gets 15+ years and is not eligible for probation. See 18 U.S.C. §924(e). "Burglary" is one of the designated priors, but what exactly is a "burglary"?

This multi-faceted question has been to the Supreme Court many times, and the Court addressed one more facet today in Quarles v. United States, No. 17-778. At what point in the crime must the perpetrator have formed the intent to steal, or commit some other crime, within the building?
Continue reading "Remaining-In Burglary" and the ACCA.

Price Executed, Finally

May 31, 2019 3:55 PM | Posted by Kent Scheidegger
Alabama yesterday finally achieved justice for the murder of Bill Lynn. Previously, the Supreme Court had effectively given murderer Christopher Price a stay by waiting too long to vacate the stays erroneously granted by lower federal courts. See prior posts here and here.

Justice Breyer wrote a dissent more notable for what it does not say than what it says.
Continue reading Price Executed, Finally.

SCOTUS Action in Law Enforcement Civil Suits

May 28, 2019 7:16 AM | Posted by Kent Scheidegger
The U.S. Supreme Court released an orders list and decisions today. There are no criminal cases of note, but there is action in two civil suits against law enforcement officers.

On the orders list, the El Paso cross-border shooting case of Hernandez v. Mesa is back for a sequel. "Once more into the breach, dear friends ..." Update: Brent Kendall has this story on the case in the WSJ.

Nieves v. Bartlett, No. 17-1174, involves a claim of retaliatory arrest when the police did, in fact, have probable cause to make the arrest. The presence of probable cause generally defeats a First Amendment retaliatory arrest claim. However, for a warrantless misdemeanor arrest, the "no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

The opinion of the Court is by Chief Justice Roberts, joined in full by Justices Breyer, Alito, Kagan, and Kavanaugh. Justices Thomas, Gorsuch, and Ginsburg concur in varying parts. Only Justice Sotomayor dissents entirely. The line-up analyzers will have fun with that one.

Fireworks in Execution Cases

May 13, 2019 3:15 PM | Posted by Kent Scheidegger
Today's criminal law action in the U.S. Supreme Court is mostly in the "Opinions Relating to Orders" section, where individual Justices opine on whether the Court should or should not have stayed an execution, taken a case up, or sent it back to a lower court for a "do over."
Continue reading Fireworks in Execution Cases.

SCOTUS Denies Effective-Date Bump for Bump Stocks

April 5, 2019 9:35 AM | Posted by Kent Scheidegger
The U.S. Supreme Court has denied a stay in the challenge to a regulation that expands the definition of "machine guns" (which are illegal) to include "bump-stock-type devices" which make semi-automatic guns function like full automatics, i.e., machine guns. The petition, with the D.C. Circuit opinion attached, is here.

The order notes that Justices Thomas and Gorsuch would grant the stay. I suspect that their position may have more to do with antipathy to "Chevron deference" than sympathy with owners of bump stocks.

CJLF generally does not get involved in the gun-control fight. I really cannot fathom any legitimate reason for owning a bump stock, though.

The Opinion of the Court in the Bucklew Case

April 1, 2019 10:35 AM | Posted by Kent Scheidegger
On its face, the U.S. Supreme Court case of Bucklew v. Precythe, No. 17-8151, seemed to present a fairly narrow issue. The State of Missouri is generally among the best of the states in the way it carries out executions. That state has remained able to acquire the drug of choice, pentobarbital. Even so, Bucklew claimed that due to his unusual medical condition use of the barbiturate-only lethal injection method would be unconstitutionally cruel as applied to him.

The opinion of the Court by Justice Gorsuch for a bare majority not only rejects that argument, but sweeps in a lot along the way. At the beginning of the discussion of the law (i.e., part II, after the summary of facts and case) we have this remarkable paragraph:

The Constitution allows capital punishment. [Cites to Glossip and Baze and discussion of founding-era punishment and recognition of capital cases in Fifth Amendment.] Of course, that doesn't mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives.

That is the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court, rather than in a concurring or dissenting opinion. It is as emphatic as the absolute statement of Justice Hugo Black (who was fond of absolute statements) nearly half a century ago in McGautha v. California.

Continue reading The Opinion of the Court in the Bucklew Case.

Recycling Bad Ideas

March 20, 2019 9:07 AM | Posted by Kent Scheidegger
During his three-and-a-fraction terms as President, Franklin Roosevelt mostly steamrollered his political opponents and got most of what he wanted. Even one of the most formidable politicians in American history, though, lost one political battle badly and was sent running away with his tail between his legs. That was his notorious plan to "pack" the Supreme Court. FDR got no appointments during his first term and had a valid gripe against what we now call "judicial activism." Even so, a Congress controlled by his own party and mostly sympathetic to his views thought the end did not justify the means.

Fast forward eight decades. Reid Epstein and Ken Thomas report for the WSJ:

A few candidates are embracing ideas long seen as on the edge of liberal politics: abolishing the Electoral College and adding up to a half-dozen justices to the Supreme Court.
Given that it only takes 13 states to block a constitutional amendment and a lot more than 13 would have their influence diminished by abolishing the Electoral College, it's pretty safe to say that one is a non-starter.  (The jurisdiction most diminished by that change would be the District of Columbia, but it doesn't have a vote in constitutional amendments.)

Changing the number of justices requires only a simple statute. If the Democrats take full control in 2020, could they and would they take another stab at FDR's biggest flop? Stay tuned.

Supreme Court Rules on Detention of Criminal Aliens

March 19, 2019 7:28 AM | Posted by Kent Scheidegger
Congress has provided that the government must detain aliens convicted of certain crimes immediately upon their release from prison or jail and hold them for the duration of their deportation/removal proceedings. The exact terms have varied over this law's long history, traced in CJLF's amicus brief, but the basic idea has remained.

In today's decision in Nielsen v. Preap, the Supreme Court reviewed a remarkable decision of the Ninth Circuit. That court interpreted the law to say that the no-release provision only applied if the alien was taken into federal custody immediately. If, for example, he was out for a day because DHS didn't know when he would be released due to a state's "sanctuary" policy, then release came under a different, more lenient provision. 

Such a nonsensical result would require very clear language in the statute. It simply makes no sense that release would depend on such a happenstance. The language does not, in fact, require such nonsense.

Justices Thomas and Gorsuch dissent on a jurisdictional question, so a portion of Justice Alito's opinion on that point is a plurality. The substantive portion is the opinion of the Court.

Update:  Here's how the Los Angeles Times reporter David Savage covered the decision. The WSJ has this article by Jess Bravin and this editorial.

Bait, Switch, and Do-Over on Competency for Execution

February 27, 2019 8:56 AM | Posted by Kent Scheidegger
The U.S. Supreme Court today decided Madison v. Alabama, No. 17-7505, confirming that the state was right on the question that everyone thought the case was about -- whether inability to remember the crime alone exempted a murderer from execution. No, it does not.

Of course, a variety of disorders can cause memory loss. So-called "alcoholic blackout," for example, can prevent the transfer of a memory from volatile current memory to long-term storage, like pulling the plug on on your computer before you save a document to the hard drive. Despite inability the remember, the person will have full mental faculties once he sobers up, and he can understand what he did and why he is being punished for it. In Madison's case, though, the underlying cause is vascular dementia, a broader disorder.

Competency for execution cases have mostly involved psychotic disorders, but the underlying rule is not limited to them. Ford v. Wainwright and Panetti v. Quarterman establish a broader rule that a disorder that prevents rational understanding precludes execution. Because the brief ruling of the state court leaves a majority of the U.S. Supreme Court court in doubt whether it applied the right standard, they send the case back.

The decision is 5-3 with Justice Kavanaugh not participating.  Justice Alito, joined by Justices Thomas and Gorsuch, dissents from the majority's indulgence of Madison's bait-and-switch:
Continue reading Bait, Switch, and Do-Over on Competency for Execution.

Excessive Fines, Forfeitures, and Incorporation

February 20, 2019 7:30 AM | Posted by Kent Scheidegger
The U.S. Supreme Court held this morning in Timbs v. Indiana that the Excessive Fines Clause of the Eighth Amendment, originally applicable only to the federal government, applies to the states as well through the Fourteenth. The court held in a federal case in 1993 that "excessive fines" includes excessive forfeitures. Not surprisingly, there is no dissent as to the result. The case goes back to the Indiana Supreme Court for application to the facts of the case -- forfeiting a Land Rover for transporting drugs where the vehicle is worth four times the maximum fine for the offense.

This is likely the last provision of the Bill of Rights to be "incorporated."  The Court decided well over a century ago that the already-obsolete grand jury clause of the Fifth Amendment would not be incorporated, and it is unlikely to revisit that decision. Incorporating the Seventh Amendment and requiring jury trials in state-court civil cases for $21 is also not going to happen. The Third Amendment, quartering troops in private homes in peacetime, is unlikely to arise, to put it mildly.

Justices Thomas and Gorsuch write separately on the question of whether the Privileges or Immunities Clause rather than the Due Process Clause should be the mechanism of incorporation. Justice Thomas says yes, and Justice Gorsuch says maybe. That would be a better fit to the original understanding of the Fourteenth Amendment. Justice Gorsuch notes that nothing in this case turns on that question, though.

Jess Bravin has this article in the WSJ noting that the ruling "potentially jeopardizi[es] asset-forfeiture programs that help fund police operations with property seized from criminal suspects." True, some worthy projects may need to find other funding sources or may go unfunded, but using punishment as a targeted revenue source is a fundamentally flawed idea. Punishments should be imposed according to what is just, and the money should go into the general fund so that no decision-maker has a specific incentive to punish more harshly to get the money.
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