Criminal law cases make up about a third of the Court’s docket in any given term. Thus far, only six cases of 44 granted for review in the October 2013 term are of a criminal nature. This past term, some 16 or so cases directly had a criminal law connection. One would think that after so many years, jurisprudence in this area would be pretty much settled, but it isn’t. Some of that is due to the ever-changing nature of legal interpretations based on new and unforeseen events. For example, when the Fourth Amendment and its prohibitions on unreasonable search and seizures and its call for the execution of warrants was written and passed, these items were rather clear-cut. Most of the Bill of Rights was a reaction to the indignities the colonies suffered under English rule. And there is no way the Founders could have considered or even thought that one day DNA and genetic material would be used to convict or exonerate criminals. They knew nothing of GPS tracking devices or of the cars to affix those devices to. Nor were there federal sentencing guidelines, “three strike” rules, crack versus powdered cocaine, and the like. Instead, we have words written over 200 years ago, but thankfully those words are based upon principles.
Much of the conservative criticism of the Supreme Court dates back to the Warren Court which was admittedly quite liberal in their interpretation of the rights of criminals and the accused. However, the initial reaction to a decision like Miranda v. Arizona was overblown and did not usher in an era of criminals being freed and roaming the streets because an officer failed to read someone his rights. Instead, law enforcement adapted quite nicely to this brave new world and prosecutions for major crimes is actually quite high today. In effect, in an effort to look strong on law enforcement and strong against criminals, many conservatives are guilty of the same knee-jerk reactions of which we accuse liberals. Conservative knee-jerk reaction is no better than liberal knee-jerk reaction. One can even make an argument that knee-jerk reactions are the opposite of conservatism.
This term was dominated in the criminal area there were two major areas- sentencing of criminals and the Search and Seizure Clause of the Fourth Amendment. Along the way, there were decisions involving the Ex Post Facto Clause, statute of limitations, immigration law, and Miranda warnings.
In the Moncrieffe decision/case, a defendant, who happened to be a foreign national, was convicted of the crime of distribution of a small amount of marijuana under state law. Because he was a non-citizen, the government sought to deport him as a felon. However, the Court ruled against Holder since the offense involved nothing more than a small amount of marijuana and although it may be defined as a felony under state law, it did not rise to that level for deportation purposes. In another immigration-related case- Chaidez vs. United States- the Court came to an interesting decision which angered liberal groups like the ACLU. In 2010, the Court ruled in Padilla vs. Kentucky that under the Sixth Amendment’s right to effective counsel, defendants must be advised of the effect of guilty pleas upon their immigration status. This current case asked whether the decision of Padilla was retroactive to defendants facing deportation prior to the Padilla decision. In a 7-2 decision written by Kagan, they ruled that it was not retroactive and that deportation proceedings initiated before 2010 could proceed.
In what would appear to be an Ex Post Facto case, the Supreme Court, in a decision by Breyer, deftly avoided the conundrum. That was the Kebodeaux case. He had been convicted of a sex crime (statutory rape) while in the military, sentenced to a military prison, served his time and was dishonorably discharged. Under state law, he was required to register as a sex offender, which he did. Later, Congress passed the Sex Offender Registration and Notification Act (SORNA) which required sex offender registries on a national basis. Upon moving, he failed to register as a sex offender in his new location and was convicted for violating SORNA. However, the Court never reached the retroactive status of SORNA and instead decided the case on the Military Regulations Clause of Article I then applied the Necessary and Proper Clause to uphold the conviction. It certainly was a creative decision that avoided the bigger questions. This writer has to give Breyer some credit for coming up with this one.
There were four cases involving the Search and Seizure Clause of the 4th Amendment (actually a fifth also). There were two companion cases involving the use of trained dogs to determine whether drugs were present. One involved a sniff at a car while another involved a sniff at the door of a house. Regarding the car “search,” it was actually the dog that was on trial- his reliability. The dog in question was trained to detect certain specific drugs. Alerting the officer, the car was searched but none of these drugs were found, but the officer did find the ingredients for making methamphetamine. He was subsequently charged and the defense moved to suppress the evidence seized and the lower courts ruled that since reliability records were not kept on the dog’s field performance, they suppressed the evidence. The Supreme Court, in a unanimous decision by Kagan, ruled that this standard was unreasonable and as long as the dog was certified, the search was legal. In the case involving the house, the Court skirted the constitutional question by resolving the case based on the common law concept of trespass. It was not necessarily that a house is granted more constitutional protection than a car- in the Jones case from the previous year, they determined a GPS tracking device on a car required a warrant. Instead, it has more to do with the differing circumstances involved for law enforcement as regards probable cause as it relates to a house versus a routine traffic stop. Obviously, police are working under vastly different circumstances when they get complaints about possible drug traffic at a house versus stopping someone on the highway for an expired license plate, a nervous driver and an open can of beer in the vehicle.
In the McNeely case, which involved an obvious case of drunk driving (he caused an accident), the arresting officer ordered an on-site blood sample be taken believing that alcohol decreases over time from the blood. However, the Court ruled in this particular case, a warrant could have and should have been obtained since the offender was being taken to a hospital anyway. Conversely, in the King case out of Maryland, the Court ruled that a warrant is not required to obtain a cheek swab for DNA for someone arrested (not convicted). Obviously, DNA is very important for solving crimes these days, but something seems askew when a warrant is required to draw blood in an obvious drunk driver scenario, but none is required to determine someone’s genetic make up. Maryland’s rationale before the Court- positive identification of the person arrested- is silly at best. The real reason was simply to enhance their DNA database. I have written on the past. If officials have probable cause to believe the person arrested was involved in another crime, then get a warrant and get their DNA. But, there was no probable cause here and those who assert otherwise are seriously mistaken. And here is the irony of the King case: if they had waited until King was convicted of the original gun charge for which he was initially arrested, then they were free and clear to collect the DNA sample and do whatever they wanted with it.
In the Bailey decision, the Court determined that although officers can detain a person while conducting a search, they cannot detain that person if they have left the vicinity of the search, which seems about right. The final case was the Clapper case. This addressed the NSA wiretaps of phones and e-mails of certain human rights groups. The Court basically created a Catch-22 for these groups by saying they could prove no harm,and hence had no standing. Of course, they could prove no harm because of the secrecy of the entire program whose secrecy was protected by the national security doctrine.
In the decision having implications on Miranda warnings, liberals will play this as a roll back of the rights of the accused. Salinas was questioned by police in a non-custodial interview (thus, no Miranda warnings given or required) regarding a shooting. During that questioning, Salinas eventually withdrew and refused to answer any more questions. Subsequently, the police developed evidence against Salinas to charge him in the shootings. During the trial, the prosecutor used Salinas’ silence during the non-custodial interview as evidence of his guilt. He was then convicted. The lone question was whether that silence during the non-custodial interview should have been allowed to be introduced as evidence. The Court determined that in order to claim a deprivation of the constitutional right against self-incrimination in a non-custodial situation, the person must assert those rights at the time. They cannot come back at some later time and said that their rights were violated. Of course, the whole reason for Miranda warnings is to apprise people of their rights. Again, this merely continues on a trend of clarifying who should receive and under what circumstances someone should be read their Miranda rights.
Increasingly, the Court has been confronting sentencing guidelines in recent terms. In one case, they ruled that if a person is convicted of a crime and before sentencing the guidelines are changed which increases the mandatory minimum, the guideline in effect at the time of conviction, not sentencing controls. Conversely, in a case with more serious ramifications, the Court ruled in a 5-4 case that when mandatory sentencing guidelines increase the penalty, that in and of itself justifies as an element of the crime and needs to be submitted to the jury for consideration. That is, anything that increases the penalty is an “element” of the crime. In this particular case, the defendant was accused of “brandishing a weapon” during a robbery. Thomas’ majority opinion joined by the liberal wing noted that since “brandishing a weapon” increases the sentence, whether Alleyne actually “brandished” the weapon was an element of the crime itself and needed to be considered by the jury. Similarly in other contexts, the amount of a particular drug “in possession” will have to be considered, and there are other possible scenarios.
As in other areas, the liberal reactions to many of decisions are seriously overstated. What one can discern from the trends in these and previous cases is that the Court is striving very hard to decide a case based on the specifics before them without making them too broad, as was the case under Warren and, to a lesser extent, Burger.
Looking at the 14 major criminal cases this term, seven of them were 5-4 decisions yet only three of the seven were along traditional ideological lines with Kennedy being the tie breaker. The most liberal Justices in these cases were Ginsburg and Sotomayor who took the liberal side 12 of 14 times. The most conservative Justice was Alito who took the liberal position only twice. Having gone back a few years, many liberal groups were anxious about Sotomayor in the area of criminal law, especially since she was backed by 18 law enforcement agencies during her confirmation hearings. Over the past two terms, she has taken the liberal side in 26 of 30 major criminal cases making her the most liberal. In order, Ginsburg and Kagan would come next (that Female Troika again), then Breyer. Kennedy is evenly split- 15 liberal side/15 conservative side. But, here is the strange thing this term: Stephen Breyer actually took the conservative position more often than Antonin Scalia. Although this may be attributable to the specifics of the cases and not indicative of shift on the Court, still Breyer took the more conservative stance in the dog sniff at a house case, the blood test warrant case, the DNA test, the sex offender case, and the retroactive status of the Padilla decision. Over the past two terms, Alito and Thomas have been the most conservative (actually tied) followed by Scalia and then Roberts. However, all have taken the conservative stance at least 67% of the time over a two year period (Scalia only 43% this term, 67% over two terms). Breyer, over a 2-year period has taken the conservative stance 40% of the time, but 50% this term. They are the only two showing major deviations this term from the two-year average.
In the end, if anything, the Roberts Court this term has illustrated their willingness to carefully balance constitutional rights of the accused against the changing circumstances and difficulties encountered by law enforcement on a daily basis. For this, there is no other conclusion that they are “conservative” in their decisions. There is no grand, sweeping constitutional proclamations or expansion of rights. But conversely, there is no major roll back of constitutional rights. Looking at just the 14 major cases this term, the liberal side- with some strange ideological alignments- prevailed in six of those cases. This was hardly a boom year for conservative thought when it comes to criminal law despite some high profile conservative victories. That being said, it may be disheartening to some conservatives that the Court today has not moved as fast and as boldly as the Warren or Burger Courts, but in the opposite direction. But, to this writer, a conservative Supreme Court is one that is not an activist Court. And that, despite some liberal successes, is more important in the overall scheme of things and may just be John Roberts’ greatest legacy.