The U.S. Supreme Court returns to begin its new term on the first Monday in October, with oral arguments being heard Monday, Tuesday, and Wednesday of the first two weeks of the month. There are a number of criminal cases on the docket.

The first case is Ocasio v. United States, No. 14-361, to be argued Tuesday, October 6. This case involves an expansive interpretation of a federal criminal statute and particularly of what constitutes a conspiracy. A crooked police officer agreed with a body shop to refer accident victims in return for kickbacks. The Solicitor General, defending the conviction of conspiracy as well as extortion, states the question as:

The Hobbs Act defines extortion to include “the obtaining of property from another, with his consent, * * * under color of official right.” 18 U.S.C.  1951(b)(2). The question presented is:

Whether a conviction under the general federal conspiracy statute, 18 U.S.C. 371, may be based on Hobbs Act extortion where a public-official defendant has formed an agreement to obtain property from someone within the conspiracy.

The statute's definition of extortion goes well beyond what most people would consider extortion, but that is what the statute says, and it is for Congress and not the courts to trim it back. To argue that a conspiracy exists when the only people involved are the extortor and the extortee may be a bridge too far for the Supreme Court. On the facts of this case, however, there were other people involved—numerous other crooked cops—so such a holding may not help this defendant.

Wednesday, October 7, is Kansas day at the high court. The Justices will grapple with the latest product of the Kansas Supreme Court's campaign to find any excuse, plausible or not, to overturn every death sentence that comes before it. Cases 14-449 and 14-450 are the cases of the notorious Carr brothers, both captioned Kansas v. Carr. This is a case of a home invasion robbery followed by multiple sexual assaults and multiple murders. It is the kind of case where nearly everyone agrees that if we are going to have the death penalty at all, this is the kind of case it is for. 

The jury was instructed, correctly, that the prosecution had the burden of proof beyond a reasonable doubt on guilt and the aggravating factors. They were told to consider mitigating factors in reaching their final penalty verdict but not told of any burden of proof on such factors. The Kansas Supreme Court, speculating that the jury might infer that the same burden of proof beyond a reasonable doubt would apply to the defendants' proffered mitigation, held that this violates the Eighth Amendment, a conclusion not reached by any other court to consider this situation. The state court also held that the Constitution required a severance of the brothers' cases, a holding the U.S. Supreme Court will also review.

Together with the Carr brothers, the Court will consider Kansas v. Gleason, No. 14-452, the case of a robber who murdered one of his accomplices and her boyfriend to keep them quiet. It was in Gleason's case that the Kansas Supreme Court discovered the instruction problem.

Tuesday, October 13 features two cases addressing how far the Supreme Court will go in overturning judgments that were based on practices long considered perfectly legal at the time they were entered.

Montgomery v. Louisiana involves the retroactivity of Miller v. Alabama (2012), in which the high court held that states cannot make life-without-parole the mandatory minimum punishment for a murderer who was under 18 on the day of the murder. Montgomery murdered East Baton Rouge Deputy Sheriff Charles Hurt in the performance of his duty on November 13, 1963. He could have received the death penalty for this crime, but the jury was lenient and gave him life in prison. The question is whether Louisiana violated the Constitution by refusing to reconsider a sentence that was valid when entered in 1969 and remained so for 43 years until the Supreme Court reinterpreted the Eighth Amendment to mean something it had never meant before.

A threshold question is whether the Supreme Court has jurisdiction to review the state court's judgment in this case. As both parties say it does, the court appointed an amicus curiae to argue against jurisdiction.

Once that threshold is crossed, the primary question is whether, under the Supreme Court's rule of Teague v. Lane (1989), Miller is a rule of substantive law—which would be fully retroactively to long-final judgments—or whether it is a new rule of constitutional criminal procedure which applies only to new cases and those pending on direct appeal.

Hurst v. Florida is a capital case involving the question of whether Florida's system for determining whether to sentence a convicted murderer to death, a system the Supreme Court thoroughly reviewed and approved 39 years ago in Proffitt v. Florida (1976) is now unconstitutional due to Apprendi v. New Jersey (2000) and Ring v. Arizona (2002). In Florida, the jury returns an advisory verdict on penalty, and in order to do so must necessarily decide that at least one aggravating factor has been proved, although that finding need not be unanimous. The Florida Supreme Court has consistently held that the system satisfies the requirements of Apprendi and Ring, the U.S. Court of Appeals for the Eleventh Circuit has regularly denied habeas relief on Ring claims by Florida death row inmates, and the U.S. Supreme Court has repeatedly denied review of those decisions.

By way of disclosure, I wrote amicus curiae briefs supporting the states in the Carr/Gleason and Montgomery cases. They are available on the website of the Criminal Justice Legal Foundation.