This is the first in a series of posts on criminal cases and crime-related civil cases in the United States Supreme Court in its previous term (October 2021) and present term (October 2022). Each post will examine the previous term’s decisions and the pending cases in one category.

Cases can be categorized many ways, but for the purpose of this presentation, I have divided the cases into five categories: (1) substantive criminal law, (2) criminal procedure before and during trial, (3) review of criminal judgments, (4) capital cases involving issues unique to capital punishment, and (5) civil suits against law enforcement officers and agencies. Looking at these categories separately, we see some interesting patterns, some of which run contrary to popular perceptions.

The present Supreme Court is widely regarded as a “conservative” court. The people who do empirical analyses of court decisions typically score a result favoring law enforcement—affirming a judgment or sentence or rejecting a civil suit against an officer—as a conservative outcome. The actual results of such scoring, though, differed considerably by category last term.

In the four cases that I have categorized as substantive criminal law, including cases involving definitions of crimes and rules of noncapital sentencing, the defendants ran the table in the supposedly conservative Supreme Court. In Wooden v. United States and United States v. Taylor, defendants succeeded in getting narrow interpretations of federal firearms and recidivist sentencing laws, as they have many times in recent years. In Xiulu Ruan v. United States, a “pill mill” doctor who had written 300,000 controlled substance prescriptions in four years got a reversal because his jury was not instructed to find that he knew that his conduct was not authorized. Conception v. United States permitted subsequent changes in law to be considered in a sentence reduction motion under the First Step Act.

Death row inmates won two of the three capital cases regarding uniquely capital issues. Ramirez v. Collier halted an execution because the state would not let the inmate’s minister lay hands on him during the execution. Nance v. Ward decided that an inmate with a method-of-execution claim that will prevent execution altogether, not just require a different procedure, can proceed via a civil rights suit and not habeas corpus. The difference is important because habeas corpus requires exhaustion of state court remedies first. In United States v. Tsarnaev, though, the Court reinstated the death sentence of the Boston Marathon Bomber. The Court rejected arguments that the Federal Death Penalty Act’s evidence standard—similar to FRE 403—requires admission of mitigating evidence that the trial judge considered weak and unreliable, and that the Eighth Amendment requires admission.

Plaintiffs bringing civil suits against law enforcement for money damages did not do as well. Vega v. Tekoh confirmed that the Miranda rule is a prophylactic rule for admission of evidence in criminal trials, not a constitutional right in itself that one can seek damages for violating. Egbert v. Boule declined once again to extend the court-created right to sue federal law enforcement officers (Bivens) any further than the Court has already stretched it. Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond summarily overturned court of appeals decisions denying qualified immunity to law enforcement officers. Thompson v. Clark was the only plaintiff’s win in this group. The Court held that a plaintiff whose criminal case had ended without a conviction but also without an affirmative indication of innocence could sue for malicious prosecution.

Similarly, in the pretrial and trial procedure cases there was only one defense win. Hemphill v. New York overturned a seemingly clear Confrontation Clause violation of admitting the plea allocution of an unavailable witness. The only dissent was on jurisdiction, not the merits. In Oklahoma v. Castro-Huerta, the Court decided that the State has concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in “Indian country.” This important decision limits the effect of the controversial McGirt decision in 2020, which declared much of the State of Oklahoma to be “Indian country.” The prosecution also prevailed in cases on state secrets (United States v. Zubdaydah and FBI v. Fazaga) and double jeopardy for distinct offenses arising from a single act (Denezpi v. United States). Tsarnaev, described in the capital case paragraph above, also reversed the First Circuit on a claim regarding jury voir dire in high publicity cases.

The prosecution side won all four cases on the review of criminal judgments. Shinn v. Martinez Ramirez and Shoop v. Twyford are potentially very important cases on evidence gathering and hearings in federal habeas corpus cases. They held there is no need for evidentiary proceedings on claims where the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a decision for the state on the basis of the state court record or forbids an evidentiary hearing due to a default in state court. Brown v. Davenport held that when a state court has found an error harmless a petitioner would need to meet both the AEDPA standard for overturning state court decisions on the merits and the federal standard for harmful error on habeas corpus in order to prevail. Kemp v. United States held that a Rule 60(b) motion claiming that an earlier decision on collateral review was error is a claim of “mistake” under 60(b)(1), not a claim under 60(b)(6). Because (b)(1) claims are subject to a one-year time limit, this could cut back on the use of 60(b)(6) to evade AEDPA’s limit on successive petitions.

For the present term, we have seven cases on the docket so far: two on substantive criminal law, two on criminal procedure, two on review of criminal judgments (one of which is intertwined with a capital sentencing issue), and one civil suit.

Percoco v. United States involves a private citizen and “honest-services fraud.” Ciminelli v. United States involves the scope of the federal wire fraud statute. These cases will be heard November 28.

In re Grand Jury involves attorney-client privilege as applied to a communication with mixed content. Turkiye Halk Bankasi A.S. v. United States involves foreign sovereign immunity as applied to a corporation owned by a foreign government. These cases have not yet been set for argument.

Jones v. Hendrix asks whether a prisoner barred from filing a successive motion to vacate under 28 U.S.C. § 2255 by the AEDPA amendment to that section can file a habeas corpus petition instead. In Cruz v. Arizona, the Court granted certiorari limited to the question, “Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.” The referenced rule is a rule authorizing collateral relief based on a change in the law that would probably overturn the judgment. Whether the holding is “independent” relates to the Court’s precedents on informing the jury that a capital defendant will be ineligible for parole if sentenced to life rather than death (Simmons/Lynch).

Jones and Cruz will be heard November 1.

Reed v. Goertz involves the statute of limitations for a civil rights suit regarding access to DNA testing. The case was heard October 11.

Subsequent posts will examine each category in more detail.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].