2019 U.S. Supreme Court Criminal Law Roundup

Criminal Law & Procedure Practice Group Teleforum

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The 2018-2019 Supreme Court term saw the continued evolution of Criminal Law Jurisprudence. Over a dozen cases were decided that will serve to shape and guide criminal law jurisprudence moving forward, on both the State and Federal level. Several prominent legal experts join us to recap the influential Criminal Law related Supreme Court decisions of 2019. Among the cases discussed will be, Timbs v. Indiana, Madison v. Alabama, Bucklew v. Precythe, United States v. Haymond, Mitchell v. Wisconsin, and many more. 


Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck

Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Dean Mazzone, Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General’s Office, Massachusetts Attorney General

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Monday, August 19, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on the "2019 U.S. Supreme Court Criminal Law Roundup." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today we are very fortunate to have with us a panel of accomplished attorneys who are discussing these issues. And first on the panel today is Kent Scheidegger, who is Legal Director and General Counsel at the Criminal Justice Legal Foundation. Also with us today is Dean Mazzone, who is Senior Trial Counsel at the Criminal Bureau of the Massachusetts Attorney General's Office. And third, speaking today is Mr. Greg Brower, who is a Shareholder at Brownstein Hyatt Farber Schreck.


      So after our speakers go through a series of cases on criminal law, we will have time for an audience Q&A, so please keep in mind what questions you have for them, for any of the cases. So thank you very much for sharing with us today. Kent, the floor is yours to begin.


Kent Scheidegger:  Thank you. I'm going to cover the capital cases except for one jury selection case which Dean will cover. Probably the most important capital case of the term was the Bucklew case, and that one was covered in depth in a separate teleforum which was recorded in early April and is available on the website. Bucklew came to the Court on some very unusual facts. Bucklew claimed that even though Missouri's method of execution was painless in most cases, it presented a risk of pain to him because of his rare condition. I think the Supreme Court rejected this claim by a 5-4 decision.


      It confirmed the Glossip requirement that a method of execution challenge requires a showing that the method has a great risk of pain relative to some other, better method that is available to the state. And Bucklew only attempted that very late in the process and made a vague claim that nitrogen hypoxia would be better for his condition, which wasn't really supported by any solid facts. The requirement that the alternative be provided is one that may pretty much shut down method of execution litigation. It was strongly reaffirmed in Bucklew, and just last week, the Court rejected a method of execution claim without even any dissents.


      Perhaps even more important than that, though, is we had very strong language from the opinion by Justice Gorsuch that the extreme delays in capital litigation are a violation of the rights of the victims, which we've all heard before, but to see it in an opinion of the Court was different. Justice Kavanaugh concurred in a separate opinion. His approach may be a little on the softer side, but nonetheless, he did join the majority in this important opinion.


      The other major case called Madison v. Alabama went the other way, even though the State of Alabama prevailed on the issue that everybody thought was the issue in the case. Madison claimed that by reason of a mental problem, he was no longer able to recall committing the crime. So the question was even though a person is otherwise mentally competent and able to understand that he's been convicted of a crime and that he's being punished for the crime, which is the usual test of competency for execution, does it nonetheless violate the Eighth Amendment if he simply cannot remember having committed the crime?


      And the answer to that question, the Court decided unanimously, is no, it doesn't make any difference. He can still be executed for that. However, the Court decided that lower courts had not properly considered whether Madison's vascular dementia had given him -- made him incompetent to be executed under the usual test of ability to understand why he's being executed. It was a 5-3 decision, Justice Kavanaugh not participating, Justice Roberts joining with the four more liberal judges to form a majority.


      The other cases involve questions of stays of execution rather than argued and fully briefed cases. And here we have some real fireworks and exchanges between the judges. We had a couple of cases where two states, Alabama and Texas, had rules that a prison chaplain could actually be inside the execution chamber with the inmate right up to the moment of execution. But the prison chaplains were Christian, and there weren't any Muslim or Buddhist chaplains. And their rule did not permit any outside clergymen to go actually inside the execution chamber, although they could counsel a condemned inmate prior to entry to the chamber.


      The first case called Ray came up from Alabama. And the Court by a slim majority vacated a stay that had been granted by the Eleventh Circuit. A second case called Murphy came up from Texas, and here, the Court itself granted a stay, with Justice Kavanaugh concurring in that grant. Later on, there was a bit of an exchange between Justice Kavanaugh and Justice Alito as to why those cases were handled differently. And Justice Kavanaugh's explanation, in essence, was that Murphy made a better case of this disparate treatment claim and having made it more timely.


      Finally, we had a case called Price which, again, was a claim that nitrogen hypoxia was a better claim. Price made that claim. He was denied a stay. Justice Breyer wrote a bitter dissent for the four liberal judges. And then later on we had a follow-up with Justice Thomas taking him on, saying that his complaints that Price had been handled in an arbitrary manner was not valid, and that the real problem was that Price had the opportunity to make his choice and didn't make it, even though represented by counsel the whole time.


      It's striking how strong the language in these exchanges of opinions really is. There are some strong feelings on the Court. We do have a narrow division of the Court, but it does appear that a majority would be favorable to going forward with these executions and rejecting these claims in most cases. We have seen it said that Justice Roberts is the new swing justice on the Court, but at least in these cases, we see Chief Justice Roberts and Justice Kavanaugh pretty much going together on these cases. So they're likely to be favorable to the prosecution in most cases, but occasionally swinging over and joining the defense on occasion.


      So that's what we have for the capital cases. We can go on to the next topic.


Dean Mazzone:  Thank you, Kent. Thank you, Federalist Society. Again, my name is Dean Mazzone. I'm Senior Trial Counsel for the Criminal Bureau in the Massachusetts Attorney General's Office, and anything I say today, as Wes earlier noted, is strictly my own opinion and not an opinion of the Office of the Massachusetts Attorney General and -- necessarily an opinion of the Massachusetts Attorney General. And with that, I'll proceed to some very important and interesting cases. And by the end of it, maybe I'll mention a theme that would be somewhat obvious by the time I'm done, but I'll point it out anyway.


      The first case I'll talk about is Timbs v. Indiana, which is a case on criminal asset forfeiture. In that case, the facts of that case are relatively routine in that the defendant who was convicted of a drug crime at the State of Indiana moved to forfeit his $40,000 automobile because it was used as an instrumentality of the crime, which happens often. But what happened this time and was interesting is that the court below found that the forfeiting of his car, his $40,000 car where the most that the crime -- or apart from the [inaudible 08:17] sentence, the most of the crime could command as a punishment would be a fine of $10,000, was that the fine itself, the asset's forfeiture was unconstitutionally excessive; that is, an excessive fine prohibited by the Eighth Amendment.


      Now, the State of Indiana's defense was that the Eighth Amendment does not apply to the states and the excessive fines clause does not apply to the states via the Fourth Amendment and incorporation rule which the vast majority of the Bill of Rights, in fact, apply to the state. So the Eighth Amendment was always sort of an outlier.


      In an opinion by Justice Ginsburg, relatively straightforward, she went through the history of the Court's jurisprudence on incorporation and the Bill of Rights and the history of the excessive fines clause. And in the conventional mode of Supreme Court analysis said that the other due process clause, the Fifth Amendment and through the Fourteenth Amendment, that the Eighth Amendment's prohibition of an excessive fines does apply to the states and does apply to Indiana.


      In a concurrence by Justice Clarence Thomas, he agreed. It was a concurrence. He agreed with the result, which is that it was an excessive fine, but he went on in the concurrence that's about as long as the majority opinion and explained his view that you really shouldn't use the due process clause in order to apply one of the rights in the Bill of Rights to the states; that is, to incorporate those rights via the due process clause. He's always been against it, continues to be against it, cited cases like Roe v. Wade as an instance where the due process clause, in his view, can be misused by the courts, and said that instead, it should be viewed as one of the privileges or immunities, which is also protected by -- that all citizens of the United States have and is a better way, a more historically accurate way and a way that lends itself to less abuse by the judiciary.


      There's always been a strong school of thought on that, and in Timbs v. Indiana, Justice Clarence Thomas, in a wide, comprehensive concurrence, lends more ammunition to that view. So again, the excessive fines clause is incorporated to the due process clause and applies to the states.


      The next case that I think is interesting, of note, is Garza v. Idaho, which is a Sixth Amendment ineffective assistance of counsel case. Ineffective assistance of counsel is a venerable doctrine that says that not only do criminal defendants have a right to the assistance of counsel, but they have the right to an effective counsel. And if the counsel is found to be constitutionally ineffective, that is that the level of representation fell below a reasonably competent attorney and there was prejudice, then you could get a new trial.


      In Garza v. Idaho, what's interesting is that the defendant pleaded guilty to his crime and filed what's known in many states as an appellate waiver; that is, he got the benefit of a lesser sentence, negotiated with the cop, with the government, and swore that he wouldn't appeal the sentence. He waived his right to appeal. Now, in Idaho, and as in a lot of other states, to protect your appellate rights, an attorney would file a notice of appeal, which is just a few lines and as the court held in Garza v. Idaho, is an administerial act that doesn't use up many resources of an attorney, it's just a piece of paper that he or she can file, and that will protect the rights.


      In this case though, the attorney did not file a notice of appeal. I believe there wasn't any question that he was asked to file a notice of appeal, but after discussions with the client, he thought it was inappropriate because the client had waived it. The Supreme Court said that that was -- to not file that notice of appeal, even in the face of the defendant saying he didn't want to file a notice of appeal -- he wanted to file a notice of appeal, but to not file a notice of appeal was ineffective counsel and no prejudice need be shown. That is, all the defendant has to show is that the notice wasn't filed, and he lost the opportunity to appeal.


      Now, you could say, "Well, what about the waiver? He promised to waive any appeal of the sentence." And the Supreme Court said, "Well, you can still appeal with an appeal waiver if you're going to question, say, whether the appeal waiver was effective at all, whether it was actually voluntary or whether it was knowing, or whether the appeal itself was outside the scope of the particular waiver. It doesn't seem like it was in this case, but that's what the Supreme Court held. So that's a case that could have some important ramifications down the road in terms of appellate waivers which are used a lot nowadays in terms of giving the defendant something for which he can bargain with the government.


      Justice Thomas dissented with Gorsuch and Alito. He very much thought that the lawyer was well within his grounds not to file a notice of appeal in the circumstances for the reasons I stated earlier. More important, in a portion of his dissent which was not joined by Judge Gorsuch or Alito, Judge Thomas goes on and questions a venerable decision of -- the landmark decision of Gideon v. Wainwright that said that in a felony case where incarceration is possible, everyone has a right to appoint -- people have a right to appointed counsel paid for by the government. And he questioned the whole basis of ineffective assistive counsel at all were he said that originally, the right to counsel meant, contrary to earlier law, that you have a right to appear with a counsel that you pay for if you want one. And the government couldn't prohibit you from having counsel because in the past—and this was kind of news to me—that the law said that the law said you weren't allowed to have a lawyer.


      And Judge Thomas went through the history and kind of shed some new light on Gideon v. Wainwright. Again, this is just his take on things, and he's still alone on that point, but certainly worth reading and considering. So once again, we have Judge Thomas criticizing some foundational aspects of the criminal law and the constitutional law as it's developed over the years.


      The next case is a capital case, and I'm probably going to have to speed through these a little more, is the capital case that Kent mentioned that I will talk about, Flowers v. Mississippi, which is really about -- well, it's a capital case. It's not about the death penalty per se. It's about what's known as Batson v. Kentucky challenges. That is, in a criminal case, the defendant gets to pick his jury usually, and he can choose who he wants on the -- well, he has a choice of who he doesn't want on his jury. And a defendant can say, "I want to strike people for certain reasons," for cause, such as conflict of interest, which everyone should agree on in the courtroom if there is in fact a conflict of interest, but there's also something known as preemptory challenges where a defendant can say, "I don't want this person on my jury," and often no reason whatsoever, no questions asked.


      In Flowers v. Mississippi,  one of the primary issues or problems with preemptory challenges is that there are some things for which you cannot use a preemptory challenge, which is you can't challenge someone based on their race solely. That was a decision in Batson v. Kentucky which goes back many years. So if you exercise a preemptory, or if the government exercises a preemptory, the defendant can challenge that and say, "No, I think I'll -- I believe that the government is actually challenging this person for an improper purpose, and that's on the basis of race."


      Flowers was convicted in 1996 of a quadruple homicide. He had six jury trials. The first three trials were reversed by reviewing courts, and the fourth trial was a hung jury. The fifth trial was also a hung jury, and the sixth trial, the defendant was finally convicted by a jury of eleven white jurors and one African American juror.


      The court, in an excellent, in my opinion, majority opinion written by Judge Kavanaugh, goes through the history of Batson v. Kentucky and the nature of preemptory challenges and the reasons for Batson. And he is quite adamant that, or the majority opinion is, that this is an unusual case that breaks no new legal ground. And they looked through the history of all the trials. Each trial was done by one same prosecutor for the State of Mississippi, and the Court went back and looked at the history and the way that the prosecutor would use preemptory challenges. And it found that in the end, at his sixth trial, government was still using challenges improperly and that on all the trials, they would either use all their preemptories on only African Americans and end up with very lopsided juries, or their questioning would always be more questions to the African Americans as a sort of a clandestine way to get African Americans off the jury.


      It was very complicated and I'm not doing it justice with my summary, but in the end, they decided to reverse the conviction of Mr. Flowers and again saying this was an unusual case. Alito concurred. He's often called as someone who never rules against the government in these kinds of cases. He did here in a short concurrence where he again noted that it's a one-of-a-kind case. Kent can probably talk about that, about how unusual it is to be tried six times by the same prosecutor and get reversed all these times. So I've never heard anything like it.


      And there was an incredibly strong dissent by Clarence Thomas, joined by Justice Gorsuch for part of it. And a lot of it has Justice Thomas talking about how they really, if you go case by case, individually, the government always came up with a reason which satisfied a judge at most points through all these trials as to why the African American was being struck even though it was a preemptory, and that the majority was just sort of playing with numbers. Maybe that's not fair to say that Thomas had said it quite like that, but he was not happy with the result.


      And then in the end, in the part of Justice Thomas's dissent not joined by Justice Gorsuch, Clarence Thomas actually questions the whole line of cases following Batson v. Kentucky that says that the government can't use a preemptory for an improper purpose, meaning to strike people based on their race or sex or other improper facts, improper reasons, and basically says that the idea of Batson is inconsistent with the idea of preemptory challenges themselves. And he notes, and this is correct that some judges think we should just get rid of preemptories all together because far too often, and this is discussed in the majority opinion, they can be used to cloak improper racial discrimination. Clarence Thomas comes to the defense of preemptories, agrees with the other judges from the other side who say that they're in conflict, and really disagrees with Batson. Again, Justice Thomas is all alone on that, and I believe my theme is apparent.


      The next case—I'll go through a few more cases pretty relatively quickly because I see I'm running out of time—is Mitchell v. Wisconsin, which is a drunk driving case which basically says that exigent circumstances almost always permit a blood test without a warrant when police arrest an unconscious driver and a breath test is impossible. The facts of Mitchell v. Wisconsin are pretty routine. I won't even go through them, but just to say that usually someone who's arrested, the police officer will make a quick determination that based on probable cause to arrest that the person's intoxicated and can't drive, and what would usually happen is they'd go back to the police station and take a test with more evidentiary -- a more robust evidentiary test at the police station, which would be, say, a breath test. They'd have to blow into a machine and see what the BAC level is, which is blood alcohol concentration. And that's very good evidence when it comes -- or excellent evidence when it comes to a criminal trial for a DUI case.


      But when the arrestee is unconscious and can't perform the breath test, says the majority opinion written by Justice Alito, in those circumstances, it's much more likely that because of his unconsciousness that the police officers, one, can't get a warrant because the blood alcohol concentration is dissipating; that is, the natural metabolic function of alcohol in the blood causes the alcohol to disappear. And the best evidence that would prove the crime is being destroyed in an ongoing fashion. So for some way the police, law enforcement has to save that evidence, has to preserve that evidence. So in that case, they say a blood draw, that is take some blood and perform the test from the defendant is okay without a warrant because there's no time. It's called exigent circumstances. If you believe evidence is going to be destroyed and there's no time to get a warrant, you don't need a warrant.


      And the majority opinion crafted a rule saying that in circumstances like that, it's almost always okay to draw blood without the warrant. And there was a lot of -- there was a dissent by Judge Sotomayor. Justice Thomas concurred. There was a case a few years ago that said just because someone is convicted or is suspected of operating under the influence of alcohol, and that the alcohol is dissipating from the bloodstream, you don't necessarily, meaning always, have a right to take either the breath or blood without a warrant. There may still be time to get a warrant, and that's always analyzed under the totality of the circumstances on a case-by-case basis.


      So that's that case. It's very important for drunk driving, very robust dissent. And Gorsuch also dissented on that in a short dissent basically saying the majority crafted a rule for an issue that really wasn't presented and in this case was really about Wisconsin's rule that said just by driving is implied -- the law says that just by driving, by having a license, you impliedly consent to have this kind of testing under certain circumstances. And whether that was okay or not was the real issue according to Gorsuch. So that's that.


      I'm going to go through the last two very quickly. Gamble v. United States -- this could have been a blockbuster opinion. In our federal system, there's the United States government and state governments. Crimes that are almost -- that are exactly alike under a federal statute and a state statute can be prosecuted by both sovereigns, one after the other. There's no problem with that. It's called the separate sovereign doctrine. It's been around for hundreds of years. The Supreme Court has looked at it over the decades and always said that it's okay.


      This time, people thought because there were previous opinions and one where Judge Thomas in a concurrence in an earlier case kind of questioned whether that was okay, that the separate sovereign doctrine was okay, people hadn't really looked at this case, Gamble, which was basically a gun case, to see if the separate sovereign doctrine would actually go out the window. It didn't. Justice Alito wrote an opinion, a really comprehensive opinion that goes over the history over hundreds of years, really erudite, and basically says all our cases were right. The separate sovereign doctrine is okay. You can't be tried twice for the same offense. Offense means a law. There are federal laws and state laws. You can violate each. The federal government and the state government each has an interest in prosecution, so that's okay according to Alito.


      Judge Ginsburg and Judge Gorsuch dissented, so this is one of the ones where Gorsuch's libertarian streak, maybe how some people see it, comes to the fore. And there's a great battle, so to speak, between Ginsburg and Gorsuch. Ginsburg and Gorsuch both have their own separate dissents, and Alito. Great reading. They question the nature of what it means to be a federal republic, question federalism, and really goes back to some foundational issues. And it a fun read, but it's long. It's 100 pages, and in the end, you have 100 pages and the law stays the same. So some may see it as a fizzle, or they may see it as a good precis on a system of government.


      Finally, I have Nieves v. Bartlett, which is a 1983 case which is -- actually, it's not criminal law, but kind of is. The question was whether there's probable cause to arrest via the First Amendment retaliatory arrest claim. The case arose out of Alaska in something known as the Artic Man competition where, as Judge Roberts who wrote the majority opinion noted, extreme sports and extreme drinking, snow, freezing temperatures, and snowmobiles don't really mix well.


      In this case, it was basically kind of a straightforward routine resisting arrest and disorderly case, but the question that arose was if the arrest was proper objectively, is whether or not the police officers in their minds arrested the defendant, who has, maybe you've got it by now, was just yelling and not cooperative to the police as the police tried to calm a situation down, shoved a police officer, forced a police officer to put his handcuffs on him, that kind of thing.


      And his claim was, "No, I was just yelling. I was criticizing the police officer, and that's why he arrested me." And the Court said, "Well, you know, not always, but most of the time, if the arrest is okay, that is, if objectively the police have the right to arrest, then it doesn't matter if the police officer's hidden motivation according to the plaintiff is that 'I'm really kind of penalizing you for exercising your First Amendment rights by criticizing me.'" There was a strong Sotomayor dissent. Ginsburg concurred and dissented. Judge Gorsuch dissented in part.


      And again, I'm running out of time. Those are the highlights of some of those cases, and I'm happy to answer any questions because I kind of glossed over a lot of them, but a lot of back and forth and a lot of fun reading on those cases.


Greg Brower:  Thank you very much, gentlemen. I hope you can all hear me. Thanks for the opportunity to participate today, and thanks to all of those out there in the audience listening. Dean and Kent, excellent job. Thanks for starting us off. In looking at the list of what are generally considered to be the biggest decisions of this past term, the only criminal cases that really make any of those lists include Gamble, which Dean has mentioned, the double jeopardy case, and then some lists also include Flowers, the jury selection case that Dean also did a great job covering. But beyond those decisions, there were several others that, while not generating a lot of headlines, were nevertheless important, I think, and/or at least interesting, particularly to those who litigate criminal cases. And I'm just going to try to very quickly in the time we have left go through a few of those.


      The first is United States v. Stitt, which was consolidated with a case called United States v. Simms. These were both cases that were prosecuted under the Armed Career Criminal Act, a well-known statute and commonly used tool by federal prosecutors because of the mandatory minimum sentence that it affords in certain types of cases. This was a 9-0 decision written by Justice Breyer. Essentially, what happened here is the respondents, both of them were convicted for being felons in possession of a firearm. The sentencing judge in each case imposed the statutory minimum in Section 924 of 15 years because these both were defendants who had previous convictions for certain violent or drug related felonies.


      The relevant issue here in these cases was the fact that violent felony under Section 924 generally includes the crime of burglary under state law. So we have one defendant here, Stitt, who is convicted of burglary in Tennessee under Tennessee law, and Simms, who is convicted of burglary under Arkansas law. What's interesting about these cases and the reason why they were both taken up by the Supreme Court was that in both cases, the defendant burgled a mobile structure as opposed to a conventional dwelling, and therein lies the definitional issue that the Court sought to resolve.


      In each of the cases, after convictions, the court of appeals in each circuit reversed and remanded, and the U.S. government appealed. So the question for the Supreme Court basically was whether burglary of a mobile structure that is adapted for overnight accommodation qualifies as a burglary under Federal Statute Section 924(e)(1). And as I mentioned, the Court unanimously said that the answer to that question is yes. The Court had previously decided that the ACCA statute requires that the defense in court look at the state definition, in other words, a categorical analysis as opposed to trying to discern exactly what each individual defendant did by way of committing the crime of burglary in his or her respective state.


      And that approach goes back to a U.S. Supreme Court case by the name of Taylor v. United States, a 1990 case. The Supreme Court found that here, because both the Tennessee and the Arkansas definitions comport with the generic definition of burglary as per the Taylor decision that these defendants burglary convictions did qualify under the ACCA for the mandatory 15-year minimum. Interestingly, I successfully argued this same issue in the Ninth Circuit when I was U.S. Attorney back in 2009 in a case called Moncrief that involved the same Tennessee burglary statute.


      The second case I want to mention is also an ACCA case. The name of that case is Stokeling v. United States. This was a 5-4 decision with Justice Thomas writing the majority opinion, joined by Justices Alito, Gorsuch, Kavanaugh, and Breyer. In this case, the defendant Stokeling was a suspect in a burglary, and when confronted by police, was found to have a firearm in his possession, despite being a felon. He therefore was prosecuted under 18 U.S.C. §922. He plead guilty. Probation then recommended that he be sentenced under the ACCA because he had previously been convicted of three felonies, including home invasion, kidnapping, and robbery, including one violent felony as is required under the ACCA, and that is robbery.


      So under the ACCA, a violent felony includes any felony that has an element the use, attempted use, or threatened use of force. The district court in this case found that Stokeling's conduct -- evaluated Stokeling's conduct, rather than applying the categorical approach that I mentioned earlier as per the Taylor U.S. Supreme Court decision. And the district court sentenced Stokeling to less than half of the 15-year mandatory minimum. The Eleventh Circuit reversed, and then the Supreme Court took up the case affirming the Eleventh Circuit, finding that under Florida law, the crime of robbery does, in fact, include the element of use of force, and therefore is a violent felony for purposes of the ACCA.


      Now, the dissent, interestingly, in the case, which was written by Justice Sotomayor, it found that the Florida robbery statute simply covered too broad a range of acts to necessarily be a violent felony, which I think would not comport with the common understanding of robbery. And in fact, Justice Sotomayor opined that under Florida law, robbery applies to crimes that are at most a half notch above pickpocketing or shoplifting. So a divided court there on another ACCA case.


      The third case I want to mention was brought under the Sex Offender Registration Notification Act at 34 U.S.C. §20931. This w as a case in which Justice Kagan wrote the opinion for herself and for Justices Ginsburg, Breyer, Sotomayor. Justice Alito concurred in the decision, and Justices Gorsuch, Roberts, and Thomas dissented. Justice Kavanaugh was recused. Basically, this is a combination SORNA case and a nondelegation doctrine case under the Constitution. The holding was that SORNA does not violate the nondelegation doctrine which bars Congress from transferring its legislative powers to another branch.


      Just briefly, it only twice in the history of the Court has the Court found a delegation by Congress to be excessive. In both of those cases, the Court found that Congress failed to articulate any policy or standard. The majority in finding that that was not the problem with this particular scheme said, quote, "If SORNA is unconstitutional under the nondelegation doctrine, most of government is unconstitutional," end quote.


      The third case I'll mention is a sentencing case by the name of United States v. Haymond. This was another split decision. This majority decision written by Justice Gorsuch, joined by Justices Sotomayor, Ginsburg, Kagan, with Breyer concurring. Here, the defendant was convicted by a jury of possession of child pornography. The relevant statute provided for a sentence of between 0 and 10 years and supervised release of 5 years to life. The judge sentenced the defendant to 38 months in prison and 10 years of supervised release. However, the defendant later violated the terms of his release, and at a hearing with the judge, and as many of us know at which the preponderance of evidence standard, as opposed to the beyond reasonable doubt standard, was applied.


      The judge found that the defendant violated his terms, and under the Sentencing Reform Act of 1984, the judge is allowed to impose a new prison term up to the max period of supervised release authorized by statute. However, if the violation is for possession of child pornography, the judge in that situation must impose an additional prison term of at least 5 years. That's what the judge did here. The Tenth Circuit vacated, holding that the statute violated the defendant's right to a jury trial. The Supreme Court affirmed that holding, finding that because the judge and not a jury found the facts that increased the defendant's prison sentence, his Fifth and Sixth Amendment rights were violated.


      I have two more that I want to go through quickly. The first can be described as a felon or, I guess, more accurately as an illegal alien in possession case. This is Rehaif v. United States. Justice Breyer wrote the majority opinion for the rest of the justices with only Justices Alito and Thomas dissenting. So this is another gun case, a 922(g) case. Remember that 922(g) makes it a crime for a felon to possess, or an illegal alien to possess, and 924 requires that the defendant in such situation knowingly violated 922.


      So the question here was what does knowingly mean? And the answer put forth by the Court in this decision was that a felon must know that he both possessed the firearm and that he was a felon, or in this case, an illegal alien. So the Supreme Court reversed the holding that in a 922 case, the U.S. government must reverse, rather holding that in a 922 case, the government must prove both that the defendant, again, knew he was in a category, a prohibited category, and that he was in possession of a firearm.


      Finally, a 1983 case, so not a criminal case in the traditional sense, but one with a criminal context. This case is McDonough v. Smith, and in this case, the majority decision was written by Justice Sotomayor with Justices Thomas, Kagan, and Gorsuch dissenting. So this was a 1983 case brought by a local government elections official claiming that he was prosecuted by a special prosecutor for fabricating evidence -- excuse me. He was prosecuted by a special prosecutor for allowing forged absentee ballots, but that the prosecution was based upon fabricated evidence.


      The district court dismissed the case as untimely, finding that the statute of limitations for 1983 case had run. Circuit court affirmed, and the Supreme Court reversed, holding that the three-year statute of limitations under 1983 began to run when the plaintiff in the case was acquitted in the underlying criminal action, not when he first learned that the evidence used against him was false. So basically, what the Court did here was that it used the most -- what it thought was the most analogous tort, which is malicious prosecution, as a reference and found, again, that the claim accrued upon acquittal because until that time, the plaintiff would not have had a 1983 case to bring.


      So in light of time, I'm going to stop there. I think, Wesley, we planned to have some time for questions. Is that right?


Wesley Hodges:  Absolutely. Thank you so much, Greg. Now, while we wait for any questions from the audience, perhaps we should go back to our speakers and see if they have any additional thoughts. So perhaps in the order of speaking, Kent, is there anything that you'd like to talk more on, either from your remarks or comments from Dean and Greg?


Kent Scheidegger:  Well, I just found it interesting this term that some of the biggest cases ended up with a lot of writing and a lot of, in some cases, fireworks, but no new law. Glossip is still the law in the injection challenges, and the dual sovereignty doctrine is still standing, and the delegation doctrine is the case that was supposed to bring down the administrative state is still there. So it's kind of holding in place, even though a lot of writing is going on.


Wesley Hodges:  Dean, now I turn the mike to you. Do you have any thoughts for us?


Dean Mazzone:  Yes, very quickly, I would definitely second what Kent said, 100 percent true. I would also note that, again, Clarence Thomas, Justice Thomas seems to be kind of unchained at this point and is questioning really well established doctrine, foundations on making good points, but is being very critical of cases that I bet a lot of people thought no one would ever be critical of, let alone a Supreme Court Justice would be critical of. Again, it often appears where he's in a dissent or a concurrence and the other justices who are with him on most of it are not with him when he questions cases like Gideon and Batson. So that's my only point, to keep an eye on Justice Thomas. Whether any of that ends up meaning anything, I don't know. But it certainly makes for good reading. So that's all I have to say.


Wesley Hodges:  Greg, turn the mike to you. I know you just spoke, but any observations about the other cases or anything you want to go into more detail?


Greg Brower:   Yeah. Thank you, Wesley. Just a couple of things, a couple of, I guess, concepts that are familiar to the audience, no doubt, but I think are confusing to laypeople and even the media. One is that we see in a lot of these cases examples of strange, unpredictable, to some, lineups of the justices where you have Justice Gorsuch perhaps aligning himself with what are traditionally the more liberal members of the Court. And to those of us who follow these things, it's not all that surprising because in the context of criminal justice cases, of course, Justice Scalia was infamous for taking a very hard line on certain issues which tended to align him with the more liberal justices from time to time. And we saw that in a variety of cases in the criminal arena this term.


      The other thing that I found interesting in just following the media coverage of the Court term was the Gamble case where, admittedly, this was not a unanimous decision, so the nine justices didn't think it was a slam dunk to rule the way the majority did. But for those of us who think about these things a lot, the dual sovereignty doctrine is just a fact of constitutional life. We don't think much about it. There are different sovereigns, different crimes, but it seemed to me that the media, maybe somewhat predictably, the media response and coverage of that decision was to suggest that the double jeopardy clause in the traditional sense that most laypeople understand it was somehow undermined by this Court in this decision. And of course, that's just not what happened. And so I found that to be interesting.


Wesley Hodges:  Well, very good. Thank you so much, Greg. Well, seeing that we don't have any questions from the audience, it probably means that you guys were pretty thorough in your remarks. And very, very dense subject, and very good overview. Just want to turn the mike back to each of you and see if anyone has any closing remarks before we wrap up today. Should we go in order? Kent, do you have anything to say?


Kent Scheidegger:  Just to follow up a little on what Greg says that although the divisions sometimes do split differently than the standard party ideological lines, I think there is a pattern to them. And I think perhaps that Justice Gorsuch is stepping pretty much into the shoes of the man he replaced, Justice Scalia, that if the defendant has a strong claim under a provision of the Constitution that's really in there in black and white, and can make a case for a violation of that provision as reasonably understood, he's not at all hesitant about taking the defendant's side. So I think it's predictable.


Wesley Hodges:  Dean, do you have any comments for us before we wrap up today?


Dean Mazzone:  No, everything's pretty much been said, and I look forward to the next term. Again, that should be pretty interesting reading with all the players lined up as they are.


Wesley Hodges:  Absolutely. And Greg, do you have any thoughts for us before we wrap up?


Greg Brower:  Only to echo Dean's last comment, and again thank Dean and Kent for getting us started and doing such a great job. And I really appreciate the opportunity, Wesley, so thanks for facilitating this, and I hope everyone enjoyed it. Thank you.


Wesley Hodges:  Of course. Thank you, Greg, and to all of our panelists today. This has been a very, very fascinating hour, and we are very thankful that you all tuned in to listen. So on behalf of The Federalist Society, I would like to thank our experts for the benefit of their very valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining the call. We are now adjourned.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.