Battles Over Criminal Justice Policies Loom Large in 2004 Supreme Court Term; Early Docket Includes Cases on Sentencing Reform, Drug Policy and the Death Penalty

September 30, 2004 12:00 am

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ACLU Supreme Court Preview: 2004 Term

Statement of Steven R. Shapiro, ACLU Legal Director


Steven R. Shapiro
VIDEO: 2004 Membership Conference Address

WASHINGTON — Early in its 2004 Term, which marks the tenth anniversary together for the current nine Justices, the Supreme Court will confront a series of cases that could transform America’s criminal justice system for years to come.

On the very first Monday, the Court will plunge into a controversy that has embroiled the federal judiciary since last Term’s decision in Blakely v. Washington, which held that the constitutional right to a jury trial prohibits a judge from imposing a sentence longer than the law allows based on the facts either found by a jury beyond a reasonable doubt after a trial or admitted by the defendant as part of a guilty plea. Applying that principle, the Court struck down a provision of a Washington State law that subjected a defendant to a substantially increased sentence based on a judge’s factual findings during the sentencing process.

The issue in United States v. Booker (04-104) and United States v. Fanfan (04-105), is whether the federal sentencing guidelines are similarly invalid because the guideline score that is used to determine a defendant’s sentence often rests on facts that are never presented to the jury — such as the actual quantity of drugs involved in a particular transaction. Instead, those critical findings are made by a judge based on a preponderance of the evidence at a post-conviction hearing where reasonable doubt is no longer the standard.

Thousands of federal sentences could be affected by the Supreme Court’s decisions in Booker and Fanfan. In an effort to preserve the current system, the government has stressed that the federal guidelines are established by a Sentencing Commission that is part of the judicial branch, in contrast to the legislatively imposed sentencing scheme in Blakely. The government has been less successful in explaining why that distinction affects the jury’s constitutionally assigned role as the ultimate fact finder in criminal cases. In our view, it does not.

The more difficult question for the Court may be what remedy to impose if the federal sentencing guidelines are declared unconstitutional. There are a variety of possibilities.

For example, the Court could require sentencing juries (although probably not in these actual cases because of double jeopardy and ex post facto concerns) or it could limit sentences to the base score established by the conviction itself without any additional findings. Ultimately, Congress will have to address the issue if the current system does not survive. Inevitably, then, the debate will not only be about the sentencing process but about America’s over-reliance on incarceration and the harshness of our sentencing in general.

The death penalty, of course, represents the ultimately harsh sentence. And, in Roper v. Simmons (03-633), the Supreme Court will revisit the question of whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars the government from executing juveniles who were between 16 and 18 at the time they committed murder. In 1988, the Court held that the Constitution did not permit the execution of juveniles who were under the age of 16 at the time of their crime. But one year later, the Court refused to extend that constitutional ban to juveniles over the age of 16 or, in a separate case also decided in 1989, to ban execution of people with mental retardation. Two years ago, the Court reversed that position in Atkins v. Virginia . Based on Atkins, the Missouri Supreme Court held that the execution of 16- and 17-year-old murderers was similarly unconstitutional. It is that ruling that is now under review.

As in Atkins, there is likely to be a lively dispute within the Court on how to measure “”evolving standards of decency”” and whether a national consensus has emerged against the juvenile death penalty. There is also likely to be a renewed debate about the propriety of considering international norms and practices in determining the meaning of our own Constitution. What is not disputable is that the number of states that ban juvenile executions is roughly equivalent to the number of states that banned execution of people with mental retardation when Atkins was decided, and that, as in Atkins, the legislative trend is entirely in favor of prohibition. It is equally clear – whether the Court chooses to credit it or not – that the execution of juveniles makes the United States an embarrassing outcast in the international community. And, like capital punishment in general, the execution of juveniles has a clearly disproportionate racial impact that is often exacerbated by the inadequate representation that plagues so many capital cases, an issue that is also before the Court again in Rompilla v. Beard (04-5462).

The relationship between race and the criminal justice system is directly before the Court in Johnson v. California (03-636), where the Court will consider whether California may racially segregate all new prisoners for 60 days when they first enter the corrections system and whenever they are transferred to a new facility. Although racially segregated prisons were declared unconstitutional more than three decades ago in Lee v. Washington, a case brought by the ACLU, California officials have defended their explicit use of race as an appropriate tactic to reduce the risk of violence while individual prisoners are evaluated and classified. Prison violence, of course, is a serious problem and the state’s interest in controlling it is a substantial one. The problem of prison violence, however, is not unique to California. What is unique is California’s racial solution. Moreover, because the Ninth Circuit treated this as a case about prison security rather than race discrimination, it never seriously considered the possibility of other alternatives that do not so plainly offend the principle of racial neutrality. Applying the appropriate level of review, California’s program of racial segregation cannot be sustained.

Michigan also stands alone in its decision to deny indigent defendants a right to appointed counsel on their first appeal from a state conviction. In Kowalski v. Tesmer (03-407), the ACLU is challenging the constitutionality of that policy, which was struck down by the Sixth Circuit (in this case) but upheld by the Michigan Supreme Court (in another case). At least since Gideon v. Wainwright in 1963, our constitutional system has recognized that unrepresented defendants run a higher risk of wrongful conviction and wrongful imprisonment.

Too often, as we know, the consequences of incarceration do not end with incarceration. Many states disenfranchise former felons. This issue achieved national prominence when approximately 600,000 people were prevented from voting in Florida in the 2000 election because of felony convictions. Felon disenfranchisement laws, however, exist throughout the country. According to a recent study, one out of four black men in Providence, Rhode Island will be barred from voting in this year’s election. Two cases now pending before the Court on petitions for certiorari – one from the Second Circuit (Muntaqim v. Coombe, 04-175), and one from the Ninth Circuit (Locke v. Farrakhan, 03-1597) – ask the Court to decide whether the racially disproportionate impact of felon disenfranchisement violates Section 2 of the Voting Rights Act.

Race is not an explicit issue in Illinois v. Caballes (03-923), but it is an issue nonetheless. The formal question presented is whether the Fourth Amendment requires individualized suspicion before the police employ a canine unit to sniff for drugs during a routine traffic stop. While most people feel anxious during any police encounter, the presence of a police dog fundamentally changes the nature of the seizure, as the ACLU points out in its amicus brief, making it both more intimidating and a more serious intrusion on privacy. Even beyond those generalized concerns, there is good reason to fear that minority drivers will more often be subject to this invasive practice in the absence of individualized suspicion given everything we have learned in recent years about the prevalence of racial profiling by law enforcement.

Another aspect of the misguided “”war on drugs”” will be before the Court in Ashcroft v. Raich (03-1454), where the federal government is defending its right to prosecute two critically ill patients in California who cultivated marijuana for their own personal use after it was recommended by their doctors in accordance with California law. The Ninth Circuit held that this exercise of federal power violates the Commerce Clause, and this case undoubtedly raises important questions of Commerce Clause jurisprudence. There is, nonetheless, something profoundly disturbing about the government’s effort to treat the case as merely about commerce, thereby obscuring the important liberty interest involved when patients who often have no other option seek to use marijuana to obtain relief from unbearable pain.

In a perhaps more traditional civil rights context, Smith v. Jackson (03-1160) presents the question of whether the federal Age Discrimination in Employment Act is limited to

claims of intentional discrimination or whether, like other federal employment laws, it also prohibits employment practices that have a disproportionate impact on older workers. In Jackson v. Birmingham Board of Education (02-1672), the issue is whether someone who suffers retaliation after reporting a violation of Title IX has a right to sue for that retaliation under Title IX. As the ACLU points out in an amicus brief submitted on behalf of the Leadership Conference on Civil Rights, both Congress and the Supreme Court have repeatedly recognized that effective civil rights enforcement demands protection for those who report civil rights violations. That principle applies with equal force here. And, in Spector v. Norwegian Cruise Line, Ltd. (03-1388), the issue is whether Title III of the Americans with Disabilities Act, which generally prohibits discrimination against people with disabilities in places of public accommodation and transportation services, applies to foreign flag cruise ships in American waters.

Two consolidated cases that have received less attention but that may turn out to have substantial practical significance for civil rights litigators are Commissioner of Internal Revenue v. Banks (03-892) and Commissioner of Internal Revenue v. Banaitis (03-907). The fact patterns in the two cases are slightly different. The common legal issue, however, is whether a civil rights plaintiff should be taxed on the portion of any recovery that is paid to the lawyer as a contingent fee (even if a portion of the fee is recovered as part of a statutory fee award). No one disputes that the fee represents taxable income to the lawyer. But assessing the client as well for the same income will diminish the economic incentive to sue in at least some civil rights cases and thus discourage litigation that the government has otherwise tried to encourage through various statutory fee provisions.

The Court may not be anxious to jump back into electoral politics, but the issues seem unavoidable. In Clingman v. Oklahoma Election Board (04-37), the Court will consider the constitutionality of an Oklahoma statute that permits political parties to open their primaries to independent voters but not to voters registered with a different political party. The law has been challenged by the Libertarian Party as a violation of its associational rights under the First Amendment.

In Tory v. Cochran (03-1488), another First Amendment case with potentially broad implications, the Court will review an injunction that bars a former client of the well-known civil rights lawyer from, among other things, ever making any public comments about Cochran or his law firm. The injunction, which was based on the client’s past defamatory statements, raises several important legal issues, including: Can an injunction ever be issued in a defamation case? Is this a prior restraint? And does the injunction ban more speech than necessary assuming any injunction is permissible under these circumstances?

Rancho Palos Verdes v. Abrams (03-1601) has potentially broad implications, as well. The narrow issue before the Court is whether the Telecommunications Act of 1996 bars an amateur radio operator who alleges that he was improperly denied an operating license by local government officials from suing for damages under 42 U.S.C. § 1983 – one of the principal means for enforcing civil rights violations. The larger issue may turn out to be how the Court defines the criteria for determining whether a statute like the Telecommunications Act provides the sort of comprehensive remedial scheme that can foreclose relief under Section 1983. If those criteria are loosely defined, government officials will have an added argument to resist Section 1983 actions in a variety of different contexts.

The Court has also agreed to hear several important immigration cases. Clark v. Martinez (03-878) and Benitez v. Rozos (03-7434) each involve Mariel Cubans who were paroled into this country, subsequently convicted of a crime, and now face indefinite detention by immigration authorities because they cannot be deported to Cuba. In 2001, the Court construed the relevant statute to bar immigration authorities from detaining a permanent resident alien for more than six months if, as here, there was no reasonable likelihood that the alien could be deported. In the government’s view, that holding has no relevance to anyone but permanent residents. But, among other things, last Term’s decisions in Hamdi and Rasul may suggest that the Court’s concerns with indefinite detention are broader than the government’s. And, in yet another draconian application of the immigration laws, the government is arguing in Leocal v. Ashcroft (03-583), that a drunk driving conviction in Florida can be treated as an “”aggravated felony”” under federal law and therefore lead to mandatory deportation.

Tenet v. Doe (03-1395) is the one case on the Court’s current docket that explicitly raises national security issues. The plaintiffs in the case are former spies who brought this suit anonymously, contending that the government breached its agreement to provide them with support after they relocated to the United States. If, as the government asserts, the case is controlled by an 1876 decision that such contract claims are non-justiciable because of the need to preserve the secrecy of the underlying agreement, its impact may limited. If, on the other hand, the case becomes an occasion for the Court to discuss the degree of deference due the executive branch on national security matters and/or the scope of the state secrets doctrine, its impact could be substantial in a post-9/11 world.

Finally, there are a number of significant petitions for certiorari that are still pending. Some of the cases were conferenced on September 27. Based on the orders list that was issued on September 28, we know that certiorari has not yet been granted in any of the cases described below. We cannot know for sure whether certiorari has been denied until the final orders list is issued on October 4.

Religion could still emerge as a dominant theme this Term. There are five petitions pending in Ten Commandments cases from Texas, Kentucky, and Ohio, all of which raise Establishment Clause issues. (The Kentucky and Ohio cases were brought by the ACLU.) The Free Exercise Clause is front and center in Catholic Charities of Sacramento, Inc. v. California (03-1618) , which challenges a California law requiring employers that do not qualify for a religious exemption to include prescription contraceptive coverage in any prescription drug plan offered to its employees. In addition, the constitutionality of the Religious Land Use and Institutionalized Persons Act as applied to prisoners is before the Court in two cases that reached opposite conclusions.

The statute was upheld in Bass v. Madison (03-1404), and struck down in Cutter v. Wilkinson (03-9877).

In other cases worth watching, less than one year after the Court’s decision upholding major provisions of the McCain-Feingold campaign finance law in McConnell v. FEC, an as-applied challenge has been filed to the statute’s issue ad restrictions in Wisconsin Right to Life, Inc. v. FEC. And, very shortly, the ACLU expects to file a petition for certiorari challenging the constitutionality of Florida’s ban on gay adoptions in Lofton v. Department of Children and Family Services.

The ACLU’s Supreme Court briefs and related materials can be found online at /supremecourt

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