Preview of 1995 Court Term: Criminal Justice

September 27, 1995

As in September 1994, the Supreme Court has surely not yet filled its docket of criminal, habeas and capital cases. In light of past years’ trends, however, one can make some reasonable judgments about the subjects that interest the Court, which are likely to surface in matters granted certiorari when the 1995 Term opens, and about the probable disposition of some of the matters already pending.

At this point, the Justices have agreed to hear two death penalty habeas cases; both raise significant questions. In Thompson v. Keohane, the Court will decide whether a state court’s determination that a defendant was not in “custody” for purposes of Miranda’s protections poses a legal or a factual issue.

If upheld, the Ninth Circuit’s characterization of the issue as factual would largely insulate findings on custody from federal review since the habeas statute accords a presumption of correctness to state court findings of fact in most situations. By contrast, purely legal questions and mixed questions of law and fact have traditionally received de novo examination in habeas. Decisions of the past decade declining to pin the “fact” label on such critical determinations as the voluntariness of a confession suggest that the Court may hold the line against this latest attempt to curtail federal scrutiny of state convictions.

Lonchar v. Thomas, the other capital appeal on the docket, involves an Eleventh Circuit holding vacating a stay because the petitioner had engaged in abusive conduct by consistently waiting until the eleventh hour to seek judicial relief. The primary legal issue presented is whether a first habeas petition, as opposed to a subsequent filing, may be rejected for this reason.

The prisoner’s apparent mental illness complicates matters, as does the fact that he has admittedly asserted his claims solely in order to delay execution long enough for the legislature to consider replacing electrocution by lethal injection — so that the might donate his organs after death. Lonchar’s idiosyncratic motive may well dispose the Court against him. On the merits, however, he ought to win since no decision has ever blocked an initial petition on the grounds of misuse of the writ.

Whatever the results in Thompson and Lonchar, it is fair to say that the Rehnquist Court has recently softened its generally implacable stance toward habeas. Last Term, for example, the justices ruled in O’Neal v. McAninch that a habeas court in “grave doubt” whether a trial error was harmless must grant the writ, thereby placing the burden of proof on the state to establish lack of prejudice.

Notably, Justice Breyer’s opinion elevated the role of habeas in avoiding imprisonment of the innocent over the usually emphasized interest in ensuring the finality of convictions. The same concern animated two other 1994 Term decisions: Schlup v. Delo, which rejected the state’s effort to create a very stringent standard of miscarriage of justice, sufficient to surmount procedural barriers to habeas review, and Kyles v. Whitley, which granted the writ in a fact-bound case where the prisoner may very well have been framed.

Ironically, the Court is becoming more receptive to habeas just when the new Republican Congress seeks to cripple it once and for all. The House and Senate bills passed this spring contain provisions calling for very strong deference to determinations by state courts of pure or mixed questions of law.

If enacted, such legislation would essentially moot the Thomas question since it would render unimportant the distinction between legal and factual issues. More significant, it would overrule Brown v. Allen (1953), the landmark decision which established the principle that habeas courts must independently determine and apply federal constitutional standards. And it would do so notwithstanding the Court’s refusal, twice during the last three years (in Wright v. West (1992) and Withrow v. Williams (1993), to abandon Brown.

A third case that implicates civil liberties concerns is Rutledge v. United States. It poses the question whether the double jeopardy clause bars entering judgments of conviction and concurrent sentences on two counts — engaging in a continuing criminal enterprise (CCE) and conspiring to possess with intent to distribute a controlled substance — where the conduct underlying the conspiracy constitutes a necessary element of the CCE charge.

Rutledge is important less in itself than as a sign that the Court has not relinquished its interest in double jeopardy. The last decade has produced numerous decisions in the area, some protective of defendants’ rights and others not.

Additional fields that have recently occupied the Court’s attention include both search and seizure and mens rea requirements in federal crimes. Although the justices have not agreed to hear any such cases thus far, they are likely to do so later this Term.

And if historical trends persist, the Fourth Amendment will continue to shrivel — as it did last Term, when the Court sustained suspicionless drug tests of high-school athletes (Vernonia School District 47J v. Acton (1995)) and held that the exclusionary rule does not apply to evidence seized on account of a warrant that had been quashed and remained in the computer because of an error by court employees (Arizona v. Evans (1995)). By contrast, in any future decisions on criminal intent, the Court will probably reject the notion of strict liability — as it has done in a number of decisions in the past few years.