Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court,2018 Term

During its 2018 term, the U.S. Supreme Court issued a total of 72 decisions on the merits, including 66 signed opinions, 5 summary reversals, and 1 per curiam opinion. Of the 66 signed merits opinions issued, 18 (32%) dealt primarily with a criminal justice–related issue. A number of these decisions dealt with important, if not particularly newsworthy, issues such as due process, sentencing, and the interpretation of federal statutes. A few, however, dealt with controversial issues, including police liability and the death penalty.

An examination of all of the Court’s decisions reveals some interesting patterns. Thirty-nine percent (28 of 72) of the Court’s decisions were unanimous, while 13 decisions had either 8-1 or 7-2 majorities. Fifty-seven percent (41 of 72) of the decisions were decided by a vote of at least 7-2. Eleven cases were decided by a 6-3 margin, while 20 cases (28%) were decided by a 5-4 margin. These numbers are in line with recent years, with the exception of an increase in the number of 5-4 decisions. This increase may be a result of the addition of Justice Kavanaugh to the Court, replacing Justice Anthony Kennedy. The makeup of cases accepted and decided by the Court was in line with past years. The vast majority of cases (77%) were taken from the U.S. Courts of Appeal. The Ninth Circuit had the most cases reviewed (14) and was reversed 12 times.

Chief Justice Roberts (85%) and Justice Kavanaugh (89%) were most frequently in the majority. This is not surprising, as the Chief Justice has historically been in the majority very frequently, and it is common for new Justices to join the majority rather than staking out their own position. Interestingly, while there were 20 decisions decided by a narrow 5-4 vote, the alignments in these cases did not always reflect a clear liberal/conservative breakdown. Half of the 5-4 decisions had the conservative justices in the majority, with the majority in the other half comprised of the four liberal justices and one conservative justice.

All of the Justices were in the majority in at least 10 of the 5-4 decisions and none was in the majority in more than 13 decisions. Chief Justice Roberts and Justice Thomas each authored the most (four) majority opinions in 5-4 decisions. This was a departure from recent years when Justice Thomas rarely authored the majority opinion in a 5-4 decision. It suggests that his extreme views may be finding more acceptance among his conservative colleagues.

As for opinion writing, majority opinion authorship was divided quite evenly, with every justice writing either seven or eight opinions except Justice Ginsburg, who penned six. This even distribution of opinions has been a hallmark of the Roberts Court and speaks to the Chief Justice’s management skills. As in years past, Justice Thomas was the most prolific opinion writer, with the most opinions overall (28), including 8 majority opinions, 14 concurring opinions, and 6 dissenting opinions. The Justice with the second most total opinions was Justice Gorsuch, with 22 opinions (7 majority opinions, 4 concurring opinions, and 10 dissenting opinions). For the 8th year in a row, Justice Kagan produced the fewest total opinions (12), with 8 majority opinions, 1 concurrence, and 3 dissents.

Justice Thomas issued by far the most concurring opinions (14) or 36% of all concurring opinions filed. This is in line with years past. While Justice Thomas is a reliable conservative vote, he has a unique approach to many areas of the law and this often leads him to write separately to lay out his position. Justice Kagan (1) had the fewest concurrences. Justice Breyer and Justice Gorsuch authored the most dissents, with 10 apiece.

We present below a summary and analysis of the most significant decisions involving criminal justice. The cases are divided, somewhat roughly, into categories.

Fourth Amendment

Mitchell v. Wisconsin

In May 2013, Sheboygan police officer Gerald Mitchell was arrested for operating a motor vehicle while intoxicated in Wisconsin. On the scene, Mitchell’s blood alcohol concentration (BAC) was found to be triple the .08 legal limit. Following his arrest, the arresting officer drove Mitchell to the police station to administer a second, and more reliable, breath test utilizing “evidence-grade equipment.” However, on arrival at the police station, Mitchell was too lethargic to take the second breath test, and he was then driven to a nearby hospital. When he arrived at the hospital, Mitchell was unconscious. His blood was drawn without his consent based on a state law that presumes that an individual who has a Wisconsin driver’s license has given their implied consent for BAC testing. The blood analysis confirmed that Mitchell’s BAC was above the legal limit, and he was subsequently charged with driving while impaired. Mitchell filed a motion to suppress the blood test results on the basis that the blood draw violated his Fourth Amendment right against unreasonable searches, because the blood draw occurred without a warrant or his express consent. His motion was denied by the trial courts and he was convicted. The Wisconsin Supreme Court affirmed the legality of Mitchell’s blood test.

In a 5-4 decision, with the majority opinion authored by Justice Alito, the Supreme Court held that when a driver is unconscious and therefore cannot be given a Breathalyzer test, the exigent circumstances doctrine allows for a blood test to be conducted without a warrant. Exigent circumstances allow warrantless searches “to prevent the imminent destruction of evidence” or when “there is compelling need for official action and no time to secure a warrant.” The majority applied the exigent circumstances test first enunciated in Schmerber v. California (1966). Under this test, an exigency exists when BAC evidence is dissipating and there is no reasonable alternative available to law enforcement to obtain the evidence. According to the majority, an unconscious drunk driver meets both those conditions, as waiting for the person to regain consciousness will result in a delay, and the BAC level decreases over time.

Justice Sotomayor dissented, joined by Justice Ginsburg and Justice Kagan. Justice Sotomayor argued that the Fourth Amendment’s prohibition on unreasonable searches requires that police must get a warrant, if there is time, before ordering a blood draw of an unconscious individual suspected of drunk driving. Furthermore, Wisconsin conceded that the police had time to procure a search warrant to draw Mitchell’s blood and that should have concluded the issue. Justice Gorsuch also dissented, arguing that he would have dismissed this case and waited for a case that better presented exigent circumstances questions.

Fifth Amendment

Gamble v. United States

Terance Gamble pleaded guilty to violating Alabama’s felon-in-possession-of-a-firearm statute after a traffic stop and subsequent search of his car found him in possession of a loaded 9-mm handgun. Federal prosecutors then indicted him for violating federal law regarding felons in possession of a firearm, based on the same incident. Gamble pleaded guilty to the federal offense but argued that being charged under both state and federal laws were a violation of the Double Jeopardy Clause of the Fifth Amendment. The District Court held that this did not qualify as a Fifth Amendment violation due to the dual sovereignty doctrine as elucidated in Heath v. Alabama (1985), where the Supreme Court found it does not count as the “same offense” if it is being prosecuted by different sovereigns, in this case, the state and the federal government. The Eleventh Circuit Court of Appeals affirmed.

In a 7-2 decision, with the majority opinion written by Justice Alito and joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Kavanaugh, the Court affirmed the dual sovereignty doctrine. The primary question facing the Court was the interpretation of “offense” under the Double Jeopardy Clause and the dual sovereignty doctrine. While the Double Jeopardy clause protects against being put “twice in jeopardy” for the same offense, the dual sovereignty doctrine allows an individual to be tried more than once for the same “conduct or action” if such conduct is a crime in both jurisdictions. The majority also felt that Gamble did not present ample historical precedent to support an overhaul of the current doctrine. Justice Ginsberg filed a dissenting opinion, arguing the dual sovereignty doctrine was “misguided” and violated an individual’s Fifth Amendment rights against Double Jeopardy. Justice Ginsberg emphasized that the United States and its constituent states are, in fact, “part of one whole” and to view them as separate sovereigns overlooks the basic tenets of the federal system. Justice Gorsuch also filed a dissenting opinion, much of which echoed the arguments presented by Justice Ginsberg and closed by stating that the “separate sovereigns exception was wrong when it was invented, and it remains wrong today.”

Sixth Amendment

United States v. Haymond

Andre Haymond was convicted of possession of child pornography and was sentenced to 38 months in prison and 10 years of supervised release. While under supervised release, a search of Haymond’s computer revealed child pornography, a violation of the terms of his supervised release. The government sought to revoke Haymond’s release as well as add a new prison term for the new offense. The District Court, following 18 U.S.C. 3538(k) and without a jury trial, imposed a 5-year mandatory minimum sentence. The judge stated that, given the choice, he would have instead sentenced Haymond to 2 years or less and called the required imposition of a 5-year mandatory minimum sentence “repugnant.” The Tenth Circuit Court of Appeals held that 3538(k) violated Haymond’s Fifth Amendment right to due process as well as his Sixth Amendment right to a jury trial and directed the District Court to resentence Haymond to time served (approximately 28 months).

In a 5-4 decision, with the majority opinion written by Justice Gorsuch and joined by Justices Ginsberg, Sotomayor, and Kagan (Justice Breyer concurred in the judgment), the Supreme Court held that the application of 3538(k) violated Haymond’s Fifth and Sixth Amendment rights. According to Justice Gorsuch, the jury exists to limit the powers of the judge and a sentence cannot be increased without a jury determination. Justice Gorsuch emphasized that this ruling was not applicable to all supervised-release-revocation hearings but explicitly those involving 3538(k). The majority concluded that the sentences were “unconstitutional and unenforceable” and therefore vacated and remanded.

Justice Alito penned the dissenting opinion, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh. In response to the majority opinion, Justice Alito argued that the majority had not held to the original meaning of the Sixth Amendment. Moreover, Justice Alito stated the “if every supervised-release revocation proceeding is a criminal prosecution, the whole concept of supervised release will come crashing down,” holding there would be no way for the U.S. judicial system to handle such an influx of jury trial cases.

Garza v. Idaho

In January and February 2015, Gilberto Garza signed two plea agreements in Idaho state court—one for aggravated assault and one for possession of a controlled substance with intent to distribute. In each of those plea agreements was a clause stating that Garza “waived his right to appeal.” Following his sentencing, Garza informed his attorney that he wished to appeal. However, his attorney “informed Mr. Garza that an appeal was problematic because he had waived his right to appeal as part of the plea agreement.” Garza’s attorney never filed an appeal and the allotted filing time frame for doing so expired. Garza then filed an appeal arguing ineffective assistance of counsel, in violation of the Sixth Amendment, due to his attorney’s failure to file an appeal. Strickland v. Washington (1984) established a two-part test for ineffective assistance of counsel: first, “that counsel’s representation fell below an objective standard of reasonableness” and, second, that this deficiency was “prejudicial to the defense.” The Idaho Supreme Court ruled that Garza failed to show that his attorney had provided deficient performance and that it resulted in prejudice.

In a 6-3 decision, with the majority opinion penned by Justice Sotomayor, the Supreme Court reversed the Idaho Supreme Court and held, based on Roe v. Flores-Ortega (2000) that the presumption of prejudice applies even in cases where the defendant has signed an appeal waiver. Flores-Ortega’s reasoned that “presumption of prejudice” applies whenever a defendant is denied counsel at a critical stage and when the counsel’s deficiency forfeits an “appellate proceeding altogether.” The Court also ruled in regard to Strickland that “prejudice is presumed” in specific contexts, such as when counsel’s performance deprives a defendant of an appeal that he has requested. Furthermore, the court decided that no appeal waiver contains the ability to bar all appellate claims, specifically the right to challenge the waiver itself for validity and enforceability. Garza maintained the right to an appeal; however, he would simply have fewer possible claims than other defendants without appeal waivers.

Justice Thomas, Justice Gorsuch, and Justice Alito dissented from the majority’s decision. Justice Thomas, joined in part by Justice Gorsuch and Justice Alito, argued that Garza avoided potential life sentences by accepting two plea deals and negotiating for a 10-year sentence. When doing so, he waived several of his rights including “his right to appeal.” Therefore, Justice Thomas believed Garza’s attorney acted reasonably in declining to file an appeal for his client recognizing that an appeal had the potential to harm his plea bargain.

Eighth Amendment

Madison v. Alabama

Vernon Madison was found guilty of capital murder and sentenced to death in Alabama state court for killing a police officer. While on death row, Madison suffered several strokes and was diagnosed with vascular dementia. As a result of these neurological traumas, Madison petitioned for a stay of execution due to his acquired mental incompetence, stating that he now had no memory of the crime for which he was sentenced to death. He argued the Eighth Amendment’s ban on cruel and unusual punishment barred the execution of a person who lacked the mental ability to recall his crime. Alabama, in response to this petition, asserted that Madison understood the reasons for his conviction and pending execution, regardless of his memory of committing the crime. The Alabama Supreme Court found him mentally competent.

In a 5-3 decision (Justice Kavanaugh did not take part in the case), the Supreme Court vacated judgment and remanded the case for further proceedings at the state level. In the majority opinion penned by Justice Kagan, the court addressed two questions regarding the Eighth Amendment’s prohibition on executing prisoners who, due to mental illness, are incapable of rationally understanding why they are to be executed. First, Justice Kagan stated that the Eighth Amendment does not protect prisoners from execution if they, due to mental disorder, have no memory of the crime for which they were convicted. Even without the memory of the commission of the crime, a person could still understand the rationale behind the punishment for said crime. Second, the Court determined that the Eighth Amendment applied to prisoners suffering from dementia, just as it had previously held that it applied to prisoners experiencing psychotic delusions, on the grounds that both conditions have the capability to impede a prisoner’s capacity to comprehend their punishment. Justice Alito, with Justice Thomas and Justice Gorsuch, dissented on procedural grounds. Justice Alito noted that Madison has abandoned the question on which he was granted review by the court (the effect of memory loss on Eighth Amendment analysis) and asserted it was highly improper for the Court to grant relief on grounds that were not presented in Madison’s original petition.

Bucklew v. Precythe

Russell Bucklew was convicted of kidnapping, rape, and murder and was sentenced to death in Missouri. The execution was to be carried out through lethal injection with a single drug, Pentobarbital. Bucklew challenged the proposed method of execution, claiming it would violate the Eighth Amendment prohibition on cruel and unusual punishment, due to his unique medical condition. Bucklew suffers from cavernous hemangioma, a disease which causes large blood-filled tumors in his throat and brain. He asserted the lethal injection process could cause a tumor in his throat to burst, causing him unconstitutionally cruel levels of pain before death. The Baze–Glossip test requires a death-sentenced petitioner challenging the method of execution to present a feasible and readily implementable alternative to the state’s execution method in order for their Eighth Amendment petition to be granted. Bucklew submitted nitrogen hypoxia as his alternative method, claiming it would significantly reduce the substantial risk of pain, however, the Eighth Circuit Court of Appeals determined that the petition failed to satisfy the Baze–Glossip test.

In a 5-4 decision, with the majority opinion written by Justice Gorsuch and joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh, the Supreme Court held that petition did not meet the Baze–Glossip standard on two levels, and therefore Missouri’s lethal injection plan did not constitute cruel and unusual punishment. First, Bucklew failed to provide substantive detail regarding his proposal in support of nitrogen hypoxia as an appropriate alternative to Pentobarbital. Not only did Bucklew fail to substantiate the feasibility of use, he additionally did not provide details regarding how his approach could be “readily implemented.” Second, Bucklew did not show that nitrogen hypoxia would in fact significantly reduce the substantial risk of pain when compared with Pentobarbital. Justice Gorsuch noted that the Eighth Amendment did not prohibit executions that might cause pain but instead prohibited only those execution methods that caused unnecessary pain. The Court stated that last-minute stays of execution should only be used for the most extreme of situations and that Bucklew petition and subsequent stay of execution served as an abuse of discretion and misuse of the process.

Justice Breyer filed a dissenting opinion and was joined by Justices Ginsberg, Sotomayor, and Kagan on all but part III. Justice Breyer presented three flaws with the majority opinion. First, he disagreed with the majority on the matter of whether or not Bucklew presented adequate material fact regarding the risk of excess suffering due to his extremely rare medical condition. He asserted Bucklew did in fact provide ample proof of the risk of significant and excruciating pain. Second, Justice Breyer stated that due to the rarity of the situation, Bucklew should not be required to provide a viable alternative. Justice Breyer also argued that Bucklew had in fact provided sufficient evidence for the use of the nitrogen hypoxia method as an execution alternative.

Timbs v. Indiana

Tyson Timbs was arrested and pled guilty in Indiana state court for dealing a controlled substance and conspiracy to commit theft. Timbs was sentenced to 1 year of home arrest and 5-year probation and required to pay fees and costs totaling US$1,203. At the time of his arrest, police seized Timbs’s Land Rover SUV, recently purchased for US$42,000. The State claimed justification in pursuing civil forfeiture of the SUV because it was used to transport drugs; however, the price of the SUV exceeded the maximum US$10,000 fine assessable against Timbs for the drug conviction. The trial court denied the State’s request for seizure of the SUV on the ground that seizure was grossly disproportionate to the severity of the crime committed, under the Eighth Amendment excessive fines clause. While the Court of Appeals of Indiana affirmed the ruling, the Indiana Supreme Court reversed, holding that the excessive fines clause was only applicable to federal action and not state proceedings.

In a unanimous 9-0 decision authored by Justice Ginsberg, the Supreme Court vacated and remanded the Indiana Supreme Court ruling (Justice Thomas filed an opinion concurring with the judgment). The Indiana Supreme Court asserted that the Eighth Amendment’s ban on excessive did not apply to the states. The U.S. Supreme Court disagreed, noting that the ban on excessive fines applies to the states through the Fourteenth Amendment, which bars states from depriving anyone “of life, liberty, or property, without due process of law.”

Fourteenth Amendment

Flowers v. Mississippi

In 1997, Curtis Flowers was charged with the murders of four people during a robbery of the Tandy Furniture Store in Winona, MS. Three of the four victims were White, while the fourth victim was Black, as is Flowers. Flowers has been tried for these murders 6 times (the first two trials were for one individual murder and the remainder have been for all four murders). The same prosecutor has tried all six cases and is White. The first trial contained 36 prospective jurors—5 Black and 31 White. The prosecutor used all 12 of his peremptory challenges, including striking all five of the Black prospective jurors. Flowers was convicted by an all-White jury and sentenced to death. However, on appeal, the Mississippi Supreme Court reversed based on evidence of prosecutorial misconduct. During the second trial, the prosecutor again attempted to strike all five Black potential jurors; however, one peremptory strike was rejected and therefore, the jury consisted of 11 White jurors and 1 Black juror. Flowers was convicted a second time and sentenced to death. Again, the Mississippi Supreme Court found prosecutorial misconduct and reversed. At Flowers’s third trial, the prosecutor used all of his 12 peremptory challenges on Black potential jurors, again leaving a jury consisting of 11 White jurors and 1 Black juror. Flowers was again convicted and sentenced to death. The Mississippi Supreme Court yet again reversed the decision, this time noting that the prosecutor’s conduct violated the rules regarding peremptory challenges established in Batson v. Kentucky, (1986). Both the fourth and fifth trials contained more representative juries, and both ended in mistrials. At the sixth trial, the prosecutor struck five of the six Black potential jurors and once again the jury was made up of 11 White jurors and 1 Black juror. Flowers was convicted of murder and sentenced to death. Flowers filed an appeal, alleging Batson had been violated, but the Mississippi Supreme Court held that the prosecutor had offered “race-neutral” explanations for the peremptory challenges used on potential Black jurors and therefore upheld Flowers’s conviction.

In a 7-2 decision, with the majority opinion penned by Justice Kavanaugh, the Supreme Court held that the circumstances and facts clearly established the trial court at Flowers’s sixth trial errored in concluding that the prosecutor’s peremptory strike of Black prospective juror Carolyn Wright was not motivated by discriminatory intent, in violation of Batson. Wright was dismissed due to her familiarity with several defense witnesses and her employment at Walmart, where the defendant’s father also worked. However, three White prospective jurors also knew several of the individuals involved, and the prosecutor did not challenge their seating on the jury. Furthermore, White prospective jurors also had relationships with the defendant’s family members, but they were not challenged based on those connections. Batson mandates that once discrimination has been proven by the defendant, the state must provide reasonable race-neutral reasons for its peremptory strikes, and it failed to do so here. Therefore, the Supreme Court reversed and remanded the trial court’s ruling.

Justice Thomas, joined by Justice Gorsuch, dissented. Justice Thomas argued that the prosecutor provided sufficient race-neutral explanations for the peremptory challenges used on Black prospective jurors. Additionally, Justice Thomas claimed the evidence of guilt was overwhelming and the majority was influenced by the news media and found for Flowers in an effort to “boost its self-esteem.”

Statutory Analysis

Stokeling v. United States

In 2015, Denard Stokeling pled guilty in federal court to being a felon in possession of a firearm. He had several previous felony convictions, including a conviction for “unarmed robbery” in a Florida state court in 1997. Under the Armed Career Criminal Act (ACCA), there is a 15-year mandatory minimum sentence for offenders who have three prior “violent” felony convictions. Due to his previous criminal history, the probation office recommended a mandatory minimum prison sentence of 15 years in light of the ACCA, as Stokeling had three previous “violent felony” convictions. Stokeling objected to this, claiming his prior Florida robbery conviction did not meet the ACCA standard for “violent felonies” since it was for unarmed, rather than armed, robbery. The district court held that the Florida conviction did not qualify as a violent felony and imposed a 7-year prison sentence. The Eleventh Circuit Court of Appeals reversed, asserting that the district court erred in examining the particular facts of the 1997 case and that the proper approach was to focus on the wording of the Florida robbery statute.

In a 5-4 decision, written by Justice Thomas and joined by Justices Breyer, Alito, Gorsuch, and Kavanaugh, the Supreme Court held that robbery statutes that include an element of resistance that is overcome by physical force, even if the force used is minimal, constitute a violent felony for purposes of the ACCA. The Supreme Court had previously established that a violent felony was defined as the use, attempted use, or threatened use of physical force. The court found that the “elements clause” includes robberies wherein the offender overcomes some degree of victim resistance, no matter how slight that resistance. In light of this, Justice Thomas concluded that the aforementioned principles of force can be applied to Florida’s robbery statute, and therefore, Stokeling’s prior conviction constituted a violent felony under the elements clause.

Justice Sotomayor, joined by Justices Ginsburg, Kagan, and Chief Justice Roberts, authored the dissenting opinion. Justice Sotomayor stated that the Supreme Court in Johnson v. United States required a higher degree of force for a violent felony than that found in common law. The Florida robbery law was described by Justice Sotomayor as “a half-notch above garden-variety pickpocketing or shoplifting” and as such, it is a disservice to affirm such acts as violent felonies. Perhaps, the most interesting aspect of this decision is not the outcome (at least for Court observers, surely Mr. Stokeling would disagree), but the lineup of the justices, with Justice Breyer joining the conservative bloc and Chief Justice Roberts siding with the liberal block.

United States v. Victor Stitt

Victor Stitt and Jason Daniel Sims were both convicted in federal court of unlawfully possessing a firearm—Stitt in Tennessee and Sims in Arkansas. Both Stitt and Sims had at least three prior convictions that were defined by the ACCA, passed by Congress in 1986, as either violent or drug-related felonies, including burglary. Under the ACCA, repeat offenders who are then federally convicted of unlawful firearms possession should receive a mandatory minimum 15-year prison sentence. Congress listed “burglary” among the types of violent felony convictions that can qualify a person for an ACCA sentence, and in Taylor v. United States (1990), the court ruled in Taylor v. United States that the law requires a definition of burglary that is based on the statutory elements rather than on the facts of any individual case. Stitt and Sims appealed their sentences, arguing that their prior burglary convictions did not meet the standard of the ACCA definition of burglary, and therefore, the15-year mandatory minimum should not apply to them. They claimed that their states’ burglary statutes included “vehicles” and thus went beyond the generic definition stated in Taylor—criminal invasion of “a building or structure” with intent to commit a crime inside. The Sixth Circuit Court of Appeals agreed with the defendants that vehicles and movable enclosures fell outside the definition of generic burglary and vacated both sentences.

In a unanimous 9-0 decision penned by Justice Breyer, the Supreme Court held that burglary, as defined in the ACCA, includes burglary of a vehicle or a structure that is customarily used for overnight dwelling or has been adapted for these purposes. The court defined generic burglary in Taylor v. United States as the unlawful entry into a building or other structure with the intent to commit a crime. Therefore, the prior convictions of Stitt in Tennessee for aggravated burglary as defined as burglary of habitation, which includes “any structure…which is designed or adapted for the overnight accommodation of persons” falls within the definition of generic burglary by the ACCA. Sims’s prior convictions also fell within the generic definition of burglary; the Arkansas statute that prohibits burglary of any residential structures that could be occupied. The Court concluded that both state statutes fall under the definition of generic burglary. Further, the Court contends that burglary is defined as inherently dangerous because it creates the opportunity for a violent confrontation as determined in Taylor.

Quarles v. United States

Jamar Quarles pled guilty to being a felon in possession of a firearm. As he had at least three prior violent felony convictions, Quarles appeared to qualify for enhanced sentencing under the ACCA, including a 15-year mandatory minimum sentence. Quarles claimed his prior conviction in Michigan state court for third-degree home invasion did not qualify for the violent felony requirement under the ACCA enhancement guidelines because the state statute included as part of its definition of burglary not only situations in which a suspect forms the intent to commit a crime prior to entering a structure but also those situations where a suspect forms the intent to commit a crime after entering the structure. At common law, burglary required the intent to commit a crime exist prior to entering the dwelling. The District Court disagreed, holding that the broader Michigan definition of burglary fit under the ACCA definition of a violent felony and the Sixth Circuit Court of Appeals affirmed.

In a unanimous 9-0 decision, with the opinion of the Court written by Justice Kavanaugh, the Supreme Court held that Quarles’ third-degree home invasion conviction met the ACCA sentence enhancement requirements. The main question in this case was when a burglary occurs; is it only if the individual had the intent to commit a crime upon entering the building or can the individual form the intent to commit a crime at any time, including after she or he enters the building. The Supreme Court held that, for the purpose of the ACCA violent felony sentencing enhancement, a burglary occurs if the individual formed intent to commit a crime at any time while unlawfully remaining in the building or structure.

Lorenzo v. Securities and Exchange Commission

On October 14, 2009, Francis Lorenzo, the Director of the Investment Banking Division of Charles Vista, sent two e-mails at the behest of his supervisor, who supplied both the content and “approved” the e-mails. The e-mails claimed that one of their clients, Waste2Energy, was a safe investment due to their 10 million dollars in assets. However, Waste2Energy had publicly specified that their net worth was less than US$400,000. These e-mails were signed by Lorenzo and he had identified himself as “Vice President of Investment Banking,” while also directing recipients to contact him with any questions. In 2013, the Securities and Exchange Commission started proceedings against Lorenzo, his supervisor, and Charles Vista arguing that they had violated Rule 10b-5 of the Exchange Act and 17(a)(1) of the Securities Act. The Securities and Exchange Commission Rule 10b-5 states that it is illegal to (a) employ any scheme to defraud, (b) make any untrue statement of fact, and (c) engage in any act of business that would operate as fraud or deceit, specifically, “in connection with the purchase or sale of any security.” Ultimately, the Commission found that Lorenzo had violated Rule 10b-5 by sending the misleading e-mails to investors with the intent to swindle them. Lorenzo was fined US$15,000 and was permanently banned from working in the security industry. Lorenzo filed an appeal, arguing that his sending the e-mails did not qualify for violation for Rule 10b-5 because his boss held the “ultimate authority” over the content and sending of the e-mails.

In a 6-2 decision, with the majority opinion authored by Justice Breyer, the Supreme Court held that the circulation of false statements with the intent to defraud did fall within Rule 10b-5(a) and (c), even if the individual did not “make” the statements. Furthermore, by sending the e-mails which Lorenzo knew contained untruthful information regarding the financial situation of Waste2Energy, Lorenzo did in fact “employ a device, scheme, and artifice to defraud,” which is defined clearly under subsection (a) of the Rule 10b-5 as illegal regardless of whether he made the fraudulent claims originally. The Court also found that he “engaged in an act, practice, or course of business that operated as fraud or deceit,” as clearly outlined in Rule 10b-5(c). The court disagreed with Lorenzo’s claims that the meaning of these subsections does not reach his conduct, arguing that “scheme liability claims” are only violated when conduct other than misstatements are involved. Therefore, he would only be guilty of violating Rule 10b-5(b), specifically referring to the false statements. The Court found that this would only be true if the provisions were mutually exclusive domains of conduct, however, they ruled that there is a considerable level of overlap among the subsections and the related provisions of the securities laws.

Justice Thomas, joined by Justice Gorsuch, dissented. Justice Thomas argued that this decision contradicted Janus Capital Group, Inc. v. First Derivative Traders (2011), wherein the Court held that when an individual does not make the fraudulent misstatement, as outlined in Rule 10b-5(b), they are not primarily liable for that statement, specifically if that individual lacks “ultimate authority over the statement.”

United States v. Davis

In November 2015, Maurice Davis and Andre Glover were convicted of a series of armed robberies in the Dallas area. Both were convicted of multiple counts of Hobbs Act robbery and one count of conspiracy to commit a Hobbs Act Robbery. Furthermore, both defendants were also charged under 18 U.S.C. 924(c), which lengthens the potential sentences for “using, carrying, or possessing a firearm” during a federal “crime of violence or drug trafficking crime.” Specifically, crime of violence is defined in two parts—the element clause and residual clause. The element clause includes any use, attempted use, or threatened use of physical force against an individual or their property. The residual clause requires a “substantial risk” of physical force against an individual or property during the crime. Those found guilty under 924(c) face a mandatory minimum sentence of 5 years, without accounting for the underlying crime, in this case the robberies. However, if the individual brandishes a firearm, the minimum sentence increases to 7 years. Both Davis and Glover were found to have committed two violations of 924(c) based on their use of a short-barreled shotgun during the robberies. Both defendant’s Davis and Glover argued that 924(c)’s residual clause was unconstitutionally vague.

In a 5-4 decision, with the majority penned by Justice Gorsuch, the Supreme Court held that 924(c)(3)(B) was unconstitutionally vague, based on Sessions v. Dimaya (2018), which struck down an almost identically worded statute regarding a different crime. Furthermore, the Supreme Court held that while the robbery charge could be sustained under the elements clause of 924(c), the conspiracy charge depended largely on the residual clause, and therefore, due to the unconstitutional nature of that portion of the law, the defendant’s convictions and sentences were vacated. The Court held that vague laws cannot be enforced because they violate due process. Justice Kavanaugh dissented, joined by Justice Thomas, Justice Alto, and Chief Justice Roberts. Justice Kavanaugh argued that this law had been used often in the last 33 years, reduced gun violence, and differed vastly from the laws struck down in Dimaya and Johnson v. United States (2015). Justice Kavanaugh argued that the reasoning for applying a categorical approach in Dimaya and Johnson should not apply to 924(c).

Mont v. United States

In 2004, Jason Mont was caught selling cocaine in Northern Ohio. When police searched his home, they discovered handguns and US$2,700 in cash. He was indicted on multiple drug and firearm offenses and pled guilty to intent to distribute cocaine, possessing a firearm, and ammunition as a convicted felon. Mont was sentenced to 84 months’ imprisonment, followed by 5 years of supervised release. On March 6, 2012, Mont was released from federal prison and began his 5 years of supervised release. Mont violated his supervised release on several occasions, including testing positive for cocaine and oxycodone, and being arrested for marijuana trafficking. On June 1, 2016, Mont was again arrested on state charges of trafficking cocaine and his bond for the previous marijuana trafficking charge was revoked. He pled guilty and arranged a plea deal to serve 6 years on the drug trafficking charges. Mont was finally sentenced on March 21, 2017, and received credit for time served for the almost 10 months that he had been in jail prior to sentencing. While his supervised release was scheduled to end March 6, 2017, on March 30, the court concluded that Mont had violated his supervised release and revoked it, sentencing him to 42 months’ imprisonment, to run consecutively with the 6-year drug sentence. Mont argued that when he was sentenced his supervised release completion date had passed, but the District Court concluded that under 18 U.S.C. 3583, the court could revoke supervised release after the term had expired, “if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.” Furthermore, the court argued that the delay between the October plea and the June sentencing was “reasonably necessary.” The Sixth Circuit Court of Appeals affirmed.

In a 5-4 decision, with the majority opinion written by Justice Thomas, the Supreme Court held that under 18 U.S.C. 3624(e) pretrial detention, even when later credited to time served for a new conviction, tolls a supervised release, even if the court must make the tolling calculation post the decision to credit the time as served. Under 3624(e) supervision after release begins the day, an individual is released from prison and runs concurrently with any federal or state term of probation or supervised release. However, supervised release does not count during any period, where an individual is imprisoned in connection with a conviction unless that imprisonment lasts less than 30 consecutive days. The Supreme Court held that pretrial detention is directly related to a new conviction and that Mont was clearly imprisoned for a period exceeding 30 days. Furthermore, the Court asserted that it would be an outlandish construction of a statute to allow pretrial detention to be counted as both time served for a new conviction and supervised release from a previous sentence.

Justice Sotomayor dissented, joined by Justice Breyer, Justice Kagan, and Justice Gorsuch. Justice Sotomayor argued that tolling cannot occur when an offender is being held during pretrial detention because there is only a possibility of conviction. Furthermore, she argued that the District Court had ample opportunities to have Mont arrested and end his supervised release, however, the warrant was not issued until March 30, 2017. Justice Sotomayor claimed that the present tense “is imprisoned” does not equal “was imprisoned,” and therefore the present-tense framework of the statute could not include pretrial detention. Finally, she argued that the term “imprisonment” implies post-conviction incarceration, as opposed to pretrial detention.

Rehaif v. United States

In December 2014, Hamid Mohamed Ahmed Ali Rehaif, a citizen of United Arab Emirates, was academically dismissed from the Florida Institute of Technology, and as a result, his student visa was terminated in February 2015. Rehaif remained in Florida, and in December 2015, he purchased ammunition and rented two firearms at a shooting range. He was then arrested and prosecuted under 18 U.S.C. 922(g), which makes it illegal for specific individuals, including illegal aliens, to possess a firearm, and 924(a)(2) which states that anyone who “knowingly violates” 922(g) is subject to imprisonment for up to 10 years. At Rehaif’s trial, the jury was instructed that the government was not required to prove that Rehaif knew he was illegally in the country. He was found guilty and sentenced to 18 months. Rehaif appealed, arguing that the judge was mistaken in instructing the jury that they did not need to find that Rehaif knew he was unlawfully in the United States. The Eleventh Circuit Court of Appeals held that criminal law typically requires a defendant to know their own status and therefore affirmed Rehaif’s conviction.

In a 7–-2 decision, with the majority decision written by Justice Breyer, the Supreme Court held the government must prove both that a defendant knew he possessed a firearm and that he knew it was unlawful for him, as an illegal alien, to possess a firearm. Further, the Court held that the government must prove the defendant acted “knowingly” based on United States v. X-Citement Video, Inc. (1994); this requires defendants to possess a mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” Specifically, a defendant only commits a crime if he knowingly violates 922(g) when the following elements are included: (1) a status element (in this case an illegal alien), (2) a possession element, (3) a jurisdictional element, and (4) a firearm element (either a firearm or ammunition). The Court found that knowingly must apply to each of the elements in the statute.

Nielsen v. Preap

The federal immigration law grants the power to arrest and hold deportable aliens pending a formal removal decision under 8 U.S.C. 1226(a) and (c). The respondents, in this case, were arrested following their release from criminal custody, though the period between release and rearrest ranged between 5– and 11 years. Under 1226(c), the alien is to be detained “when released” from criminal custody, though the exact timing is not specified. The respondents held that since there was no immediate detention by immigration officials following their release from criminal custody, they should be able to petition for bond or parole hearings while detained, a freedom denied them under 1226(c). The District Court ruled in favor of the respondents and the Ninth Circuit Court of Appeals affirmed.

In a 5-4 ruling, the Supreme Court reversed the lower courts. Justice Alito delivered the majority opinion joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. Justice Alito focused on two provisions governing the arrest, detention, and release of aliens believed to be subject to removal covered by 8 U.S.C. 1226(a) and (c). First, 1226(a) applies to most aliens and allows for petitions for bond or parole release; 1226(a) gives the Director of Homeland Security the discretion to hold or release pending removal decision. Second, 1226(c) which was enacted as a part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, concerns the holding of aliens, “when…released” from criminal custody, who have committed certain dangerous criminal acts or are connected to terrorism. Under 1226(c), these aliens can be held, without the chance to apply for release review, and as interpreted by the majority, the “when…released” phrase need not specify the timeliness of detention. Justice Breyer dissented, joined by Justices Ginsberg, Sotomayor, and Kagan. The dissent argued that the “when…released” language should have a limit on the time between release from criminal custody and that the passage of several years should not be allowed.

Liability and Immunity

Nieves et al. v. Bartlett

In 2014, Russell Bartlett was arrested for disorderly conduct and resisting arrest by police officers Luis Nieves and Bryce Weight while attending “Arctic Man,” a boisterous winter sports festival located in the Hoodoo Mountains near Paxson, AK. On the day in question, Sergeant Nieves stated that he was speaking with a group of individuals when an intoxicated Bartlett began yelling at them to not speak to the police. When approached by Sergeant Nieves, Bartlett began yelling at Nieves to leave. In an effort to deescalate the situation, Nieves left. Bartlett claims this interaction did not take place and that he was not intoxicated at the time. A short time later, Trooper Weight testified that while he was speaking with a minor suspected of drinking, Bartlett approached him in an aggressive manner and stood between him and the minor, yelling with slurred speech that Weight should not speak with the minor. Bartlett then took a step toward Weight, who pushed him backward. Nieves witnessed the confrontation and attempted an arrest. Bartlett was slow to comply and was forced to the ground by the officers. Bartlett claimed he was slow to comply due to a back injury and stated that he was not being aggressive or noncompliant. Bartlett claimed that after Nieves handcuffed him, he said “bet you wish you would have talked to me now.” Bartlett sued, claiming that his First Amendment rights had been violated when he was arrested in retaliation for his speech. The District Court held that the existence of probable cause for the arrest precluded Bartlett’s retaliatory arrest claim. However, the Ninth Circuit reversed and held that probable cause does not defeat such a claim and that the statement allegedly made by Nieves after the arrest could allow Bartlett to prove that his arrest was due to his speech.

In a 6-3 decision, with the majority opinioned authored by Chief Justice Roberts, the Supreme Court reversed and held that because there was a probable cause to arrest Bartlett, his retaliatory arrest claim was barred as a matter of law. The Court determined that to be successful in a retaliation claim, a plaintiff must be able to establish a causal connection between the defendant’s retaliatory action and the plaintiff’s injury, as established in Hartman v. Moore (2006). Specifically, the retaliatory action (in this case, the arrest) must be a factual or “but-for” cause, meaning the adverse action against the plaintiff would not have occurred without the retaliatory motive. Here, there were clearly justifiable for arresting Bartlett based on his conduct. Furthermore, the Court held that the no-probable-cause requirement in Hartman applies to the retaliatory arrest claim, meaning that Bartlett must prove the absence of probable cause. Both Heck v. Humphrey (1994) and Wallace v. Kato (2007) support the result that probable cause should generally defeat a First Amendment retaliatory arrest claim. Finally, the Court concluded that the no-probable-cause requirement should not apply to causes when a plaintiff presents evidence that he or she was arrested when other individuals in similar situations engaging in similar behavior had not been.

Justices Gorsuch, Ginsburg, and Sotomayor dissented. Justice Gorsuch filed an opinion concurring in part and dissenting in part, arguing that there is no legitimate basis for the addition of a no-probable-cause requirement to a First Amendment retaliatory arrest claim. Justice Ginsburg also filed an opinion concurring in the judgment in part and dissenting in part. Justice Ginsburg argued that there is no evidence of retaliation on behalf of Trooper Weight and therefore would reverse the Ninth Circuit’s judgment. However, she believes there is enough evidence with Nieves alleged statement to uphold the lower court regarding Nieves. Finally, Justice Sotomayor filed a dissenting opinion, arguing that there is no support for imposing probable cause requirement on First Amendment retaliatory arrest claims that would not be imposed in other contexts. Justice Sotomayor also noted that most plaintiffs would be unable to provide evidence that he or she was arrested when other similarly situated individuals were not.

McDonough v. Smith

Edward McDonough, as the commissioner of the county board of elections in Troy, NY, was responsible for processing ballots. Youel Smith was appointed to investigate and prosecute a case of forged absentee ballots in which McDonough became the prime suspect. Although McDonough claimed that Smith fabricated both evidence and witness statements, Smith secured a grand jury indictment against McDonough. McDonough’s first trial ended in a mistrial, and in December 2012, the second trial ended in an acquittal on all charges. In December 2015, McDonough sued Smith for malicious prosecution under 42 U.S.C. 1983, alleging Smith had used fabricated evidence and testimony in his case against McDonough. The District Court dismissed the claim as untimely, noting that McDonough was outside the statute of limitations for his suit. The Second Circuit Court of Appeals affirmed.

In a 6-3 decision, with Chief Justice Roberts writing the majority opinion, joined by Justices Ginsberg, Breyer, Alito, and Kavanaugh, the Supreme Court reversed the lower courts. The primary question facing the Court was at what time did the statute of limitations begin regarding the timing of McDonough’s lawsuit. While the District Court and the Second Circuit Court of Appeals determined that the statute of limitations began once McDonough became aware of Smith’s alleged misdeeds, the Supreme Court disagreed, holding that the statute of limitations did not, in fact, begin until the criminal proceedings against McDonough had been completed. The Court came to this decision through an examination of common law principles. Justice Thomas filed a dissenting opinion, joined by Justices Kagan and Gorsuch. Justice Thomas wrote that McDonough’s case should not have been accepted for review because McDonough did not specify which constitutional right was violated.

Conclusion

The 2018 term was marked by a dearth of high-profile decisions involving criminal justice. There were nonetheless a number of low profile but significant decisions that will have an impact on the day-to-day administration of the criminal justice system. These cases included decisions involving liability, sentencing, and the interpretation of criminal statutes.

Perhaps the most significant development of the term came as it began, with the seating of Brett Kavanaugh. Justice Kavanaugh took the seated vacated by the retirement of Justice Anthony Kennedy. Kavanaugh was a law clerk for Justice Anthony Kennedy and a judge on the District of Columbia Court of Appeals. Based on his judicial record, it appears likely that Justice Kavanaugh will chart a more conservative course than Justice Kennedy, but only time will tell. The 2019 term includes a number of cases dealing with significant criminal justice issues.