Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court,2021 Term

New York State Rifle & Pistol Association, Inc. v. Bruen

Brandon Koch and Robert Nash, both law-abiding New York residents, applied for unrestricted licenses to carry a concealed handgun in public for self-defense. New York denied their applications on the basis that state law required individuals to prove they had “proper cause” for carrying concealed handguns, and in the state's view, neither Koch nor Nash met this requirement. According to state law, to prove proper cause, an individual must “demonstrate a special need for self-protection distinguishable from that of the general community.” Koch and Nash sued the state officials responsible for processing firearm licensing applications and alleged that their Second Amendment rights had been violated. The District Court dismissed their complaint and the Second Circuit Court of Appeals affirmed. Both courts based their decisions on a prior Second Circuit case which upheld New York's proper-cause requirement on the basis that it was substantially related to the achievement of an important governmental interest.

In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Court held that New York's proper-cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens from exercising their Second Amendment right to keep and bear arms for ordinary self-defense. In addition, the Court stated that both District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) upheld an individual's right to keep and carry arms for self-defense purposes. The Court determined that the Court of Appeals had erroneously interpreted Heller and McDonald to require a “two-step” process to assess Second Amendment challenges, when only the first step is needed. The Court explained that step one was consistent with Heller in that it focuses on whether present-day firearm regulations are aligned with the Constitution's text and historical tradition. However, step two's requirement of a means-end scrutiny is inconsistent with both Heller and McDonald. In fact, the Court noted that Heller explicitly rejected interest-balancing inquiries. In addition, both Heller and McDonald state that there must be clear justification for imposing a burden on an individual's right to self-defense. The Court determined that New York failed to provide an adequate justification for its proper-cause requirement. The Court then applied its one-step standard to Koch and Nash's case; this standard required the Court to assess two criteria: (1) the Constitution's text and (2) historical tradition. In terms of the Constitution, the Court determined that the text of the Second Amendment clearly protected the right to carry concealed weapons in public for self-defense and noted that the very definition of “bear arms” included the public possession of firearms. Regarding historical tradition, the Court assessed historical evidence from 1791, when the Second Amendment was adopted, and 1868, when the Fourteenth Amendment was adopted, and found no tradition that limited the scope of publicly bearing arms for self-defense. The Court also asserted that referring to other periods of time, such as those that pre-dated or post-dated the adoption of either amendment, might not shed sufficient light on the specific historical traditions in place in 1791 and 1868. Nevertheless, the Court analyzed the historical evidence that New York submitted regarding restrictions on public carry in the colonies, early Republic, post ratification of the Second Amendment, and from around the adoption of the Fourteenth Amendment, and found that none of these restrictions—with the exception of two “outlier” cases from Texas—bore similarity to the burden imposed by New York's proper-clause requirement. In fact, the Court found the historical record pointed to a long-standing tradition of bearing arms in public. Citing McDonald, the Court asserted that the right to bear arms is not a “second-class right,” and that no other constitutional rights require individuals to prove a special need in order to avail themselves of those rights. Having thus applied the one-step standard, the Court concluded that New York's proper-clause requirement violated the Fourteenth Amendment.

Three concurring opinions were filed. A concurring opinion authored by Justice Alito, fully joined the opinion of the Court, but made three points in response to the dissent. First, Justice Alito argued that the dissent primarily focused on issues that were beyond the scope of the Court's decision regarding the constitutionality of New York's proper-clause requirement. Second, Justice Alito disputed the dissent's assertion that the Court had failed to analyze the difficulty that a law-abiding New Yorker would encounter in applying for a carry permit, since New York's solicitor general had addressed this at argument. Third, Justice Alito disagreed with the dissent's insistence that the Court apply a means-end scrutiny on the basis that doing so would impose no limits on judges’ capacity to restrict the use of firearm ownership. The second concurring opinion, authored by Justice Kavanaugh and joined by Chief Justice Roberts, fully joined the opinion of the Court but emphasized two limitations of the opinion: (1) the opinion focused only on “may-issue” regimes such as New York's, and as such did not necessarily prevent states from imposing requirements on the licensing of handguns for the purposes of self-defense; and (2) the opinion did not prevent states from enacting gun regulations, so long as those regulations were consistent with the scope of the Second Amendment. Justice Barrett also concurred, while joining the opinion of the Court in full.

The dissent, authored by Justice Breyer and joined by Justices Sotomayor and Kagan, argued that the Court erred by not conducting discovery or developing an evidentiary record, and asserted that the Court was overly reliant on its interpretation of the historical record. The dissent noted that there were compelling government interests that justified gun regulations, such as mass shootings, the use of guns in suicide attempts, the use of guns in domestic disputes, and the number of children and youth killed by guns. The dissent also argued that the Court's decision would hinder states’ abilities to pass legislation to mitigate the harms of gun violence.

Denezpi v. United States

Merle Denezpi sexually assaulted V.Y., both citizens of the Navajo Nation, while on the Ute Mountain Ute Reservation. Denezpi was charged with assault and battery in violation of the Ute Mountain Law and Order Code as well as with two violations of the Code of Federal Regulations. The case was adjudicated through the Southwest Region Code of Federal Regulation (CFR) court, which is a Court of Indian Offenses for the Ute Mountain Ute Agency. These CFR courts were established by the Department of the Interior to act as the judicial arm for Indian tribes until they establish their own courts. While most tribes have their own Tribal Courts, 16 tribes, including the Ute Mountain Ute Tribe, rely on the CFR courts to administer justice. Denezpi pled guilty to assault and battery, and the other charges were dismissed. He was sentenced to time served (140 days). Six months later Denezpi was indicted in federal district court on one count of aggravated sexual abuse in Indian country, stemming from the conduct he was previously found guilty of in the CFR court. Denezpi sought to dismiss the indictment arguing the Double Jeopardy Clause precluded this second prosecution. The District Court denied his motion and Denezpi was subsequently found guilty and sentenced to a 360-month prison term. He appealed to the Tenth Circuit Court of Appeals, arguing the first prosecution was conducted by the federal government as was the second prosecution, thereby violating the Double Jeopardy clause. The Court of Appeals affirmed his conviction, concluding the second prosecution did not violate the Double Jeopardy Clause because the dual sovereign doctrine applied. Under the dual-sovereign doctrine, different sovereigns (or jurisdictions) can prosecute a defendant for the same offense without violating the Double Jeopardy clause. Applying the doctrine, the Court of Appeals found the Ute Mountain Ute Tribe was the ultimate power undergirding the first prosecution and that it was a separate sovereign from the federal government.

In a 6-3 decision, authored by Justice Barrett (joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Breyer), the Court held that the Double Jeopardy clause of the Fifth Amendment does not prohibit successive prosecutions arising from a single act if the offenses are distinct, even where a single sovereign prosecutes them. The Court determined that the text of the Double Jeopardy Clause does not prevent subsequent prosecutions for the same conduct or action, rather it focuses on whether successive prosecutions are for the same offense. The Court reasoned that because the offenses stemmed from separate sovereigns, the Ute Mountain Tribe and the United States, they were necessarily different from one another. Denezpi argued that for the dual sovereignty doctrine to apply, both the offense and prosecution must stem from separate sovereigns and that in his case, both offenses and prosecutions were conducted by the federal government making the dual sovereignty doctrine inapplicable. The Court rejected this argument, finding that the Double Jeopardy Clause prohibits successive prosecutions for the same offense, not successive prosecutions by the same sovereign. Thus, even if Denezpi was prosecuted by the federal government in both the CFR court and the district court, the offenses stemmed from separate sovereign powers, meaning the federal government was not later barred from prosecuting him for violations of federal law.

Justice Gorsuch dissented, with Justices Sotomayor and Kagan joining in part. Gorsuch argued that because the first prosecution before the CFR court was for a violation of federal regulations that assimilated tribal law into federal law, Denezpi was not in fact tried for a violation of tribal law, but rather for a violation of federal law. Gorsuch further noted that the CFR court itself is part of the Department of the Interior. Therefore, both prosecutions were by organs of the federal government, thereby violating the Double Jeopardy Clause.

Vega v. Tekoh

In 2014 Terence Tekoh was questioned by Los Angeles County Sheriff's Deputy Carlos Vega regarding an alleged sexual assault. During the questioning, Deputy Vega failed to provide Miranda warnings to Tekoh. Miranda warnings refer to the requirement of police officers to inform a suspect prior to a custodial interrogation of their 5th and 6th Amendment rights ( Miranda v. Arizona, 1966 ). Tekoh wrote Deputy Vega a confession. Tekoh was subsequently arrested and charged with unlawful sexual penetration. At trial the un-Mirandized confession was admitted as evidence. Nevertheless, Tekoh was acquitted. Tekoh then brought suit under 42 USC §1983 (Section 1983) against Deputy Vega. Section 1983 provides a cause of action for individuals to sue government actors for violating their constitutional rights or federal laws. At the civil trial Tekoh argued his constitutional rights were violated when Deputy Vega obtained the confession without first providing Miranda warnings. The District Court rejected Tekoh's argument, instead finding that Miranda established a prophylactic rule which does not provide a ground for Section 1983 liability. The Ninth Circuit reversed the District Court's reasoning that an un-Mirandized statement used against a defendant violates their Fifth Amendment rights and may support a Section 1983 claim. The Supreme Court than granted certiorari. The issue in this case is whether a violation of the Miranda rules provides a basis for a claim under 42 U. S. C. §1983.

In a 6-3 decision with Justice Samuel Alito writing for the majority (and joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh and Barrett), the Court held Miranda violations do not provide a basis for Section 1983 claims as they are not themselves constitutional violations. The Court reasoned Miranda established prophylactic rules that are constitutionally based and intended to safeguard constitutional rights but are not themselves a constitutional right. Thus, a violation of Miranda is not itself a constitutional violation, and therefore cannot provide a basis for Section 1983 liability. The Court went on to explore whether Miranda violations may provide a basis for Section 1983 claims as a federal law (as opposed to a constitutional right). Applying a cost-benefit analysis for judicially crafted prophylactic rules, as outlined in Maryland v. Shatzer (2010), the Court reasoned the benefits of expanding Section 1983 claims to include Miranda violations are outweighed by the judicial costs of adjudicating such cases. Thus, Miranda violations cannot establish a basis for Section 1983 claims.

Justice Elena Kagan authored a dissent (with Justices Breyer and Sotomayor joining) arguing that Miranda is a right secured in the Constitution as a “constitutional rule” of “constitutional origin” (Dickerson v. United States, 2000). The dissent further noted that as a constitutional rule, Miranda provides a judicially enforceable right to exclude un-Mirandized statements at trial, indicating that Miranda rights are secured by the Constitution. As such violations of Miranda do provide a basis for Section 1983 claims.

Hemphill v. New York

In 2006 a fight ensued between several individuals, wherein a 9-millimeter handgun was fired resulting in the death of a two-year-old bystander. An investigation led to the arrest of Nicholas Morris after police officers found a 9-millimeter cartridge and three.357-caliber bullets in his apartment. New York state charged Morris with murder but later offered him a plea deal for a lesser charge. The State agreed to dismiss the murder charge if Morris admitted to possession of a.357 magnum revolver. The State did not have sufficient evidence to obtain an indictment against Morris for possession of the.357 revolver, however, against advice of defense counsel, Morris admitted to possessing the revolver in his plea allocution. Later, in 2011, DNA connected Darrell Hemphill to the killing, and he was subsequently arrested and indicted for murder. At trial Hemphill argued Morris was to blame for the shooting, noting that officers had found a 9-millimeter cartridge in Morris’ apartment. The State contended Hemphill's argument was misleading because officers also found.357-caliber bullets, and Morris pled guilty to possessing a.357 revolver. To rebut Hemphill's claim, the State introduced Morris’ plea allocution because Morris was unable to testify. The trial court allowed the plea allocution over hearsay objections made by Hemphill. Specifically, Hemphill objected to the evidence because of the inability to cross-examine Morris in violation of the Confrontation Clause ( Crawford v. Washington, 2004 ). The Confrontation Clause of the Sixth Amendment provides that defendants have the right to confront witnesses against them through cross-examination. In allowing the evidence, the trial court relied on People v. Reid, a New York state case, which allows the introduction of otherwise inadmissible evidence where reasonably necessary to correct a misleading impression made by the defendant. Hemphill was found guilty and sentenced to 25 years to life in prison. Hemphill appealed the conviction on the basis that he was denied his Sixth Amendment right to confront a witness against him when the trial court admitted Morris’ testimony. The New York State Appellate Division affirmed the introduction of the plea allocution on the basis that Hemphill opened the door to such testimony when he created a misleading impression regarding Morris’ possession of a 9-millimeter handgun, making it reasonably necessary to allow the testimony. The New York Court of Appeals (the highest court of the state) also affirmed the decision, and Hemphill sought review in the U.S. Supreme Court.

In an 8-1 opinion authored by Justice Sotomayor, the Court held Hemphill was denied his right to confront a witness against him, when the trial court admitted Morris’ plea allocution. Before addressing the merits of the case, the Court held Hemphill presented his Sixth Amendment constitutional claim to the New York state courts, therefore establishing a federal claim that the Court could hear. Then, turning to the merits of the case, the Court relied on Crawford to explain that testimonial statements are inadmissible unless the defendant had a prior opportunity to cross-examine the unavailable witness in question. The Court further held that the “door opening” rule in Reid infringed on the Confrontation Clause by allowing trial judges to determine the reliability of testimonial hearsay evidence rather than having it tested through cross-examination. Lastly, the Court rejected the State's contention that the “door opening” rule in Reid is necessary to prevent the introduction of misleading evidence, reasoning that the truth-seeking function of the trial does not override a defendant's constitutional rights. The Court further noted that the common law rule of completeness did not apply in this case. Under the completeness rule, if one party introduces part of a statement, the other party may introduce the remainder, even if there is no opportunity for cross-examination of the statement. Here, the plea allocution was not part of any statements introduced by Hemphill and thus the Court did not address the validity of the rule as applied to testimonial evidence. Justice Alito issued a concurring opinion (with Justice Kavanaugh joining), discussing under what conditions a defendant is deemed to have validly waived their right to confrontation, including implicit waivers such as those found in the rule of completeness.

Justice Thomas issued a dissent arguing the Supreme Court lacked jurisdiction to review the New York Court of Appeals decision because Hemphill did not properly present his Sixth Amendment concerns before the state court.

United States v. Tsarnaev

On April 15, 2013, Dzhokhar Tsarnaev and his older brother, Tamerlan Tsarnaev, detonated two homemade bombs near the Boston Marathon finish line, killing three people and injuring hundreds of others. Three days later, the Tsarnaev brothers, who had been identified as suspects by the FBI, fled the area; in so doing, they shot and killed a Massachusetts Institute of Technology (MIT) campus police officer. They also carjacked and robbed a graduate student. Subsequently, law enforcement located the Tsarnaev brothers in Watertown, Massachusetts. The Tsarnaev brothers fired their weapons and threw homemade bombs at the police. Dzhokhar drove away in the carjacked SUV, but ran over his elder brother, Tamerlan, in the process, killing him. Dzhokhar drove a few blocks and then hid under a covered boat in someone's backyard. The following day, police found and arrested him. Dzhokhar was convicted and sentenced to death. The First Circuit Court of Appeals vacated his death sentence on two grounds: (1) the District Court did not ask prospective jurors what facts about the case they learned from the media; and (2) the District Court excluded evidence regarding Dzhokhar's elder brother, Tamerlan's, possible involvement in an unrelated triple homicide known as the “Waltham murders.” Regarding the first reason, the First Circuit Court of Appeals argued that Patriarca v. United States (1968) provided it with “supervisory authority” to oblige the District Court to ask specific media-content questions. Concerning the second reason, the First Circuit Court of Appeals cited the Federal Death Penalty Act (FDPA), which states that any aggravating or mitigating information is admissible in determining the appropriate sentence, even if such information is not admissible under the rules of evidence to determine guilt. Consequently, the First Circuit Court of Appeals ruled that evidence regarding Tamerlan's possible involvement in the Waltham murders should have been considered, since such evidence was crucial to Dzhokhar's argument that his elder brother, Tamerlan, had unduly influenced Dzhokhar's actions.

In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Court ruled that the First Circuit Court of Appeals erred in overturning Dzhokhar's death sentence. First, the Court determined that the District Court had not abused its discretion by refusing to ask prospective jurors what facts they learned from the media; to the contrary, the Court held that the District Court properly exercised its discretionary authority in determining which questions to pose to prospective jurors, citing Skilling v. United States (2010) and other precedents. The Court also noted that the any “supervisory authority” held by the First Circuit Court of Appeals was delimited by the Constitution, federal statutes, and prior Court precedents. Second, the Court ruled that the District Court was correct to exclude evidence of Tamerlan's potential involvement in the Waltham murders, given that the FDPA permits the exclusion of evidence when “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury” (FDPA Section 3593(c)). The dissent, authored by Justice Breyer and joined in whole by Justice Sotomayor and in part by Justice Kagan, argued that the District Court abused its discretion when it excluded evidence regarding Tamerlan's possible involvement in the Waltham murders. The dissent asserted that this evidence had significant mitigating value, and as such should have been admissible.

Nance v. Ward

Michael Nance robbed a bank, then shot and killed a bystander. A Georgia jury found him guilty of murder and sentenced him to death. Nance unsuccessfully challenged his conviction and sentence via direct appeal, state collateral proceedings, and a habeas petition. Nance then sued George under 42 U.S.C. § 1983, arguing that lethal injection—Georgia's only authorized method of execution—violated the Eighth Amendment's prohibition on “cruel and unusual” punishment. As an alternative method of execution, Nance proposed death by firing squad, which is authorized by four states. The District Court dismissed Nance's § 1983 suit as untimely, and the Eleventh Circuit Court of Appeals rejected it on the ground that Nance should have filed a federal habeas petition rather than a § 1983 suit. The Eleventh Circuit then “reconstrued” Nance's § 1983 suit as a habeas petition. In so doing, the Eleventh Circuit believed Nance to be contesting his death sentence, rather than his method of execution, on the ground that Georgia's law regarding the method of execution was clear, and as such, the preclusion of lethal injection would effectively prevent the state from carrying out Nance's death sentence. The Eleventh Circuit then dismissed Nance's petition, since he had previously filed a habeas petition to invalidate his death sentence, and as such was barred by law from filing a “second or successive” petition for the same legal issue.

In a 5-4 decision, with the majority opinion authored by Justice Kagan (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, and Kavanaugh), the Court reversed the judgment of the Eleventh Circuit, and held that a §1983 suit is the appropriate procedural vehicle for a method-of-execution claim in which a prisoner seeks an alternative method of execution that has not yet been authorized by the state in which the prisoner is to be put to death. The Court explained that two prior decisions permitted § 1983 suits for method-of-execution claims: Nelson v. Campbell (2004), which permitted prisoners to request an alternative method of execution that was already authorized under state law, and Hill v. McDonough (2006), which held that a prisoner's request for an alternative method of execution was not the same as a prisoner's request to invalidate a death sentence, and as such, should not be viewed as a successive habeas corpus petition. The Court also noted that Bucklew v. Precythe (2019) enabled prisoners to request methods of execution that were legal in other states. The Court concluded that the Eleventh Circuit erred in construing George's statute as immutable. The Court stated that in order for Nance to succeed on his method-of-execution claim, he must satisfy two criteria outlined in Glossip v. Gross (2015): (1) he must prove that the State's method of execution poses a “substantial risk of serious harm”, and (2) he must “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduce[s]” the risk of serious harm. Nance met both criteria. First, he explained that his veins were not conducive to intravenous access and that his use of a prescription drug for back pain could negatively interact with the sedatives in the lethal injection. Second, he argued that death by firing squad would be “swift and virtually painless,” and that Georgia could readily implement this method of execution by consulting a state in which it was authorized. The Court elaborated that States should not decide the appropriate procedural vehicle for a method-of-execution claim, since doing so could result in different outcomes in different states, based on whether a state required prisoners to file a habeas petition (which has a second-or-successive rule) versus a §1983 suit (which has no such rule). That said, the Court emphasized that §1983 suits are not meant to unjustifiably delay executions.

The dissent, authored by Justice Barrett (joined by Justices Thomas, Alito, and Gorsuch), argued that the Eleventh Circuit was correct in its assertation that a habeas petition was the appropriate vehicle for a method-of-execution claim under current Georgia law.

Oklahoma v. Castro-Huerta

In 2015 Victor Manuel Castro-Huerta, a non-Indian, was charged with child neglect by the state of Oklahoma. The child victim was a member of the Cherokee Indian Nation. Castro-Huerta was convicted and sentenced to 35 years imprisonment. After his conviction, the Supreme Court decided McGirt v. Oklahoma (2020) holding that parts of eastern Oklahoma remained Indian Country, including Tulsa. Castro-Huerta's crime was committed in Tulsa, which is now recognized as Indian Country. Relying on the McGirt decision, Castro-Huerta appealed his conviction, arguing that Oklahoma lacked jurisdiction to prosecute him, and that the jurisdiction laid exclusively with the federal government. The Oklahoma Court of Criminal Appeals agreed, finding that the State did not share jurisdiction with the federal government to prosecute crimes committed by non-Indians against Indians in Indian country and therefore vacated his conviction. The federal government then brought charges against Castro-Huerta. He subsequently took a plea agreement sentencing him to 7 years imprisonment, a 28-year reduction from his initial sentence. The Supreme Court granted certiorari to clarify the McGirt decision, specifically regarding concurrent jurisdiction. The issue in this case was whether the states share concurrent jurisdiction with the federal government to prosecute crimes committed by non-Indians against Indians in Indian country.

In a 5-4 decision authored by Justice Kavanaugh and joined by Chief Justice Roberts and Justices Alito, Thomas, and Barrett, the Court held that states have concurrent jurisdiction to prosecute non-Indians for crimes committed in Indian country, unless preempted by Congress. The Court came to this conclusion by first reviewing its precedents finding that Indian country is part of a state's territory, therefore states maintain jurisdiction over crimes committed on those lands. The Court then examined whether federal law preempts state jurisdiction, finding that it does not. The majority relied on the General Crimes Act, finding that under the text of the statute the federal government and states share concurrent jurisdiction. The majority also examined Public Law 280, which grants certain state's criminal jurisdiction over Indian country, finding it does not preempt state jurisdiction. Lastly, the Court applied the Bracker balancing test to decide whether Oklahoma's jurisdiction would unlawfully infringe upon Tribal self-government or the federal government (see, White Mountain Apache Tribe v. Bracker, 1980 ). Under Bracker, the court considers Tribal, federal, and state interests. Applying the test, the majority reasoned the state is not barred from prosecuting crimes committed by non-Indians in Indian country for three reasons. First, state jurisdiction does not infringe on tribal sovereignty as tribes lack criminal jurisdictions over non-Indians generally (see, Oliphant v. Suquamish Tribe, 1978 ). Second, state prosecutions of these cases do not infringe on the federal government's interest in protecting Indian victims and rather acts as a supplement to the federal government. Third, the state has an interest in advancing criminal justice within its jurisdiction. Thus, a state's criminal jurisdiction over Indian country does not infringe on either Tribal sovereignty or the federal government. Because federal law does not preempt state jurisdiction, and it does not infringe on Tribal or federal authority, the Court held Oklahoma has concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country.

Justice Gorsuch filed a dissent, with Justices Breyer, Sotomayor, and Kagan joining, arguing states do not have jurisdiction over non-Indians who commit crimes against Indians in Indian country, unless explicitly provided for. In its reasoning the dissent reviewed precedent finding that States have traditionally lacked criminal jurisdiction on tribal land ( Worcester v. Georgia, 1832 ). The dissent further emphasized Congress's role in establishing statutes that do not expressly provide state jurisdiction over non-Indian defendants who commit crimes against Indians in Indian country. The dissent also rejected the majority's application of the Bracker balancing test. Lastly, the dissent suggested that Congress can amend Public Law 280 to make clear that a state lacks criminal jurisdiction unless it obtains tribal consent.

Ramirez v. Collier

On July 19, 2004, Pablo Castro finished the night shift at a convenience store in Corpus Christi, Texas, and was approached by John Ramirez and an accomplice. Ramirez stabbed Castro 29 times and took $1.25 from his pockets. Castro subsequently died. For three years, Ramirez evaded authorities by living in Mexico. In 2008, Ramirez was arrested, tried, and convicted, and sentenced to death for Castro's murder. Ramirez's execution date was initially scheduled for February 2, 2017, but he filed a motion to stay his execution on the grounds that he had received ineffective assistance of counsel in his habeas case. The District Court granted the stay, but the Fifth Circuit Court of Appeals did not issue a certificate of appealability. Ramirez's execution was rescheduled for September 9, 2020. Ramirez requested that his pastor enter the execution chamber with him, but prison officials stated that Texas's execution protocol forbade spiritual advisors from doing so. Ramirez sued Texas on the grounds that the execution protocol violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment rights. Texas withdrew Ramirez's death warrant, and both parties dismissed the litigation without prejudice. Ramirez's execution was rescheduled for September 8, 2021. Ramirez then filed a Step 1 prison grievance on the grounds that his pastor should be granted entry into the execution chamber. Texas initially denied Ramirez's request, but later granted it, after revising its execution protocol to allow spiritual advisors into the execution chamber. Ramirez subsequently filed a second Step 1 prison grievance on June 11, 2021, in which he requested that his pastor be allowed to “lay hands” on him and “pray over” him in the execution chamber. Texas denied the grievance on July 2, 2021. Ramirez filed a Step 2 prison grievance on July 8, 2021. On August 10, 2021, Ramirez filed suit in Federal District Court on the basis that Texas had not yet responded to his Step 2 prison grievance, even though his execution date was less than a month away. Ramirez requested preliminary and permanent injunctive relief from his execution and argued that Texas's execution protocol violated his rights under the RLUIPA and the First Amendment. On August 16, 2021, Ramirez's attorney asked Texas prison officials if Ramirez's pastor could pray audibly during the execution. On August 19, 2021, Texas prison officials replied that this would not be allowed. On August 22, 2021, Ramirez's attorney filed an amended complaint and requested that Ramirez's pastor be allowed to lay hands on him and pray with him during the execution. Both the District Court and the Fifth Circuit Court of Appeals denied Ramirez's request for a stay of execution.

In an 8-1 decision, with the majority opinion authored by Chief Justice Roberts, the Court determined that Ramirez was likely to succeed on his RLUIPA claims and reversed and remanded the case. The Court recommended that the District Court grant Ramirez preliminary relief should Texas continue to refuse audible prayer and religious touch in the execution chamber. The Court based its decision on its assessment of Ramirez's RLUIPA claims. RLUIPA prevents the government from imposing a substantial burden on the ability of individuals to exercise their religion when those individuals are confined to an institution unless the burden “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling governmental interest.” The Court found that Ramirez's requests for his pastor to lay hands on him and pray over him were based on his sincere religious beliefs, and that Texas's denial of these requests would likely cause Ramirez irreparable harm. The Court also stated that Texas would have difficulty demonstrating that its denials of Ramirez's religious requests were the least restrictive means of advancing a compelling governmental interest. Finally, the Court determined that Ramirez had exhausted all other remedies prior to filing suit, in accordance with the Prison Litigation Reform Act (PLRA) of 1995.

Justice Thomas issued a solo dissent, arguing that Ramirez did not merit equitable relief because: (1) Ramirez did not exhaust administrative remedies but instead used the judicial process to delay his execution; (2) the equitable balance is in favor of the State and Ramirez's victims, rather than Ramirez; and (3) Ramirez's litigation was focused on delaying the execution rather than pursuing a sincere religious belief.

Brown v. Davenport

A jury convicted Ervine Davenport of first-degree murder for the death of Annette White. During the jury trial, Davenport sat behind a privacy screen and was shackled at his ankles, waist, and one of his hands. Davenport appealed his conviction on the grounds that the shackling violated the Fourteenth Amendment's Due Process Clause, which prohibits shackling unless there is “a special need” for it ( Deck v. Missouri, 2005 ). Although the Michigan Supreme Court agreed that the shackling was a violation of Deck, the court also ruled that Davenport's conviction could stand if the prosecution could prove that the shackling was harmless beyond a reasonable doubt ( Chapman v. California, 1967 ). On remand, the trial court held an evidentiary hearing during which it asked all 12 jurors whether they recalled seeing Davenport's shackles; five jurors did, and seven did not. In addition, all 12 jurors professed that Davenport's shackles did not affect their deliberations or their unanimous guilty verdict. The trial court ruled that it had proven that Davenport's shackling was harmless beyond a reasonable doubt and reinstated his conviction. Davenport appealed his case a second time. Both the Michigan Court of Appeals and the Michigan Supreme Court declined to review the case. Davenport then filed a habeas petition, which the Sixth Circuit Court of Appeals granted. In so doing, the Sixth Circuit Court of Appeals based its decision on Brecht v. Abrahamson (1993), which held that a state prisoner who wishes to challenge their conviction in federal court must prove that the error had a “substantial and injurious effect or influence” on the outcome of their trial.

In a 6-3 decision, with the majority opinion authored by Justice Gorsuch (joined by Chief Justice Roberts and Justices Alito, Kavanaugh, Barrett and Thomas), the Court held that the Sixth Circuit Court of Appeals had erred in granting habeas relief. The Court noted there was a split in the federal courts of appeals, such that some courts assessed habeas cases under Brecht alone, while other courts assessed habeas cases under both Brecht and the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. The Court ruled that a federal court must apply both tests in habeas cases. The Court explained that Congress had passed the AEDPA to ensure that a federal court did not grant relief on claims adjudicated in state court unless the state court's decision was (1) “contrary to” or an “unreasonable application of” clearly established federal law, or (2) based on an “unreasonable determination of the facts” from the state court proceeding. Thus, in addition to satisfying Brecht, a federal court must also satisfy AEDPA.

The dissent, authored by Justice Kagan and joined by Justices Breyer and Sotomayor, argued that the Court's judgments in Fry v. Pliler (2007) and Davis v. Ayala (2015) clearly stated that federal habeas courts should apply only the Brecht test, because it subsumes the AEDPA.

Shinn v. Ramirez

This Supreme Court decision involves two petitions filed by the state of Arizona: Ramirez v. Ryan (2019) and Jones v. Shinn (2019). In the first case, an Arizona trial court sentenced David Martinez Ramirez to death for two counts of premeditated first-degree murder for the killing of his girlfriend and her 15-year-old daughter. The Arizona Supreme Court subsequently affirmed Ramirez's death sentence. Ramirez filed a petition for state postconviction relief. Later, Ramirez filed a second petition for state postconviction relief in which he argued that he received ineffective assistance of counsel during the state postconviction process. Arizona's state court ruled that Ramirez's claim was procedurally defaulted since it was filed after the statutory deadline for filing such claims. In response, Ramirez petitioned the U.S. District Court for the District of Arizona for a writ of habeas corpus, but the U.S. District Court also considered Ramirez's petition to be untimely filed. The U.S. District Court permitted Ramirez to file evidence to excuse his procedural default; after assessing this evidence, the U.S. District Court excused Ramirez's procedural default but rejected his claim of ineffective assistance of state postconviction counsel. The Ninth Circuit Court of Appeals reversed and remanded the case for further factfinding regarding Ramirez's claim of ineffective assistance of state postconviction counsel. Arizona argued that the Ninth Circuit Court of Appeals violated 28 U.S.C. § 2254(e)(2), which prevents federal habeas courts from conducting an evidentiary hearing or considering evidence beyond the state-court record.

In the second case, an Arizona trial court sentenced Barry Lee Jones to death for felony murder, three counts of child abuse, and sexual assault of his girlfriend's four-year-old daughter. The Arizona Supreme Court subsequently affirmed Jones's death sentence. In his petition for state postconviction relief, Jones argued that he received ineffective assistance from his trial counsel. The Arizona Supreme Court denied Jones's petition. Jones then filed a habeas petition with the U.S. District Court for the District of Arizona. As with Ramirez's case, the U.S. District Court considered Jones's case to be untimely filed but allowed Jones to file evidence to excuse his procedural default. After reviewing the new evidence, the U.S. District Court excused Jones's procedural default and held that Jones had received ineffective assistance of trial counsel. Arizona appealed and argued that the U.S. District Court had violated 28 U.S.C. § 2254(e)(2). The Ninth Circuit Court of Appeals affirmed the U.S. District Court's decision on the basis that § 2254(e)(2) did not apply because Jones's state postconviction counsel was ineffective.

In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Supreme Court ruled that the Ninth Circuit Court of Appeals violated 28 U.S.C. § 2254(e)(2), which prevents a federal habeas court from conducting an evidentiary hearing or considering evidence not contained in the state court record. Both Ramirez and Jones argued that Martinez v. Ryan (2012) applied to them; this case permitted federal courts to excuse procedural default and review habeas claims in certain narrow circumstances, such as ineffective assistance of counsel. The Supreme Court, however, ruled that Martinez could not be extended to include ineffective assistance of postconviction counsel. The Supreme Court explained that federal courts had to respect federal-state dual sovereignty, since infringing upon states’ sovereignty imposes costs on the federal and state criminal justice systems. Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) generally prohibits federal courts from conducting hearings or considering evidence that was not introduced in state courts. Federal courts can only excuse procedural default in specific situations, such as when a prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law” ( Coleman v. Thompson, 1991 ). Ramirez and Jones maintained that their attorneys were to blame for not fully developing the state court postconviction record; however, the Supreme Court disagreed, and explained that under AEDPA and Supreme Court precedent prisoners were responsible for developing their own state court postconviction records. The Supreme Court explained that this is because the Sixth Amendment's right to counsel does not extend to state postconviction proceedings; consequently, prisoners are held responsible for any errors made by their legal counsel.

The dissent, authored by Justice Sotomayor and joined by Justices Breyer and Kagan, argued that two recent decisions, Martinez v. Ryan (2012) and Trevino v. Thaler (2013), permitted federal courts to consider claims on habeas review that were not raised in state court if the reason those claims were not raised was due to ineffective assistance of counsel. The dissent asserted that the majority's approach weakened the Sixth Amendment's right to effective assistance of counsel at trial and maintained that neither Congress nor the AEDPA prevents federal courts from conducting an evidentiary hearing or considering evidence beyond the state court record in situations involving ineffective assistance of counsel.

Shoop v. Twyford

On September 23, 1992, Raymond Twyford and an accomplice kidnapped, shot, and killed Richard Franks as revenge for the alleged rape of Twyford's girlfriend's daughter. They mutilated Franks’ body and hid it in a pond, where law enforcement discovered it a few days later. Twyford confessed to the aforementioned crimes, and an Ohio jury sentenced him to death. The Ohio appellate courts affirmed Twyford's conviction and sentence. Twyford then sought postconviction relief for ineffective trial counsel, but the Ohio courts dismissed his claim. Twyford next filed a habeas petition in federal court. The District Court dismissed the majority of Twyford's claims on the basis that they were procedurally defaulted. Twyford subsequently filed a motion for Ohio to transport him to a medical facility for the purposes of undergoing neurological testing, with the goal of securing new evidence in support of his claims that he may have sustained neurological defects as a result of childhood physical abuse, alcohol and drug use, and a self-inflicted gunshot wound to his head. The District Court granted Twyford's motion, and the Sixth Circuit Court of Appeals affirmed. Both courts relied on the All Writs Act, which permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” (28 U.S.C. § 1651(a)).

In a 5-4 decision, with the majority opinion authored by Chief Justice Roberts (and joined by Justices Thomas, Alito, Kavanaugh, and Barrett), the Court ruled that District Court and the Sixth Circuit of Appeals erred in granting Twyford's transportation request. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) only permits federal habeas courts to collect or review new evidence beyond the state court record in two situations: (1) if the Supreme Court retroactively applies a constitutional right, or (2) if there is “a factual predicate that could not have been previously discovered through the exercise of due diligence” (28 U.S.C. § 2254(e)(2)(A)). If one of these two situations is met, a prisoner must still prove that the new evidence would demonstrate “by clear and convincing evidence” that “no reasonable factfinder” would have convicted him of the charged crime (28 U.S.C. § 2254(e)(2)(B)). The Court stated that by granting Twyford's transportation order, the lower courts facilitated Twyford's ability to collect evidence in support of his habeas petition, thereby contravening AEDPA. Moreover, the Court disagreed with the lower courts’ conclusion that Twyford's motion for transportation was “necessary or appropriate” as defined by the All Writs Act. Additionally, the Court noted that Twyford made no arguments for how he would prove the usefulness or admissibility of any new evidence for his habeas claim or for contesting his conviction. The Court argued that the lower courts’ decision to grant Twyford's motion amounted to “needlessly prolong[ing] a habeas case,” in contravention of precedent ( Shinn v. Ramirez, 2022 ). Finally, the Court emphasized that precedent explicitly prevented lower courts from using the All Writs Act to “circumvent statutory requirements or otherwise binding procedural rules” ( Pennsylvania Bureau of Correction v. United States Marshals Service, 1985 ).

Two dissents were filed. The first dissent, authored by Justice Breyer and joined by Justices Sotomayor and Kagan, noted that Courts of Appeals lack jurisdiction to hear interlocutory appeals barring certain instances, such as when cases fall under the “collateral order doctrine.” This doctrine permits Courts of Appeals to hear interlocutory cases when they “finally determine claims of right separable from, and collateral to, rights asserted in the action” ( Cohen v. Beneficial Industrial Loan Corp., 1949 ). The dissent argued that the collateral order doctrine should not be extended to include transportation orders. The second dissent, authored by Justice Gorsuch, also argued against the extension of the collateral order doctrine, and additionally stated that, in general, Courts of Appeals should keep “the class of collaterally appealable orders… ‘narrow and selective’” ( Mohawk Industries, Inc. v. Carpenter, 2009 ).

Federal Bureau of Investigation v. Fazaga

Between 2006 and 2007 the FBI instructed a confidential informant to gather information on members of a Muslim community in Southern California. In 2011 Yassir Fazaga, an imam, Ali Malik, and Yasser Abdel Rahim, members of this community, filed a class action against the United States, the FBI, and two FBI officials claiming they were the subjects of illegal (warrantless) surveillance in violation of their rights afforded under the Fourth and Fifth Amendments, the Religious Freedom Restoration Act, and the Foreign Intelligence Surveillance Act (FISA) among others. The Government moved for dismissal of all claims, invoking the state secrets privilege. Derived from common law, this privilege permits the government to refuse disclosure of information in litigation, if disclosure would compromise the national security of the United States ( United State v. Reynolds, 1953 ). This privilege can only be invoked after the head of the department of the information in question personally considers the information and formally claims privilege. Once the privilege is invoked, the court must determine whether the claim of privilege is appropriate considering the circumstances. Here, Attorney General Eric Holder asserted the state secrets privilege, declaring that the information requested contained sensitive information regarding counterterrorism activities which, if disclosed, would harm national security. Assistant Director of the FBI, Mark Giuliano, also filed a declaration attesting to similar concerns. After a review of the filings, the District Court held the state secrets privilege applied, and dismissed all claims against the Government except for the claim under FISA, which was dismissed on other grounds. Fazaga appealed to the Ninth Circuit, which reversed in part holding that the district court applied the wrong procedure, finding that it should have used the procedures outlined in Section 1806(f) of FISA, rather than the state secrets privilege. The Ninth Circuit reasoned that FISA displaced the state secrets privilege with respect to electronic surveillance and therefore the district court should have used that procedure to determine whether the surveillance in question was lawful. Under Section 1806 (f), whenever a motion is made by an aggrieved person for disclosure of FISA evidence, the district court must first determine whether the surveillance was lawfully authorized and conducted. This review is to be done in camera and ex parte. If it is determined that the surveillance was not lawful the court shall grant the motion. The government appealed. While the appeal focused on the correct interpretation of Section 1806(f), the Supreme Court limited the issue to whether Section 1806(f) of FISA displaces the state secrets privilege.

In a unanimous 9-0 decision authored by Justice Alito, the Court held that Section 1806(f) does not displace the state secrets privilege. The Court reasoned, first, there is no mention of the state secrets privilege in FISA, indicating Congress did not intend for the privilege to be replaced by FISA. Without clear statutory language, the common law privilege was not limited or eliminated by FISA. Second, FISA and the state secrets privilege requires a court to conduct different inquires and procedures and provides for different relief. Under Section 1806(f), the inquiry is whether the surveillance was lawful, while under the state secret privilege, the inquiry is into whether the evidence would harm national security, regardless of lawfulness. Under Section 1806(f) the procedure includes review in camera and ex parte of the material to determine whether the surveillance was lawful. This contrasts with the state secrets privilege which does not require examination of evidence by a judge, where the Government has shown disclosure of evidence would harm national security. Lastly, under Section 1806(f) the court has no authority to award relief if the evidence was lawfully obtained, while under the state secrets privilege a court may order disclosure of lawfully obtained evidence if it finds that disclosure would not affect national security. For those reasons, the Court held that the state secrets privilege was not eliminated or modified by the enacting of Section 1806(f).

Wooden v. United States

William Dale Wooden burglarized a storage facility in 1997, where he broke into, and stole items from ten different storage units in the facility. Prosecutors charged Wooden with ten counts of burglary in a single indictment, and he pled guilty to all ten counts. Years later, in 2014, Wooden was arrested and ultimately convicted for being a felon in possession of a firearm, in violation of 18 USC §922(g). At the sentencing hearing, the prosecution relied on the previous ten convictions to seek a sentencing enhancement based on the Armed Career Criminal Act (ACCA). The ACCA provides a mandatory 15-year minimum sentence for illegal gun possession for offenders who have three or more prior violent felony convictions. Importantly, these crimes must have been committed “on occasions different from one another.” The District Court found that Wooden qualified as an armed career criminal based on the ten counts of burglary in 1997 and sentenced him to 188 months in prison for unlawful gun possession. Wooden appealed his sentence to the Sixth Circuit which affirmed, finding the occasion clause of the ACCA is satisfied whenever a crime takes place at a different moment in time, such as when Wooden went from one storage unit to the next, despite all these burglaries occurring during a single criminal event. Wooden then appealed to the Supreme Court. At issue was whether offenses committed as part of a single criminal event, where each offense is committed sequentially, are committed “on occasions different from one another” for purposes of the ACCA.

In a 9-0 opinion written by Justice Kagan, the Supreme Court held that each of Wooden's ten burglary offenses arose from a single criminal episode and not different occasions, thus counting as only one prior conviction for purposes of the ACCA. In the Court's interpretation of the occasion clause, it looked to the ordinary meaning of the word “occasion,” and the history and purpose of the ACCA. First, the Court relied on the ordinary meaning of the word “occasion” finding that in the criminal context, an occasion means an event or episode, which can include “temporally discrete offenses,” even when they are close in time. Second, the Court relied on the litigation history, and statutory history and purpose of the ACCA, focusing on the outcome of United States v. Petty (1986). That case involved a defendant who robbed a restaurant and was convicted of six counts of robbery, one count for each of the six individuals who was robbed at the restaurant. Petty, like Wooden, was later caught possessing a firearm and was convicted of violation §922(g). Prosecutors in Petty asked for heightened penalties under the ACCA, based on the six robberies. The District Court granted the sentencing enhancement and the Eight Circuit affirmed. However, when the case was appealed to the Supreme Court, the then Solicitor General acknowledged that the ACCA was incorrectly applied to Petty, as it was not intended to apply to multiple felony convictions arising out of a single criminal episode. Based on this confession, Congress amended the ACCA to include the occasion clause, which was meant to clarify the law was intended for “career criminals” deserving of the enhanced punishment. Lastly, the Court offered a multi-factor test for determining whether criminal activity occurred on separate occasions. Specifically, the factors include the timing of the crimes, proximity of locations, and the character and relationship of the offenses. Applying these factors to Wooden, the Court determined that the ten burglaries did not occur on separate occasions. Thus, based on the common understanding of the term occasion, considering the litigation and statutory history of the ACCA, and applying the multi-factor test, the Court held that Wooden's ten burglary convictions were for offenses committed on a single occasion, therefore counting only once for purposes of the ACCA.

Justices Gorsuch, Barret, Kavanaugh and Sotomayor issued concurring opinions, agreeing with the outcome but disagreeing in various degrees with Justice Kagan's analysis. Justice Gorsuch (with Justice Sotomayor joining in part), rejected Justice Kagan's multi-factor balancing test, arguing that the test may create unpredictable results. Justice Gorsuch argued that the outcome of Wooden's case is better understood through the concept of the rule of lenity. Under this rule, “any reasonable doubt about the application of a penal law must be resolved in favor of liberty.” Justice Kavanaugh penned a concurring opinion in response to Justice Gorsuch's rule of lenity reasoning, arguing that the rule is only applicable where a statute is “grievously ambiguous,” and after all tools of statutory interpretation has been exhausted by the Court. Justice Barrett wrote a concurring opinion (with Justice Thomas joining) disapproving of Justice Kagan's use of the litigation history in Petty, including relying on the Solicitor's General's brief for guidance, and pointing to limited evidence in the legislative history of the occasion clause amendment.

U.S. v. Taylor

Justin Taylor and an accomplice attempted to rob a fellow drug dealer, who was shot and killed by Taylor's accomplice. Taylor pleaded guilty to two charges: (1) violating the Hobbs Act, which makes it a federal crime to commit or attempt to commit a robbery that involves interstate commerce (18 U.S.C. § 1951(a)), and (2) committing a “crime of violence” under 18 U.S.C. § 924(c). While the maximum sentence for a Hobbs Act conviction is 20 years imprisonment, § 924(c) authorizes enhanced punishments for individuals who use a firearm in connection with a crime of violence. Accordingly, the District Court sentenced Taylor to a total of 30 years in prison. Taylor subsequently filed a federal habeas petition contesting his § 924(c) conviction. In his petition, Taylor noted that § 924(c) has two clauses: an “elements clause” (§ 924(c)(3)(A)) and a “residual clause” (§ 924(c)(3)(B)). In addition, Taylor also asserted that his § 924(c) conviction was based on two separate offenses: (1) conspiracy to commit Hobbs Act robbery and (2) attempted Hobbs Act robbery. Taylor explained that in United States v. Davis (2019), the Court ruled that the residual clause was unconstitutionally vague. Following this judgment, neither conspiracy to commit Hobbs Act robbery nor attempted Hobbs Act robbery constituted a crime of violence under § 924(c). Consequently, Taylor asked the Fourth Circuit Court of Appeals to retroactively apply Davis and to vacate his § 924(c) conviction and sentence. The government contested Taylor's habeas petition on the grounds that Davis only pertained to the residual clause and that Taylor's § 924(c) conviction was valid under the elements clause. In addition, the government asserted that attempted Hobbs Act robbery should still constitute a crime of violence under § 924(c), even if conspiracy to commit a Hobbs Act robbery did not. The Fourth Circuit agreed with Taylor and ruled that attempted Hobbs Act robbery did not qualify as crime of violence under the elements clause, since no element of the offense required the government to prove that the defendant used, attempted to use, or threatened to use force. It vacated Taylor's § 924(c) conviction and remanded the case for resentencing. The Fourth Circuit noted that other circuits had also ruled that attempted Hobbs Act robberies qualified as crimes of violence under the elements clause

In a 7-2 decision, with the majority opinion authored by Justice Gorsuch (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett), the Court affirmed the Fourth Circuit Court of Appeals. The Court applied a “categorical approach” and determined that an attempted, but unsuccessful, Hobbs Act robbery was not considered a crime of violence under the elements clause. The Court explained that a conviction for attempted Hobbs Act robbery was predicated on the government's ability to prove: (1) that the defendant intended to take personal property via actual or threatened force and (2) that the defendant took a “substantial step” towards accomplishing this goal. The Court stated that “an intention is just that, no more”, and that “what exactly constitutes a substantial step is beyond the scope” of the present case. The Court further clarified that no element of an attempted Hobbs Act robbery required the government to prove that the defendant used, attempted to use, or threatened to use force.

Two dissents were filed. The first dissent, authored by Justice Thomas, argued that the nullification of the residual clause was a mistake and that United States v. Davis should be overruled. The second dissent, authored by Justice Alito, offered an alternative interpretation of the elements clause that classified the entire offense of attempted Hobbs Act robbery a crime of violence under § 924(c).

Concepcion v. United States

In 2007, Carlos Concepcion pled guilty to one count of distributing five or more grams of crack cocaine in violation of 21 U. S. C. §841(a)(1) (2006 ed.). Based on the statutory sentencing range of 5 to 40 years, Concepcion was sentenced in 2009 to 19 years in prison, or 228 months. Concepcion was sentenced under the previous sentencing guidelines for crack cocaine that created a 100-1 disparity between crack-cocaine and powder-cocaine offences. His initial sentence included an enhancement as a “career offender.” One year after Concepcion's sentencing Congress passed the Fair Sentencing Act of 2010, that sought to correct the disparities between sentencing of crack-cocaine and powder cocaine offenders. Specifically, Section 2 of the Fair Sentencing Act increased the amount of crack-cocaine needed to trigger the statutory sentencing range from 5 grams to 28 grams. The new sentencing guidelines applied retroactively for those eligible. Concepcion was not eligible for retroactive sentencing because of the career offender enhancement to his sentence. However, in 2018 Concepcion became eligible for sentence reduction through the First Step Act passed by Congress. The First Step Act authorizes district courts to reduce prison sentences of defendants convicted of certain offenses involving crack cocaine by applying sections of the Fair Sentencing Act as if they were in effect at the time the offense was committed. Based on the First Step Act, Concepcion filed a pro se motion seeking sentence reduction arguing his sentence was a “covered offense” because Section 2 of the Fair Sentencing Act “modified” the statutory penalties for his conviction. In response to his motion, the Government conceded Concepcion's eligibility for relief but opposed the motion, arguing the original sentence still fell within the new guidelines range. The government further argued Concepcion's prison record weighed against a sentence reduction. In his response to the Government, Concepcion argued that he would no longer be considered a career offender under the amended guidelines because one of his prior convictions had been vacated, and the remaining convictions would no longer be considered crimes of violence. Without the enhancement, Concepcion argued that the revised guideline range should be 57 to 71 months, significantly lower than his initial sentence of 228 months. Concepcion also pointed to evidence of his rehabilitation while in prison. The District Court denied Concepcion's motion, finding that his sentence would be the same under the Fair Sentencing Act. The District Court declined to consider that Concepcion no longer qualified as a career offender. Nor did it consider his evidence of rehabilitation. In declining to consider this evidence, the District Court reasoned that the Fair Step Act required courts to apply changes created by the Fair Sentencing Act and no other legal or factual developments. The First Circuit Court of Appeals affirmed the District Court's ruling. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other changes in law or fact beyond the Fair Sentencing Act.

In a 5-4 opinion authored by Justice Sotomayor in which Justices Thomas, Breyer, Kagan, and Gorsuch joined, the Court held district courts may consider intervening changes of law or fact in adjudicating First Step Act motions. The majority reasoned that judges have broad discretion in initial sentencing and resentencing hearings. The only limitations to this discretion are those established by the Constitution and Congress. Focusing on the First Step Act, the Court found the text of the First Step Act includes no implicit or explicit limitation to the evidence a district court may consider in resentencing hearings brought under the Act. The only limitations are that a district court may not consider a motion if the sentence was already reduced under the First Step Act, or if it was considered and rejected previously. Thus, the Court reasoned, a district court may consider intervening legal or factual changes when adjudicating a sentencing reduction pursuant to the First Step Act. The Court further noted that district courts are required to consider nonfrivolous arguments made by both parties when deciding First Step Act motions.

Justice Kavanaugh authored a dissent with Chief Justice Roberts and Justices Alito, and Barrett joining. Relying on 18 U.S. C. § 358(c)(1)(B) which states courts may reduce a sentence only “as expressly permitted by statute”, the dissent argued the text of the First Step Act only authorizes district courts to reduce sentences based on changes to the crack-cocaine sentencing ranges, and no other unrelated changes. Thus, for the dissent, district courts are not permitted to consider other factual or legal developments when adjudicating First Step Act Motions.

Ruan v. United States and Kahn v. United States (Consolidated)

Xiulu Ruan and Shakeel Kahn were both licensed medical doctors accused of dispensing and distributing controlled substances in violation of the Controlled Substances Act (CSA). The CSA makes it a federal crime “Except as authorized…for any person knowingly or intentionally…to manufacture, distribute, or dispense…a controlled substance” (21 USC§ 841 (a) (referred to as Section 841)). Doctors are authorized to prescribe these substances when done “for a legitimate medical purpose…acting in the usual course of his professional practice” (21 CFR 1306.04(a) (2021)). The Government alleged Ruan and Kahn dispensed such substances not as authorized. At their individual trials, both argued the Government must prove they subjectively knew that the prescriptions written fell outside their authority as medical doctors. The District Courts in both cases instead instructed the jury that a doctor is not authorized to dispense controlled substances when it falls outside standard medical practices. Ruan and Kahn were both found guilty and sentenced to 20- and 25-years imprisonment, respectively. Both appealed their convictions, challenging the jury instructions which set forth an objective standard to determine whether they had distributed the controlled substances not as authorized. The 11th and 10th Circuit Court of Appeals affirmed both convictions. The Supreme Court granted certiorari and consolidated the cases. At issue was determining the correct mens rea required in Section 841's “except as authorized” clause.

In a unanimous decision authored by Justice Breyer, the Court held that Section 841's “knowingly or intentionally” mens rea applies to the “except as authorized” clause. The Court reasoned that the words “knowingly or intentionally” apply to not only the words following it, but also the statutory terms that separate innocent from wrongful acts, which in the context of Section 841 is the “except as authorized” clause. In its reasoning, the Court relied on the presumption in criminal law which requires a culpable mental state to find wrongdoing. Because the “as authorized” clause plays a crucial role in separating wrongful from innocent acts, the Court found the statute's mens rea applies to the clause. Thus, once a defendant provides evidence that they are authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant “knowingly or intentionally” acted in an “unauthorized” manner. The Court rejected the Government's argument that Section 841 implies an objective standard, whereby it need only prove beyond a reasonable doubt that a defendant did not make objectively reasonable attempts to act within the standards of the medical profession. In rejecting this argument, the Court found that Section 841 contains no language to support that interpretation.

Justice Alito filed a concurring opinion (with Justices Thomas joining and Justice Barret joining in part) agreeing with the outcome but disagreeing with the Court's analysis. Justice Alito argued that the “except as authorized” provision of Section 841 should be understood as an affirmative defense, and as such objects to the mens rea requirement established by the Court. Further, as an affirmative defense, he reasoned that the defendant should carry the burden of proof rather than the Government. But should the Government carry the burden, Justice Alito favors the preponderance of evidence standard over the reasonable doubt standard. Lastly, Justice Alito argued that a doctor claiming this affirmative defense would have to establish a good faith belief that the prescription is a valid means of pursuing a medical purpose.

Thompson v. Clark

Larry Thompson lived in Brooklyn and shared an apartment with his fiancée (now wife), their infant daughter, and his sister-in-law, who suffered from a mental illness. In January 2014, Thompson's sister-in-law called 911 and stated that Thompson was sexually abusing his infant daughter. Two Emergency Medical Technicians (EMTs) went to Thompson's apartment, where he turned them away, claiming that no one had called 911. Shortly thereafter, the two EMTs returned with four police officers. Thompson informed the officers that they could not enter without a warrant. Undeterred, the officers and EMTs entered. The EMTs took the baby to a local hospital, where medical professionals found no signs of sexual abuse. The police arrested Thompson and charged him with resisting arrest and obstructing governmental administration. Thompson spent two days in jail before being released on his own recognizance. Prior to trial, the prosecutor dismissed the charges without explanation.

Claiming a Fourth Amendment violation, Thompson sued the police for malicious prosecution. To maintain this claim, Second Circuit precedent required Thompson to prove his criminal prosecution was terminated and to provide an affirmative indication of his innocence. Thompson was unable to provide evidence for why his case was dismissed and the District Court ruled in favor of the defendant police officers. Thompson appealed to the Second Circuit Court of Appeals, which affirmed the District Court's decision.

In a 6-3 decision, with the majority opinion authored by Justice Kavanaugh (joined by Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, and Barrett), the Court held that Thompson did not need to provide an affirmative indication of his innocence for purposes of a Fourth Amendment claim of malicious prosecution. Instead, Thompson need only demonstrate his criminal prosecution was terminated without a conviction. Since Thompson had met this criterion, the Court reversed and remanded the case. In rendering its decision, the Court noted that there was a split among the Courts of Appeals regarding how to interpret Fourth Amendment claims of malicious prosecution. Whereas the Second Circuit required an affirmative indication of a defendant's innocence, the Eleventh Circuit only required a defendant's criminal prosecution be terminated without a conviction. To arrive at its decision, the Court referred to the Civil Rights Act of 1871, codified at 42 U.S.C. §1983. The Court determined that malicious prosecution was the most analogous tort to a Fourth Amendment claim and analyzed malicious prosecution case law as of 1871. Most courts and treatises of the time only required a defendant's criminal prosecution be terminated without a conviction. Consequently, the Court's judgment was consistent with prior precedent.

The dissent, authored by Justice Alito and joined by Justices Thomas and Gorsuch, argued that the majority erroneously conflated two different types of claims: malicious prosecution claims and unreasonable seizure claims. In addition, the dissent asserted that the Fourth Amendment did not apply to malicious prosecution claims.

Egbert v. Boule

Robert Boule is the proprietor of a bed-and-breakfast located in Blaine, Washington, a small town that abuts the Canadian border. The bed-and-breakfast, called the “Smuggler's Inn”, provides access to Canada via the property's backyard. Boule frequently provided transportation and lodging to unauthorized border crossers. Later, Boule would contact federal agents to report their illicit border activity. Boule estimates that the U.S. government paid him more than $60,000 for serving as an informant. On March 20, 2014, Boule informed Agent Erik Egbert of the U.S. Customs and Border Patrol (USCBP) that he was providing transportation and lodging to a Turkish national who arrived at the Seattle airport after a layover in New York. Agent Egbert then followed Boule's SUV, which bore a distinctive license plate with the letters “SMUGLER”, into Boule's driveway to check the Turkish national's travel documents. Boule requested that Agent Egbert leave. In response, Boule alleged that Agent Egbert picked him up, flung him against the SUV, and tossed him to the ground. After verifying that the Turkish national had appropriate U.S. travel documents, Agent Egbert left the premises. That evening, the Turkish national unlawfully entered Canada via Boule's backyard. Boule filed a grievance with Agent Egbert's supervisors, but no action was taken against Agent Egbert. Boule also filed an administrative claim with the USCBP pursuant to the Federal Tort Claims Act (FTCA), but his claim was denied. Boule alleged that Agent Egbert retaliated by reporting Boule's “SMUGLER” license plate to the Washington Department of Licensing for possible illegal activity and by recommending that the Internal Revenue Service pursue an audit of Boule's tax returns. In 2017, Boule sued Agent Egbert in Federal District Court for excessive force, a Fourth Amendment violation, and unlawful retaliation, a First Amendment violation. Boule relied on Bivens v. Six Unknown Federal Narcotics Agents (1971), which permitted individuals to sue federal officials for damages for alleged Fourth Amendment violations. The District Court did not extend Bivens to Boule's situation, but the Ninth Circuit Court of Appeals reversed.

In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Barrett), and with Justice Gorsuch concurring in the judgement, the Court held that a Bivens remedy does not apply to alleged Fourth Amendment violations in situations where Congress or the Executive can provide “an alternative remedial structure” and that recognizing a new cause of action under Bivens is a “disfavored judicial activity” (per Ziglar v. Abbasi, 2017 ). In Boule's case, Congress provided an alternative remedy in the form of 8 CFR §§287.10(a)-(b), which requires the USCBP to investigate grievances. Although Boule expressed dissatisfaction with USCBP's investigation, the Court noted that Bivens alternatives do not have to be judicial in nature; moreover, Congress has jurisdiction to determine whether a particular remedy is sufficient or not. The Court also ruled that Bivens cannot be extended to alleged First Amendment violations for two reasons: (1) officials might constrain their actions for fear of being sued for monetary damages (see Anderson v. Creighton, 1987 ), and (2) alleged First Amendment violations are better addressed by Congress (see Bush v. Lucas, 1983 ). Finally, the Court noted that lower courts should hesitate before extending Bivens into contexts involving border security due to “national security implications” ( Hernandez v. Mesa, 2020 ).

Justice Gorsuch filed a concurring opinion in which he argued that while the Court correctly determined that Bivens did not apply to Boule, its precedent should not be extended in general, since federal courts should not assume legislative authority. Justice Sotomayor, joined by Justices Breyer and Kagan, filed an opinion concurring in part and dissenting in part. They agreed with the majority that Bivens did not apply to Egbert's alleged First Amendment violation but argued that Bivens should apply to Boule's alleged Fourth Amendment violation since that claim was, in their view, “materially indistinguishable” from Bivens.