Greetings, Court fans!
We have lots of news to report, including five decisions released last week, more cert grants, and the details on Oregon v. Ice (07-901), and Herring v. United States (07-513), which were discussed briefly in our last Update. We’ll break things up to make it more manageable, so consider this Part I.
Ice was a follow-up to the Court’s decisions in Apprendi v. New Jersey, and Blakely v. Washington, which held that the Sixth Amendment’s jury trial guarantee requires that a jury – rather than a judge – determine any fact (other than the existence of a prior conviction) necessary to increase the maximum sentence for a crime. The question presented in Ice was whether the Apprendi/Blakely regime applied to findings of fact necessary to impose a concurrent, as opposed to consecutive, sentence. The answer (for 5 of the Justices): No. Ice was convicted of four counts of sexual assault and two counts of burglary after twice breaking into an 11-year-old girl’s home and assaulting her. Under Oregon law, sentences for crimes arising during a continuous course of conduct run concurrently unless the trial judge finds certain facts permitting the imposition of consecutive sentences. Here, the judge did just that, with the result that Ice was required to serve four of the six sentences consecutively (totaling 340 months, as opposed to 90). On appeal, the Oregon Supreme Court reversed Ice’s sentence, concluding that because the imposition of consecutive sentences increased the quantum of punishment imposed, Apprendi required that the facts necessary to impose the sentences consecutively be found by a jury. A divided Court disagreed.
Ginsburg led the majority, which included the odd combination of Stevens, Kennedy, Breyer and Alito. For the majority, the key was that juries historically had no involvement in the decision whether to require a defendant to serve concurrent or consecutive sentences. The Apprendi/Blakeley rule was designed to protect the jury’s core historic role as a bulwark between the prosecution and defendant at trial. This role was limited to determining facts specific to the crime at issue. Moreover, the administration of a justice system is one of the basic sovereign prerogatives retained by the States; hence the Court should be wary of intruding in this area. Further, at common law, the default was typically consecutive sentences in any event – so Oregon’s system gives defendant a benefit not historically available. It is clear that Oregon could leave the decision whether to impose consecutive or concurrent sentences entirely to the judge’s discretion or create a system where sentences would run consecutively except where the judge found certain facts warranting concurrent sentencing (since Apprendi only applies where factual findings increase sentences). It would make no sense to carve out only Oregon’s system (which provides special protections for the defendant) for special treatment. Scalia, joined by the Chief, Thomas and Souter, dissented. For them, the Apprendi/Blakely rule is black and white. Because Oregon’s system requires factual findings in order to impose consecutive sentences, thus increasing the amount of punishment, those facts must be found by a jury.
Turning from the Sixth Amendment to the Fourth Amendment, in Herring v. United States (07-513), the Court found that when an unlawful search is the result of “isolated negligence attenuated from the search,” rather than systemic error or reckless disregard, the exclusionary rule is inapplicable. Herring once again split the Court 5-4, but this time along more typical lines, with the Chief leading a majority composed of Justices Scalia, Kennedy, Thomas and Alito.
Herring was not lucky. He came to the sheriff’s department to pick up his impounded vehicle, when an investigator (who apparently had a bit of a vendetta against Herring for having previously complained about him) saw him and asked the county’s warrant clerk if there were any outstanding warrants against Herring. The answer was “no,” but the investigator, undeterred, contacted a neighboring county and – low and behold – that county’s computer system indicated an active warrant against Herring. Herring was arrested based on this information and a search incident to the arrest revealed methamphetamine and a pistol. It was later determined that the warrant had been recalled 5 months ago, but had never been removed from the computer system. The parties agreed that the search violated the Fourth Amendment; but differed on whether the violation required exclusion of the drug and gun evidence.
The majority found exclusion unnecessary. The Chief Justice began by noting that exclusion is not automatic; it turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here, there was no evidence that the error was other than negligent and isolated. So the majority believed there would be minimal deterrence gained by excluding the evidence, and exclusion would reap a heavy cost (allowing a criminal to go free). Justice Ginsburg authored the primary dissent, joined by Stevens, Souter and Breyer. The dissenters stressed that the exclusionary rule may be just as effective at deterring negligence as at deterring intentional or reckless conduct. Given the heavy reliance by law enforcement on computer systems, it is incredibly important to maintain the accuracy of these systems. And the exclusionary rule is the only effective incentive to do so. While the majority didn’t shut the door to exclusion where a defendant can prove systemic problems with a computer system used by law enforcement, this would be a nearly impossible solution. Defendants would have been given extensive discovery on these issues; arguably at greater cost to the state than exclusion in an individual case. Justice Breyer, joined by Souter, dissented separately to note that the Court’s prior decision in Arizona v. Evans, which held that exclusion was not required where the police relied on a court’s recordkeeping error, was distinguishable since courts are unlikely to subvert Fourth Amendment rights and won’t be deterred by suppression of evidence.
In Pearson v. Callahan (07-751), the Court was presented with a much less interesting Fourth Amendment question, but used the case to make a very interesting change to the framework under which courts determine whether government officials are entitled to qualified immunity. As Section 1983 practitioners know, the Court’s decision in Saucier v. Katz required lower courts deciding qualified immunity claims to determine whether the plaintiff made out a violation of a constitutional right before determining whether that right was “clearly established” at the time of the officials’ alleged misconduct. Though the Court believed Saucier was well-intentioned (e.g., to promote the development of constitutional precedent), its rigid two-step process created many problems, not the least of which was that it often required parties and courts to expend resources addressing thorny questions about whether a constitutional right existed, even though it was obvious that the right – even if it did exist – was not “clearly established” at the time of the alleged violation. Noting the widespread criticism of the Saucier rule, the Court unanimously overruled it in an opinion by Justice Alito. Lower courts are now free to address the two prongs in either order; if the answer to either question is no, the official is entitled to qualified immunity. (The Court noted that there is still significant benefit to following Saucier’s approach in appropriate cases, but only time will tell whether Pearson’s new flexibility leads to the stagnation in constitutional jurisprudence that Saucier feared.)
The Court proceeded to set an example of the new approach by jumping to the “clearly established” prong to decide the case at hand. The plaintiff in Pearson had voluntarily admitted an undercover informant into his house and sold him illegal drugs. State law enforcement officers who were monitoring the transaction then entered the house, arrested the plaintiff, and conducted a search of the premises, uncovering more evidence of drug distribution. Plaintiff’s Section 1983 claim alleged that the warrantless search violated his Fourth Amendment rights. The district court and Tenth Circuit took different views as to whether the doctrine of “consent-once-removed,” which some courts had held permits warrantless entry into a home by police where consent has already been granted to an undercover police officer, extended to an undercover informant. The Court declined to enter the fray, however, holding that the officers were entitled to qualified immunity because at least some jurisdictions at the time had ruled that “consent-once-removed” extended to undercover informants, thus the alleged violation was not “clearly established.”
Finally, in Spears v. United States (08-5721), the Court issued a per curiam decision saying, in essence, we really meant what we said last Term in Kimbrough v. United States. Kimbrough held that district courts could depart downward whenever they concluded that the 100:1 sentencing disparity between crack and powder cocaine under the Sentencing Guidelines resulted in an excessive sentence. In Spears, the Court clarified that Kimbrough permitted district courts to depart downward not only in specific cases after individualized consideration, but categorically as a matter of policy disagreement with the 100:1 ratio. The district court had recalculated Spears’ sentence using a 20:1 ratio. The Eighth Circuit reversed, once before Kimbrough was decided, and again on remand after, holding that judges should not be able to depart categorically from the Guidelines’ 100:1 ratio. The Court disagreed, and noted that the Eighth Circuit’s reasoning would only cause district courts to treat the Guidelines as mandatory – precisely the opposite of Kimbrough – or to mask their categorical policy disagreements as individualized determinations, an approach the Court called “institutionalized subterfuge.” Only five Justices supported this per curiam decision. Chief Justice Roberts, joined by Justice Alito, would not have granted cert, believing that the Court should give the lower courts more time to “digest” its recent pivotal sentencing decisions.
The Court also released an order list, in which it granted cert in 5 more cases. The questions presented are:
Manoj v. Mukasey (08-495): “Whether petitioner’s conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud qualifies as a conviction for conspiracy to commit an ‘offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,’ 8 U.S.C. 1101(a)(43)(M)(i) and (U), where petitioner stipulated for sentencing purposes that the victim loss associated with his fraud offense exceeded $100 million, and the judgment of conviction and restitution order calculated total victim loss as more than $680 million.”
United States ex rel Eisenstein v. New York (08-660): “Whether the 30-day time limit in Federal Rule of Appellate Procedure 4(a)(1)(A) for filing a notice of appeal, or the 60-day time limit in Rule 4(a)(1)(B), applies to a qui tam action under the False Claims Act, where the United States has declined to intervene in that action.”
Forest Grove School District v. T.A. (08-305): This case presents the same question on which the Court granted cert, but was unable to resolve (splitting 4-4, without Justice Kennedy), last Term in Board of Ed. v. Tom F. ex rel. Gilbert F. The issue: whether the Individuals with Disabilities Education Act permits tuition reimbursement to parents where a child has not previously received special education from a public agency.
Cuomo v. The Clearing House Assoc., L.L.C. (08-453): “12 U. S. C. § 484(a), a provision of the National Bank Act, prohibits the exercise of “visitorial powers” as to national banks, except where those powers are authorized by federal law, vested in the courts of justice, or exercised by Congress or a House or committee thereof. The Office of the Comptroller of the Currency has issued a regulation (12 C. F. R. § 7.4000) interpreting § 484(a) to preempt state enforcement of state laws against national banks, even when the state laws are not substantively preempted. The questions presented are: (1) Whether 12 C. F. R. § 7.4000 is entitled to judicial deference under Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). (2) Whether 12 C. F. R. § 7.4000 is invalid because it is inconsistent with the authoritative construction of the National Bank Act by this Court in First Nat’l Bank in St. Louis v. Missouri, 263 U.S. 640 (1924).”
Safford School District v. Redding (08-479): “(1) Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy. (2) Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U. S. C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.”
Congrats if you’ve made it this far – the Court really has been busy. Look for Part II shortly.
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400