SCOTUS Term Spotlights Exclusionary Rule, Sentencing

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By Lance J. Rogers

July 13— Although none of the U.S. Supreme Court's criminal law decisions this year drew as much media attention as the affirmative action and abortion rulings, the court issued a handful of opinions that will have a big impact on the way attorneys practice criminal law, according to legal experts who spoke to Bloomberg BNA about the 2015-2016 term.

In a boost to law enforcement, the court continued to chip away at the Fourth Amendment's exclusionary rule by ruling that police can purge the taint of an illegal stop if they later stumble across an outstanding warrant that would have justified the stop in the first place.

On the other hand, the justices issued several pro-defense rulings that included making federal sentencing more fair and proportional and reining in government overreach when it comes to charging federal bribery and corruption.

Some court watchers also commented on the significance of what the court didn't do this term. For example, there was no movement on Justice Stephen G. Breyer's call last year to re-examine the constitutionality of the death penalty and the docket was uncharacteristically bereft of habeas corpus cases.

“This was a big criminal year, just not in the way people usually expect,” Laurie L. Levenson, a former federal prosecutor who is now a professor at Loyola Law School in Los Angeles, told Bloomberg BNA.

New Limits on Exclusionary Rule

Although this was a “thin year” in terms of numbers for search-and-seizure cases, Levenson said that Utah v. Strieff, No. 14–1373, 2016 BL 196028 (U.S. June 20, 2016) stands out as a major development.

In Strieff, the justices ruled 5-3 that the exclusionary rule doesn't apply when the police execute an illegal stop of a pedestrian and then search the suspect after running a warrant check and discovering that the suspect has an outstanding warrant (99 CrL 390, 6/22/16).

In an opinion by Justice Clarence Thomas, the court said that in the absence of “flagrant police misconduct,” the arresting officer's discovery of the outstanding arrest warrant “attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

“We're seeing the slow and ongoing demise of the exclusionary rule,” Levenson said, with the court looking more and more to the intent of the officers.

According to Levenson, Justices Elena Kagan and Sonia M. Sotomayor got it right when they warned in their separate dissents that the court was carving out a new exception to the exclusionary rule that will only encourage police to execute suspicionless stops in poorer neighborhoods where a high number of residents will likely have outstanding warrants.

“The amazing thing is the police here conceded they didn't have reasonable suspicion to stop—even though that's usually not a very difficult hurdle to clear,” Levenson said.

“So in my mind this was clearly a test case to see if the state could concede the error and still not have to apply the exclusionary rule,” she said.

Three-Part Attenuation Test

Opponents of the exclusionary rule were hoping for a broader re-examination of the rule itself, but said they were happy with the result.

“Criminal trials should be about whether the defendant is guilty, and all reliable evidence should be considered on that question,” said Kent Scheidegger, the legal director and general counsel for the Criminal Justice Legal Foundation.

In his amicus brief filed on behalf of Utah, Scheidegger urged the court to rule that all exclusion claims should be forced to show that the Fourth Amendment violation was clear at the time of the officer's action and that law enforcement acted in “bad faith.”

The court didn't go quite that far, but found the evidence admissible in this case under the three-part attenuation test, which includes looking at the temporal proximity between the initially unlawful stop and the subsequent search, the presence of any intervening circumstances and “the purpose and flagrancy of the official misconduct.”

Scheidegger also said he agreed with the majority's reference to civil liability as a deterrent to negligent police misconduct. Complaints about good faith mistakes are best addressed in ways that don't involve the drastic remedy of suppressing valid evidence, he said.

Professor Orin Kerr, of George Washington University Law School, Washington, suggested in comments posted on Scotusblog that the outcome might've involved a deeper incursion into the exclusionary rule had Justice Antonin Scalia still been alive.

Scalia, a strong opponent of the exclusionary rule, died just nine days before Strieff was argued.

Big Sentencing Decisions Retroactive

Several court watchers flagged the court's sentencing decisions this term as being among the most significant.

“In broad strokes, we're seeing a court that recognizes the drain that incarceration is placing on the criminal justice system and is looking for opportunities to make sentencing more fair and proportionate and more rational,” James E. Felman, of Kynes Markman & Felman, Tampa, Fla., told Bloomberg BNA.

Both Felman and Levenson cited as particularly impactful two decisions this year that may give retroactive relief to hundreds of federal prisoners whose convictions were already final.

“Many people thought the court would remain stingy in the area of retroactivity, but these decisions open new doors for some and give fresh hope to others who are arguing for the retroactive application of other Supreme Court decisions,” Levenson said.

In Welch v. United States, No. 15-6418, 2016 BL 120401 (U.S. April 18, 2016) (99 CrL 64, 4/20/16), the court ruled 7-1 that its 2015 decision in Johnson v. United States, declaring that the catchall definition of “violent felony” in the Armed Career Criminal Act was too vague to constitutionally justify enhancing a recidivist's sentence, may be applied retroactively on collateral review. Justice Anthony M. Kennedy wrote for the majority and Justice Clarence Thomas was the lone dissenter.

The rub for these prisoners, Felman said, is that the deadline for filing expired on June 26 because federal rules require challenges to be made within one year after the Supreme Court changes a sentencing provision. The federal public defender's office in Tampa, Fla., was scrambling trying to identify the potentially eligible cases before the deadline passed, he said.

In the other retroactivity decision, Montgomery v. Louisiana, No. 14-280, 2016 BL 18591 (U.S. Jan. 25, 2016) (98 CrL 362, 1/27/16), the court by a 6-3 vote made retroactive its 2012 decision banning mandatory life without parole sentences for juvenile offenders. Justice Kennedy again wrote for the majority, and Justice Antonin Scalia led the dissenters in one of the last opinions he wrote before his death.

For a time, the U.S. and Somalia were the only two nations in the world that allowed juveniles to be sentenced to mandatory life without parole, Felman said. “When you say it's just us and Somalia, that's not exactly good company.”

Focus on Career Offenders

Felman and Levenson also remarked on the court's apparent effort to clarify and bring consistency to federal career offender sentences in Mathis v. United States, No. 15-6092, 2016 BL 201462 (U.S. June 23, 2016) (99 CrL 448, 6/29/16) and Molina-Martinez v. United States, No. 14–8913, 2016 BL 125404 (U.S. April 20, 2016) (99 CrL 101, 4/27/16).

“The career-offender-guideline as a whole is one of the worst in terms of its ability to generate disproportionate sentences,” Felman said. “It's one of the guidelines that judges depart from most frequently.”

In Mathis, the court ruled 5-3 that judges must use the “modified categorical approach” to determine whether a prior crime qualifies as a generic burglary for purposes of being an ACCA predicate. Because the Iowa burglary statute at issue in the case stated a variety of ways to commit the crime of burglary but did not require the jury to make a finding about which way the burglary was committed, it can't be used for ACCA purposes, Justice Elena Kagan wrote.

“The decision is fairly technical and will make most people's eyes glaze over, but it will have a real impact on the way courts count prior state convictions for purposes of federal enhancement,” Levenson said.


The justices didn't take any big gun rights cases this term, refusing to hear Second Amendment challenges to weapons bans enacted in Connecticut, Illinois and New York.

Justice Thomas tried to steer his colleagues into a Second Amendment discussion when he broke his decade-long record of silence during oral argument in Voisine v. United States, No. 14–10154, 2016 BL 205027 (U.S. June 27, 2016) (99 CrL 447, 6/29/16) and asked about the implications of suspending for life a man's constitutional right to own a gun because he had been convicted of misdemeanor domestic abuse, but the court decided the case without directly addressing the Second Amendment issues.

The closest the court came to ruling on gun rights this term was Caetano v. Massachusetts, No. 14-10078, 2016 BL 85221 (U.S. March 21, 2016) (98 CrL 588, 3/23/16), where the justices vacated a woman's conviction for illegally carrying a stun gun because it said the state court erred when it ruled that Second Amendment protections categorically don't apply to weapons invented after the Bill of Rights was written.

In Molina-Martinez, the court voted unanimously to embrace the view taken by most courts of appeals and gave prisoners challenging an incorrect guidelines range a break by ruling that these types of errors can, and often will, meet the “substantial rights” threshold for purposes of triggering plain-error review.

The court didn't embrace the petitioner's suggestion that there ought to be a presumption of prejudice when the sentence was based on an erroneous computation of the guideline range, but it certainly ameliorated the burden on inmates who challenge a guideline mistake for the first time on appeal, Felman said.

That's not a surprising outcome, Felman said, and it's a fair one.

“The court is basically saying, look, the guidelines can be harsh, so let's not make it any harder for people to challenge the provisions when they were misapplied,” Levenson said. It's a narrow holding, but an important one, she added.

Prosecutorial Overreach

Jeremy D. Frey, of Pepper Hamilton LLP, Philadelphia, flagged the decision in McDonnell v. United States, No. 15-474, 2016 BL 205026 (U.S. June 27, 2016) as one of the top three headliners of the term.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court picked up where it left off in Skilling v. United States, which limited the honest services law to bribes and kickbacks, and made it clear that prosecutors can't prove public corruption unless there is a formal exercise of government power, Frey told Bloomberg BNA.

“Most people on the street would probably think that giving a politician money with the expectation that they'd get better access to the politician is corrupt, but the court said that the instructions here were pretty darn vague,” Felman said.

“But those instructions basically made any petty act of dishonesty by a state official a federal offense and allowed the feds to regulate the ethics of state governments in a way that can potentially be pretty intrusive,” Felman added.

Levenson agreed. “The justices have been alarmed at how prosecutors have been using the Hobbs Act,” she said.

Jeffrey T. Green, a partner at Sidley Austin LLP and Co-Director of the Northwestern University Law School Supreme Court Clinic, said McDonnell is just the latest decision in which the court has rejected “beach-head” prosecutions that stretch federal laws beyond their intent.

In a Scotusblog post he co-authored with National Association of Criminal Defense Lawyers public affairs director Ivan J. Dominguez, Green said the decision was consistent with the court's rulings in Bond v. United States, which rejected the government’s effort to use the Convention on Chemical Weapons to prosecute a simple assault and Yates v. United States, which rebuffed the government’s use of a federal obstruction law to prosecute a fisherman who threw undersized fish overboard.

Capital Punishment: Calm Before the Storm

Although the court took up quite a few cases touching on capital punishment this term, court watchers told Bloomberg BNA that none of those decisions yielded anything as momentous as Justice Breyer's dissent last year in Glossip v. Gross, No. 14-7955, 2015 BL 206563 (U.S. June 29, 2015) (97 CrL 402, 7/1/15), which contended that the death penalty itself is unfair and unworkable.

“If Justice Breyer's dissent in Glossip is the gathering storm, then the October 2015 term was the calm before it,” said Lee Kovarsky, an associate professor of law at the University of Maryland's Francis King Carey School of Law in Baltimore.

“The weighty Eighth Amendment questions posed in the Glossip dissent—pertaining to racial and geographic patterns in capital sentencing—were completely absent from the court's capital docket this term,” Kovarsky told Bloomberg BNA.

“Instead, the court decided cases with egregious facts and narrow legal issues,” he said.

Kovarsky pointed to Williams v. Pennsylvania, No. 15-5040, 2016 BL 184130 (U.S. June 9, 2016) (99 CrL 337, 6/15/16), Foster v. Chatman, No. 14-8349, 2016 BL 163232 (U.S. May 23, 2016) (99 CrL 213, 5/25/16) and Wearry v. Cain, No. 14-10008, 2016 BL 67934 (U.S. March 7, 2016) (98 CrL 538, 3/9/16) as good examples of the court's focus this term on easy legal issues in bad cases.

Wearry didn't break any new ground on Brady obligations,” Kovarsky said. “It was just a really bad Brady violation.”

And the court wasn't exactly breaking new ground when it said the judge in Williams should've recused himself from hearing an inmate's habeas petition because the judge was involved in the decision to pursue capital charges against the defendant back when he was a prosecutor.

Kovarsky also noted that Foster involved a really egregious Batson violation.

At oral argument, Justice Elena Kagan said the prosecutor's peremptory strikes in this case were “ as clear a Batson violation as a court is ever going to see .”

Sixth Amendment Spillover

The closest the court came to delivering a death penalty “blockbuster” was Hurst v. Florida, No. 14-7505, 2016 BL 7258 (U.S. Jan. 12, 2016) (98 CrL 333, 1/20/16), Kovarsky said. “But that was an outgrowth of noncapital jurisprudence involving the Sixth Amendment right to jury determinations,” he said.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the court ruled that any fact that exposes a defendant to a punishment greater than that authorized by the guilty verdict itself is an element that must be found by a jury. That decision heralded a “Sixth Amendment revolution that's now spilled over into capital punishment and was the foundation for the court's holding in Hurst,” Kovarsky said.

In Hurst, the court ruled 8-1 that Florida's capital-sentencing scheme was unconstitutional because the procedure specifically conditioned a capital defendant's eligibility for the death penalty on findings made by the trial court instead of the jury. Justice Sotomayor wrote the majority opinion and Justice Samuel A. Alito Jr. was the lone dissenter.

Although Hurst is significant for Alabama—which also has a sentencing scheme that involves judicial override—the case says more about the court's view of the Sixth Amendment than anything else, Kovarsky told Bloomberg BNA.

The biggest takeaway from Hurst is that “[t]his court is serious about its Apprendi jurisprudence, which holds that anything that increases your sentence eligibility has to be found by jury beyond a reasonable doubt,” Kovarsky said.

A draft of the 2016 Democratic Party platform is calling for the abolition of the death penalty. The Republican platform, on the other hand, condemns what it says is the Supreme Court's “erosion” of the people's right to enact capital punishment and contends that the constitutionality of the death penalty “ is firmly settled by its explicit mention in the Fifth Amendment.”

Forfeiture and the Sixth Amendment

Although there were no big-ticket Fifth Amendment right-to-counsel decisions this term, Frey told Bloomberg BNA that Luis v. United States, No. 14-419, 2016 BL 192369 (U.S. March 30, 2016) was significant because it strengthened the Sixth Amendment right to hire counsel of choice and placed limits on the government's ability to freeze a suspect's untainted assets.

Federal prosecutors had argued that a defendant's right to pick a private lawyer must give way to the government's strong interest in making sure that some money will later be available to cover statutory penalties and restitution if a defendant is ultimately convicted.

But the five-member majority, in an opinion by Justice Stephen G. Breyer, said this interest can't trump a defendant's compelling Sixth Amendment right to hire counsel of choice with money that is presumptively “innocent.”

When the court last addressed these types of issues in United States v. Kaley, it ruled there is no constitutional right to revisit a grand jury's finding of probable cause in a pretrial hearing challenging the restraint of potentially forfeitable assets needed to hire counsel of choice. This time around, Frey said, the court used the balancing approach to side with the cash-strapped defendant.

“The promise of Kaley that there are particular constitutional limits on pretrial asset freezes respecting assets without the requisite connection to the crime played out in Luis where Sixth Amendment principles were applied to cabin pre-conviction asset restraints of untainted property needed for counsel,” he said.

Slow Year for Habeas Decisions

This was a pretty slow year for federal habeas cases, Jonathan M. Kirshbaum, who is with the noncapital habeas unit at the Federal Public Defender's Office in Las Vegas, told Bloomberg BNA.

There were only four decisions this term, and three of those were summary reversals, he said.

“Without actually looking at numbers, I would guess that this is the lowest number of argued federal habeas cases during the Roberts era, which until now has been a very active one for federal habeas cases,” Kirshbaum said.

Of the decided cases, he continued, White v. Wheeler, No. 14-1372, 2015 BL 408513 (U.S., Dec. 14, 2015) (98 CrL 242, 12/16/15) is really the only consequential one because it continued the Roberts court's practice of interpreting the standard of review under the Antiterrorism and Effective Death Penalty Act in the narrowest terms possible.

The AEDPA, 28 U.S.C. § 2254(d), generally bars habeas relief arising from legal claims that were adjudicated on the merits in the state courts unless the state court decision was “contrary to, or an unreasonable application of” federal law clearly established in the holdings of the U.S. Supreme Court.

According to Kirshbaum, the Roberts court has practically read the “unreasonable application” clause out of the statute and focused exclusively on the “contrary to” language.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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Levenson, Kirshbaum, Felman and Frey are members of the Criminal Law Reporter's advisory board.

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