Race Playing Larger Role in Criminal Cases at SCOTUS

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By Jessica DaSilva

Sept. 28 — Almost half of the criminal law cases chosen by the U.S. Supreme Court include an issue of racial tension in the criminal justice system.

That case lineup may indicate the court’s willingness to examine the racial impact of its procedural rulings related to criminal law, a law professor told Bloomberg BNA.

Three of the court’s eight criminal law cases deal with race, but Jocelyn Simonson—a professor at Brooklyn Law School—said it likely can’t be considered a major trend toward addressing issues of race unless the court starts looking for racial disparities and impacts on its own accord.

Just addressing racial issues that are laid out by the parties isn’t enough, Simonson said.

She said she hopes the court will start recognizing the racial impact of procedural rulings on its own—the beginnings of a real trend—because “it would mean the court is catching up with the rest of the country.”

The Cases

The cases on the court’s docket deal with “egregious examples of racial discrimination or bias,” said Lisa Freeland—a federal public defender in Pittsburgh.

The three cases that feature a racial focus are Buck v. Davis, Pena-Rodriguez v. Colorado, and Manuel v. City of Joliet. While Freeland said all three cases focus on relatively easy procedural issues, they all present the opportunity to discuss race in the criminal justice system.

The question presented in Buck v. Davis deals with a procedural legal matter that would determine whether an appeals court should reconsider a death penalty sentence that was partially based on testimony from an expert who considered the defendant’s “future dangerousness” higher because he was black ( Buck v. Davis, U.S., No. 15-8049, cert. granted 6/6/16).

Pena-Rodriguez v. Colorado examines whether to create an exception to the secrecy of jury deliberations when a juror makes a comment about the defendant’s guilt based on race or ethnicity ( Pena-Rodriguez v. Colorado, U.S., No. 15-606., cert. granted 4/4/16).

Finally, Manuel v. City of Joliet is technically about resolving a circuit split about whether defendants can file malicious prosecution claims after police falsified charges against them ( Manuel v. City of Joliet, U.S., No. 14-9496, cert. granted 1/15/16). The U.S. Court of Appeals for the Seventh Circuit is the only circuit that doesn’t allow filing claims under these circumstances.

Yet underneath the procedural issue, the case deals with officers who pulled over a black defendant, called him racial epithets, and lied about a bottle of vitamins in his car testing positive for ecstasy.

Where to Look

While Freeland said the justices won’t need to talk about race in Manuel, it would make it more interesting if they touch on it.

Similarly, Simonson said it’s more important to pay attention to procedural cases where race isn’t central to the issue to see if the justices are willing to discuss race, racial disparities, racism, or racial inequality unprompted.

For example, Simonson pointed to Justice Sonia Sotomayor’s dissent last term in Utah v. Strieff ( Utah v. Strieff , 2016 BL 196028, U.S., No. 14-1373, 6/20/16 ). The case dealt with a procedural application of Fourth Amendment doctrine regarding a suspicionless investigatory stop.

After analyzing precedent regarding the majority opinion, Sotomayor directly addressed the racial implication of the court’s decision to uphold suspicionless stops that later lead to the discovery of a warrant.

“The white defendant in this case shows that anyone’s dignity can be violated in this manner,” Sotomayor wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny.

“For generations, black and brown parents have given their children ‘the talk'—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them,” she wrote.

That’s why Simonson said she’ll be keeping an eye on Sotomayor’s questions during oral arguments.

“The tone in her opinions has been welcome but also surprising in terms of the degree to which she’s willing to explicitly recognize the racial impact of procedural decisions,” Simonson said.

Sotomayor’s analysis makes Manuel the case to watch, Simonson said.

“If you’re thinking about trends, that case is going to be an interesting and telling place to look to see how willing the court is to talk about [the racial impact of] their decisions,” she said.

Lower Court Trends

The cases might deal with race, but Freeland said they don’t resemble the kind of racial issues she is starting to see in the lower courts. More defense attorneys are challenging Fourth Amendment cases based on the current climate of racial tension between police and civilians, she explained.

For example, the Massachusetts Supreme Judicial Court recently held that fleeing from police alone doesn’t rise to the level of reasonable suspicion when the defendant is black and the officer is white.

"[F]light is not necessarily probative of a suspect’s state of mind or consciousness of guilt,” wrote Justice Geraldine S. Hines for the majority. “Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for [field interrogation and observation] encounters suggests a reason for flight totally unrelated to consciousness of guilt.

“Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity,” Hines continued. “Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.”

While Freeland said such challenges are likely to continue percolating in the lower courts, it may take longer before the Supreme Court takes on one of those nuanced cases.

“It’s like watching an iceberg melt,” she said. “Change is going to be slow.”

Practical Impacts

The Supreme Court’s criminal law-heavy calendar also features a number of cases that could have an impact on how criminal law practitioners do their job, Simonson said.

Pena-Rodriguez is not just important because of the racial component but because it potentially opens up jury deliberations, she explained.

“It has thus far been a fairly open-and-shut rule that you can’t inquire into jury deliberations,” Simonson said. “The Supreme Court has been reluctant to grant any exceptions.”

Government arguments will likely focus on the proposition that allowing an exception would open the floodgates to litigation for other claims regarding jury deliberations, whereas the defense will focus on the benefit of creating a narrow exception where a juror reports racism in deliberations, she said.

Simonson said other cases with practical impacts include the evaluation of intent in an insider trading case ( Salman v. United States, U.S., 14-10204, cert. granted 1/19/16); and whether it violates the Eighth Amendment and Supreme Court precedent to “prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards” ( Moore v. Texas, U.S., 15-797, cert. granted 6/6/16).

Those issues could impact cases that have already been litigated, which might lead to future litigation on the retroactivity of this term’s rulings, Simonson said.

In a similar vein, the court will hear another case on Johnson retroactivity—the 2015 case ruling that an increased sentence under the Armed Career Criminal Act’s residual clause violates due process ( Johnson v. United States , 2015 BL 204915, U.S., No. 13-7120, 6/26/15 ). That case deals with sentences based on the same wording in a residual clause within the U.S. Sentencing Guidelines ( Beckles v. United States, U.S., 15-8544, cert. granted 6/27/2016).

Simonson said it’s unusual for the court to take on so early in its term a heavy criminal law case load.

“It’s the court looking at all different aspects of the criminal justice system,” she said. “It’s an exciting two weeks for those of us who follow criminal law.”

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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