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July 15, 2019 Cert Alert

Supreme Court Cases of Interest

Carol Garfiel Freeman

As of May 20, 15 criminal justice cases had been argued but were undecided. Among the undecided cases are Gamble v. United States (whether the separate sovereign doctrine of the double jeopardy clause of the Fifth Amendment should be overruled), Flowers v. Mississippi (a Batson issue), Mitchell v. Wisconsin (does an implied consent law provide an exception to the warrant requirement of the Fourth Amendment when the motorist is unconscious), and Carpenter v. Murphy (do the 1866 boundaries of Indian reservation affect the ability of Oklahoma to prosecute crimes today). All should be resolved by the end of June.

In the late winter the Court focused on capital cases, discussed below, deciding three after argument and issuing orders with opinions in other cases. Two litigants on their second visits to the Court were successful in their efforts to stave off the death penalty, at least temporarily, over dissents by Justices Alito with whom Justices Thomas and Gorsuch concurred. (Moore v. Alabama and Madison v. Alabama.) The litigant in a third case lost his fight to avoid a lethal injection that he claimed would cause him excruciating pain because of his rare physical condition. Four justices dissented. (Bucklew v. Precythe.)

An unusual series of dissents and concurrences sheds light on the dispute between the justices on the death penalty, its administration, and the propriety of efforts by prisoners on death row to delay their executions. In the early morning hours of April 12, the Court vacated a stay of execution that had been granted by an Alabama district court and the 11th Circuit Court of Appeals, despite the request of Justice Breyer that the issue be held for discussion at the conference scheduled for later that morning. Dunn v. Price, No. 18A1053 (April 12, 2019). In the district court Price argued that the state’s lethal injection protocol would cause him severe pain and needless suffering, and that death by nitrogen hypoxia would be a suitable alternative. Oklahoma had produced a study supporting that thesis. The state did not contest Price’s submission and the district court stayed the execution. On appeal, the court of appeals rejected the Oklahoma study because the document submitted was marked “preliminary.” Counsel filed for another preliminary injunction and submitted the final report, again without opposition. The district court stayed the execution, and although there was an issue as to jurisdiction, the court of appeals declined to vacate that stay. Shortly before 9 p.m. on April 11, the state filed an application in the Supreme Court to vacate the stay. Justice Breyer asked that the matter be delayed until morning when the conference could consider it. Five justices, in a per curiam order, granted the state’s application to vacate the stay, writing that although Price had been given the option of choosing nitrogen hypoxia in June 2018, he did not make that choice but rather filed this case in February and submitted additional evidence “a few hours before his scheduled execution time.” Justice Breyer, dissenting, noted that the Court vacated the stays issued by two lower courts in their discretion because of a “minor oversight” (submitting a preliminary report rather than a final report), which could be easily corrected. Proceeding this way, in the middle of the night, without allowing discussion by all members of the Court, is “unfortunate.” Opinion by Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan. Because the death warrant had expired by the time the Court vacated the stay, Price’s case was back before the Court in May. Price v. Dunn, No. 18-1249 (May 13, 2019). This time the Court denied cert. Justice Thomas, with whom Justices Alito and Gorsuch joined, wrote a lengthy concurrence addressing Justice Breyer’s dissenting opinion from April.

Justices Sotomayor and Ginsburg continued to dissent from denials of cert in capital cases based on Justice Sotomayor’s opinion in Brown v. United States, 586 U.S. ___ (2018) (33:4 Crim. Just. at 60 (Winter 2019)). Justice Sotomayor dissented from several denials of cert based on her separate opinion in Reynolds v. Florida, No. 18-5181 (34:1 Crim. Just. at 59 (Spring 2019)). She concurred in the decision to deny cert in another capital case because of the procedural posture of the case but observed that the prisoner had “uncovered truly striking evidence of juror bias,” that had never been reviewed and wrote that “we should not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” Tharpe v. Ford, No. 18-6819 (March 18, 2019). Justice Sotomayor also dissented from the denial of cert in Abdur’rahman v. Parker, No. 18-8332, reiterating her objection to requiring inmates to propose methods for their execution and also to the secrecy surrounding vendors of lethal drugs.

A case was vacated and remanded to the Eighth Circuit at the request of the Solicitor General for further consideration of whether the defendant’s conviction for first-degree terroristic threats qualified as a “violent felony” under the Armed Career Criminal Act, 18 U.S. C. § 924(e). Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. Myers v. United States, No. 18-6859 (May 13, 2019). A similar result obtained in Santos v. United States, No. 18-7096 (May 20, 2019), with Justice Alito, joined by Justice Thomas, dissenting.

The final non-dispositive opinion of note is the dissent of Justice Alito, joined by Justices Thomas and Kavanagh, in Dahne v. Richey, No. 18—761 (May 13, 2019). A prisoner’s grievance had been rejected because it arguably contained threatening language. The Court denied cert from a Ninth Circuit opinion that held that the prisoner stated a valid claim for relief under the First Amendment.

Further information about these cases and others on the Court’s docket are on the Court’s website,

Cert Granted

Note: Questions presented are quoted as drafted by the parties, or, in some instances, by the Court.

Capital cases – Eighth Amendment

Kahler v. Kansas, No. 18-6135, cert. granted, March 18, 2019, decision below at 410 P.3d 105 (Kansas 2018), reh’g denied, May 1, 2018.

Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Eighth Amendment

Mathena v. Malvo, No. 18-217, cert. granted, March 18, 2019, decision below at 893 F.3d 265 (4th Cir. 2018).

In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. Montgomery, 136 S. Ct. at 736.

The question presented is:

Did the Fourth Circuit err in concluding-in direct conflict with Virginia’s highest court and other courts-that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?


Kansas v. Garcia, No. 17-834, cert. granted limited to Question 1 and another question posed by the Court, March 18, 2019, decision below at 401 P.3d 588 (Kansas 2017).

In 1986, Congress enacted the Immigration Reform and Control Act CIRCA (IRCA). IRCA made it illegal to employ unauthorized aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. 8 U.S.C. § 1324a.

Regulations implementing IRCA created a “Form I-9” that employers are required to have all prospective employees complete-citizens and aliens alike. IRCA contains an “express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens,” Arizona v. United States, 567 U.S. 387, 406 (2012), but IRCA “is silent about whether additional penalties may be imposed against the employees themselves.” Id. IRCA also provides that “[the Form I-9] and any information contained in or appended to such form, may not be used for purposes other than enforcement of [chapter 12 of Title 8] and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5).

Here, Respondents used other peoples’ social security numbers to complete documents, including a Form I-9, a federal W-4 tax form, a state K-4 tax form, and an apartment lease. Kansas prosecuted Respondents for identity theft and making false writings without using the Form I-9, but the Kansas Supreme Court held that IRCA expressly barred these state prosecutions.

This petition presents two questions, depending on the answer to the first question:

Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

Question Posed by the Court: Whether the Immigration Reform and Control Act impliedly preempts Kansas’s prosecution of respondents.

Sixth Amendment

Ramos v. Louisiana, No. 18-5924, cert. granted, March 18, 2019, decision below at 231 So. 3d 44 (Ct. App. La, 4th Cir. 2017), discretionary court June 15, 2018.

Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

Decided Cases

Capital Cases

The Court reached apparently contradictory decisions in two cases in which prisoners sought to have their spiritual advisors present with them in the execution chamber. First, Domineque Ray sought to have a Muslim imam with him during the execution. The Alabama Department of Corrections allowed Christian chaplains to be present in the execution chamber, but not advisors of any other religion. Ray filed his complaint five days after the warden denied his request. The court of appeals had granted a stay of execution, concluding that there was a “substantial likelihood” that the Establishment Clause of the First Amendment had been violated. Five justices voted to vacate the stay of execution on the ground that Ray had waited too long to seek relief. Justice Kagan, with whom Justices Breyer, Ginsburg, and Sotomayor joined, dissented. Justice Kagan noted that the preference of one denomination (Christian) over another “goes against the Establishment Clause’s core principle of denominational neutrality.” To justify such discrimination the state must show that its policy is necessary to promote a compelling interest, but it had not shown that spiritual advisors of other denominations could not be trained to avoid interfering in the execution. The Court, she wrote, was wrong in summarily reversing the discretionary decision of the appellate court on such a serious issue. Dunn v. Ray, No. 18A815 (Feb. 7, 2019). Less than two months later, on March 28, seven justices voted to grant a stay of execution for a prisoner who sought to have his Buddhist spiritual advisor in the execution chamber with him, rather than merely in the viewing room. Murphy v. Collier, No. 18A985 (March 28, 2019). Justices Thomas and Gorsuch would have denied the stay. Justice Kavanaugh, concurring in the decision to grant the stay, noted that the relevant policy in Texas allowed a Christian or Muslim inmate to have his religious advisor, employed by the state, present in the execution chamber and that denying that right to a prisoner of a different religion would be improper discrimination. The authorities, he wrote, have two choices: either allow spiritual advisors of all religions to be with the prisoner in the execution chamber, or prohibit all religious advisors from being in the execution chamber, relegating them to the viewing room. In a footnote, he observed that Murphy’s application, made a month before the scheduled execution, had been timely. (Ray’s application had been filed ten days before the scheduled execution.) Within days of the decision, the Texas Department of Criminal Justice changed its rules to prohibit all spiritual advisors from being present in the execution chamber.

Bucklew v. Precythe, No. 17-8151(April 1, 2019). Bucklew was sentenced to death for a murder committed in 1996. In this case, he claims that Missouri’s lethal injection procedure is unconstitutionally cruel to him because of his unusual medical condition. In rejecting this claim, Justice Gorsuch for the majority spends several pages reciting the various arguments Bucklew has made over the years to try to forestall his execution, including a direct appeal, state and federal post-conviction proceedings, and participating in several challenges to Missouri’s lethal injection protocol. Justice Gorsuch writes that in 2014, when Missouri had a new protocol with an available drug, “12 days before the execution, Mr. Bucklew filed yet another lawsuit, the one before [the Court.]” The district court dismissed that claim and the court of appeals affirmed dismissal of a facial challenge to the protocol but remanded to give Bucklew another chance to identify a “feasible, readily implemented alternative procedure” that would avoid the risks to him because of his medical condition. On remand, after discovery, Bucklew ultimately identified nitrogen hypoxia as a possible substitute, but the court granted summary judgment for the state on the ground that he had not shown that this would significantly reduce the risk of pain. Justice Gorsuch’s opinion reviews the recent capital punishment cases (Glossip v. Gross, 576 U.S. ___ (2015) and Baze v. Rees, 553 U.S. 35 (2008)), notes that capital punishment is allowed by the Constitution, reviews the methods that were considered cruel and unusual in 1789 (disemboweling, drawing and quartering, public dissection, and burning alive), and observes that the usual method of execution n in 1789 was hanging, when death might or might not be instantaneous. To show that a method “cruelly superadds pain to the death sentence,” even in a case challenging a method as applied, Baze and Glossip require that a prisoner provide a “feasible and readily implemented alternative . . . that would significantly reduce a substantial risk of severe pain,” a method that the state “has refused to adopt without a legitimate penological reason.” In this case, although some states had proposed nitrogen hypoxia, none had used it so far, so there was no protocol available and no history of how it would work. Moreover, Bucklew had not shown that this method would avoid gratuitous pain that would exist with lethal injection. Whether capital punishment should be abolished is for the legislature rather than for the courts. In closing, Justice Gorsuch writes that federal courts should protect state court judgments by rejecting “dilatory” claims and those based on “speculative” theories, referring to Dunn v. Ray, discussed supra. Opinion for the Court by Justice Gorsuch, in which Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh joined. Justice Thomas filed a concurring opinion, reiterating his opinion in Baze that a method of execution only violates the Eighth Amendment when it is designed deliberately to inflict pain, and explaining why Justice Breyer’s dissent does not “cast doubt” on that standard. Justice Kavanaugh filed a concurring opinion discussing death by firing squad and emphasizing that it is likely that a prisoner will be able to identify an alternative to one that would cause him a serious risk of pain. Justice Breyer, with whom Justices Ginsburg, Sotomayor, and Kagan joined except as to Part III, dissented. Part I of the dissent supports the district court’s conclusion that there was a triable issue of fact as to whether the state’s protocol would cause excruciating pain for a significant amount of time during the execution. In Part II, the dissent writes that the requirement to show an alternative method should not apply to a challenge as applied to a particular litigant, and that even if it were applied, there is a genuine issue of fact here as to whether Bucklew met that requirement. In Part III, Justice Breyer writes that to prevent excessive delays in the execution of the death penalty the Court is placing new obstacles in the way of prisoners challenging the constitutionality of the particular procedure, and that it may not be possible both to avoid excessive delay and also to have a death penalty that “’seeks reliability and fairness it [its] application.’”

Madison v. Alabama, No. 17-7505 (Feb. 27, 2019. Madison was sentenced to death in 1985 for murder of a policeman. Because of age-related strokes and dementia, he has no memory of the crime, although he does understand that he is going to be executed as punishment for a crime. In Dunn v. Madison, ___ S. Ct. ___ (2017), the Court reversed a federal appeals court decision granting him habeas because the case did not meet the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 2254(d), that the state court decision denying relief be “contrary to” or “an unreasonable application of clearly established Federal law” or “an unreasonable determination of the facts.” See Cert. Alert, 33:1 Crim. Just at 50 (Spring 2018). The case before the Court now was a direct appeal from the denial of a state court petition, and the requirements of AEDPA did not apply. At argument in the fall of 2018, the parties and the Court agreed that the Eighth Amendment does not bar execution simply because a party’s mental disorder has left him without memory of the offense, because he may still rationally understand that he is being punished for an offense. In addition, the parties and the Court agreed that the Eighth Amendment bar includes persons suffering from dementia as well as from psychotic delusions, if the dementia precludes them from understanding the purpose of the punishment. These principles stem from the decisions in Ford v. Wainwight, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), that execution of someone whose mental disability is such that he does not understand the purpose of his execution is both abhorrent to civilized society and without retributive purpose. The Court vacated and remanded for further consideration of Madison’s competency, uncertain as to whether the state court had denied relief based on the legal error that only delusions (and not dementia) could constitute the required mental incompetency. The reconsideration might require supplementing the record because some of the evidence, including some of the opinions expressed by the experts, was based on an incorrect view of the standards. Opinion by Justice Kagan, with whom Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor joined. Justice Alito, with whom Justices Thomas and Gorsuch joined, dissented. Justice Kavanaugh did not participate in the consideration or decision of the case.

Moore v. Texas, No. 18-443 (Feb. 19, 2019). In Moore v. Texas, 581 U.S. ____ (2017), the Court vacated a decision of the Texas Court of Criminal Appeals and remanded the case for further consideration of whether Moore was intellectually disabled and therefore ineligible for the death penalty. See 32;2 Crim Just. 56 (Summer 2017). The lower court reconsidered the matter but repeated its decision that Moore was not intellectually disabled. In a per curiam opinion, the Court granted cert, reversed the decision below and remanded for further proceedings “not inconsistent with this opinion.” The Court concluded that the Texas court had essentially re-written its earlier opinion and had not analyzed the record under the principles outlined in the 2017 decision. Chief Justice Roberts concurred, stating that “the court repeated the same errors that this Court previously condemned, … certainly in substance, . . . emphasizing Moore’s adaptive strengths rather than his deficits.” Justice Alito, with whom Justices Thomas and Gorsuch concurred, dissented.

Eighth Amendment

Timbs v. Indiana, No. 17-1091 (Feb. 20, 2019). Timbs pleaded guilty in state court to dealing in a controlled substance and conspiracy to commit theft. He was sentenced to home detention and probation, and to pay fees and costs of $1,203. The state brought a civil in rem action to seize the Land Rover SUV, bought with an inheritance, that Timbs was driving when he was arrested. The trial court refused to forfeit the car, although it had been used to facilitate a drug offense, because its value ($42,000) was more than four times the maximum fine that the offense carried. Forfeiture, the court held, would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Supreme Court reversed, concluding that the Excessive Fines Clause applied only to federal actions. The Supreme Court held to the contrary, that the Excessive Fines Clause is applicable to the states by the Due Process Clause of the Fourteenth Amendment, as are almost all the protections of the Bill of Rights. The interesting opinion by Justice Ginsburg relates the history of the prohibition on excessive fines, dating back to Magna Carta in 1215. (Justice Thomas brings it back to a statute of Henry I in 1101). Similar provisions were included in the Virginia Declaration of Rights, the Bill of Rights, and most state constitutions prior to 1868, and appear in all state constitutions today. The Court rejected Indiana’s argument that the clause should not apply to in rem forfeiture actions. The question whether to reconsider the holding that it applies to federal forfeiture actions was not raised below. Moreover, in considering whether a right is incorporated through the Fourteenth Amendment the question is whether the right involved is fundamental or deeply rooted, not whether all applications of the right are fundamental or deeply rooted. The case was remanded for further proceedings not inconsistent with the opinion. Opinion by Justice Ginsburg, in which Chief Justice Roberts and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Gorsuch filed a concurrence suggesting that perhaps the Privileges and Immunities Clause of the Fourteenth Amendment would be a better “vehicle for incorporation” but agreeing that in any event “there can be no serious doubt that the Fourteenth Amendment requires the states to respect the freedom from excessive fines enshrined in the Eighth Amendment.” Justice Thomas concurred in the judgment, writing that the privileges and immunities clause of the Fourteenth Amendment is the proper clause for incorporation of the rights enshrined in the first ten amendments, and including a detailed and interesting history of the right to be free of excessive fines.


Nielsen v. Preap, No. 16-1363 (March 19, 2019). Many deportable aliens are entitled to a bail hearing pending a hearing on whether they should be deported. 8 U.S.C. §§ 1226(a). However, federal law provides that aliens who have committed certain crimes or have connections to terrorism and are therefore deportable or inadmissible should be taken “into custody” by the Department of Homeland Security “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation.” 8 U.S.C. §1226(c)(1). Such a person is subject to mandatory detention pending resolution of the immigration issues. 8 U.S.C. § 1226(c)(2). The question in this case is whether the phrase “when released” limits the applicability of section (c) to persons taken into federal custody immediately or within a short time of release from criminal custody, or whether persons taken into custody years after their release from criminal custody can be detained without a bail hearing. The respondents in one case were aliens who had been taken into custody seven, five, and 11 years after their release from criminal custody. The district court certified a broad class of all aliens in California who might be subject to such mandatory detention and granted a preliminary injunction against mandatory detention; the court of appeals affirmed. In a case from Washington, a similar class was certified, summary judgment was granted for the respondents, and the court of appeals affirmed. In an opinion for the Court, Justice Alito analyzed the grammatical construction of the relevant statute and concluded that the phrase “when released” did not limit the mandatory detention provision to persons taken into custody immediately upon their release from criminal custody. Preliminarily, he wrote for the majority that the Court had jurisdiction to resolve the issue. Opinion of the Court by Justice Alito in which Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh concurred as to Parts I, III A, III B-1, and IV. Chief Justice Roberts and Justice Kavanaugh joined Parts II and III B-1 of Justice Alito’s opinion. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed an opinion in which Justice Gorsuch joined, concurring in part and in the judgment but writing that the courts do not have jurisdiction over questions related to the detention of aliens until final orders of removal had been entered, and questioning whether Article III jurisdiction had existed when the classes were certified because the named petitioners had had bond hearings or removal canceled. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Sixth Amendment

Garza v. Idaho, No. 17-1626 (Feb. 27, 2019). Garza signed two plea agreements that included an appeal waiver. After he had been sentenced as agreed, he told his lawyer that he wanted to appeal the sentence and reiterated this request several times. The lawyer told Garza that an appeal would be “problematic” because of the waiver and did not file a notice of appeal. Nevertheless, after the time for appeal had passed, Garza sought state post-conviction relief alleging that counsel had been ineffective by not filing the appeal notice. Relief was denied by the state courts, the final state opinion concluding that because of the appeal waivers Garza would have to show both deficient performance and prejudice. The Supreme Court reversed, concluding that the appeal is a critical stage of the proceedings and that prejudice is presumed when the defendant is deprived of an appeal he wanted to take. An appeal waiver does not necessarily waive all issues that could be addressed on an appeal, including, for example, whether the waiver itself was knowing and voluntary. The majority of courts, including 8 of 10 federal appellate courts, presume prejudice even when the defendant has signed an appeal waiver. Moreover, the filing of a notice of appeal is ministerial. Although the decision whether to appeal is for the client, the choice of issues to raise is for the lawyer, and a lay defendant may not be able to define those issues at the time the notice of appeal is filed. In Roe v. Flores-Ortego, 528 U.S. 470 (2000), the Court held that prejudice will be presumed when a lawyer’s deficient performance has deprived the client of an appeal where the defendant has not signed an appeal waiver. That the waiver may limit the issues available on an appeal does not change the principle. Opinion by Justice Sotomayor, with whom Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh joined. Justice Thomas filed a dissenting opinion in which Justice Gorsuch joined and Justice Alito joined in Parts I and II. In Part III Justice Thomas questions whether the Sixth Amendment should be read to require appointment of counsel in all criminal cases at “taxpayers’ expense” and whether it should provide a right to effective assistance of counsel, such rights not having been generally accepted in 1790 when the Sixth Amendment was adopted.

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Carol Garfiel Freeman

Carol Garfiel Freeman has been a staff lawyer with the US District Court for the District of Columbia, a deputy district public defender in Maryland, and an assistant US attorney for the District of Columbia.