Cert Alert

Supreme Court Cases of Interest

By Carol Garfiel Freeman

Brett Kavanaugh was sworn in as the next Supreme Court justice on October 6, 2018. As the term develops, we will see whether he follows in the footsteps of Justice Kennedy, for whom he clerked and who was essentially the centrist justice on the Court during the last several years, or whether he takes another path.

By November 6, the Court had granted cert in an additional three criminal justice–related cases. Although it had not decided any relevant cases, statements on several denials of cert warrant mention. Justice Sotomayor continued her efforts to obtain review of cases challenging the execution of the death penalty. She dissented from the application for a stay of execution of the death sentence in Irick v. Tennessee, No. 18A142 (Aug. 9, 2018). Irick argued that the state’s three-drug cocktail would not prevent him from suffering excruciating pain because the first drug, midazolam, might not be sufficient to mask pain, and the second drug would cause paralysis, preventing him from alerting officials that he was in pain. His attempt to provide an alternative procedure was rejected, and the state courts had concluded that his “torturous” pain would not violate the Eighth Amendment. Justice Sotomayor, joined by Justice Breyer, dissented from the denial of a stay of execution and cert in another case from Tennessee, Zagorski v Parker, No. 18-6238 (No. 18A376) (Oct. 11, 2018). Tennessee had two possible methods of execution, Protocol A (pentobarbital) and Protocol B (Midazolam, vecuronium bromide, and then potassium chloride). Protocol A was removed just before the trial of this case. Zagorski challenged Protocol B, arguing that midazolam would not prevent excruciating pain, but was refused information that would permit him to show that the alternative of pentobarbital was available, as required by the Court’s decision in Glossip v. Gross, 576 U.S. ___ (2015). Thereafter, in Zagorski v. Haslam, Nos. 18A470, 18-6530 (Nov. 1, 2018). Justice Sotomayor again dissented from the denial of a stay and the denial of cert. Zakorski had chosen the electric chair as a means of execution as preferable to the lethal injection and was executed in the electric chair that night. On another issue, Justice Sotomayor concurred in the decision to deny cert in Apodaca v. Raemisch, No. 17-1284 (Oct. 9, 2018), and related cases, which challenged conditions of solitary confinement. Appellate courts have concluded that only a sufficient security reason can justify deprivation of outdoor exercise, but the lower courts in this case had not focused on that issue, and, therefore, the case was not “well suited” to decide whether such a security reason would justify the denial of outdoor exercise. The justice noted her “deep misgivings about the conditions described” and cited earlier cases recognizing that some denials of outdoor exercise may be “deeply troubling.” Finally, Justice Sotomayor, joined by Justice Ginsburg, dissented from the denial of cert in Brown v. United States, No. 17-9276 (Oct. 15, 2018), and similar cases. Brown and the other petitioners had been sentenced under the then-mandatory guidelines as career criminals because of convictions of crimes of violence, based on the so-called residual clause. That clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was held unconstitutionally vague in Johnson v. United States, 576 U.S. ___ (2015), which prompted the Sentencing Commission to delete the residual clause under which petitioners had been sentenced. Persons sentenced under the ACCA have been allowed to attack collaterally their sentences based on Johnson. The courts of appeal have split on whether prisoners like petitioner, who were sentenced years before Johnson, are precluded from challenging their sentences by the one-year statute of limitations in 28 U.S.C. § 2255(f). Justices Sotomayor and Ginsburg conclude that this is an important question, applying to perhaps 1,000 prisoners, and therefore should be decided by the Court.

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

Cert Granted

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

Capital Case—Batson

Flowers v. Mississippi, No. 17-9572, cert. granted limited to question phrased by the Court, Nov. 2, 2018, decision below at 240 So.3d (Sup. Ct. Mississippi 2017), reh’g denied, Feb, 22, 2018.

Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U. S. 79 (1986), in this case.

Sentencing—Supervised Release

Mont v. United States, No. 17-8995, cert. granted, Oct. 26, 2018, decision below unpublished (10th Cir. 2017).

Whether a statute directed to the administration of imprisoned individuals serves as authority to alter or suspend the running of a criminal sentence of supervised release, when such “tolling” is without judicial action, and requires the term “imprisonment” as used in the administrative statute, to include pretrial detention prior to an adjudication of guilt. Is a district court required to exercise its jurisdiction in order to suspend the running of a supervised release sentence as directed under 18 U.S.C. §3583(i) prior to expiration of the term of supervised release, when a supervised releasee is in pretrial detention, or does 18 U.S.C. §3624(e) toll the running of supervised release while in pretrial detention?

United States v. Haymond, No. 17-1672, cert. granted, Oct. 26-2018, decision below at 869 F.3d 1153 (10th Cir. 2017), reh’g denied, Jan. 16, 2018.

Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography.



Tuesday, October 30, 2018:

Garza v. Idaho, No.17-1026, Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018) (Is there a presumption of prejudice when defendant instructs counsel to file a notice of appeal, but counsel decides not to file the notice because of a waiver in the plea agreement?)


Tuesday, November 6, 2018:

Bucklew v. Precythe, No.17-8151, Cert Alert, 33:3 Crim. Just. at 44 (Fall 2018) (Conditions of execution for inmate with rare and severe medical condition, and application of Glossip v. Gross, 576 U.S. ___ (2015).)



Monday, November 26, 2018:

Nieves v. Bartlett, No.17-1174, Cert Alert, 33:3 Crim. Just. at 46 (Fall 2018) (Does probable cause defeat a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983?)


Tuesday, November 27, 2018:

Carpenter v. Murphy, No.17-1107, Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018) (Do the 1866 territorial boundaries of the Creek Nation constitute an “Indian reservation” today under 18 U.S.C. § 1151(a)? Question affects jurisdiction of State of Oklahoma to prosecute crimes.)


Wednesday, November 28, 2018:

Timbs v. Indiana, No.17-1091, Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018) (Is the Eighth Amendment’s Excessive Fines clause incorporated against the States under the Fourteenth Amendment?)


Wednesday, December 5, 2018:

Gamble v. United States, No.17-646, Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018) (Should the Court overrule the “separate sovereigns” exception to the Double Jeopardy Clause of the Fifth Amendment?)

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. She is a contributing editor to Criminal Justice magazine and has been a Section vice chair for publications, chair of the Book Board, and chair and member of the editorial board of the magazine.