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October 01, 2023 Cert Alert

Supreme Court Cases of Interest

Joel S. Johnson

Many of the term’s early decisions favored criminal defendants, but several later decisions came out on the side of the government. Those decisions were also some of the most significant. In United States v. Samia, the Court limited the scope of the Confrontation Clause’s protection against out-of-court statements by co-defendants that inculpate the defendant, diminishing the practical impact of the Court’s prior decisions on the topic. Under Bruton v. United States, the admission of such a statement is not allowed if it specifically names the defendant. Under Gray v. Maryland, the same rule applies when the prosecution has merely redacted the defendant’s name from the statement. In a 6-3 decision in Samia, the Court held that those precedents did not prevent prosecutors from altering the statement by changing the defendant’s name to the generic term “other person.” The majority concluded that Bruton was satisfied because the statement did not contain the defendant’s name and that Gray was satisfied because a replacement term was used instead of a blank space. In a dissenting opinion joined by Justices Sotomayor and Jackson, Justice Kagan accused the Court of “elevating form over substance” to “permit[] an end-run around” Bruton and Gray. Writing separately, Justice Jackson criticized the majority for “invert[ing]” the analysis by treating the Confrontation Clause’s protection as the exception rather than the default rule. The Court’s holding in Samia is narrow because it did not overrule Bruton or Gray. But it will sap those holdings of practical significance, making joint trials significantly easier for prosecutors.

In another 6-3 decision in Jones v. Hendrix, the Court held that a federal prisoner who has already filed a motion to vacate a conviction under 28 U.S.C. § 2255 may not raise a “second or successive” motion based on a claim of legal innocence that was unavailable at the time of the initial challenge. Jones’s assertion of legal innocence stemmed from his conviction under 18 U.S.C. § 922(g) prior to the Supreme Court’s 2019 decision in Rehaif v. United States, which held as a matter of statutory construction that a conviction for unlawful possession of a firearm by certain classes of persons under that statute required proof that the defendant knew both that he had a prohibited status and that he possessed a firearm. The majority noted that a claim of legal innocence did not fall within one of section 2255’s express exceptions for second or successive motions and that the “saving clause”—which permits the filing of a habeas motion where “the remedy by [section 2255] motion is inadequate or ineffective to test the legality of [a prisoner’s] detention”—was not available either. In dissent, Justice Jackson argued that the saving clause applied to claims of “statutory innocence” and that a contrary conclusion led to the “stunning” result that persons who are legally innocent of their crimes of conviction must continue to serve their term of imprisonment. In a separate joint dissent, Justices Sotomayor and Kagan agreed with the Justice Jackson’s assessment of the decision’s “disturbing results,” though they took a slightly different view of the statutory scheme. The Court’s decision effectively keeps many prisoners locked up for a crime that could not be prosecuted today. It also prevents a substantial administrative burden that would arise if such claims were permitted.

In United States v. Hansen, the Court rejected a First Amendment overbreadth challenge to a statute that forbids recklessly “encourag[ing] or induc[ing]” noncitizens to enter the United States. Because Hansen’s challenge depended on a broad reading of the statute, the government was in the unusual position of arguing that the criminal statute should be narrowly construed. The Court sided with the government in a 7-2 decision. In her majority opinion, Justice Barrett narrowly construed the terms “encourage” and “induce” based on sophisticated textual analysis. After reaching that conclusion, she noted that, even if the narrow reading were not the best one, the canon of constitutional avoidance would counsel in favor of it. Justice Jackson, joined by Justice Sotomayor, wrote a dissenting opinion in which she argued the majority’s narrow construction could not be reconciled with the plain text of the statute, which was broad and presented First Amendment concerns. Although Hansen lost the case, the Court’s decision decreases the government’s discretion to prosecute under the statute in the future.

In Counterman v. Colorado, another case involving First Amendment concerns, the Court held 7-2 that at least recklessness was required for a conviction on the basis of a “true threat” not protected by the First Amendment, vacating a stalking conviction premised on a finding of mere negligence. Writing for the majority, Justice Kagan explained that the speech was protected unless the speaker had some amount of subjective understanding as to the threatening nature of the communication, such as the conscious disregard of a substantial risk that is captured by the recklessness standard. That subjective requirement, she reasoned, helps to mitigate the risk that the possibility of criminal punishment will chill protected, nonthreatening speech. In a dissent joined by Justice Thomas, Justice Barrett took the view that only an objective test was needed to support a true-threat conviction, chiding the majority for giving true threats “pride of place among unprotected speech” by imposing a subjective-intent requirement to avoid chilling protected speech. Although the Court’s decision provides more protection for speech, it may come at the cost of protecting victims of stalking and online harassment.

Two new cases have been added to the criminal docket for next term, including United States v. Rahimi, a high-profile Second Amendment case involving a facial challenge to 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders. Rahimi is one of several cases concerning the validity of section 922(g) provisions in the wake of New York State Rifle & Pistol Association v. Bruen, the Court’s blockbuster Second Amendment decision from 2022. The fact that the Court granted certiorari in Rahimi—a case with a relatively unsympathetic defendant—rather than waiting for another vehicle may suggest that the Court intends to uphold the statute.

Notably, none of the five criminal cases currently on the Court’s docket for next term presents a Fourth Amendment question, though some pending petitions may be good candidates. The Court has not granted certiorari on a Fourth Amendment issue since 2020.

Not Yet Set for Oral Argument

Sentencing—Safety Valve for Mandatory Minimums

Pulsifer v. United States, No. 22-340
Question presented:

Whether, in order for a defendant to satisfy the prerequisite for “safety-valve” sentencing relief in 18 U.S.C. § 3553(f)(1), a court must find that the defendant does not have more than 4 criminal history points (excluding any criminal history points resulting from a 1-point offense); does not have a prior 3-point offense; and does not have a prior 2-point violent offense.

Sentencing—Armed Career Criminal Act

Brown v. United States, No. 22-6389
Question presented:

Whether the classification of a prior state conviction as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), depends on the federal controlled-substance schedules in effect at the time of the defendant’s federal sentencing.

Sentencing—Armed Career Criminal Act

Jackson v. United States, No. 22-6640
Question presented:

Whether the classification of a prior state conviction as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), depends on the federal controlled-substance schedules in effect at the time of the defendant’s prior state crime, the time of the federal offense for which he is being sentenced, or the time of his federal sentencing.

Fifth Amendment—Double Jeopardy

McElrath v. Georgia, No. 22-721
Question presented:

Whether the Double Jeopardy Clause of the Fifth Amendment prohibits a second prosecution for a crime of which a defendant was previously acquitted.

Second Amendment—Firearm Possession

United States v. Rahimi, No. 22-915
Question presented:

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment.

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Joel S. Johnson

Pepperdine Caruso School of Law

Joel S. Johnson is an Associate Professor of Law at Pepperdine Caruso School of Law in Malibu, California. He was previously an attorney in the Criminal Appellate Section of the Justice Department, where he litigated a number of Supreme Court cases involving criminal law issues. He also represented the petitioner in Samia v. United States at an earlier stage of litigation.