AJEI 2024 Criminal Update

As he has done for the past several years, Dean Chemerinsky started his remarks by reviewing the Court’s criminal cases with an analysis of the Court’s shrinking docket involving criminal cases. These challenges are increasingly coming from state courts of final resort rather than federal courts. There are no newly enacted major federal crimes to create opportunities for review. When only four of the fifty-nine decisions reviewed a state court decision, little criminal legal jurisprudence is coming from the Court. In the previous three years, the Court has heard between five and three cases. Thus, Dean Chemerinsky concludes, state courts are becoming the final word on Fourth, Fifth, and Sixth Amendment issues. He also reminded the audience the Court is in control of its docket and a reduction in the criminal docket could be a signal from the Court itself. For instance, the Berger Court wanted to reconsider many of the Warren Court’s decisions. If the Roberts Court is not taking these kinds of cases, perhaps their interests or concerns lie in different areas of the law. It has not issued an opinion in a case raising Fourth Amendment issues in three terms now for instance.

To discuss the decisions of the October Term 2023, Dean Chemerinsky organized the cases into four areas for discussion. The first area involved the Eighth Amendment. In City of Grants Pass v. Johnson, the Court reviewed a city ordinance criminalizing sleeping in public or giving someone things to help them sleep outside. Grants Pass had more unhoused people than beds in shelters. In 2009, the City of Boise, Idaho, enacted a similar crime. The Ninth Circuit had struck the law down relying on the Supreme Court’s 1962 decision in Robinson v. California. The Government cannot punish status, the Supreme Court held, and since everyone must sleep, the effect of the new law in Boise criminalized the status of being homeless.

While the Supreme Court did not overrule Robinson directly, the Court in Grants Pass implicitly overruled it. Writing for the Majority, Justice Gorsuch held the Eighth Amendment applies in two situations: types of punishments imposed and lengths of sentences. When the city regulates the conduct of sleeping in public, not the status of being homeless, the ordinance does not violate the Constitution. Justice Sotomayor dissented, warning those without housing to “stay awake or be arrested.” Dean Chemerinsky noted recent New York Times and Los Angeles Times articles about the impact of the Court’s decision. Seventy-five cities have similar ordinances and one-third of those are in California.  A growing fear is if a city does not use its criminal law against the unhoused, that community will become a dumping ground for one that does. Another concern he raised was whether an unhoused person could sue the community that arrested them if the person lost their property under the Takings Clause. While legislatures may try to develop a solution to combat the crisis or provide rights, it is not something that can be solved through the criminal legal system. Arresting and prosecuting unhoused persons does not give them housing.

The second area was Fourth Amendment law but the case is not about a search involving modern technology and surveillance. Instead, it concerned malicious prosecution. The Court has viewed malicious prosecution claims as a seizure prohibited by the Fourth Amendment. Chiaverini v. City of Napoleon, Ohio concerned whether someone arrested for multiple charges would have a claim for malicious prosecution if probable cause to arrest only existed for one of the charges. In Chiaverini, the defendant was arrested for two misdemeanor charges and money laundering. After his arrest, all charges were dropped. In a six-to-three opinion, the Court reversed. Justice Kagan wrote the presence of probable cause for one charge does not preclude a malicious prosecution claim on another charge. However, the case was remanded for further proceedings to determine if any harm could be shown. In dissent, Justice Thomas called on the Court to not consider malicious prosecution claims under the Fourth Amendment and instead leave them to the individual states’ tort laws.

The third area Dean Chemerinsky discussed was the Sixth Amendment. He prefaced his remarks, noting that this case, Erlinger v. United States, could be the sleeper case of the term. Based on the 2000 Apprendi v. New Jersey case, any factor other than a prior conviction, that increases the maximum sentence in a criminal case has to be proven to a jury beyond a reasonable doubt. Two years before Apprendi, the Court held in Almendarez-Torres v. United States, that prior convictions do not need to be proven to a jury beyond a reasonable doubt since it was a sentencing factor and only needs to be proven by a preponderance of the evidence to a judge. Erlinger now questions Almendarez-Torres and indicates a majority of the current Court would vote to overturn it. Normally prior convictions are not in dispute. In this case, the defendant challenged his enhanced sentence under the Armed Career Criminal Act claiming his three convictions were just one event. Justice Gorsuch, writing for a six-to-three majority, found that the existence of prior convictions was not a sentencing factor but increased the maximum sentence and must be proven to a jury. Since Almendarez-Torres was a five-to-four decision and one of the five, Justice Thomas has changed his position, the Court should reconsider the viability of Almendarez-Torres as a whole. Justice Thomas wrote a concurring opinion wherein he did admit that he was wrong in Almendarez-Torres and the Court should overrule that decision. Dean Chemerinsky noted that while Erlinger was about the federal Armed Career Criminal Act, state laws concerning recidivist sentences would be similarly impacted. In dissent, Justice Kavanaugh believed Almendarez-Torres was correct and Justice Jackson would have overruled Apprendi. After the Apprendi decision, the Court received multiple certiorari petitions inviting the Court to reconsider Almendarez-Torres. We should expect the Court to accept the invitation soon.

The fourth and final area for discussion concerned federal statutes. The Court’s statutory interpretation is important to federal practitioners and judges and potentially could have implications on state judges and the lawyers that appear before them. The first case concerned the federal bribery statute. The jurisdiction of the statute is limited based on the amount of federal money the official or agency receives, the amount of the bribe, and the value of the thing they receive. The Court previously found the federal government has an interest in the integrity of federal funds since they are fungible. In Snyder v. United States, the Mayor of Portage, Indiana was accused of accepting a bribe from a company the City had awarded a contract. The issue before the Court was what facts needed to be proven for a federal bribery conviction. Justice Kavanaugh writing for a six-to-three majority of the Court, reversed Snyder's conviction, finding bribes are illegal but gratuities are not. Justice Jackson in dissent noted that that statute made no distinction between bribes and gratuities because receiving anything of value is prohibited. White-collar crimes are being narrowed by the conservative justices of the Court, inviting Congress to make changes. The second case, Fischer v. United States, involves the events of January 6, 2020. The defendant, like many others, was charged with violating the Sarbanes-Oxley Act which criminalizes the destruction of federal documents in one section and obstructing federal proceedings in another. Chief Justice Roberts and a majority of the Court voted to reverse the conviction. They held that the Act applied to business crimes. A defendant needed to destroy documents to violate any section of the Act. Justice Barrett in dissent pointed out that the majority’s interpretation rendered the second section of the Act superfluous by imposing elements of one section into the second section. Since there was no “and” conjoining the two sections, her textualist approach would allow each section to stand alone. Justice Jackson filed a concurring opinion and found that Congress's intent was not to create two separate crimes by looking at the statute as a whole. The third and final case in this group concerns the meaning of “and” and “or”. In Pulsifer v. United States, the Court reviewed the First Step Act, adopted in 2018 to help relax the harsh effects of mandatory minimums in federal sentences. The Act has three different requirements in one section. The question before the Court was whether all three were required or just one. Justice Kagan for the six-to-three majority focused on the use of the word “and” and found that all three parts were required for someone to receive relief. Justice Gorsuch in dissent focused on the purpose of the statute and used an “or” in the Act to determine that the intent was that only one of the three was needed for relief. Dean Chemerinsky concluded his comments noting Pulsifer gives proof even textualists have disagreements on how to read a statute.