Category: U.S. Supreme Court

Venezuelan Gang Case Must Proceed in Habeas Corpus

by · Apr 7, 2025 5:39 pm

The U.S. Supreme Court has resolved the case of deportation of Venezuelans alleged to be members of the Tren de Aragua gang, just as I said in this post on March 26. The case that arrived in the Supreme Court is the wrong type of case, filed in the wrong court, and the high court vacated it. This case must proceed in habeas corpus, and it must be brought in the district where the petitioners are detained, which is in Texas.

The opinion is here. Continue reading . . .

Supreme Court Grants Stay of Injunction for Return of Alien

by · Apr 7, 2025 4:20 pm

The United States has sought Supreme Court review of an order of a federal district court ordering the Government to effect the return of an alien who has already been deported and is in the custody of a foreign government. The Solicitor General’s application in Noem v. Abrego Garcia, 24A949, notes the unprecedented nature of an order “dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight.” The Chief Justice stayed the district court’s order and ordered a response by tomorrow. Continue reading . . .

Victim Restitution and the Ex Post Facto Clause

by · Apr 7, 2025 8:28 am

“Moving the goalposts” is widely recognized as an unfair thing to do. In criminal law, the issue rises to a constitutional one. From the beginning, the Constitution has forbidden both Congress and state legislatures from passing “ex post facto laws.”* The primary, and simple, effect of this prohibition is that a legislature cannot make an act criminal or increase the punishment for it after it has been committed, i.e., “after the fact,” in Latin.

Does a law that increases the length of time in which a restitution award may be collected constitute an ex post facto law? The U.S. Supreme Court today took up a case to decide that question, Ellingburg v. United States, No. 24-482.

There are two good arguments why the answer is no. Continue reading . . .

Are State Courts Required to Accept a Confession of Error in a Capital Case?

by · Mar 24, 2025 9:42 am

Two years ago, in Escobar v. Texas, No. 21-1601, the Supreme Court issued a “grant, vacate, and remand” order directing the Texas Court of Criminal Appeals to reconsider its denial of relief to a death-sentenced murderer ” in light of the confession of error by Texas,” i.e., by the Travis County District Attorney. Are state courts required to accept such confessions of error, however dubious?

In California, “progressive” district attorneys have made wholesale confessions of error in capital cases just because they disagree with the decision of the people to have capital punishment. Courts have mostly rolled over and gone along with these “take a dive” actions, although last week a Santa Clara County judge did draw the line at resentencing Richard Farley for seven murders. See NBC story here. Continue reading . . .

Yes, Murder Is a Violent Offense

by · Mar 21, 2025 12:02 pm

Last year, when the U.S. Supreme Court took up the case of Delligatti v. United States, I noted in this post the absurdity of the question. Today, the Court decided the case. Yes, murder is a “crime of violence” for the purpose of 18 U.S.C. § 924(c).

Justice Thomas wrote the opinion for the Court, joined by six other Justices. So who are the other two? Continue reading . . .

Supreme Court Allows OK AG to Take a Dive

by · Feb 25, 2025 8:09 am

A short-handed and divided U.S. Supreme Court today decided the case of Glossip v. Oklahoma, taking the side of convicted murderer Richard Glossip. The Oklahoma Attorney General had taken his side as well. CJLF filed a friend-of-the-court brief in support of upholding the state court decision. The Court also appointed an amicus to make the argument the state AG should have made.

A bare majority of the Court held that the Oklahoma Court of Criminal Appeals’ decision did not rest on adequate and independent state courts and further found that Glossip had established his claim that the state had used and failed to correct perjured testimony, despite serious factual questions on the latter point. Rather than simply send the case back to state court for an evidentiary hearing, the Court ordered a new trial.

Justice Barrett concurred on the first point, partly concurred on the second, and dissented on the third. Justices Thomas and Alito dissented from the entirety. Justice Gorsuch was recused, having participated in the case during his time on the Tenth Circuit. Continue reading . . .

Counterman Follow-Up: Prosecuting Stalkers

by · Feb 7, 2025 4:00 pm

Two years ago, the U.S. Supreme Court decided in Counterman v. Colorado that if a stalker is prosecuted on the ground that his communications are threats, the prosecution must show a mental state of at least recklessness regarding the threatening nature of the communications. At the time, I thought it was unfortunate that the case went up as a “threats” case because there was a much better basis available. See this post. With stalkers, it is usually not so much the threatening content of the communication that is the problem, but rather the extreme persistence even after they have been told to buzz off. A long series of cases gives the government much more latitude to regulate the “time, place, and manner” of speech. The failure of the majority opinion to address this raised a danger that stalkers could get off when the case cannot be made that the speech amounts to a threat and the stalker knows or should know that.

Sure enough, this happened in Colorado, with the trial judge acquitting the stalker. But in Colorado the prosecution can ask the Court of Appeals to disapprove the trial court’s ruling for future cases, even though this perpetrator cannot be retried. Continue reading . . .