Category: U.S. Supreme Court

Insufficient SCOTUS Cases

by · May 13, 2024 8:54 am

The WSJ has this article by Jess Bravin on comments by Justice Kavanaugh that the Supreme Court is not taking enough cases. The majority of his colleagues evidently do not agree.

As if on cue, the Court today announced yet another Monday orders list taking no new cases for full briefing and argument.

We now have a working majority on the Court who believe in enforcing the Constitution actually ratified by the people, not one made up later by judges twisting the original words out of shape to fit their own policy preferences. In criminal procedure, there are huge piles of pseudo-constitutional muck violating the people’s right of self-government and needing cleaning up. So far, though, we do not seem to have enough justices interested in doing so. Continue reading . . .

Supreme Court Copes with Sloppy Drafting in the First Step Act

by · Mar 15, 2024 2:50 pm

In 2018, Congress passed the First Step Act to water down federal sentencing law. I was critical of many provisions of the act at the time, see here, here, and here, though I did agree that some sentences were too harsh and could use a bit of moderation. Mandatory minimums were particularly under assault. I believe they serve a useful function, but some were overboard.

The previous version of 18 U.S.C. § 3553(f) had a safety valve allowing judges to let a defendant off from an otherwise mandatory minimum for certain drug crimes if all five of its listed requirements were met. The criminal history requirement was very narrow, and there is no doubt that the 2018 Congress wanted to open the door wider. But how wide? Unfortunately, the drafting of this section was sloppy, and today the Supreme Court disagreed sharply on how to read it. The case is Pulsifer v. United States. Continue reading . . .

Inconsistent Verdicts

by · Feb 21, 2024 7:53 am

This morning the U.S. Supreme Court issued its first decision in a criminal case for this term. In McElrath v. Georgia, No. 22-721, the high court unanimously reversed a decision of the Georgia Supreme Court regarding inconsistent verdicts. This is not a surprise.

Juries sometimes issue inconsistent verdicts in a single case. That is, they may render verdicts on different counts tried together that contradict each other in the facts that they necessarily require. What effect does the Double Jeopardy Clause of the U.S. Constitution have when a jury issues such a verdict in a state criminal case? Continue reading . . .

First Nitrogen Hypoxia Execution Completed

by · Jan 26, 2024 9:04 am

The first execution by nitrogen hypoxia was completed yesterday, as Alabama finally executed paid hit-man Kenneth Smith for the murder of Elizabeth Sennett 35 years ago. The hit men stabbed Mrs. Sennett and beat her with a fireplace tool in her home in Colbert County, Alabama. See this story at al.com, published in 2022 and updated yesterday. They had been hired by her husband, who self-executed before he could be charged.

As I have noted several times on this blog, hypoxia is painless, as I know from personal experience in Air Force flight training. Unconsciousness would normally be quick, but one thing we cannot control is the inmate’s resistance by holding his breath. That is apparently what happened yesterday. The AP reporter who witnessed the execution reports that Smith shook the gurney for about two minutes. Some of this was likely voluntary movement while conscious, and some may have been involuntary movement while unconscious. This was followed by several minutes of heavy breathing.*

The WSJ has this story, with video clips from Alabama DOC Commissioner John Hamm and Jeff Hood, identified as Smith’s “spiritual advisor.” Continue reading . . .

Labs, Experts, and the Confrontation Clause

by · Jan 10, 2024 4:29 pm

The U.S. Supreme Court today heard oral argument in the case of Smith v. Arizona, No. 22-899. Docket is here. Audio and transcript are here.

It has been 20 years since the high court overhauled its approach to the Sixth Amendment right to confront witnesses in Crawford v. Washington, and this is the fourth time it has addressed the application of that approach to expert testimony about lab results without the technician who did the tests being present and available for cross-examination.

Under Federal Rule of Evidence 703 and equivalent rules adopted in most states, an expert can give an opinion based on facts that would not otherwise be admissible in evidence if they are facts that would normally be relied on by experts in that field. How that squares with the Sixth Amendment has not yet been made clear. Continue reading . . .