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Monthly Archive: April 2025
Mixed Ruling in El Salvador Case
Yesterday, the U.S. Supreme Court issued an order partly granting and partly denying the Department of Homeland Security’s application in the case of the deportation of Kilmar Abrego Garcia to El Salvador, noted in this post Monday. Here is the dispositive paragraph:
The application is granted in part and denied in part, subject to the direction of this order. Due to the administrative stay issued by The Chief Justice, the deadline imposed by the District Court has now passed. To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court’s order remains in effect but requires clarification on remand. The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps. The order heretofore entered by The Chief Justice is vacated.
Venezuelan Gang Case Must Proceed in Habeas Corpus
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
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
“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 . . .
Death Penalty Sought for UnitedHealth Killer
U.S. Attorney General Pam Bondi has decided to seek the death penalty for Luigi Mangione. The press release says:
“Luigi Mangione’s murder of Brian Thompson — an innocent man and father of two young children — was a premeditated, cold-blooded assassination that shocked America. After careful consideration, I have directed federal prosecutors to seek the death penalty in this case as we carry out President Trump’s agenda to stop violent crime and Make America Safe Again.” Continue reading . . .
Time to Reform Bail Reform
Five years ago New York state adopted “bail reform” which essentially eliminated bail for every arrestee except for murderers and rapists. Two years earlier the Massachusetts Supreme Judicial Court announced the “Brangan Doctrine,” requiring judges to consider an arrestee’s ability to pay as the primary consideration when setting bail. This has resulted in most offenders being released on low or zero bail, even after dozens of prior arrests. Similar laws or judicially-imposed limits on bail are in place in cities that include Chicago, Philadelphia, Seattle, Austin and DC. Some of these “reforms” were adopted by cities and counties, some were imposed by progressive District Attorneys, some came from the legislature and some were ordered by judges. After the progressive District Attorney in Los Angeles was voted out last fall, his broad zero bail policy was abandoned by the new DA. But under California law those arrested for almost all property crimes, including auto theft and most drug crimes, still require release without bail. The California Supreme Court is currently considering a “Brangan doctrine” approach to bail in a case called In re Kowalczyk, which, based on the court’s decision, could impose the ability-to-pay rule for the entire state. CJLF filed argument in opposition in that case. In places where these reforms are the law, the criminal justice system has become a revolving door, with criminals arrested for serious crimes such assault, illegal possession of firearms and trafficking deadly drugs such as fentanyl, and released back to the streets before the ink is dry on the police report.
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