We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

The Supreme Court stumbled across the finish line of its current session (called October Term 2018, because that’s when it began) last Friday, ending with a couple of fumbles and a punt. There will be nothing more from the nine Justices – except for the occasional action on a stay of execution – until the “long conference” in the last week of September. 

Then, come Monday, October 7, 2019… the Court will be back at it with October Term 2019.

The last week started out to be a significant one for federal criminal law. Last Monday, the Court handed down the Davis decision, with United States v. Haymond following two days later. For those who follow the Court for criminal law, that just left Mitchell v. Wisconsin and Carpenter v. Murphy for the Court’s final day on Thursday. Mitchell was a 4th Amendment case, asking whether blood can be drawn from an unconscious motorist without a warrant (yes, it can). Carpenter is a big deal for Oklahoma, Native Americans and the many states with reservations inside their borders, because the 10th Circuit held that most of eastern Oklahoma – including the City of Tulsa – still belonged to the Cherokee Nation. It also matters to anyone with a prior Oklahoma state conviction from that area, because all of those convictions might be invalid.

On Thursday, the Court issued big decisions on the census form citizenship question and how Congressional districts are drawn, in each case sort of kicking the can down the road. So it was no surprise when the Chief Justice announced that Carpenter will not be decided this year, but instead will get reargued in the fall.

But remember how Davis was called Johnson’s “last domino?” Well, it is not. On Friday, the Court issued its final order list of the Term, granting review to Shular v. United States, another case raising an important issue in the application of the Armed Career Criminal Act, this one on the drug trafficking side. For an ACCA conviction, you have to have three prior convictions that are crimes of violence or drug cases. In Shular, the question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a violent felony, the approach just approved in Davis. There is little doubt that the holding will apply to drug crimes underlying 18 U.S.C. § 924(c) convictions – mandatory consecutive sentences starting at five years for using a gun in a drug offense or crime of violence – as well.

Also, in Kisor v. Willkie, a case that asks whether a court must defer to an agency interpretation of its own ambiguous regulation, the Court last Thursday declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation, but at the same time, he suggested that the doctrine does not apply in every case where an agency is interpreting its own rules. The tepid ruling leaves the deference doctrine a muddled mess the Court will almost certainly have to address again.

United States v. Davis, Case No. 18-431 (decided June 24, 2019)

United States v. Haymond, Case No. 17-1672 (decided June 26, 2019)

Carpenter v. MurphyCase No., Case No. 17-1107 (to be reargued in Fall 2019)

Kisor v.  Willkie, Case No. 18-15 (decided June 27, 2019)

Shular v. United States, Case No. 18-6662 (cert. granted June 28, 2019)

– Thomas L. Root