We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TODAY IS THE MONDAY BEFORE THE MONDAY
Everyone knows that the Supreme Court begins its work year on the first Monday in October. But a convincing case can be made that it begins a week before.
Today, the last Monday in September, the Court will hold its annual “long conference,” the first meeting of the nine Justices to consider the pile of petitions seeking review that have accumulated over the three-month summer recess.
Statistically, the likelihood that such a petition for certiorari will be granted is slight, about 1.2 pct for those filed by lawyers and 0.8 pct for those filed pro se. The odds are usually worse for those considered in the long conference. The Court itself admitted two years ago that 97 pct of the petitions are rejected “without joint discussion by the Justices.”
Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, looks forward to the coming term even as he’s disappointed with the Court’s output. He notes that “11 of the 25 cases already granted for review are, by my calculation, criminal law and related… They won’t all be headline-grabbers, but 40% of the court’s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28 ‘long conference…’ [T]he Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report… in 2012 Chief Justice John Roberts said that the court could hear ‘100 cases without any stress or strain, but the cases just aren’t there,’ and he ‘emphasized that circuit splits are far and away the most important consideration.’ The capacity of the justices to handle more cases is not an issue – more grants of review to provide national uniformity in criminal cases ought to be a priority.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LONG CONFERENCE KICKS OFF SCOTUS OCTOBER 2024 TERM
“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, At the long conference, the rate is roughly half of that, about 0.6%.
The Court returns to the bench on October 7th to start a new term that includes cases on transgender rights, ghost guns, flavored vapes, and securities fraud. One case generating interest is Hewitt v. United States, which seeks to reverse a 5th Circuit holding that First Step Act mandatory minimum changes cannot be applied to people sentenced before the Act was passed but whose cases were remanded for resentencing after the Act became law. Federal circuit courts are split on this question.
Last week, a bipartisan group of senators led by Majority Whip Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, filed a brief in the Hewitt case. The Senators told the Court that in “designing the First Step Act, Congress sought to ensure that individuals who committed an offense before the Act was enacted, but who were not yet subject to a sentence for that offense, would benefit from Section 403. That group, as Congress conceived of it, includes both individuals facing an initial sentencing proceeding as well as individuals facing resentencing following vacatur of a prior sentence.”
The group, including Sen Charles Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT), argued that the 5th Circuit’s “reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”
The Dept of Justice has refused to argue in support of the 5th Circuit’s decision. The Supreme Court therefore has appointed Michael McGinley, a partner in the Dechert law firm, as a “friend of the court” to brief and argue in support of the judgment below, a practice that happens about once every term.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
PREVIEW OF COMING EVENTS
With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.
Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.
“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, at the long conference, the rate is roughly half of that, about 0.6%.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SCOTUS ‘ENDLESS SUMMER’ ENDS
The Supreme Court brings its three-month recess to an end tomorrow, when the Justices will hold the Court’s annual “long conference.”
Throughout the year, the Justices meet on a nearly weekly basis to consider pending petitions for certiorari. But that practice ends in late June when the Court breaks for the summer. Then, petitions pile up over the summer.
At the annual “long conference,” held the week before the Court begins its next term, the Justices will typically dispose of about 2,000 pending petitions. A research paper published seven years ago in the Law and Society Review found that the petitions arriving over the summer had a 16% worse chance of being accepted by the Court.
Gregory Garre, Solicitor General during the George W. Bush administration, told The New York Times, “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” Garre said. “Fortunately, as tough as the odds are, the cream can still rise to the top.”
The Court convenes to begin October Term 2022 (the name of the nine-month term ending June 30, 2023) next Monday.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
UNFINISHED BUSINESS
The Supreme Court wrapped up a fairly lackluster October Term 2020 last Thursday, having delivered little of merit in the criminal law area other than Borden v. United States. But the nine justices left a teaser or two as they headed in various directions for a three-month vacation.
On Thursday, the Court granted review to United States v. Taylor, a 4th Circuit decision holding that attempted Hobbs Act robbery is not a crime of violence for purposes of 18 USC § 924(c) and the Armed Career Criminal Act. The 4th’s decision created a Circuit split – four other circuits hold that an attempted Hobbs Act robbery is a crime of violence – leading the government to seek certiorari. The split – and the fact that the government usually gets its way when it asks for discretionary review – probably convinced the Supreme Court to hear the case, which will be argued late this year.
The Supreme Court left town without deciding whether to review Bryant v. United States, the 11th Circuit holding that prohibits using the compassionate release statute to challenge excessive sentences. Seven other circuits have held that the narrow grounds for 18 USC § 3582(c)(1)(A)(i) motions listed in Guidelines policy statement § 1B1.13 do not limit compassionate release motions brought by inmates, but only when such motions are brought by the Bureau of Prisons. (Remember the last time one of those was filed by the BOP?) Only the 11th Circuit – no surprise there – holds that § 1B1.13 still governs such motions.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUMMER’S OVER, BACK TO WORK
The Supreme Court’s summer recess ends today with the annual “Long Conference,” where the Court will take up the backlog of 1,500+ petitions for certiorari that have piled up since June.
So far, the three most consequential cases on the docket when the Court holds opening day next week are Shular v. United States, which asks whether the categorical approach should be used on prior drug convictions for the Armed Career Criminal Act; Banister v. Davis, which asks whether a Rule 59(e) motion in a § 2255 proceeding is subject to the second-or-successive rules of the Gonzalez v. Crosby and 28 USC §2244, and Carpenter v. Murphy (now named Sharp v. Murphy), asking which authority (the state or federal) has jurisdiction to prosecute major crimes allegedly committed in territory covering about half of the state of Oklahoma. It sounds dry, but it could invalidate thousands of Oklahoma convictions, and thus affect everything from criminal histories to ACCA and 28 USC § 851 enhancement cases.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SEE YOU IN SEPTEMBER… SUPREME COURT GETS BACK TO WORK
Although the opening session of the Supreme Court is always the First Monday in October, the eight justices return to work today for the annual “long conference,” at which they consider the mass of petitions for certiorari, requests from unsuccessful lower-court litigants for review of their cases, that build up over the Court’s three-month vacation.
The Court hears about 70 cases out of the roughly 7,000 petitions for review it receives each term. It has already granted certiorari to hear 38 cases and will add more to the schedule over the next few months. Thirteen of those cases raise criminal law issues. This is about average: Between 25% to 33% of cases decided by the court every year are criminal-law-related. But a few of this term’s decisions could have huge implications.
First, next month the court will consider what constitute the “generic” elements of the common law “robbery” and “burglary” offenses. The Armed Career Criminal Act “crime of violence” definition includes “burglary” as a named offense, and also any crime that “has as an element the use… or threatened use of physical force.” That normally includes robbery.
The exact “generic” definitions of burglary or robbery has split lower circuits.
In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns” exception to double jeopardy. The 5th Amendment provides that “no person shall… be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this is that a person may not be tried twice for the same offense. But the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.” A state may prosecute someone for the same crime that the federal government has already tried the person for, and the other way around.
There is no lower-court split on this question, but scholars have long criticized this “separate sovereigns” exception to the double jeopardy clause as being without support.
Another case, Timbs v. Indiana, addresses the “no excessive fines” provision in the 8th Amendment. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state forfeited his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court refused to “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari.
Other criminal cases include Gundy v. United States, to be argued next week, that asks whether Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle?
The Court’s decision to hear Gundy case came as a surprise. The Justices have not invalidated a congressional delegation in over 80 years, and all federal appellate courts addressing the issue have concluded that the delegation was proper. At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.
On the merits, Mr. Gundy has a strong claim. For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application. With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.
Two others include Nielsen v. Preap, asking whether a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody, and Garza v. Idaho, asking whether prejudice is presumed when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?
The Democrats react to Brett Kavanaugh… Regardless of your political persuasion, it’s a safe bet you would not want to be judged by some of the crap you pulled off in high school.
Of course, the big Supreme Court story this week is whether Judge Brett Kavanaugh’s confirmation as the ninth Supreme Court justice will occur, or whether he will be shot down over claims he groped a girl as a drunken teenager 30 years ago. With a second accuser – albeit one with a shaky recall about an incident when Kavanaugh was a college freshman – reportedly coming forward, the nomination is looking shakier than ever.
Everyone knows that the Supreme Court begins its work year on the first Monday in October. But a convincing case can be made that it begins a week before.
