Friday, June 21, 2013

Supreme Court Orders Judges To Stay Away From Fact Finding Regarding Mandatory Minimums

The Supreme Court issued an important criminal decision this week, Alleyne v. United States, when it said that a jury should have the final say on what triggers mandatory minimum sentences in criminal cases.

The Court voted in a 5-4 decision to overturn the sentencing decision in defendant Allen Alleyne’s case. Alleyne was convicted of robbery and firearm possession in Richmond, Virginia. The issue came down to whether or not Alleyne’s accomplice ever brandished a weapon during the commission of the robbery. If so, then Alleyne would be subject to mandatory minimum sentencing. The jury believed that Alleyne’s accomplice did not brandish a weapon, but the judge disagreed, saying that he believed he had flashed a gun. This decision meant that Alleyne’s mandatory minimum sentence was raised from five to seven years.

Alleyne’s attorneys appealed the lower court’s decision, claiming that the judge overstepped his bounds. Specifically, Alleyne’s lawyers argued that the brandishing decision should have been left up to the jury. Instead, the judge made his determination using a lower standard of proof.

The Justice Department, for its part, stepped in to argue that the current system of allowing judges to occasionally intervene and apply mandatory minimum sentences has worked well for years and ought not be changed.
The Supreme Court disagreed and said that district court judges cannot issue findings that raise mandatory minimum sentences. That decision should be left exclusively to the jury. As a result, the Court decided to send the case back to the lower court for resentencing.

Some experts say the case is noteworthy not only for its holding, but for the makeup of the majority. In a rare and possibly even historic alliance, the majority was made up of the Court’s four more progressive members with the addition of Justice Clarence Thomas. Court watchers say they could not think of another time where Thomas sided with progressive justices against the conservative wing of the Court.

To read the full opinion, click here.

Monday, June 17, 2013

Silence speaks volumes: Supreme Court issues ruling in Salinas v. Texas

The Supreme Court issued a ruling today, in Salinas v. Texas, a case discussed earlier here. The decision, a 5-4 ruling held that a suspect must expressly invoke their 5th Amendment privilege in order to be protected by that privilege.  In Salinas, this means that the defendant had to speak in order to claim his “right to remain silent.”  The opinion, authored by Justice Alito notes that although there is a popular perception of the “right to remain silent” the 5th Amendment does not establish such an unqualified right.  An interesting fact in the case which may (or may not have) had importance was that the suspect at the time of questioning was there voluntarily and had not been give “Miranda warnings.”

                The dissent questions whether the ruling will give rise to further litigation about what it means to claim the 5th Amendment right.  Must one state specifically that they are invoking their 5th Amendment right?  The better question in the dissent’s view is to see whether under the circumstances the defendant’s silence can be understood to be an invocation of the 5th Amendment right.  It also notes the inherent difficulty with a defendant facing a question that could lead to an incriminating answer.  They have two choices: answer or remain silent.  Under the Salinas holding, either option could be used against them.  If later at trial they take the stand to explain what happened, they would be in essence forced to act “as a witness against himself”. There is of course, a third choice:th Amendment right.  However, under this ruling to invoke their 5th Amendment right, a suspect would have to specifically state that they are invoking that right.  This does not appear to take into account the reality for most suspects in a criminal proceeding.  While they are probably aware of the “right to remain silent”, they most likely don’t know that remaining silent is not how that claim that right.
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             The full text of the opinion (including the dissent and a concurrence by Justice Thomas can be read here.

Tuesday, June 11, 2013

Supreme Court Says It’s Unconstitutional To Use New And Harsher Sentencing Guidelines For Old Cases

On Monday a closely divided Supreme Court issued another important criminal law decision on 5-4 lines. This time the Court held that the Constitution is violated when courts rely on current federal sentencing guidelines if those current guidelines call for harsher punishment than the ones in place at the time the offense was committed.

The issue before the Court was whether the current federal sentencing guidelines, which are technically discretionary, carry enough weight--regardless of not being mandatory--to subject defendants to the risk of additional punishment. If so, this would violate the ex post facto clause in the Constitution which prohibits enhanced retroactive punishment.

The case before the Court, Peugh v. U.S., concerned a man who was convicted of bank fraud. By the time he was sentenced in 2010, the trial judge noted that the guidelines that were currently in place suggested a sentencing range of between 70 and 87 months, the judge chose 70. The problem is that at the time the crimes were committed, the sentencing range under the guidelines was only 30 to 37 months. The change exposed the defendant to a potentially increased punishment.

Justice Sotomayor noted that the low end of the 2009 sentencing guidelines was still 33 months higher than the highest number contained in the 1998 guidelines. Sotomayor said that the guidelines are still seen as influential despite no longer being mandatory. The guidelines act as a starting point and judges often have to go to extreme lengths to justify any departure from the guidelines, something that acts to dissuade such sentencing departures. Four fifths of all sentences given in federal court are within the guideline range.

Given this, Sotomayor said that the ex post facto clause of the Constitution was violated in Peugh’s case because the new sentencing laws created a risk of additional retroactive punishment. 

The dissent in the case disagreed and Justice Thomas wrote that because the new guidelines have been called advisory and not mandatory, they cannot possible constrain the discretion of a district court. Thomas said that, as a result, there could be no violation of the ex post facto clause.

To read the full opinion, click here.

Friday, June 7, 2013

New Law Requires Ignition Interlock Devices After Tennessee DUI Convictions

A new law signed by Governor Haslam will require first-time DUI offenders to install an Ignition Interlock Device in order to drive on a restricted license during the year their license is revoked.

An Ignition Interlock Device requires the driver to self-administer a breathalyzer in order to start their car. The car will not start if the driver's blood-alcohol concentration is .02 or higher. The Ignition Device also takes a picture of the driver at the time the breathalyzer is taken.  This is to prevent drivers from allowing another sober person to take a breathalyzer in order to start the car, then proceeding to drive after drinking. The Ignition Device will remain on the offender's car for 6 months.

Lawmakers and law enforcement met Tuesday to celebrate the Governor's passage of the new law. They called the new law "another tool in our toolbox to prevent tragedy."

Tennessee is the 18th state in the nation to enact a law requiring an Ignition Interlock Device. According to Flint Clouse, Mother's Against Drunk Driver's (MADD) Tennessee Executive Director, states with similar legislation have seen a reduction in DUI fatalities by 30% or more.

The new law will take effect in Tennessee July 1, 2013.

Wednesday, June 5, 2013

Supreme Court Supports Defendants Seeking To Raise Ineffective Assistance Of Counsel Claims

In a recent 5-4 decision, the Supreme Court decided Trevina v. Thaler to extend a ruling it made last year which allowed prisoners to challenge their state convictions in federal court based on the claim that their attorneys were ineffective.

Last year, the Court considered a case out of Arizona which challenged the state’s law saying that claims of ineffective assistance of counsel had to be raised in a separate post-conviction motion and not in a direct appeal of the original conviction. The problem with this approach is that there is no right to an attorney in the post-conviction motion phase, though there is in the direct appeal phase. The Supreme Court ruled that federal courts are allowed to hear challenged to Arizona convictions based on ineffective assistance if the defendant had no lawyer in the separate post-conviction challenge.

The Supreme Court said in the Arizona case that by insisting that ineffective assistance of counsel be claimed outside the appeals process where counsel is constitutionally guaranteed, Arizona significantly diminished defendants’ ability to file such a claim.

The new case concerned the Texas criminal justice system which also encourages, though does not require, that such ineffective assistance of counsel claims be raised in separate proceedings and not as a part of a direct appeal. The Supreme Court decided the distinction between Texas and Arizona was unimportant and that the tradition was enough to deprive some defendants of the chance to raise ineffective assistance claims. The Court said that as a matter of practice, the Texas system does not offer most defendants a meaningful chance to present a claim of ineffective assistance of counsel on direct appeal.

Given the recent decision, it seems clear the Court is willing to go great lengths to ensure that defendants have the opportunity to raise ineffective assistance of counsel claims as part of the direct appeals process where they are constitutionally ensured legal representation. 

To read the full opinion, click here.

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Monday, June 3, 2013

Supreme Court Issues Important Decision Regarding DNA Collection

A divided Supreme Court issued an important opinion today, Maryland v. King, saying that police are allowed to routinely take DNA from those suspects they arrest without first securing a warrant. The important criminal law decision equated a DNA cheek swab with the commonly accepted practice of fingerprinting.

The case involved a woman who was raped and robbed but police never were able to identify a suspect. Years later, Alonzo King was arrested and charged with second-degree assault. Police took advantage of the Maryland law which allowed warrantless DNA tests following some arrests, and took a swab of King’s cheek. After putting the DNA into a database, the police got a hit for the earlier rape and King was ultimately convicted and sentenced to life in prison.

Justice Kennedy, who wrote for the five-justice majority, said that taking a DNA swab is like fingerprinting and photographing which is already part of a legitimate police booking procedure and is acceptable under the Fourth Amendment.

The case was seen as important not only because of the increasing importance of DNA evidence, but also because of how prevalent the practice already is among the states. As of today, at least 28 states and the federal case engage in warrantless DNA collection. A Maryland court that heard the case said the practice was illegal and said that the state first needed approval from a judge before taking a suspect’s DNA. The Maryland court said that a reasonable expectation of privacy prevented such warrantless searches.

The Supreme Court disagreed with the Maryland court and reinstated King’s rape conviction. Kennedy wrote that in the way it was used in this case, DNA for the purpose of identification is no different than matching someone’s face to a wanted poster or matching tattoos to known gang symbols. According to the justice, the procedure of taking a swab from a cheek is not substantially different than taking a fingerprint from a suspect and matching it to those recovered from a crime scene.

The dissent was harshly critical and led by outspoken Justice Antonin Scalia. Scalia warned the public that because of today’s decision anyone’s DNA could be taken and entered into a national database if they are ever arrested for any reason. Scalia’s trouble with the case was not about the taking of the DNA itself, which is seen as a common step in many criminal investigations. Instead, the issue is one of timing. Taking the DNA before a conviction and without judicial approval is what Scalia had a problem with given that suspects are forced to divulge incredibly valuable and personal information to law enforcement without any judicial oversight.  

Read:Supreme Court Upholds Warrantless Collection Of DNA,” by Mark Memmott, published at

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Saturday, June 1, 2013

Problems Raised By NTSB Blood Alcohol Recommendation

The National Transportation Safety Board recently issued a new recommendation that asks all states to agree to lower the legal threshold for impairment for driving from 0.08 percent to 0.05 percent. The move was greeted with cheers from some alcohol awareness groups, but others have raised concerns about the impact of such a move, raising doubts about whether such a proposal could ever succeed.

The first issue that arose to challenge the new regulation was a surprisingly cool embrace from one of the organizations that many believed would be the biggest champion of the proposal. Rather than issue a press release trumpeting the news, Mothers Against Drunk Driving said only that the organization was “neutral” when it came to the BAC proposal. Many were surprised at the shrug from MADD, which has for years advocated for stronger DUI enforcement efforts. The group says the reason for its lack of interest in the new regulation is that it targets the wrong group of drivers, which leads to yet another problem of the new NTSB proposal.

The way the new recommendation is structured it is designed to target social drinkers, not abusive users of alcohol. MADD and others have suggested that such legislation amounts to a waste of energy given that this group of drivers is responsible for a very small percentage of all alcohol-related traffic accidents.

Opponents to the measure have pointed to research which clearly shows that the average BAC for a person involved in a fatal accident is 0.17 percent, triple the level that the new proposal would target. MADD says that to expend so much police time chasing down drivers who pose very little threat to other motorists is a misallocation of precious resources. Instead of spending time arresting those who have had two or three drinks, law enforcement agencies should devote energy to keeping repeat drunk drivers off the road. MADD says money should go into ignition interlock systems, not in incarcerating social drinkers.

Another problem with the proposed BAC change is that, practically speaking, it will be very difficult to achieve. The most recent shift in the BAC levels took 21 years to push through, lowering the levels from 0.10 to 0.08. That only happened after the federal government signed a law threatening to withhold lucrative highway construction money to states. Many experts say there is not enough political will to engage in another decades-long fight to lower levels yet again, especially when the value is debatable.

For decades now the percentage of all highway fatalities that involve alcohol has hovered at around 30 percent. That level was seen when the BAC limit was 0.10 and has stayed the same as the limit fell to 0.08. While the total numbers of alcohol-related fatalities have fallen since the legal limit was lowered, there is no proof that this change occurred because of the new legal limit. After all, the total number of highway fatalities also fell and the percentage of those deaths related to alcohol has stayed stubbornly stuck at a little less than a third.

Experts say that for the new proposal to truly be effective other changes would have to happen as well. The NTSB touts the number of lives saved in Europe after BAC limits were lowered to 0.05, but what it fails to mention is that many of those countries also began implementing random breathalyzer screenings of drivers, something that would be met with a huge outcry in this country.

There have so far been few signs that the majority of this country is eager to follow the lead of Western Europe on this issue. Many Americans would be shocked to learn that Sweden, which recently grew tired of its 0.05 BAC limit, decided to drop it even further, to 0.02 percent. Under such a law many drivers would technically be considered too drunk to driver after consuming less than one drink.

Read: “Room for Debate: Too Drunk To Drive,” by Opinion Editors, published at