The Supreme Court’s evolving criminal law jurisprudence always reveals the developing criminal law perspectives of individual justices as well. Here, Cleveland-Marshall’s Associate Dean and Professor Jonathan Witmer-Rich opens up for us the rich and sometimes surprising results of the Court’s 2020 October term.
Professor Witmer-Rich, … your witness
The Supreme Court’s 2020 October Term started off with a bang, with Amy Coney Barrett assuming office on October 27, 2020, thereby inaugurating a period in which the Court’s conservatives hold a 6-3 majority over the three liberal justices. This conservative dominance is evident in decisions such as Cedar Point Nursery v. Hassid (holding that required union access to employer property constitutes a taking) and Jones v. Mississippi (rejecting new limitations on juvenile life without parole LWOP sentences).
In the criminal context, a Court dominated by conservatives might be expected to rule consistently in favor of the police and prosecutors and against the claims of criminal defendants and plaintiffs to expand their constitutional rights. Relative to that expectation, the 2020 October Term was a surprise. In the realm of criminal cases, the most notable trends are: (1) the relative success of defendants/prisoners/plaintiffs,[i] in particular in the more significant decisions, and (2) the relative ideological variation in the justices’ voting.
In the 2020 October Term, the Supreme Court issued 16 opinions in cases involving criminal law or procedure (broadly defined), five of which were per curiam opinions decided without oral argument.[ii] Of those 16 cases, the government won nine times, and the remaining seven were won by the defendant, prisoner, or plaintiff.
The first notable trend is that while the government won a narrow majority of those cases, they lost the majority of big-impact cases. It is always debatable which cases are most significant; in my view, the Court issued five important criminal decisions this summer: Van Buren v. United States, Torres v. Madrid, Borden v. United States, Jones v. Mississippi, and Lange v. California. Of those five, the defendant/prisoner/plaintiff won four (Van Buren, Torres, Borden, and Lange) and the government only one (Jones).
I’ll briefly summarize the import of those five cases. In Van Buren, the Court adopted a narrow reading of the Computer Fraud and Abuse Act, limiting the types of unauthorized computer usage that constitute a crime under the Computer Fraud and Abuse Act (“CFAA”). The scope of what constitutes criminal activity under the CFAA has long been unclear, and in Van Buren the Court opted to narrow that scope.
In Torres, the Court held that a person is automatically “seized” under the Fourth Amendment when they are shot by a police officer. A contrary result would have made it even more difficult for persons shot by the police to bring lawsuits against the police for alleged Fourth Amendment violations.
In Borden, the Court held that offenses with a mens rea of “recklessly” do not qualify as “violent felonies” under the Armed Career Criminal Act (“ACCA”). The result is that fewer state-law offenses will trigger the mandatory minimum sentences under the ACCA.
In Lange, the Court held that police are not automatically entitled to enter a home, without a warrant, when they are in hot pursuit of a person who they suspect has committed a misdemeanor. Instead, the government will need to justify such entries under the traditional exigent circumstances rules.
The government’s only win in a big-impact case was Jones v. Mississippi. The plaintiff-prisoner in Jones sought to extend the Court’s recent Eighth Amendment limitations on life without parole (LWOP) sentences for juveniles, in particular the 2012 decision of Miller v. Alabama, which held that the Eighth Amendment prohibits states from categorically imposing LWOP sentences on juveniles for certain offenses, without individualized sentencing determinations. Jones sought to persuade the Court to rule further that LWOP sentences could not be imposed on juveniles without a sentencing court finding that the juvenile defendant was “permanently incorrigible.” The Court, by a 6-3 conservative-liberal split, rejected that extension of Miller.
Jones was the only prominent case to be decided along the standard 6-3 conservative-liberal ideological lines, and out of all 16 criminal cases, only three were decided 6-3 along those lines.
Five of the argued cases were decided by a unanimous Court, plus an additional unanimous per curiam decision, for a total of six unanimous criminal decisions. Of those unanimous decisions, the government won four (Briggs, Cooley, Terry, and Wright (per curiam)), and the defendant won two (Lange and Caniglia).
The Court continued its trend of enforcing the strict limitations of The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and reversing lower court grants of 2254 petitions that the Court views as not complying with AEDPA’s notoriously stringent rules. The three AEDPA decisions were all per curiam reversals in favor of the government, two from the Ninth Circuit (Shinn v. Kayer and Alaksa v. Wright) and one from the Sixth Circuit (Mayes v. Hines).
Two major areas of public interest include qualified immunity and the use of excessive force. The Court had no major decisions in either area this term, but did issue two per curiam decisions—one in each area—both of which resulted in wins for the prisoner/plaintiff.
The term’s only qualified immunity case, Taylor v. Riojas, resulted in a per curium 7-1 reversal in favor of the prisoner, concluding that a prison official was not entitled to qualified immunity on the prisoner’s conditions of confinement claim. Likewise, the term’s only excessive force case, Lombardo v. City of St. Louis, Missouri, resulted in a per curiam 6-3 reversal in favor of the plaintiff. The Court held, under its excessive force standards, that even when there is evidence of some resistance by the suspect, police use of a prone restraint is not per se permissible.
The Court’s criminal docket featured many interestingly non-partisan voting line-ups. Not only did justices align in sometimes surprising ways, but they did so in varied ways from case to case. Here are a few examples:
- Van Buren, adopting a more narrow reading of the CFAA that limits potential prosecutions: Barrett, joined by Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Dissent by Thomas, joined by Roberts and Alito.
- Torres, holding that a police shooting is a seizure under the Fourth Amendment: Roberts, joined by Breyer, Sotomayor, Kagan, and Kavanaugh. Dissent by Gorsuch, joined by Thomas and Alito.
- Borden, holding that an offense with a “recklessly” mens rea is not a “violent felony” for purposes of the Armed Career Criminal Act: Kagan, joined by Breyer, Sotomayor, and Gorsuch—and Thomas concurring in the judgment. Dissent by Kavanaugh, joined by Roberts, Alito, and Barrett.
In those three “unusual line-up” cases, the only consistent dissenter (in favor of the government) was Alito. Other conservative justices shuffled slots from one case to the next. Kavanaugh, for example, joined the majority adopting a narrow reading of the CFAA in Van Buren, but dissented in Borden, arguing that offenses with a recklessly mens rea could qualify as violent felonies under the ACCA. Gorsuch joined the majority adopting the narrower meaning of violent felony in Borden, but dissented in Torres, arguing that a suspect who was shot by the police might still not be “seized” under the Fourth Amendment.
The trend of ideological variability should not be oversold. In the criminal docket, the general ideological predisposition of the justices successfully predicted whether they would more commonly vote in favor of the government (the conservatives) or more commonly in favor of the defendant/prisoner/plaintiff (the liberals). Out of the 16 cases, all of the conservative justices voted for the government in the majority of cases, whereas all of the liberal justices voted for the defendant/prisoner/plaintiff in the majority of cases. Even so, as explained above, there were many votes that deviated from predictable ideological lines, and many (and varied) non-ideological vote line-ups in individual cases.
Justice Sotomayor voted the most consistently in favor of the defendant/prisoner/plaintiff (against the government), voting in 12 out of 16 cases in favor of the defendant/prisoner/plaintiff. Justices Breyer and Kagan came next, with each voting for the defendant/prisoner/plaintiff 10 times.
Justice Alito voted the most consistently in favor of the government (against the defendant/prisoner/plaintiff), voting in 13 out of 16 cases in favor of the government. Justice Thomas was not far behind, with 12 votes in favor of the government, followed by Justice Gorsuch, with 10 votes for the government.
Overall, the criminal cases from this term illustrate that the justices are not uniformly polarized on criminal-related matters. While justices on the conservative side of the aisle tend to vote in favor of the government in criminal cases, there are many votes—and majority results—that demonstrate conservative justices’ interest in areas such as narrowing the reach of criminal statutes, limiting the impact of mandatory minimums, and at times strengthening constitutional rights under the Fourth Amendment and related constitutional provisions.
[i] In criminal-related cases, the government’s opponent is sometimes a defendant (as in a criminal prosecution), sometimes a prisoner (as in a habeas petition), and sometimes a plaintiff (as in an excessive force case). Accordingly, I will refer to the non-governmental “side” as the “defendant/prisoner/plaintiff” side.
[ii] The eleven criminal law-related decisions decided after oral argument are United States v. Briggs, Van Buren v. United States, Torres v. Madrid, Borden v. United States, Jones v. Mississippi, Edwards v. Vannoy, Lange v. California, United States v. Cooley, Caniglia v. Strom, Greer v. United States, and Terry v. United States. The five additional per curiam decisions are Taylor v. Riojas, Shinn v. Kayer, Lomardo v. City of St. Louis, Mayes v. Hines, and Alaksa v. Wright.