SCOTUS expands rights of accused who get bad legal advice during plea bargains

Yesterday the Supreme Court released its judgments in Missouri v Frye and Lafler v Cooper.

The Court ruled 5-4 that:
Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed [Lafler].


The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings” [Missouri].

The New York Times points out that the ruling “vastly expanded judges’ supervision of the criminal justice system”:

The decisions mean that what used to be informal and unregulated deal making is now subject to new constraints when bad legal advice leads defendants to reject favorable plea offers.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”


The consequences of the two decisions are hard to predict because, as Justice Antonin Scalia said in a pair of dissents he summarized from the bench, “the court leaves all of this to be worked out in further litigation, which you can be sure there will be plenty of.”

Claims of ineffective assistance at trial are commonplace even though trials take place under a judge’s watchful eye. Challenges to plea agreements based on misconduct by defense lawyers will presumably be common as well, given how many more convictions follow guilty pleas and the fluid nature of plea negotiations.

Justice Scalia wrote that expanding constitutional protections to that realm “opens a whole new boutique of constitutional jurisprudence,” calling it “plea-bargaining law.”

Scholars agreed about its significance.

“The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the landmark 1963 decision.


Stephanos Bibas, a law professor at the University of Pennsylvania and an authority on plea bargaining, said the decisions were a great step forward. But he acknowledged that it may give rise to gamesmanship.

“It is going to be tricky,” he said, “and there are going to be a lot of defendants who say after they’re convicted that they really would have taken the plea.”

SCOTUS considers life sentences without parole for youth

On Tuesday, the Supreme Court of the United States heard submissions in two murder cases on whether life sentences without parole for people under 18 and under constitute cruel and unusual punishment.

The Guardian reports:

The justices are looking at two cases involving teenagers serving life sentences. In one, 14-year-old Evan Miller in Alabama beat a man, then set fire to his home. In the other, 14-year-old Kuntrell Jackson in Arkansas did not pull the trigger, but was in on an attempted robbery in which another boy shot and killed a store clerk.

Justice Anthony Kennedy wrote earlier opinions ruling out the death penalty for juveniles and life without parole sentences for young people whose crimes did not involve killing. He seemed again to be the pivotal justice in Tuesday’s arguments.

Roughly 2,300 people are behind bars for life with no chance of winning their freedom for crimes they committed before their 18 birthday. Only 79, however, are in prison for crimes that took place when they were 14 or younger.

Kennedy was one of several justices who appeared to be troubled by the lack of flexibility in sentencing young killers. Several states that try people younger than 18 in adult courts allow for only one sentence, life with no chance of parole, for defendants who are convicted of murder.

Kennedy seemed to indicate he might favor a ruling that gives judges a role in determining an appropriate sentence, “that the sentence cannot be mandatory, but that in some cases, it might still be imposed.”

Bryan Stevenson, the lawyer for both defendants, tried to resist Kennedy’s approach, preferring an outcome that would force states to consider parole at some point for anyone with a life sentence who was convicted before turning 18.

The Court has already struck down the death penalty and life without parole in the case of non-homicide offences for juveniles.

For coverage of this story, see NPR, Slate, The New York Times, CNN and The Christian Science Monitor.

SCOTUS may hear challenge to state ban on use of prison funds for treatments for transgender prisoners

SCOTUS may hear Smith v Fields, which involves an Eighth Amendment and Equal Protection Clause challenge to a Wisconsin state law prohibiting the use of public funds for hormonal therapy or sex-reassignment surgery for transgender prison inmates. The United States Court of Appeals, Seventh Circuit upheld the district court’s ruling that the law violated transgender prisoner’s right not to be subjected to cruel and unusual punishment.  The case has been re-listed.

The issues in the case are:

(1) Whether the Seventh Circuit erred by upholding an injunction against a state law prohibiting the use of public funds to finance sexual reassignment surgery for inmates; and (2) whether the Eighth Amendment requires state prisons to treat gender identity disorder with hormone therapy to make an inmate look more like the opposite gender.

The Seventh Circuit judgment can be found at Bloomberg Law.

SCOTUS denies review on question of First Amendment protection for employees

The Supreme Court of the United States denied review in two cases yesterday, without comment. Both involved government employees who were disciplined for disobeying a superior’s order to file a report with information that the employee believed was false and intended to conceal misconduct. The lower courts in the two cases had reached conflicting conclusions about whether employees had First Amendment protection in this kind of situation.

Lyle Denniston of SCOTUSblog explains:

The Court had been asked, in separate cases from New York and Washington, D.C.,  to further clarify its decision five years ago in Garcetti v. Ceballos, denying First Amendment protection to public employees for remarks they made in the course of their official duties.   Federal appeals courts have since split on whether that denial of protection extends even to a situation where a worker has been fired or otherwise disciplined for refusing to file an official report about their work, when superiors had demanded that the report be submitted in a form that would be false and could conceal wrongdoing within the agency.   The Justices’ refusal to step into that controversy leaves it to be worked out further among the lower courts, meaning that public employees will have different legal rights depending upon where they live and work.


In one of the public employee free-speech cases, Byrne, et al., v. Jackler (docket 11-517), the police chief and two other officers in Middletown, N.Y., sought to challenge a Second Circuit Court decision that they had acted illegally for their roles in the firing of a probationary officer after he had refused an order to file a report about another officer’s striking of a suspect during an arrest.  The fired officer, Jason M. Jackler, disobeyed because he knew the facts were different from those he was told to put in the report.  The Second Circuit ruled that Jackler was not acting in the role of a police officer, but rather as a private citizen resisting an official coverup, at the time he disobeyed, so the Garcetti decision did not apply.

Exactly the opposite outcome had come in the other case, Bowie v. Maddox (11-670).  David M. Bowie, a former FBI agent who had gone to work in the local Washington, D.C., government’s inspector general’s office, investigating misconduct inside the D.C. government.  Bowie was fired after he had refused to submit an affidavit that would have sided with his superiors falsely in a civil rights case involving a black employee against the IG office.  Bowie believed that the employee had been fired on demand from the FBI, which was reportedly upset by an earlier lawsuit claiming race bias in the Bureau’s policy on promoting black agents.  Bowie’s superiors wanted him to tell their version in the affidavit.  The D.C. Circuit Court, relying upon the Supreme Court’s Garcetti decision, ruled against Bowie, concluding that he was fired for refusing to carry out an order in the line of duty and thus had no First Amendment protection for his refusal.

For more commentary, see the Whistleblowers Protection Blog.

SCOTUS: Fair housing case dismissed

Magner v Gallagher, a civil rights case regarding the impact of municipal housing codes on minorities’ access to rental housing, has been dismissed by agreement of both sides. The case asked whether the federal Fair Housing Act prevented local governments from enforcing housing codes in a way that had a disparate impact on minorities, even if unintentional. It was to be argued on February 29.

Lyle Denniston at SCOTUSBlog writes:

The case pitted city officials and their housing code enforcement agency against current and former owners of private rental properties, whose customers were mainly individuals or families with low incomes, with a large share of them — perhaps 60 to 70 percent — African-American tenants.  The property owners had sued, contending that the city agency used aggressive tactics, including inspection “sweeps,” in order to check out code violations even when there were no complaints.  Correction of the code violations the city found sometimes required expensive renovations.

A federal judge concluded that the property owners could pursue a claim of “disparate impact,” but ruled that they had not proved their claim.  But, even if the enforcement policies did fall more heavily upon African-American tenants, the judge declared, the city had legitimate reasons for its approach.  The Eighth Circuit Court disagreed, and ruled for the property owners.

The federal government, in joining in the case in the Supreme Court, argued that the Circuit Court was right in allowing the disparate-impact claim and in laying out the standard it would use to judge the claim, but that its ruling should be overturned because the Circuit Court had misapplied its standard.   It argued that the property owners had not offered enough evidence to survive the city’s motion to dismiss the case without a full trial.


The case had drawn a significant amount of interest among civil rights groups, arguing that disparate-impact claims were important to maintaining equality in access to housing.  Twelve states had also joined in supporting the property owners.   Some business organizations and conservative legal advocacy groups had entered the case to support St. Paul officials.

Click here for more information on the case.

CBC: FBI seeks social media data mining tool

According to CBC news, “the U.S. government is seeking software that can mine social media to predict everything from future terrorist attacks to foreign uprisings, according to requests posted online by federal law enforcement and intelligence agencies.”

Hundreds of intelligence analysts already sift overseas Twitter and Facebook posts to track events such as the Arab Spring. But in a formal “request for information’’ from potential contractors, the FBI recently outlined its desire for a digital tool to scan the entire universe of social media — more data than humans could ever crunch.

The Department of Defense and the Office of the Director of National Intelligence also have solicited the private sector for ways to automate the process of identifying emerging threats and upheavals using the billions of posts people around the world share every day.


The proposals already have raised privacy concerns among advocates who worry that such monitoring efforts could have a chilling effect on users. Ginger McCall, director of the open government project at the Washington, D.C.-based Electronic Privacy Information Center, said the FBI has no business monitoring legitimate free speech without a narrow, targeted law enforcement purpose.

“Any time that you have to worry about the federal government following you around peering over your shoulder listening to what you’re saying, it’s going to affect the way you speak and the way that you act,’’ McCall said.

The FBI has said that they only intend to track “publicly available information and would not focus on specific individuals or groups but on words related to criminal activity.”

For more coverage of this story see The Guardian.

SCOTUS rules warrantless police GPS tracking unconstitutional

The Supreme Court of the United States has given a ruling in United States v Jones, discussed on this blog here and here. The Court ruled unanimously that police violated the Constitution when they placed a GPS tracking device on a suspect’s car and monitored its movement for 28 days without a warrant. The evidence obtained was used to convict him of conspiring to sell cocaine, and he received a life sentence.

Adam Liptak of The New York Times reports:

A set of overlapping opinions in the case collectively suggested that a majority of the justices are prepared to apply broad privacy principles to bring the Fourth Amendment’s ban on unreasonable searches into the digital age, when law enforcement officials can gather extensive information without ever entering an individual’s home or vehicle.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

An overlapping array of justices were divided on the rationale for the decision, with the majority saying the problem was the placement of the device on private property.

But five justices also discussed their discomfort with the government’s use of or access to various modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance, location data from cellphone towers and records kept by online merchants.

The ruling contained a particularly interesting statement by Justice Sotomayor:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not.

I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

For more reactions to this case, see:

Tom Goldstein, SCOTUSblog: “The government fared much better than everyone realizes.”

Greg Stohr, Bloomberg: “Police use of GPS to Track People Limited by U.S. Supreme Court.”

Eyder Peralta, NPR: “Supreme Court Rules Police Need Warrant for GPS Tracking.”

Kashmir Hill, Forbes: “A Supreme Court Justice’s Radical Proposal Regarding the Privacy of Your Google Searches, Facebook Account and Phone Records.”

SCOTUS: Citizens United ruling does not extend to foreigners living in the US

On January 9, 2012 the Supreme Court of the United States released its opinion in Bluman v. Federal Elections Commission, which had asked whether Congress had violated the First Amendment by barring foreign nationals living in the United States from making campaign contributions or expenditures connected with an election. The Court ruled that Congress had not violated the constitution, as foreign nationals have no constitutional right to put private funds into an election in the U.S.A.

This ruling is significant for its relationship with an earlier ruling in Citizens United. As Lyle Denniston explains:

The Court thus made clear that its deeply controversial ruling of two years ago, in Citizens United v. Federal Election Commission, did not extend beyond U.S. citizens (including corporations). […] Nothing about the summary ruling, though, cast any doubt on the continuing right of corporations and labor unions to spend as much as they want on federal candidates, so long as they do so independently of a candidate or candidate’s organization and are willing — most of the time — to disclose what they have done.

For more commentary on this case, see the discussion between six legal and policy thinkers in “Foreign Money Swaying Voters?” at The New York Times.

SCOTUS to decide if state employees can decline to pay union dues to be used for political advocacy – but is the case moot?

Today SCOTUS will hear arguments in a fascinating case – with a twist – in Knox v Service Employees Int’l Union, Local 1000. Essentially, the case will decide whether state employees have a right under the First Amendment to refuse to pay union fees which are to be used for political advocacy.

Law professor Ross Runkel provides background:

The financial backbone of nearly every labor union is the collective bargaining agreement’s “union shop clause,” which does two things. First, it requires union members to pay dues to the union. An additional “agency shop agreement” requires non-members in the bargaining unit to pay a percentage of the dues amount (an “agency fee”) to pay for the union’s expenses of performing services that benefit the bargaining unit. Second, the employer is obligated to fire any employee who does not make these payments. The net result is that both members and non-members must make these payments or else lose their jobs.

For public-sector employees, this arrangement raises First Amendment concerns. Employees cannot be required to pay agency fees that the union uses for ideological purposes not germane to the union’s duties as the collective bargaining agent. To prevent this, public-sector unions must adopt procedures that allow objectors to protect their rights. These procedures require the union to send employees a “Hudson notice” explaining how the union calculated its appropriate share, and requires it to minimize the risk that non-members’ contributions might be temporarily used for impermissible purposes.

In this case, the union (SEIU) had sent such Hudson notices annually. However, partway through 2005 it levied a temporary assessment increasing dues and fees for the remainder of the year, for the purpose of defeating some state ballot measures, without providing the necessary detail for a proper Hudson notice. The petitioners sued the union, and the federal district court held that the union’s failure to provide proper notice had violated the First Amendment. It awarded nominal damages of one dollar to each employee. The Ninth Circuit reversed the decision, and the petitioners were granted leave to appeal to the Supreme Court of the United States.

The Court will answer two questions: (1) Whether a state, consistent with the First and Fourteenth Amendments, may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction; and (2) whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.

A twist in the case came during the briefing stage, when the SEIU filed a motion to dismiss the case on the grounds that it had sent a notice to the petitioners offering a full refund of the fee increase they paid along with a one-dollar bill intended to satisfy the nominal damages, and that the Supreme Court could not grant any additional award. The petitioners responded that the case should still be heard for a number of reasons, including that if the case were dismissed it would leave the SEIU free to continue the challenged activity.

As Runkel notes, there are two important questions at the heart of this case:

(1) If SEIU is not required to send a mid-term Hudson notice, exactly what impact (both as to kind and degree) will that have on petitioners’ First Amendment rights? (2) If SEIU is required to send a notice, exactly what negative effect will that have on the union’s ability to serve as a collective bargaining representative?

For more coverage of this case, see SCOTUSblog and LegalNewsline

Participate in online debate about television indecency regulations

SCOTUSblog is hosting an online debate stemming from FCC v. Fox , in which the Supreme Court of the United States will rule on whether the Federal Communications Commission’s indecency regulation regime is unconstitutional. Two questions are being debated:

1) Should the FCC have the power to regulate broadcast media, or have changes in the media landscape (such as the Internet) made the distinction between broadcast and other media irrelevant?

2) Can regulation of indecency be justified by the need to protect children?

Check it out and participate here.


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