Criminal cases in the October 2018 term: A law professor’s dream

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream.

First-year criminal law: What are the “elements” of burglary and robbery?

This question may take lots of lawyers back to fond, or painful, memories of their 1L law school year. In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime – that is, the “facts necessary to constitute the crime,” as the court put it in 1970 in In re Winship. “What are the elements of Crime X?” is the stuff of first-year final exams, as well as multiple-choice questions found on the Multistate Bar Exam.

On October 9, the court will spend two hours hearing oral arguments in three cases (two are consolidated) that ask what the “generic” elements of the common law crimes of “robbery” and “burglary” are. The answer to that question is needed in order to apply the Armed Career Criminal Act, a federal law that dramatically enhances prison sentences for persons who unlawfully possess a firearm and who also have been previously convicted of three drug crimes or violent felonies. “Violent felony” is statutorily defined to include the state-law offense of “burglary,” and also any crime that “has as an element the use … or threatened use of physical force,” which normally includes robbery.

The Supreme Court has ruled that because state-law definitions of crimes may differ among the states, federal courts should use the “generic” definition of burglary or robbery. But what that definition is, precisely, has repeatedly split lower federal courts. On October 9, the justices will wrestle with that question, first as it applies to robbery, in Stokeling v. United States, and then, in two consolidated cases, Stitt and Sims v. United States, in the context of burglary.

The common law distinguished robbery from simple theft by requiring an element of force. Over time, a number of jurisdictions have ruled that even minimal force can count, which allows “snatchings” of purses or necklaces to qualify for the enhanced sentences that a robbery conviction often permits. Other jurisdictions disagree. Denard Stokeling was previously convicted under Florida’s robbery law, which defines force as “sufficient to overcome a victim’s resistance.” But should that be the “generic” federal definition? Because the ACCA requires a “categorical” approach to deciding what types of felonies permit its enhanced federal sentences, the court is asked to decide whether “minimal force” suffices and how it should be defined for the national federal statute.

Right after Stokeling, the court will consider similar questions regarding burglary. Although the common law applied the crime of burglary strictly to invasion of homes, most modern statutes have extended the crime to the entry of a “structure” with the intent to commit a crime inside it. (“Intent to commit a felony therein” is the first introduction of many law students to “legalese” that horrifies and amuses their nonlawyer friends.) In Victor Stitt’s home state of Tennessee, the statutory requirement of “habitation” has been interpreted to include vehicles. In Jason Sims’ home state of Arkansas, the statutory term is “residential occupiable structure,” which has been interpreted to include a car or a boat if a person is even occasionally living in it. As in Stokeling, the court here must decide whether the “categorical” definition of burglary should encompass the broad modern definitions that have extended the crime beyond its common-law borders.

All three of these cases may be further influenced by the fact that the proper interpretation of the ACCA has troubled the court for decades now, so much so that in 2015, in Johnson v. United States, the court declared a nearby definitional subsection of the statute invalid as unconstitutionally vague.

“Double jeopardy,” “excessive fines” and the death penalty

After the first year of law school, most law students have to take criminal procedure, affectionately shortened to “Crim Pro.” I like to call that class “Constitutional Law III: The Fun Parts!” At least four cases to be argued this fall suggest that OT 2018 will be a joy for us Crim Pro professors as well.

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, 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.”

For example, two states may prosecute the same person for a kidnapping-murder in two trials, one after the other, one in each state, and upon conviction impose two independent sentences for the same crime. Similarly, a state may prosecute someone for the same crime that the federal government has already tried the person for, and vice versa: Those of us old enough to recall the 1991 Rodney King police assault case remember the federal government prosecuting the offending officers after they had already been tried and acquitted by the state.

Although there is no lower-court split of authorities on this question, scholars have long criticized this “separate sovereigns” atextual exception to the double jeopardy clause. My guess (and it is only a guess) is that last spring, when the pace of certiorari grants was slow, “textualist” and due-process-oriented justices alike were able to agree to revisit the question this term.

Meanwhile, Timbs v. Indiana will address another persistent question that has appeared on bar exams for years: “[W]hat provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?” “Incorporation” is the legal doctrine developed in the mid-20th century that holds that various protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment. In McDonald v. Chicago, the court in 2010 ruled that the Second Amendment applies against the states, so now only three provisions in the Bill of Rights have not been incorporated. Timbs will address one of these: the “no excessive fines” provision in the Eighth Amendment. (The other two? The grand jury clause, see 1884’s Hurtado v. California, and the Third Amendment’s rule against quartering troops in times of peace, which has never arisen in a Supreme Court case, although lower courts have suggested that it is “incorporated.”)

Timbs now seeks to eliminate that easy Crim Pro exam question. The context is criminal asset forfeiture. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial, … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment. The Indiana court of appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed, ruling that it would not “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 here.

Finally, another aspect of the Eighth Amendment, the constitutional administration of capital punishment, finds a spot on the Supreme Court’s docket almost every year. This term the court will hear argument in two cases involving the death penalty. On the second day of the term, October 2, in Madison v. Alabama, the court will consider whether the Eighth Amendment permits the execution of a prisoner whose severe and deteriorating medical condition leaves him mentally disabled such that he is unable to remember his offense. Bryan Stevenson, the founder of the Equal Justice Initiative in Alabama, will be arguing for Vernon Madison. The court has previously ruled that the state may not constitutionally execute the mentally insane (Ford v. Wainwright, in 1986) nor the mentally disabled (Atkins v. Virginia, in 2002). But in 2007, in Panetti v. Quarterman, the court declined to set specific standards for evaluating mental competency-to-be-executed claims. Madison provides an opportunity to further develop this constitutional concept. (The 2007 decision was written by Justice Anthony Kennedy, who left the court in July  — whether he will be replaced by October 2 is presently unsettled.)

In a second death penalty case, to be argued on November 6, the court will consider, once again, the appropriate rules for challenging a “method of execution.” In Glossip v. Gross, the court in 2015 issued a lengthy 5-4 decision attempting to set constitutional standards and litigation rules for lower courts to follow when an inmate contends that the method by which the state proposes to execute him is “cruel and unusual.” Glossip also approved “lethal injection” as a generally acceptable method. Russell Bucklew, however, suffers from an unusual medical condition (cavernous hemangioma) that he alleges “makes it very likely that his execution by Missouri’s lethal injection protocol will be gruesome and involve excruciating suffering.” In Bucklew v. Precythe, Bucklew argues that an execution by lethal gas will be far more humane for him, and that Missouri is constitutionally required to use that method instead. Missouri law allows execution by either method, although it has no written protocols for gas executions. The Eighth Circuit twice affirmed denials of Bucklew’s challenges, but the Supreme Court twice issued last-minute stays before finally granting review.

The rest of the Supreme Court’s criminal law docket this term

Here are brief descriptions of the other six criminal-law-or-related cases on the Supreme Court’s docket (so far) this term:

1. Gundy v. United States (Oct. 2 argument): Does 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? (There hasn’t been a successful nondelegation case since 1935, so this case carries special interest for constitutional law professors.)
2. Nielsen v. Preap (Oct. 10 argument): Is 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?
3. Garza v. Idaho (Oct. 30 argument): Does the “presumption of prejudice” regarding a lawyer’s ineffective assistance apply, 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?
4. Herrera v. Wyoming: Did Wyoming’s admission as a state, or the statutory establishment of the Bighorn National Forest, abrogate the Crow Tribe’s 1868 federal treaty right to hunt on “unoccupied lands of the United States,” thereby permitting the criminal conviction of Clayvin Herrera, a Crow Tribe member, who was allegedly engaged in subsistence hunting for his family?
5. Lorenzo v. Securities and Exchange Commission.: May the government’s securities-fraud claim that does not meet the elements that 2011’s Janus Capital Group v. Derivative Traders requires for “fraudulent statements” be filed as a “fraudulent scheme” claim and thereby avoid the bar of Janus?
6. Nieves v. Bartlett: Is a First Amendment claim for retaliatory arrest automatically defeated because there was probable cause for the arrest? (This is a follow-on to the unanswered question in last term’s Lozman v. Riviera Beach.)