Supreme Court Ends 2011 Term

Supreme Court Ends 2011 Term Jack King and Ivan J. Dominguez NACDL News June 2012 86 On June 21, the U.S. Supreme Court held that defendants who committed a cocaine offense before the Fair Sentencing Act of 2010 went into effect, but who were sentenced after its effective date, are entitled to the

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On June 21, the U.S. Supreme Court held that defendants who committed a cocaine offense before the Fair Sentencing Act of 2010 went into effect, but who were sentenced after its effective date, are entitled to the benefit of the law’s reduced sentencing provisions. The case, Dorsey v. United States, No. 11-5683, was consolidated out of two separate appeals from the U.S. Court of Appeals for the Seventh Circuit. The Act greatly reduced the overall sentencing disparity between crack cocaine and powder cocaine, and raised the threshold amounts of crack required to trigger mandatory minimum sentences. NACDL’s amicus curiae brief in Dorsey was co-authored by Jeffrey Green, a partner at Sidley Austin LLP, Washington, D.C.; Peter Goldberger of Ardmore, Pa.; Clayton Northouse, also of Sidley Austin; Sarah O’Rourke Schrup, of the Northwestern University Supreme Court Practicum, Chicago; and S. David Mitchell, of the University of Missouri School of Law.

In Southern Union Co. v. United States, No. 11-94, also decided on June 21, the Court interpreted the right to have any fact that would determine a criminal fine be found by the jury to be proven beyond a reasonable doubt. In an opinion by Justice Sonya Sotomayor, the Court held 6-3, per its prior decision in Apprendi v. New Jersey, that the same protections for other forms of punishment apply to criminal fines. This decision will have a significant impact on corporate defendants who cannot be imprisoned because of their noncorporeal nature but still face significant sanctions. The joint amicus curiae brief filed by the U.S. Chamber of Commerce and NACDL in Southern Union was authored by Benjamin C. Block and Mark D. Herman, of Covington & Burling LLP, Washington, D.C., and was cited favorably in the Court’s majority opinion for its argument that “exempting criminal fines from Apprendi makes innocent defendants more likely to plead guilty” in plea bargains rather than “roll the dice” and assert their right to a jury trial.

The U.S. Supreme Court struck down most of Arizona’s immigration law June 25, but left it for the state courts to decide whether a surviving provision can be enforced lawfully or will be exploited to abuse the rights of U.S. citizens and residents. Arizona Gov. Jan Brewer claimed victory at a news conference, stating that “the heart” of S.B. 1070, Section 2(B), will now be implemented by state law enforcement. Section 2(B) is the “stop and check” provision of the law that NACDL and the Arizona Attorneys for Criminal Justice criticized in an amicus curiae brief filed with the Court in March. The brief was authored by David J. Euchner of the Pima County Public Defender’s Office in Tucson. The case is Arizona v. United States, No. 11-182.

In another case decided June 25, the Court ruled that mandatory sentences of life without parole for juveniles convicted of murder are cruel and unusual. “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Elena Kagan wrote for the majority in Miller v. Alabama, No. 10-9646. The New York Times reported that as many as 2,000 offenders may be serving mandatory life sentences for crimes committed before they were 18 years of age.

On June 28, the final decision day of the term, in a plurality opinion authored by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, the Supreme Court in United States v. Alvarez, No. 11-210, affirmed the Ninth Circuit Court of Appeals and found that “[t]he Stolen Valor Act infringes upon speech protected by the First Amendment[,]” and as such it is unconstitutional. The Stolen Valor Act of 2005 (18 U.S.C. § 704(b)) made it a federal crime to lie about having received military decorations or medals. In a separate opinion, Justice Stephen G. Breyer and Justice Elena Kagan concurred in the judgment of the plurality while not resting that conclusion “upon a strict categorical analysis.” Instead, Justices Breyer and Kagan found that the Act fails intermediate scrutiny but might survive constitutional muster were it to be redrafted as a “more finely tailored statute.”

NACDL filed an amicus curiae brief in Alvarez arguing that the Stolen Valor Act’s false claims provision, 18 U.S.C. § 704(b), is unconstitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, NACDL argued that the offense lacks a criminal intent, or mens rea, requirement and the supposed harm it protects against is not supported by a substantial government interest and, as such, is a classic example of federal overcriminalization. That brief was authored by Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, Calif., and Jeffrey L. Fisher of Stanford, Calif.

NACDL’s amicus curiae briefs are available on NACDL’s website at

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