Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law, provided this summary for the ABA Journal of upcoming criminal cases slated for the U.S. Supreme Court.
SEPARATE SOVEREIGN DOCTRINE
In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns doctrine,” which provides that the federal government and state governments are separate sovereigns, and double jeopardy does not bar prosecutions against the same person for the same crime in both federal and state courts. This was the holding in Abbate v. United States (1959) and Bartkus v. Illinois (1959), though the doctrine can be traced to Supreme Court decisions going back to the middle of the 19th century.
There are two important cases about the administration of the death penalty. In Madison v. Alabama, the court will consider whether it is cruel and unusual punishment for a state to execute a person who has developed severe dementia and is unable to remember his offense. The court previously ruled that it violates the Eighth Amendment for a state to execute the mentally insane—Ford v. Wainwright (1986); Panetti v. Quarterman (2007)—or the mentally disabled— Atkins v. Virginia (2002). The question is how this applies to a prisoner who has developed dementia, something courts will increasingly face with an aging population on death row across the country.
In Bucklew v. Precythe, the court will consider whether it is cruel and unusual punishment to use a method of execution, lethal injection, that risks great pain and suffering because of a rare medical condition. In Baze v. Rees (2008) and Glossip v. Gross (2015), the court rejected facial challenges to laws that provided for execution by lethal injection. Bucklew v. Precythe is an as applied challenge based on Bucklew’s rare and severe medical condition.
DELEGATION OF POWER
Many have noted that the conservative justices on the court have indicated a desire for more judicial oversight of administrative agencies. In Gundy v. United States, the court will consider whether the Sex Offender Registration and Notification Act is an unconstitutional excessive delegation of legislative power to the attorney general. SORNA makes it a federal crime for a sex offender to travel across state lines if he or she has not registered as a sex offender as required by a state’s law. Congress left many matters to the attorney general, including deciding how this should apply to offenders who were convicted before SORNA was enacted.
The Supreme Court last declared a federal law unconstitutional as an excessive delegation of powers in 1935. If the court were to invalidate SORNA on this basis, it would open the door to challenges to countless federal laws with broad delegations of power to executive officials and agencies.
In Timbs v. Indiana, the court will consider whether the Eighth Amendment’s prohibition of excessive fines applies to state and local governments. Tyson Timbs was convicted of selling 4 grams of heroin. Although the maximum fine for this under Indiana law was $10,000, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court rejected the argument that this disproportionate penalty violated the excessive fines clause, concluding that the U.S. Supreme Court never had found the excessive fines clause to be incorporated into the due process clause and to apply to state and local governments. That issue is now squarely before the Supreme Court.
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