Top Court Extends Federalism to Criminal Realm

The U.S. Supreme Court began its 2003 term on Monday. So this is a good time to look at what the 2002 term accomplished in the area of criminal law.

First, the last term produced the fewest number of criminal decisions in years. Only 26 cases were decided in the areas of criminal procedure and substantive criminal law. This parallels the trend over the last several years that has seen a steady decline in the court's entire docket -- from an average of 150 cases a year in the 1960s to last year's grand total of 80.

Second, the Supreme Court continues to be "O'Connor's Court." Every 5-4 decision in the area of criminal law had one thing in common -- Justice Sandra Day O'Connor was always on the winning side.

Third, this last term was remarkable for the almost complete lack of decisions concerning police investigation. The court did not hear a single oral argument in a search and seizure case. The only Miranda case was in the context of a section 1983 Civil Rights Act lawsuit, and not a criminal trial.

So what kind of term was it for criminal law?

If I had to choose an organizing theme, I think I would emphasize the court's continuing interest in federalism. As you are probably aware, over the last decade the court has decided a series of cases that has used the 11th Amendment as a vehicle for granting the states immunity from a variety of civil lawsuits. See, for example, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999).

Keeping with this broad theme, a significant number of last term's decisions can be seen as attempts by the court to keep federal courts from interfering with criminal proceedings in state courts.

The most obvious example is in the area of habeas corpus. Before 1996, a federal court deciding a petition for a writ of habeas corpus would review all state court factual findings under a clearly erroneous standard, but would review state court legal findings de novo. This expansive federal review was severely curtailed, however, with the passage of the Antiterrorism and Effective Death Penalty Act of 1996.

The AEDPA mandates that habeas relief not be granted unless the state court criminal decision was "contrary to, or involved an unreasonable application of, clearly established federal law" as determined by the U.S. Supreme Court, or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. sec2254(d).

The Supreme Court emphasized how circumscribed a federal habeas court's powers now are by summarily reversing two rulings by the 9th U.S. Circuit Court of Appeals that had granted habeas relief. In Woodford v. Visciotti, 123 S.Ct. 357 (2002), the high court reiterated that the AEDPA has drastically changed habeas law by imposing a "highly deferential standard for evaluating state court rulings." At 360, citing Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997).

Visciotti also bluntly stated that the AEDPA "demands that state court decisions be given the benefit of the doubt." At 360. It faulted the 9th Circuit for equating an "incorrect" application of law with an "unreasonable" application of law. It accused the 9th Circuit of merely substituting its own judgment for that of the California state court, something that cannot be done under the AEDPA.

The Supreme Court again distinguished between a state court's merely being "wrong" as opposed to being "unreasonable" in Early v. Packer, 123 S.Ct 362 (2002); only the latter, more stringent conclusion will produce relief under the AEDPA.

The same theme of leaving state courts alone was reflected in the Supreme Court's two decisions upholding California's "three strikes and you're out" sentencing scheme. In Lockyear v. Andrade, 123 S.Ct. 1166 (2003), the court reversed the 9th Circuit's finding that California state courts had been "unreasonable" in finding that Andrade's two consecutive 25-year-to-life terms for stealing $ 150 of videotapes were proper under the Eighth Amendment. The Supreme Court held that finding that a state court judgment was "erroneous" -- or even "clearly erroneous" -- was simply not enough to constitute an "unreasonable" decision under the AEDPA.

And, in Ewing v. California, 123 S.Ct. 1179 (2003), the court went on to hold that even on direct review the three-strikes provision is not "grossly disproportionate" so as to violate the Eighth Amendment.

More deference to state court systems can be seen in the court's two cases reviewing "Megan's Laws." The court held that the Alaska Sex Offender Registration Act did not violate the ex post facto clause by being applicable to sex offenders whose crimes had been committed before the act was passed. Smith v. Doe, 123 S.Ct. 1140 (2003). This is because the act is civil, rather than criminal, in nature.

The court also held that Connecticut could properly have a Megan's Law that included convicted sex offenders without any consideration of whether they are currently dangerous; thus, a defendant had no due process right to a hearing to determine the likelihood that he is currently dangerous. Connecticut Department of Public Safety v. Doe, 123 S.Ct. 1160 (2003).

Finally, deference to the states extended to the manner in which they run their prisons. Noting the substantial deference the court has accorded the professional judgment of state prison administrators, it rejected a host of constitutional challenges to Michigan's restrictions on "contact visits" with inmates. Overton v. Bazzetta, 123 S Ct. 2162 (2003).

Thus, this term showed the court's strong proclivity toward a hands-off attitude for a large variety of areas involved in a state criminal justice system.

This is not to say that there were no defense victories.

Perhaps the most significant may be the court's surprising grant of habeas corpus relief in Wiggins v Smith, 123 S.Ct. 2527 (2003). There a capital defendant's public defenders opted at the sentencing hearing to argue that Wiggins had not personally committed the murder; he was then sentenced to death.

The Supreme Court found the defense attorneys were ineffective by not further pursuing evidence they had that Wiggins had had a very difficult childhood. The court refused to find that the attorneys' decision to merely dispute whether the defendant actually committed the murder was a "strategic choice" when prevailing professional standards -- such as the American Bar Association's Criminal Justice Standards -- supported a decision to further investigate Wiggins' childhood. Thus, counsel were ineffective under the Sixth and 14th amendments.

Other important defense victories came in Sell v. U.S., 123 S.Ct. 2174 (2003), where the court placed restrictions on the government's ability to force a defendant to be medicated in order that he could be competent to stand trial, and Stogner v. California, 123 S.Ct. 2446 (2003), where the court held that it was a violation of the ex post facto clause for the California legislature to allow the prosecution of cases in which the statute of limitations had already expired.

What about the new term? If I had to pick one case that I believe will have major significance, I would choose Yarborough v. Alvarado, No. 02-1684 (cert. granted Sept. 30, 2003). Here the court will decide whether the otherwise objective inquiry of whether a defendant is "in custody" for purposes of Miranda must also take into account the age and experience of the suspect if he is a juvenile. With the increased interest in the area of injustices surrounding confessions by juveniles, Yarborough may be a significant decision indeed.