President Barack Obama on Wednesday announced his nominee to replace the late Justice Antonin Scalia on the Supreme Court: DC Circuit Chief Judge Merrick Garland. The nomination quickly drew praise from Democrats, many of whom called on the Senate to give Garland a fair hearing and vote.
But some liberals may end up cautious about Garland's nomination. His record suggests he could continue the tough-on-crime approach that's come under increased scrutiny by criminal and racial justice reformers over the past few years.
The Supreme Court can play a big role in these cases, particularly by deciding what rights defendants have in court. For example, the court changed how the government can prosecute mandatory minimum sentences, but also upheld some of the harshest mandatory minimum sentences for drugs. It struck down mandatory life sentences without parole for juveniles. It gave police wide latitude to use deadly force. And so on.
Whoever replaces the conservative Scalia, then, could play a huge role in deciding how criminal justice reform moves forward. And based on Scalia and Garland's records, it's possible that Justice Garland would end up no more liberal or perhaps even more conservative than Scalia was on some criminal justice issues.
Scalia was definitely conservative, but he had a few liberal moments
It's important to put Garland's nomination in context: He is not just getting nominated to the Supreme Court in a vacuum; he'd replace Scalia, who was widely praised — and criticized — as one of the most conservative justices on the bench. And on many issues, Garland would likely be to Scalia's left.
But while Scalia was broadly very conservative on criminal justice issues, he occasionally sided with liberals and reformers to defend criminal defendants' rights — in a way that Garland may not.
"Casual observer or non-lawyers have not recognized that, even though Justice Scalia was very conservative in most criminal procedure cases," Evan Lee, a law professor at the UC Hastings College of Law, told me, "there were a few really important cases in which he — and Justice Thomas — created new and important rights for criminal defendants based on their reading of the original intent of the framers."
Scalia's biggest decision to this end was, according to Lee, Apprendi v. New Jersey in 2000, in which the Supreme Court effectively expanded criminal defendants' rights — despite a case that involved an allegedly racist defendant.
"THERE WERE A FEW REALLY IMPORTANT CASES IN WHICH [SCALIA] CREATED NEW AND IMPORTANT RIGHTS FOR CRIMINAL DEFENDANTS"
In Apprendi v. New Jersey, Charles Apprendi was charged for firing several shots at the home of an African-American family, because he allegedly didn't want a black family in his neighborhood. He pleaded guilty to the charges of second-degree possession of a firearm for an unlawful purpose, which carried a prison term of five to 10 years.
But after Apprendi pleaded guilty, the prosecutor argued to the judge that Apprendi's sentence should be enhanced with the state's hate crime law, since his crime was racially motivated. The judge agreed, unilaterally expanding Apprendi's sentence to a 12-year prison term, without getting a conviction for the hate crime from a jury, and based on a "preponderance of the evidence," a lower legal standard than "beyond a reasonable doubt."
Apprendi's lawyers argued the sentence violated his constitutional rights, because the judge had effectively added another charge to the sentence without having the prosecution prove guilt to a jury beyond a reasonable doubt.
In a big decision, Scalia and four other justices (Stevens, Souter, Thomas, and Ginsburg) agreed with Apprendi's lawyers. In doing so, the justices forced judges to get a conviction from a jury — one that's proven beyond reasonable doubt — before they can extend a sentence beyond the set maximum for the original conviction.
As Lee put it, this was a considerable win for criminal defendants' rights. "It was a revolution in criminal sentencing," Lee said. "I can't possibly overstate the impact thatApprendi had in the real world."
Another example, which has become a growing issue in the Supreme Court: In the past few years, the court has taken a lot of cases regarding how criminal cases should be decided in instances in which the law is vague. Scalia quite consistently resorted to the"rule of lenity," which essentially says courts must side with the defendant when a law is vague about how someone should be punished.
"A lot of [federal criminal laws] are badly worded, because Congress in its rush to be tough on crime will just throw a statute in there," Lee said. "In the end, the Supreme Court has to fix that."
In another case, Scalia stood up for marijuana growers: He ruled against police using infrared technology to peer into a person's house without a warrant, as cops did in the 2001 case Kyllo v. United States to locate heat patterns that showed marijuana cultivation. Scalia said the Fourth Amendment protects a person's privacy within the home, so police would need a warrant for such a "search."
"IT WAS A REVOLUTION IN CRIMINAL SENTENCING"
The case wasn't a total outlier: Scalia sided — albeit inconsistently — with defendants in several Fourth Amendment cases, as Jacob Sullum explained for Forbes.
Now, Scalia was certainly not a liberal on criminal justice issues. In his nearly 30 years as a justice, he had far more cases in which he sided against criminal defendants, particularly on the death penalty. In one case, Scalia argued that the Supreme Court had never found that executing innocent defendants violated the Constitution if they got a "full and fair trial." Although an extreme example (and technically correct), Scalia's tone reflects the approach he took for the bulk of criminal procedure cases.
But as conservative as his views in most cases were, Scalia still had a few moments in which he stridently sided with defendants. And the few examples show Scalia was not as conservative on criminal justice issues as liberals may think. So if he's replaced by someone who's moderate to conservative — like Garland — then criminal justice reformers could end up gaining little to nothing from the replacement.
Garland's record on criminal justice issues is moderate to conservative
As a compromise nominee, it's expected that Garland will be moderate to conservative on some issues — just enough to make him a palpable nominee for Republicans. And his record on the Court of Appeals for the DC Circuit and as a federal prosecutorsuggests that he's moderate to conservative on criminal law.
Unlike Scalia, "I predict that Garland will never be in the majority in one of those cases — recognizing a bold, new right for criminal defendants based on the original intent of the framers," Lee said. "He has shown he's a traditionalist, a moderate-to-conservative in the criminal law and criminal procedure realm."
When Garland was in the running for the Supreme Court in 2010, veteran attorney Tom Goldstein wrote a deep analysis of Garland's record for SCOTUSblog. Although there were few cases to go on (the DC Circuit court doesn't handle many criminal law cases), Goldstein found that Garland tended to take moderate to conservative positions on criminal law: When Garland broke from the pack, he tended to break away from his more liberal peers.
"HE HAS SHOWN HE'S A TRADITIONALIST, A MODERATE-TO-CONSERVATIVE IN THE CRIMINAL LAW AND CRIMINAL PROCEDURE REALM"
It's of course hard to predict how Garland would rule in future cases. But his "track record shows a substantial sympathy for the government in criminal cases. He rarely votes to overturn a criminal conviction," Goldstein told me. "That 2010 post tells the story: He goes opposite of his more liberal colleagues 10 times, but never goes opposite in the other direction of being more favorably inclined to the defendant."
The 2010 assessment still stands, Goldstein said: "Twelve years into his tenure, you knew him pretty well."
So in cases where federal criminal law is vague, Garland will probably be more likely to rule against the defendant. So, as one example, he may not follow the rule of lenity — and side with defendants when criminal law is vague — like Scalia did.
Another big distinction: While Scalia was more likely to overturn previous law and tradition to fit his view of the Constitution, Garland will likely avoid changing current precedent. "He is a centrist, a call-them-as-I-see-them, I-have-no-interest-in-changing-the-law kind of guy," Goldstein said.
That could sometimes extend in favor of defendants when current law is in their favor. For example, Scalia despised the"exclusionary rule" — which requires courts throw out evidence that police obtained illegally — out of worry that it can ruin otherwise good cases against criminals, and he seemingly wanted to undo it. But Garland would probably be unwilling to overturn a standing rule, so he would be more likely to throw out illegally obtained evidence through the existing exclusionary rule.
Given Scalia's extremely pro–death penalty views, Garland will also very likely be much more liberal on capital punishment. Goldstein said that Garland, for instance, will probably be more willing to let defendants challenge their death sentences if they claim to have received an inadequate legal defense. But Goldstein would be very surprised, he said, if Garland ruled to strike down the death penalty, which some of the more liberal justices have shown interest in doing.
Still, Garland has generally favored prosecutors and sided against defendants as a DC judge, and it seems unlikely he would create big, new rights for defendants as Scalia did in a few cases. So if the Senate approves Garland's nomination (which seems unlikely), it could result in little to no gain for criminal justice reformers — even if he is replacing the notoriously conservative Scalia.
No comments:
Post a Comment