RELIST WATCH

Acquitted-conduct sentencing returns

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. 

Back in January, we noted that the Supreme Court had relisted five petitions challenging the constitutionality of the controversial practice of acquitted-conduct sentencing. (Disclosure: I represent the petitioner in one of those cases.) Under it, the fact that a jury has acquitted a defendant of criminal conduct doesn’t end the risk that he or she will be punished for that conduct; so long as the defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for the conduct of which the person was acquitted. In 1997’s United States v. Watts, the Supreme Court in a summary per curiam opinion held that such enhancements do not violate the double jeopardy clause. Largely based on Watts, every federal court of appeals has rejected challenges brought under the Fifth Amendment due process clause and the Sixth Amendment’s jury trial guarantee. But some state courts have held the practice is unconstitutional, and a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, have criticized the practice.

After that single January relist, the court held those five cases for several months, apparently waiting to see whether the United States Sentencing Commission would act on a proposal that would have placed modest limits on the ability of federal sentencing judges to enhance sentences based on acquitted conduct. The Sentencing Commission recently decided not to act on that proposal this year, although it intends to try again next year. Some of the challengers argue that the Supreme Court should not wait for the Commission to act, because its proposals place only minor restrictions on the practice, and most acquitted-conduct sentences are imposed in state courts beyond the reach of the Commission. Moreover, the challengers note, the federal government argues that the Commission lacks authority to place restrictions on acquitted-conduct sentencing, because 18 U.S.C. § 3661 bars the imposition of restrictions on the information about the background and conduct of defendants that courts can consider.

The Supreme Court has relisted those original five cases a second time now. And they are joined by an additional eight cases raising the same (or closely analogous) issues. We’ll find out soon how lucky these 13 petitions are.

That brings us to Harness v. Watson. The Mississippi Constitution denies the vote to any person “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.” The state adopted the original version of that provision by constitutional amendment in 1890, and the state supreme court candidly acknowledged just a few years later that the “consistent, controlling, directing purpose” during the amendment process was “to obstruct the exercise of the franchise by the negro race.” The constitution made crimes thought to be “black crimes” subject to voter disenfranchisement and eliminated crimes thought to be “white crimes.” The statute was amended in 1950 to remove burglary from the list, and in 1968 it was amended to add rape and murder, in part because a federal civil rights commission noted the omission of such serious felonies from the list. The state legislature declined to add all felonies to the list, and — back when the preclearance provisions of the Voting Rights Act of 1965 were still in effect — the U.S. Department of Justice “precleared” Mississippi’s provision to permit it to enter effect.

Roy Harness and Kamal Karriem are Black men living in Mississippi who are disenfranchised under state law because they have been convicted of forgery and embezzlement. They filed suit under the Fourteenth Amendment seeking to enjoin the continued enforcement of the disenfranchisement provisions for the eight remaining crimes made subject to disenfranchisement in 1890, saying the list was adopted with a racially discriminatory purpose. They note that in Hunter v. Underwood, the Supreme Court invalidated a similar provision of the Alabama constitution that disenfranchised people convicted of crimes “involving moral turpitude.” The U.S. Court of Appeals for the 5th Circuit, by a divided vote, rejected those arguments, holding that Harness and Karriem had not demonstrated that the current version of the act “was motivated by discriminatory intent,” and that Mississippi had “conclusively shown that any taint associated with [the provision] has been cured.”

Before the Supreme Court, Harness and Karriem renew their arguments. The state in opposition argues that other courts of appeals have also held that the enactment of new criminal disenfranchisement provisions can cleanse the taint of earlier provisions that were racially motivated. Since January of this year, the court has rescheduled this case a remarkable 10 times, suggesting that one or more of the justices is taking a very active interest in the case.

Heather Leavell-Keaton was convicted of helping her boyfriend murder his two young children. During capital sentencing proceedings, Leavell-Keaton was given the opportunity to present mitigating evidence, and then she was supposed to be given an opportunity to make a statement on her own behalf before being sentenced. However, she was denied the opportunity to speak on her own behalf and was sentenced to death. Based on that denial, the Alabama Court of Criminal Appeals vacated her death sentence and sent the case back to the trial court. On remand, Leavell-Keaton sought to introduce additional mitigating evidence that she had had behaved well during her years on death row. The trial court refused to admit the evidence, found her statement unpersuasive, and again sentenced her to death.

In Leavell-Keaton v. Alabama, she contends that it was error not to receive the newly proffered mitigating evidence. Leavell-Keaton argues that ordinarily, courts should not be precluded from considering any aspect of a defendant’s character or record as mitigation evidence. She also notes that in Skipper v. South Carolina, the Supreme Court recognized that good conduct in jail is “by its nature relevant to the sentencing determination.” Alabama argues that because Leavell-Keaton did not identify any error at the evidentiary phase of the trial, there was no error limiting the remand to her statement and denying her a do-over on mitigation.

Lastly, we have a foursome of newly relisted immigration cases. Mencia-Medina v. Garland, Castaneda-Martinez v. Garland, A.B. v. Garland, and Kumar v. Garland all appear to raise at least one of the issues the Supreme Court recently resolved in Santos-Zacaria v. Garland, in which it held that 8 U.S.C. § 1252(d)(1) — which requires noncitizens to “exhaus[t] all administrative remedies … as of right” before challenging a Board of Immigration Appeals final order of removal in federal court — is not a jurisdictional provision and does not require noncitizens to request discretionary forms of review. The Supreme Court has been holding all four of these cases for its decision in Santos-Zacaria. With that decision now issued, the court likely just needs more time to sort through the record in these four cases to decide how to dispose of them.

That’s all for this week. We should know more after the court releases its order list next Monday. See you next time!

New Relists

Mencia-Medina v. Garland, 21-1533
Issue: Whether, to satisfy 8 U.S.C. § 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference)

Castaneda-Martinez v. Garland, 22-191
Issue: Whether issues resolved sua sponte by the Board of Immigration Appeals are exhausted under 8 U.S.C. § 1252(d)(1) for purposes of judicial review.
(relisted after the May 18 conference)

Harness v. Watson, 22-412
Issue: Whether any amendment to a law originally adopted for an impermissible racially discriminatory purpose, no matter how minor the amendment and no matter the historical context, cleanses the law of its racist origins for 14th Amendment purposes unless the party challenging the law can prove that the amendment itself was motivated by racial discrimination.
(relisted after the May 18 conference; rescheduled before the Feb. 17, Feb. 24, Mar. 3, Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28 and May 11 conferences)

A.B. v. Garland, 22-588
Issues: (1) Whether 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited; and (2) whether, to satisfy Section 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference) 

Kumar v. Garland, 22-681
Issues: (1) Whether 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is jurisdictional, or merely a mandatory claims processing rule that may be waived or forfeited; and (2) whether, to satisfy Section 1252(d)(1)’s exhaustion requirement, a noncitizen who challenges a new error introduced by the Board of Immigration Appeals must first ask the agency to exercise its discretion to reopen or reconsider.
(relisted after the May 18 conference)

Ross v. United States, 22-5993
Issue: Whether a judge denies a defendant’s Fifth Amendment rights by increasing a prison sentence based on disputed facts the court did not find beyond a reasonable doubt, but for which the sentence would be stricken as substantively unreasonable on appeal.
(relisted after the May 18 conferences; rescheduled before the Mar. 31 and May 11 conferences)

Cain v. United States, 22-6212
Issue: Whether either the jury trial right contained in the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence based on conduct that a jury’s verdict rejected.
(relisted after the May 18 conferences; rescheduled before the Apr. 14 and May 11 conferences) 

Sanchez v. United States, 22-6386
Issue: Whether the use of acquitted conduct to determine a defendant’s sentence violates the Fifth and Sixth Amendments.
(relisted after the May 18 conference; rescheduled before the Apr. 21 and May 11 conferences)

Martin v. United States, 22-6736
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18 conference; rescheduled before the May 11 conference)

Merry v. United States, 22-6815
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing (enhancing) a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the May 18 conference) 

Beachem v. United States, 22-6838
Issues: (1) Whether a court can take into account acquitted, dismissed, or uncharged conduct, of which no jury ever found petitioner guilty of and which he never admitted; and (2) whether a court can enforce an appeal waiver provision when enforcement would result in a miscarriage of justice.
(relisted after the May 18 conference; rescheduled before the Mar. 17 and May 11 conferences)

Leavell-Keaton v. Alabama, 22-6895
Issue: Whether, when a capital defendant’s death sentence is vacated and the case is remanded for a new sentencing at which the death penalty is an available sentence, the defendant has a constitutional right under Skipper v. South Carolina to present evidence of her good behavior in prison.
(relisted after the May 18 conference)

Little v. United States, 22-6940
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentencing on uncharged conduct which was never admitted by the defendant nor proven to a jury beyond a reasonable doubt and which was only found by the sentencing court to be proven by a preponderance of the evidence.
(relisted after the May 18 conference; rescheduled before the Apr. 14 and May 11 conferences) 

Jenkins v. United States, 22-7148
Issues: (1) Whether the district court erred in not appointing new counsel; and (2) whether the district court violated the Fifth and Sixth Amendments by basing its drug weight calculations on acquitted conduct.
(relisted after the May 18 conference; rescheduled before the Apr. 21 and May 11 conferences)

Returning Relists 

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 2, Dec. 9, Jan 6 and May 11 conferences) 

Luczak v. United States, 21-8190
Issue: Whether the Supreme Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Dec. 9, Jan 6 and May 11 conferences)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; and (2) whether it violated the due process clause of the Fifth Amendment for the district court to sentence Gary Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Jan 6 and May 11 conferences)

 Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; and (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13 and May 18 conferences; rescheduled before the Jan 6 and May 11 conferences)