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Defendants Should Target Roberts, Kavanaugh, Says Court Watcher



About a third of the recently completed Supreme Court term dealt with criminal justice issues. Ohio State University law Prof. Douglas Berman offers a few conclusions on trends in his Sentencing Law and Policy blog.


--Federal defendants who were not the Boston Marathon Bomber did quite well. Though Dzhokhar Tsarnaev had his federal death sentence reinstated and a few other federal defendants lost on procedural issues, several federal defendants prevailed on an array of statutory issues. The considerable success of these defendants on various statutory claims is surely a function of selective certiorari grants, but it is still notable and a trend to watch, Berman says.


--State defendants pursuing federal habeas corpus actions "have real reason for real pessimism." There were significant losses for state defendants in three cases. These rulings all included an unmistakable tone signaling that a super-majority of the Justices are quite eager to restrain the authority of federal courts to review and reverse state convictions via habeas.


--A few capital defendants did prevail on distinctive issues: One allowed clergy access at executions; another preserved federal law section 1983 as a robust mean to contest execution protocols. The Supreme Court is particularly troubled when federal courts fail to show deference to give serious criminals multiple "bites at the apple," but they still will protect an initial "bite." One case on next term's docket involves statutory avenues for federal defendants to raise issues that were previously legally unavailable.


--Among the conservative Justices, one can usually expect in criminal cases that Justice Samuel Alito will be the most likely to vote for the government and Justice Neil Gorsuch will be the most likely to vote for the defendant. In capital cases, Gorsuch is a consistent vote against defendants while Chief Justice John Roberts and Justice Brett Kavanaugh seem a bit more "defense friendly." In two notable 5-4 rulings this term, Justices Gorsuch and Clarence Thomas providing the key votes for a federal defendant and Roberts and Kavanaugh providing the key votes for a state capital defendant. Roberts and Kavanaugh, who voted together this term in every case, may now need to be the focal point for advocates in closely divided criminal cases.


--Justice Amy Coney Barrett was more likely to vote with Justice Alito than even other conservative Justices, and that seemed particularly true in criminal cases.


--Will new Justice Ketanji Brown Jackson vote the same as retired Justice Stephen Breyer on criminal cases?Yes on most issues, but Jackson, a former public defender, might encourage the court to take up more or different types of criminal justice cases, Berman says.

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