In 2008, Joffre Ullon called police to report that his wife had seen a man breaking into cars outside their Nashua, New Hampshire apartment complex.  When police arrived at the scene, they discovered Barion Perry carrying two car stereo amplifiers across the complex’s parking lot.  Perry told police that he had found the amplifiers on the ground and was simply moving them out of the way.

While Perry was talking to police, Ullon and his wife were discussing what they had seen with another Nashua officer.  Ullon’s wife stated that the man she had seen breaking into the cars was “tall” and “African-American.” When pressed for details, Ullon’s wife looked out the window, pointed to Perry, and identified him as the culprit.  At the time of the identification, Perry was standing next to a Nashua police officer.

At trial, Perry moved to exclude the identification, claiming that the evidence’s admission would violate his due process rights.  Perry asserted that his proximity to police at the time of the identification colored the witness’s memory by suggesting that he was a person of interest in the police’s investigation.  The trial court disagreed.  Without ruling on whether the circumstances surrounding Perry’s ID were suggestive of guilt, the court asserted that Perry could not mount a due process claim because the suggestive circumstances were not “intentionally orchestrated by police.”  A defendant may challenge a witness’s ID only if its reliability is called into question by “improper state action.”  Here, the circumstances of which Perry complained were a matter of happenstance, meriting the identification’s admission.

The issue before the Supreme Court is whether eyewitness identifications must be excluded whenever the identification was made under circumstances that make the ID unreliable.  As it stands, exclusion is mandated only when police themselves are responsible for the suggestive circumstances.

The question turns in large part on the ill the exclusionary rule is designed to cure.  Perry argues that the Court should be concerned with reliability.  “It is the likelihood of misidentification which violates the defendant’s right to due process,” Perry declares.  In contrast, the State claims that the exclusion of unreliable eyewitness testimony is merited only to the extent that it deters police misconduct.  Arguing on behalf of New Hampshire, the United States asserts, “Police involvement is a necessary prerequisite for a due process analysis into the reliability of an identification.”  Only after a court has determined that police misconduct created circumstances “unnecessarily suggestive” of a defendant’s guilt need the court engage in an inquiry into the reliability of the resulting identification.

New Hampshire’s rule is the easier one to administer.  Assessing the reliability of an ID is a tricky task.  Indeed, Perry does not propose a standard for answering “how suggestive is too suggestive?”  By saving the reliability inquiry until after a court has assessed police misconduct, judges can screen out many complicated due process claims.

Adopting such a rule, however, leaves the Court in an awkward position.  In 1967, the Court conceded: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”  Modern psychology has only confirmed the Court’s intuition.  Study after study has substantiated the inaccuracy of eyewitness testimony, such that tighter rules must be enacted before it can be admitted at criminal trials.  Perry presents an opportunity for relatively modest reformation: when a defendant can point to concrete facts undermining the reliability of an ID, the prosecution must turn to alternative evidence in order to prove its case.  At least in this narrow class of cases, administrability must give way to accuracy.

At oral arguments, Thomas Goldstein, a lawyer for the petitioner, struggled to articulate precisely the procedure he was asserting to be unconstitutional.  To some justices’ surprise, Goldstein conceded that if prison guards observed inmates disrobe from across the room, their actions would not violate the Constitution.  Rather, the constitutionality of a search hinged on the proximity between the guard and the inmate during a nude inspection.  “Are you suggesting,” Justice Sonia Sotomayor interjected, “[i]t’s okay to stand five feet away, but not two?”  Goldstein would not answer “how close is too close”; however, he affirmed that the constitutional violation in the case arose from the guards’ close proximity to the petitioner while searching him.

Several of the justices seemed surprised by other concessions Goldstein made during oral arguments.  For instance, Goldstein suggested that a policy whereby close-range strip searches were performed by medical professionals would be constitutional.  “If you’re examined close up by someone who has a medical degree, it’s okay?” Justice Antonin Scalia questioned.  “And on the other hand, if it’s someone who does not have a medical degree, it’s not okay?”  Goldstein answered affirmatively.  Justice Scalia stated that he failed to see Goldstein’s distinction.

Carter Phillips, counsel for the prisons, also received some pointed questions from the bench.  A number of justices expressed their skepticism that the prisons had an interest in subjecting all inmates – even those charged with only minor offenses – to close-range strip searches.  Justice Stephen Breyer referred Phillips to studies showing no increase in contraband discovered when prison officials moved from a policy whereby guards strip searched all inmates upon entering the facility to one in which guards were required to have “reasonable suspicion” before a search.  “I understand contraband is serious,” Justice Sotomayor explained.  “But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.  The great cause today is that from corrupt correction officials.”  Phillips countered, asking the Court to rely on its “common sense,” not scientific studies.

To listen to the entirety of the oral arguments in Florence, click here.  To read the petitioner and respondents’ briefs, click here.

Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well.  Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.  Cooper’s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.  If that argument seems silly, it’s because it is.  The advice Cooper received was patently false, and as an appellate court later declared, “objectively unreasonable.”  Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.  Cooper appealed, alleging ineffective assistance of counsel.  The Sixth Circuit overturned Cooper’s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.

Cooper’s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?

Perhaps not.  To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a “substantial or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).  It is not clear what right Cooper was deprived of.  Cooper had no constitutional right to a plea bargain.  Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.  In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.  It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.

The approach described above, however, may be overly formalistic.  Cooper points out that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Why then shouldn’t ineffective counsel negate a not-guilty plea?  The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.  By pleading not guilty, however, a defendant gives up nothing.  Rather, by pleading not guilty, a defendant is asserting his constitutional right to a trial.  But is that distinction satisfying?  Both Padilla and Cooper received bad advice.  Both Padilla and Cooper would have altered their decision had they been provided with competent advice.  Yet only Padilla gets a do-over?  The result may follow from existing precedent, but a tinge of unfairness remains.  The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.  Many are hoping that they do.

The Supreme Court will soon decide.  In a brief filed with the Court, Florence contends that jailers’ policy of strip-searching all inmates entering correctional facilities – including those accused of minor offenses – violates the Fourth Amendment’s protection against unreasonable searches and seizures.  To effect a search as invasive as the one Florence underwent, officials must have a “reasonable suspicion” that an inmate is attempting to smuggle drugs or weapons into the facility.

Counsel for the prisons counter, however, asserting that suspicionless strip searches are necessary mechanisms to ensure the safety and security of state and federal prisons.  Any interest inmates have in individual privacy is dwarfed by the state’s interest in detecting the smuggling of contraband into prison.  Indeed, altering existing policy might spur inmates to coerce others into getting arrested on minor charges in order to smuggle contraband undetected.

As a tactical matter, Florence seeks to minimize the state’s interest in suspicionless strip searches, deriding the practice’s efficacy in detecting contraband.  Florence points to a variety of statistics suggesting that suspicionless strip searches prove a poor screening mechanism for smuggled materials.  For instance, eighteen states prohibit suspicionless strip searches with no indication that prisons therein suffer from an increased incidence of smuggling.  Florence also points to Dodge v. County of Orange, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), in which a court in the Southern District of New York examined a prison policy whereby all inmates were strip-searched before entering a particular facility.  The Court looked at every arrest record to determine whether a “reasonable suspicion” regime – in which strip searches were limited to prisoners whose crimes and/or backgrounds evinced a propensity to smuggle – would increase the amount of contraband introduced into prison.  The Court concluded that of the 23,000 searches conducted over a four-year period, there was only one instance in which a person smuggling drugs might have evaded detection under a reasonable suspicion regime.

Florence’s reliance on statistics to cast doubt of the state’s interest in security may prove to be a tactical error.  First, recitations of statistics from other jurisdictions or other prisons do not necessarily speak to the realities of the prisons in which Florence was housed.  As one of the respondents points outs, the jail where Florence was strip-searched is one of the most dangerous in New Jersey, where contraband is “found on a daily basis.”[1]  Though the facility in Dodge may not have benefitted from a suspicionless strip search regime, the present prison might.

Moreover, the Court has defended highly invasive searches absent probable cause in prior cases, even where such practices appear to possess limited utility.  In Bell v. Wolfish, 441 U.S. 520 (1979), for instance, the Court upheld a prison policy subjecting prisoners to body cavity searches upon receiving outside visitors, despite the fact that such searches had discovered contraband in only one instance.  However, Bell does not necessarily ring the death knell for Florence’s appeal.  The fact that the searches in Bell discovered little contraband is to be expected: if the inmates knew that they would be searched after visits with guests, there would be little incentive to have those guests smuggle in illicit items.  In contrast, inmates charged with minor offenses are unlikely to possess contraband because: (a) they possess no real criminal disposition and thus no desire to smuggle illicit items into prison or (b) their arrest was unpredictable and thus they lacked the time necessary to hide contraband materials on their person.  The Court’s dismissal of statistical data in Bell does not necessarily suggest they will reject it again in Florence.

Rakheem Bolton

Originally published May 6, 2011.  The Supreme Court has declined to take the case of a Texas high school cheerleader who was kicked off the squad after refusing to cheer for the basketball player whom she alleges raped her.  The Fifth Circuit ruling not only upheld the school’s right to punish her for refusing to cheer, but dismissed her suit as frivolous, requiring her family to cover the school’s legal fees.  The victim, who was 16 at the time, was allegedly raped at a party by Rakheem Bolton, one of her high school’s star athletes.  Though Bolton was arrested, he plead guilty to a misdemeanor assault, was sentenced to probation and community service, and was back on the basketball team.

When Bolton stepped up to take a free throw, the victim, known as H.S., crossed her arms and refused to participate while the team cheered his name.  School officials ordered H.S. to participate in the cheers, and when she continued to refuse, she was kicked off the cheerleading team.

Not only does this case represent a tragedy of criminal justice, with Bolton pleading guilty to an assault but not a felony and without serving a day in jail due in part to the backlog of DNA testing of rape kits, the civil suit is a gross perversion of the victim’s right to free speech.  H.S. was not on the sideline screaming obscenities at her rapist while he tried to take a free throw (which would be totally understandable).  She was simply standing quietly refusing to cheer for him.  She did not interfere with the basketball team or any other cheerleaders.  She simply stood there.

Yet, the Supreme Court declined to take the case and correct the Fifth Circuit’s assertion that H.S. was a “mouthpiece” for the school to “disseminate speech,” and that her “act constituted substantial interference with the work of the school.”   The highest court in the land couldn’t get four justices to vote to even hear the argument for why it might actually be reasonable to punish rapists and not victims.

Update 9/13/2011: After being ordered to pay $39,000 in court costs for filing four frivolous claims, the plaintiff in this case won a small victory when the 5th Circuit has now overturned the finding of frivolity on the plaintiff’s free speech claim.  Three other arguments based on denial of liberty, property, and equal protection and due process violations were upheld as frivolous, and the case was sent back down for a new determination of costs.  Filing this case will likely eventually cost the girl and her family tens of thousands of dollars.  She is now 19 and has graduated from high school.

You can sign a petition to encourage the district to drop the claim for legal fees here.  You can donate to help the family pay the legal fees here.

In a relatively little-noted decision last term, the Supreme Court favored a particular vision of federalism over the protection of religious freedom. The 6-2 ruling, in Sossamon v. Texas, barred money damages in private actions brought by prisoners against state and local governments under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). 

The technical point at issue in Sossamon was whether the statute’s authorization of “appropriate relief” against governments was explicit enough to constitute a waiver of state sovereign immunity. Writing for the majority, Justice Thomas reasoned that “appropriate relief” is ambiguous enough that in this instance it authorizes only injunctive relief, not monetary damages. In a thorough dissent, Justice Sotomayor pointed out that this reasoning ends up reversing traditional remedy principles, by which equitable relief is granted only if a damage award is insufficient, and that there is no particular reason to think that the phrase “appropriate relief” is explicit enough to allow injunctions but not monetary damages.

By ruling out monetary damages in private RLUIPA actions, the Court erected a significant obstacle to private enforcement of Free Exercise rights under the RLUIPA standard. As Justice Sotomayor’s dissent points out, a prison system sued under RLUIPA can moot any potential injunctive remedy by simply transferring a plaintiff prisoner to another facility, leaving the plaintiff without any available judicial remedy; in any event, injunctive relief may be “of cold comfort to the victims of serious, non-recurring violations.” Sossamon also eliminates the incentive effect that damage awards can have on institutional behavior. And coupled with the already draconian provisions of the Prison Litigation Reform Act, Sossamon continues a trend of denying prisoners any effective opportunity for the enforcement of their rights.

It remains to be seen whether Sossamon removes the possibility of money damages in land-use cases, the other category of state action to which RLUIPA applies. In light of the Supreme Court’s Free Exercise jurisprudence in the past couple of decades, it would be a predictable irony if conservative religious groups were hurt by another decision supported largely by the Court’s conservative majority. RLUIPA was passed in response to the Court’s striking down of the Religious Freedom Restoration Act (RFRA), which in turn was Congress’s 1993 response to the Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), that ended the “substantial burden” test that the Court had previously applied to governmental actions that interfered with the free exercise of religion. Sossamon is just the latest in a line of cases that value state sovereignty and the protection of institutional defendants over religious liberty, despite a bipartisan consensus in the elected branches that the Court’s interpretation of the Constitution on this issue is off track. Thus, Sossamon demonstrates that legislative action to protect civil liberties can be insufficient when it meets with a hostile Supreme Court majority.

The Eighth Amendment guarantee against “cruel and unusual punishment” has been a primary source of protection for prisoners objecting to their conditions of confinement. In 1980, the Supreme Court enhanced this protection by establishing an implied damages action against federal prison officials for violating the Eighth Amendment. Since its decision in Carlson v. Green, 446 U.S. 14 (1980), inmates have been able to sue individual prison officials for violating their Eighth Amendment rights.

Carlson marked one of the few times that the Supreme Court has extended its decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Court allowed a victim of a Fourth Amendment violation to sue individual federal officers. This groundbreaking decision essentially created an implied private action for damages against federal agents who violated a citizen’s constitutional rights where there had been no statutory creation of one. The Court reasoned that because federal officials acting under “color of law” possess a far greater capacity for harm, constitutional restrictions should apply to them in ways they may not apply to normal citizens. Though the Court has been cautious to extend this judicially created cause of action to other situations, in Carlson the Court ruled that a Bivens remedy is available to inmates claiming violations of the Eighth Amendment.

A recent trend in federal prisons is threatening to destroy this cause of action for prisoners. The National Capital Revitalization and Self-Government Improvement Act of 1997 authorized the Attorney General to act through the Bureau of Prisons and contract with private entities to house federal prisoners. Since that time, thirteen privately run facilities have opened and are currently housing more than 25,000 federal prisoners. Since private prison employees are not government actors, these prisons call into question whether Bivens applies to privately owned prisons as well.

Several circuits have considered this question and have come to different conclusions. Relying on the Supreme Court’s historic reluctance to extend Bivens, the Fourth Circuit in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), ruled that inmates could not sue private prison employees directly under the Constitution for Eighth Amendment violations. Similarly, in Peoples v. CCA Detention Centers, 422 F.3d 1090 (10th Cir. 2005) the Tenth Circuit held that a pretrial detainee in a private prison could not sue under Bivens when alternative state or federal remedies existed. Recently, however, the Ninth Circuit came to the opposite conclusion. Reasoning that private prisons are engaged in a “public function,” the Ninth Circuit held in Pollard v. GEO Group, Inc., 629 F.3d 843 (9th Cir. 2009) that Bivens should and does apply to private prison employees the same way that it applies to government employees.

Now it is up to the Supreme Court, who granted certiorari this past May, to clear up this controversial question and resolve the circuit split. Many inmates, prison rights advocates, and private prison corporations are anxiously awaiting this decision, which will have enormous implications in the area of prison litigation in this country.

Denniston takes aim at “conservative” justices and “liberal” justices alike.  Defining “activist” as “decid[ing] a case on a broader legal basis than is necessary,” Denniston commented at length about:

- Justice Kennedy’s overly broad ruling in a chemical poisoning prosecution case, in which Kennedy “chose not to confine the ruling to a simple declaration that a person facing a criminal trial may sue to challenge the constitutionality of the law he allegedly violated, but chose instead to decide a quite abstract question of whether the Constitution’s protection of ‘federalism’ is a guarantor of the civil rights of citizens of the states”

- Justice Sotomayor’s creation of “a virtually open-ended “public emergency” exception to the Sixth Amendment’s Confrontation Clause.”

- Justice Kagan’s decision in a case regarding police authority to interview a child about a sex abuse case, to create — “in what for all the world seemed like an advisory opinion – a completely unprecedented right of public officials to appeal lower court rulings on their legal immunity, even though they had won such a case below.”

- Justice Alito’s approach to the exclusionary rule, which “pressed close to the point of ruling that the rule could only be enforced in the most outrageous cases of stubbornly deviant police misconduct”

- Chief Justice Roberts’ “broad constitutional ruling in the course of deciding what had seemed like a minimalist dispute over the bankruptcy law rights of the estate of the former topless performer Anna Nicole Smith”

- Justice Clarence Thomas’ decision in a drug manufacturer case, which was so broad that he “lost his majority for the part of the opinion in which he borrowed the rather odd musings of a law review article to broaden the scope of the Constitution’s Supremacy Clause”

Read the full post HERE.

Tom Toles of the Washington Post sums up the two decisions:

Justice Scalia, writing for the majority, focused on the “commonality” requirement of Rule 23(a), saying that an employer could not be sued for thousands of adverse employment decisions nationwide “some glue holding the alleged reasons for all those decisions together.” Parts I and III of Scalia’s opinion garnered unanimous 9-0 support. However, Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor, strongly dissented against Part II of Scalia’s opinion. While the majority considered and dismissed all theories for certifying the suit, Ginsburg’s dissent would have remanded the plaintiff’s alternative certification claim for further consideration in the lower courts.

The full opinion is available online at the Supreme Court’s website.