Supreme Court Update: Hurst v. Florida (14-7505), Bruce v. Samuels (14-844) and Order List

January 13, 2016 Supreme Court Update

Greetings, Court Fans!

… and Happy New Year! Judging by the votes in its first two decisions of (calendar year) 2016—an 8-1 decision striking down Florida's capital sentencing regime and 9-0 decision addressing filing fees under the Prison Litigation Reform Act—you'd think The Nine had resolved to set aside their differences and work towards unanimity in the new year. But judging by history, we know they're just saving the tough cases for later.

The death penalty rarely yields agreement among the justices (last year's term ending 5-4 decision in Glossip v. Gross was one of the most divisive in recent memory), but yesterday's decision in Hurst v. Florida (14-7505), proves there's an exception to every rule—especially when the case turns on the Sixth Amendment, rather than the Eighth. By an 8-1 vote, the Court held that Florida's capital sentencing scheme, which permits a judge to have the final say over whether a defendant is to be put to death, violates the Constitution.

The Court has long held that the Eighth Amendment requires certain extra procedures before a defendant may be put to death. There must be a factual finding of aggravating factors, and consideration must be given to whether any mitigating factors outweigh those aggravating factors. This job—finding aggravating factors and mitigating factors, and weighing those factors—is ordinarily done by a jury. If the jury doesn't issue a death sentence, then death is off the table. Not so in Florida. While the Sunshine State hasn't entirely done away with this process, the jury's determination is merely "advisory." It is the judge who must independently find and weigh the aggravating and mitigating circumstances, and ultimately decide whether to enter a sentence of life or death.

Writing for the Court, Justice Sotomayor had little difficulty concluding that this sentencing procedure violates the Constitution, under the Apprendi line of cases. In Apprendi v. New Jersey (2000), the Court held that the Sixth Amendment requires that any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's verdict" must be submitted to a jury. In Ring v. Arizona (2002), the Court found that this rule extends to capital punishment. As the majority saw it, these precedents dictated the outcome in Hurst. It didn't matter that Florida's statutory scheme contains an advisory jury recommendation. In fact, the Court that this advisory verdict was "immaterial" in view of the fact that a judge has the final say, and must make independent factual findings.

Justice Breyer concurred in the judgment only. Breyer, of course, has been on the prosecution side in the Apprendi line of cases, including Ring, and he reiterated his disagreement with the Court's Sixth Amendment analysis here. However, he (alone, it appears) concluded that, while the Sixth Amendment does not require a jury to make the final decision on a death sentence, the Eighth Amendment does.

Alito alone dissented, pointing out that the Court had twice before approved of Florida's sentencing approach, albeit in pre-Apprendi cases. In his view, before the Court decided to overrule those decisions, it should revisit Ring and the other Sixth Amendment sentencing cases, whose constitutional underpinnings Alito questioned. He also believed that, given the depravity of Hurst's crime and Florida's unique procedure—which does require the jury to recommend a death sentence—any error in this case was harmless. That question remains open, as the Court remanded the case for consideration of harmlessness by the Florida courts.

While Hurst was a relative lay-up for the Court, given its precedent in Apprendi and Ring, the second case decided yesterday, Bruce v. Samuels (14-844), was a slam dunk. In a unanimous, eight-page opinion the Court resolved a circuit split over how prisoner litigants must pay for fees under the Prison Litigation Reform Act ("PLRA") when they've filed multiple lawsuits.

Under the PLRA, prisoners who qualify to proceed in forma pauperis must nonetheless pay partial filing fees: an initial fee up front and subsequent monthly installments of "20 percent of the preceding month's income" until the fees are paid in full. At issue in this case was how the monthly fee payments should be apportioned where a "frequent filer" like petitioner Antoine Bruce, has multiple filing fees outstanding. Bruce argued for a "per prisoner" approach, i.e. that he should only be required to pay 20% of his monthly income toward filing fees, no matter how many filing fees he had outstanding. The Government, and the DC Circuit below, argued for a "per case" approach, which would require that 20% of a prisoner's monthly income be paid toward each case's outstanding fees.

The Court, in a breezy opinion by Justice Ginsburg, agreed with the DC Circuit. Though the Court acknowledged that the PLRA is ambiguous with respect to how monthly fees in multiple cases should be paid, Justice Ginsburg concluded that the statute's language is more consistent with the per-case approach. Section 1915(b)(1) of the PLRA, governing the up-front portion of the payment, calls for assessment of "an initial partial filing fee" every time a prisoner brings "a civil action or files an appeal." Subsections (b)(3) and (b)(4) similarly refer to "a civil action" or "an appeal." In context, therefore, Section 1915(b)(2)'s requirement of subsequent monthly payments should be interpreted to apply to each individual case. Because the statute "as a whole has a single-case focus" and is of course meant to "deter frivolous suits," the Court endorsed the per-case approach, meaning that frequent filers should think twice about filing that fifth lawsuit.

Finally, last week the Court announced it would hear Welch v. United States (15-6418), which concerns whether the Court's holding in Johnson v. United States (2015) that the residual clause of the Armed Career Criminal Act violates the due process clause announced a "new substantive rule of constitutional law" such that it must apply retroactively to cases that were "closed" before the decision was announced at the end of last term. Notably, the Government has taken the position that Johnson's holding should be applied retroactively, meaning the Court will have to appoint an amicus to argue the opposite position. Should the Court agree that Johnson announced a new substantive rule of constitutional law, it could result in the release of thousands of inmates given enhanced sentences under the since stricken residual clause.

That brings us more or less up to speed. We'll bring you more when it's ready to be brought.