Supreme Court Update: J.D.B. v. North Carolina (09-11121), Tapia v. United States (10-5400), Freeman v. United States (09-10245) and Leal Garcia v. Texas (11-5001)

July 15, 2011 Supreme Court Update


Greetings, Court fans!

We're in the last stretch here. Today we bring you J.D.B. v. North Carolina (09-11121), on the Miranda rights of minors; Tapia v. United States (10-5400), on whether courts may consider rehabilitation in imposing a prison sentence (no); Freeman v. United States (09-10245), on whether courts may reduce plea-bargained sentences when the Guidelines range for the crime has been lowered (yes); and Leal Garcia v. Texas (11-5001), denying a stay of execution, with international law implications.

In J.D.B. v. North Carolina (09-11121), the Court held that in determining whether a child is "in custody" and therefore entitled to Miranda warnings, law enforcement officers and courts should consider the child's age. In this case, J.D.B. was 13 years old. Police first stopped and questioned him after he was seen behind a residence in a neighborhood where two break-ins had occurred. Five days later, at school, a uniformed officer removed him from his classroom and escorted him to a closed-door conference room where they were joined by another officer, the assistant principal, and an administrative intern. The officers did not contact J.D.B.'s legal guardian or give him Miranda warnings. He was questioned for at least half an hour. After some small talk, the officers pressed him on the events of the prior weekend, and confronted him with a stolen camera that had been seen in his possession. J.D.B. asked if he would "still be in trouble" if he returned the "stuff." He was told that the matter was going to court regardless, but the officers might seek an order sending him to juvenile detention if they thought he would continue breaking into other homes. J.D.B. confessed. After two juvenile petitions were filed against J.D.B., his public defender moved to suppress his statements under Miranda. The court denied the motion, finding that J.D.B. was not in custody at the time of the schoolhouse interrogation, and that his statements were voluntary. The North Carolina Court of Appeals affirmed, as did the North Carolina Supreme Court, which expressly declined to consider the age of the person being questioned in its Miranda custody analysis.

The Court reversed, 5-4, with Justice Kennedy joining the liberal wing of the Court. Justice Sotomayor took the pen. In Miranda, the Court adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination when a suspect is "in custody." To determine whether a suspect is "in custody," the Court requires an objective analysis, based on the circumstances surrounding the interrogation and whether "a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave." The Court considered it obvious that a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. The law has historically reflected the assumption that children lack the capacity to exercise the same judgment as adults. The Court believed that police officers and courts could "account for that reality" without undermining the objective nature of the custody analysis. That is not to say that a child's age will be a determinative, or even significant, factor in every case. But it should be a permissible consideration. The Court rejected North Carolina's argument that a child's age should not be considered because it only goes to how a suspect may internalize and perceive the circumstances of an interrogation. True enough, but all objective circumstances (e.g, location and duration) go to how a reasonable person would internalize and perceive whether they are free to go. The Court also rejected North Carolina and the dissent's argument that a child's age must be disregarded to preserve clarity. To the contrary, ignoring a child's age will often make the inquiry more artificial, and thus add confusion. And, more importantly, clarity has never been the end-all and be-all of the Court's custody analysis. If it were, the Court would have drawn the line at formal arrest. The Court remanded for the North Carolina courts to reconsider whether J.D.B. was in custody when the police interrogated him, this time taking account of all relevant circumstances, including his age.

Justice Alito led the dissent. In the dissent's view, one of the main justifications for the Miranda rule is the perceived need for a clear rule that can be easily applied in all cases. The objective reasonable-person test bolsters this clarity. The majority's concession to age would undermine it. The dissent feared that in later cases, the Court would not be able to distinguish age from other individualized characteristics that might affect how one perceives the circumstances of interrogation, such as IQ, education, occupation, or prior experience with law enforcement. The Court would either have to draw arbitrary distinctions between age and these characteristics, or go down a slippery path that would change the objective Miranda custody test back into the subjective "voluntariness" test that Miranda found insufficient. The dissent also criticized the majority for not giving judges any actual guidance on how they are supposed to go about deciding what a "reasonable" child of a given age would do, or making distinctions between, say, a 16-and-a-half-year-old and an 18-year-old (who would be treated as an adult). Alito acknowledged that many under-age suspects will be more susceptible to police pressure than the average adult. But their rights can be protected by rigorous application of the constitutional rule against coercion, instead of "run[ning] Miranda off the rails."

We now move to the two sentencing decisions. Let's start with the easier one. In Tapia v. United States (10-5400), Tapia was convicted of smuggling unauthorized aliens into the United States and other crimes, for which the Sentencing Guidelines recommended 41-51 months. The judge gave Tapia 51 months. In explaining its reasons, the court referred several times to Tapia's need for drug treatment. In particular, the judge said he was imposing the sentence "so she is in long enough" to participate in the Bureau of Prison's Residential Drug Abuse Program, known as the "500 Hour Drug Program." Tapia did not object to the sentence at that time, but argued on appeal that the court had erred in lengthening her prison time to make her eligible for the drug program. The Ninth Circuit rejected Tapia's argument, but the Court reversed, unanimously.

For the Court, with Justice Kagan in the lead, it was not a close call. Section 3553(a) of the Sentencing Reform Act of 1984 instructs judges, in deciding what type of punishment to impose, to consider the seriousness of the offense, deterrence, the need to protect the public from the offender, and rehabilitation of the offender. With regard to imprisonment, however, §3582(a) of the Act provides that "in determining whether to impose a term of imprisonment, and if a term of imprisonment is to be imposed, in determining the length of the term, [the court] shall consider the factors set forth in section 3553(a) to the extent they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation." What is more, another provision of the Act similarly instructs the Sentencing Commission to insure that the Guidelines reflect the "inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or proving the defendant with needed educational or vocational training, medical care, or other correctional treatment." And, for those who consider legislative history useful, Justice Kagan explained how the Sentencing Reform Act arose as a response to, and repudiation of, an earlier system of indeterminate sentencing premised on a faith in rehabilitation. Lawmakers had become concerned with the disparities between similarly situated defendants, and began to doubt that prison could routinely rehabilitate inmates, or that parole officers could accurately determine whether someone had been rehabilitated. Some critics wanted to bar courts from considering rehabilitation at all, but Congress reached a compromise. The key Senate Report on the Act explained that "the purpose of rehabilitation is still important in determining whether a sanction other than a term of imprisonment is appropriate in a particular case."

Looking at this high deck of cards stacked against it, the United States agreed with Tapia's position before the Court. The Court appointed an amicus curiae to defend the judgment, then spent a good part of the decision batting away his arguments. Amicus argued, along the lines of the Ninth Circuit's reasoning, that §3582(a)'s "recognizing" clause bars courts from considering rehabilitation only when imposing a prison term, and not when deciding its length. The Court disagreed. "Imprisonment" as used in the clause refers not only to the defendant's initial placement, but also his continued stay behind bars. Amicus also argued that the Sentencing Reform Act rejected only a traditional rehabilitation model based on isolation and prison routine, not targeted treatment programs. But the Court noted that, by the 1980's, prison rehabilitation efforts were focused on treatment and counseling, and that's what Congress had in mind when it passed the Act. Returning to Tapia's case, the Court first noted that the sentencing court "did nothing wrong – and probably something very right" in urging Tapia to get treatment and trying to get her into an effective program. But the judge may have stepped over the line when he appeared to select the sentence to ensure that Tapia could complete the 500 Hour Drug Program. Thus, the case would be remanded for further proceedings.

Justice Sotomayor, joined by Justice Alito, agreed with the Court's reading of §3582(a), but wrote separately to note her skepticism that the sentencing court violated the Act's proscription at all. Notably, Tapia was facing a mandatory minimum sentence of 36 months. To participate in RDAP, an inmate ordinarily needs only 24 months remaining on her sentence. The judge ultimately imposed a sentence on the higher end of the 41-51 month Guidelines range, but only after noting all the relevant sentencing factors, including the seriousness of her crime (secreting aliens in the vehicle's gas tank compartment, placing them at risk of death or serious bodily injury) and criminal conduct while released on bail (failing to appear for court, then being found in an apartment with meth, a sawed-off shotgun, and stolen mail).

And now for the harder sentencing question, in Freeman v. United States (09-10245): The Sentencing Reform Act of 1984 allows for retroactive amendments to the Sentencing Guidelines, and permits defendants sentenced based on a later-modified Guidelines range to move for a reduced sentence. But do defendants who enter into plea agreements that recommend a particular sentence have the same right? Five members of the Court agreed that the defendant before them did, but only four of them would extend the right generally to all defendants who plea bargain.

First, some background. Freeman was indicted in 2005 for various crimes, including possession with intent to distribute cocaine base and unlawful possession of a firearm. At the time, the Guidelines suggested a 46-57 month range for the drug charge. Freeman faced a 60 month mandatory minimum for the gun charge. He entered into a plea agreement in which the Government "agree[d] that a sentence of 106 months' incarceration is the appropriate disposition of this case," and Freeman "agree[d] to have his sentence determined pursuant to the Sentencing Guidelines." The court accepted the plea and imposed a 106-month sentence. Three years later, the Sentencing Commission amended the Guidelines to reduce the disparity between sentences for crack and powder cocaine. The range for Freeman's offense was reduced to 37-46 months. Freeman moved for a sentencing reduction under section 3582(c)(2) of the Sentencing Reform Act, which provides: "In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment" after consideration of applicable sentencing factors. The District Court denied Freeman's motion, and the Sixth Circuit affirmed, holding that defendants sentenced under plea agreements are ineligible for reduction under §3582(c)(2).

Justice Kennedy wrote for the plurality, and was joined by Ginsburg, Breyer, and Kagan. In the plurality's view, the Guidelines serve as the starting point and framework, i.e., the basis, for all sentences. The Sentencing Reform Act requires judges to impose, in every case, a sentence sufficient but not greater than necessary to comply with the purposes of federal sentencing, in light of the Guidelines and other specified factors. Federal Rule of Criminal Procedure 11(c)(1)(C) permits the defendant and the Government to agree that a specific sentence is appropriate. But the governing Guidelines policy statement provides that the court must review the proposed sentence – in light of the applicable Guidelines range – before deciding whether to accept the plea agreement at all. Overall, the Sentencing Reform Act sought to create a comprehensive sentencing scheme in which defendants who commit similar crimes under similar conditions receive similar sentences. In this instance, the Sentencing Commission amended the Guidelines after determining that the disparity between crack and powder cocaine was flawed. In the plurality's view, there was "no good reason" to extend the benefit of the Commission's judgment only to an "arbitrary subset" of defendants whose plea agreements expressly referred to the Guidelines (as the concurrence would), or to defendants who did not plea bargain (as the dissent would).

Justice Sotomayor provided a fifth vote to allow Freeman to ask for a sentence reduction. But her approach to §3582(c)(2) was much narrower than the plurality's. Sotomayor began from the premise that in the plea agreement context, the agreement itself is generally the basis for the sentence. When the sentencing court is presented with a plea agreement with a fixed term, the court can only accept or reject the agreement; if the court accepts the agreement, it must impose the term set forth therein. But that is not to say that a plea agreement can never be based on a Guidelines range. Indeed, Rule 11(c)(1)(C) allows the parties to "agree that a specific . . . sentencing range is the appropriate disposition of the case." Where a plea agreement calls for the defendant to be sentenced within a particular Guidelines range, there can be no doubt that the resulting sentence is "based" on the Guidelines. Here, it was clear that Freeman's plea agreement was based on the 46 month figure at the lower end of his Guidelines range (106, minus the 60-month mandatory minimum consecutive sentence for the gun charge). Moreover, the agreement stated that Freeman "agrees to have his sentence determined pursuant to the Sentencing Guidelines." He should therefore be allowed to move for a reduction under §3582(c)(2). If the Government wanted to ensure that a particular defendant's term of imprisonment would not be reduced later, the Government could negotiate with the defendant to give up this right (just as they negotiate with defendants to give up their rights to appeal and collateral attack).

The Chief penned the dissent, and was joined by Scalia, Thomas, and Alito. The dissenters would hold that a term of imprisonment imposed pursuant to a plea agreement that sets out a specific term of imprisonment is always "based on" the plea agreement, and not the Guidelines. Only a court can sentence a defendant, so the inquiry should focus on what the judge does. Once a judge approves an agreement with a fixed term, he can only look at the fixed term. According to the dissent, Justice Sotomayor's approach incorrectly shifts the focus to what the parties think. Moreover, her attempt to distinguish between parties who merely negotiate by reference to the Guidelines, and those who use them as a basis for a specified term creates an "unworkable test that can yield only arbitrary results." There is no way of knowing why parties chose a fixed term. Maybe it was the Guidelines, maybe the parties had entirely different reasons for thinking the term was a good deal, or maybe the parties couldn't agree how to calculate the appropriate Guidelines range. Sotomayor's approach also doesn't explain how a resentencing court should interpret plea agreements that specify a term that is outside the Guidelines range, or based on an incorrect Guidelines range. The Chief concluded with the observation that, as with any negotiation, the parties to a plea agreement must take the bitter with the sweet. The plurality and Sotomayor would give Freeman more sweet and the Government more bitter than they bargained for: "But those who will really be left with a sour taste after [the] decision are the lower courts charged with making sense of it going forward."

We promised last week to give you a fuller report on Leal Garcia v. Texas (11-5001), a per curiam denial of a stay of execution that aroused international interest. Leal was a Mexican national convicted and sentenced to death for the kidnapping, rape, and murder of a teenager in 1994. Leal later argued that his conviction was obtained in violation of the Vienna Convention. Specifically, in a 2004 decision called Case Concerning Avena and Other Mexican Nationals, the International Court of Justice held that the United States had violated the Vienna Convention by failing to notify Leal of his right to consular assistance. In Medellín v. Texas (2008), however, the U.S. Supreme Court held that neither the Avena decision nor a presidential memorandum purporting to implement the decision constituted enforceable federal law. Congress would have to enact legislation to implement it. Legislation was introduced in the Senate in June of this year. Both Leal and the United States asked the Court to stay his execution to give Congress an opportunity to enact the legislation. The Court declined. First, the Court rejected Leal's due process argument. In the Court's words: "The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment." The Court also rejected the United States' request that the Court stay the execution in support of its "future jurisdiction." The Court doubted that it was ever appropriate to stay a lower court judgment in light of unenacted legislation; the Court's task is to "rule on what the law is, not what it might eventually be." Moreover, the Court doubted that the law would come to pass. It had been 7 years since the ICJ ruling and 3 years since the Court held that the ICJ ruling did not have the force of law, but there was now just one bill in a single house of Congress. If Congress had wanted to enact a statute implementing Avena – or shared the dissent's concerns about the grave international consequences of going forward with executions under such circumstances – it would have taken action already. Finally, the Court noted that the United States had "studiously" declined to argue that Leal was actually prejudiced by any violation of the Vienna Convention.

Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan, dissented from the denial. They agreed with the Solicitor General that Leal's execution "would place the United States in irreparable breach" of its obligations under international law. In 1969, the United States ratified the Vienna Convention, as well as an optional protocol agreeing that all disputes concerning the Convention would lie within the compulsory jurisdiction of the International Court of Justice. The United States gave notice of its withdrawal from the protocol in 2005, but, in the dissenters' view, that withdrawal did not alter the binding status of United States' pre-withdrawal obligations. The ICJ had held that Leal was entitled to a hearing to determine whether he was prejudiced by the violation of his Vienna Convention rights, but Leal had not received such a hearing. The Administration's view that Leal's execution would cause irreparable harm to the United States' foreign policy interests under these circumstances should be given significant weight. Finally, even if Medellín v. Texas had been decided correctly, it did not foreclose a stay in this case. The Court has power under the All-Writs Act to take appropriate action to preserve its "potential jurisdiction." At the time of Medellín, the Administration had not represented that there was any likelihood of congressional action. Now, by contrast, the Solicitor General indicated that congressional action was a reasonable possibility.

Finally, we would be remiss if we did not mention Justice Scalia's colorful dissent from denial of certiorari in four cases on what qualifies as a crime of violence under the residual provision of the Armed Career Criminal Act (ACCA): Derby v. United States (10-8373), Johnson v. United States (10-8607), Schmidt v. United States (10-8768), and Turner v. United States (10-8885). As Justice Scalia describes the cases, they involved convictions under statutes proscribing, respectively: generic burglary (including entry into telephone booths to steal change); rioting at a correctional institution (including participating in a hunger strike or other civil disobedience); theft of a firearm from a licensed dealer; and larceny from the person (including pick-pocketing $5 or more). Scalia suggested that how the Court would have resolved these cases would have been a good subject for a law-office betting pool: "[G]iven our track record of adding a new animal to our bestiary of ACCA residual clause standards in each of the four successive cases we have thus far decided . . . who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce?" Perhaps the lower courts should simply throw the Court's opinions in the air and decide cases by their gut feeling (but, Scalia quipped, only after they check whether littering, or littering in a "purposeful, violent, and aggressive fashion," is a felony in their jurisdiction). As Scalia has intimated before, he would grant cert in these cases and declare ACCA's residual provision to be unconstitutionally vague.

We'll be back soon with one last Update to wrap up the Term.

Kim and Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400