Federal Law & Legal System – Page 63 – Marquette University Law School Faculty Blog

Florence v. Board: With Proactive Policing at Issue, Supreme Court Backs Discretion

Post author:Michael M. O'Hear
Post published:June 7, 2012
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

I’ve been working through my backlog of reading from the academic year, including the Supreme Court’s April decision in Florence v. Board of Chosen Freeholders of County of Burlington. This is the decision in which the Court upheld the use of routine, suspicionless strip searches of individuals arrested and jailed for minor offenses.

It strikes me that part of what was really at issue in the case went unmentioned by both the majority and the dissent. The case is framed on both sides as being about corrections administration, but it is perhaps just as much about policing – how much discretion are we going to give police to detain citizens and impose on them the humiliation, stigma, and danger of incarceration with a general jail population. This discretion seems a powerful tool in support of proactive, crime-preventive policing, but it is also prone to abuse and seems hard to reconcile with ideals like checks and balances and “innocent until proven guilty.”

Writing for the Florence majority, Justice Kennedy presented the case as a conventional prisoner rights case.

Another Habeas Slap-Down From the Supreme Court; Where Is Habeas Law Heading?

Post author:Michael M. O'Hear
Post published:June 1, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Public U.S. Supreme Court

The Supreme Court summarily overturned yet another habeas grant earlier this week in Coleman v. Johnson (No. 11-1053). Johnson was convicted in Pennsylvania state court as an accomplice and co-conspirator in a murder. Without getting into all of the details, let’s just say that the state’s case against Johnson was circumstantial and something less than airtight. Johnson thus sought to have his conviction overturned in state court on the ground that the evidence was insufficient to support the jury’s verdict, invoking Jackson v. Virginia, 443 U.S. 307 (1979). The state courts rejected this claim, as did a federal district court, but the Third Circuit reversed.

The Supreme Court overturned the Third Circuit’s decision in a brusque per curiam opinion.

Is There a Female Bloc on the U.S. Supreme Court?

Post author:J. Gordon Hylton
Post published:May 29, 2012
Post category:Judges & Judicial Process U.S. Supreme Court

For several decades commentators have referred to the United States Supreme Court as being divided into liberal and conservative blocs. Now, suddenly, it looks like there may be male and female blocs as well.

(Since a “bloc” normally has to have at least three members, the possibility of a female bloc came into existence only with the 2010 appointment of Justice Elena Kagan.)

In the Court’s recent decision in Blueford v. Arkansas, the court decided by a vote of 6-3 that the Constitution’s Double Jeopardy Clause did not prevent the State of Arkansas from retrying the petitioner Bluefield on capital murder charges.

Blueford was accused of killing his girlfriend’s young child and was indicted for capital murder. During his trial, the Arkansas jury was instructed to consider also the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. Ultimately, the jury was unable to reach a verdict and it reported to the trial judge that it was deadlocked on the manslaughter charge. The jurors also stated that they had voted unanimously against Blueford’s guilt for the capital murder and first-degree murder charges and did not vote on negligent homicide.

In response, the trial judge declared a mistrial. When the state chose to retry Blueford, his lawyers moved to dismiss the capital and first-degree murder charges, based on double jeopardy considerations. The trial judge denied the motion, and the Arkansas Supreme Court agreed that double jeopardy had not attached.

Having granted cert., the United States Supreme Court affirmed the decision of the Arkansas Supreme Court. By a vote of 6-3, the court held that double jeopardy does not bar retrying Petitioner for capital and first-degree murder since the jury had not made a final resolution of the charges in the initial trial. Chief Justice John Roberts delivered the opinion, joined by male Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Female Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan.

Whether or not gender played a role in the 6-3 split is an interesting question, but has not yet been addressed by commentators. Of course, one case does not establish a pattern, but it will be interesting to see if the pattern in Blueford v. Arkansas repeats itself.