Newly confirmed Justice Brett Kavanaugh will take his seat on the Supreme Court bench today, just in time to hear important cases concerning criminal sentencing and immigrant detention.
The latter case, Nielsen v. Preap—scheduled for oral arguments before the Court tomorrow—could "determine whether thousands of longtime residents of the U.S. face indefinite detention without a hearing," notes constitutional law professor Garrett Epps. It was filed as a class action suit by current and formerly detained immigrants and turns on the meaning of the word when:
Does it mean "any time the government decides after a stated event, whether days, weeks, or years later" or "immediately upon the happening of the event"?
Under the U.S. Immigration and Nationality Act, "criminal aliens" slated for deportation are to be taken into federal custody "when [they are] released" from criminal custody (emphasis mine). They may challenge their deportation but in the interim, they're stuck in federal detention with no possibility of getting out on bond—even if immigration agents don't pick them up for years after their criminal offense and completion of subsequent punishment for it.
"There is no question that [ICE] agents can show up at their homes, arrest them, and hold them for removal proceedings," writes Epps.
But does the "when" language mean they don't get a bond hearing? If a non-citizen has left prison and established a new life, did Congress in writing the statute really mean to deny that person the chance to show an immigration court that he or she will show up for a removal hearing, the way other "noncriminal" aliens can?
In Tuesday arguments, meanwhile, SCOTUS will consider three cases involving mandatory sentencing enhancements prescribed by the Armed Career Criminal Act (ACCT)—a piece of crime-panic era legislation about which questions have long "plagued the Supreme Court," points out Rory Little at SCOTUSblog.
The 1984 law imposes a mandatory 15-year prison sentence on anyone convicted on federal firearms charges if they've previously been convicted of three "serious" drug crimes or "violent" felonies under state or federal law. Problems arise, writes Little, because "there is a remarkable variety among the 50 states regarding precisely how state criminal statutes are written, and how exactly those statutes are then interpreted by state courts across the nation."
Arguments in the first case, Stokeling v. United States, involve Denard Stokeling, who was convicted of an unarmed (felony) robbery in Florida more than 20 years ago after he attempted to steal necklaces from around a woman's neck. Two years ago, he was caught with a firearm, which meant a federal charge. Now, "the court will consider whether a state-law robbery offense meets the ACCA's definition of a violent felony" and counts towards Stokeling's three-strikes under it, explains Edith Roberts at SCOTUSblog.
"If Stokeling's 1997 prior robbery conviction counts as a "violent felony," then his federal prison sentence in the current case would increase dramatically, from a 10-year maximum to the ACCA's 15-year minimum," notes SCOTUSblogger Little, adding that "the question presented in Stokeling is nationally important, and will affect the administration of the ACCA in federal courts around the country."
The second arguments today involve a pair of consolidated cases, United States v. Stitt and United States v. Sims, both of which concern the definition of burglary for ACCA purposes. The law stipulates that some state crimes—including burglary—always meet the definition of serious or violent, even if the statutory language in those states doesn't say so. And the Supreme Court's generic definition of burglary is any crime—"regardless of its exact definition or label" under local laws—that involves the invasion of a building or structure. Yet "states vary wildly as to what sort of 'structure' qualifies for 'burglary,'" explains Little.
In both Stitt and Sims, the offenders were convicted of robbing motor vehicles. In some states, cars and mobiles homes count under the definition of burglary and in some they do not. The government argues that sentencing enhancements should apply regardless, and complains that Congress wants to treat homes "differently solely because one has wheels" and one does not.
Kavanaugh's presence on the court could make a difference here, according to Little. Previously, Justices Alito, Thomas, and Gorsuch have suggested discontent with the way the current approach is applied.
"The justices' discontent with ACCA, and the many circuit splits it produces due to state-law disuniformity, has been growing. Thus, if only eight justices are on the bench to hear argument on October 9, I think there is a possibility of a 4-4 tie here," wrote Little last week. "If Congress were listening—a big if these days—revisiting that statute might seem, post-argument, to be a necessary and worthwhile legislative task," he concludes.
It won't all be big cases for Kavanaugh in his early days, though. As the new kid on the court, Kavanaugh will be responsible for answering the door at private conferences "if someone knocks to deliver something such as a justice's coffee or forgotten glasses" and "he'll also sit on the committee that oversees the court's cafeteria," notes NBC New York.
Leadership, or like, whatever. https://t.co/22tDdIdBmc
— Julian Sanchez (@normative) October 8, 2018
More on the disappearance of journalist Jamal Khashoggi and its possible implications here. In other Saudi-related news:
Saudi Arabia arrests economist on terror charges after he criticises Crown Prince Mohammed Bin Salman's financial plans https://t.co/4Ki767leX6
— Catherine Rampell (@crampell) October 9, 2018
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