Today in Supreme Court History: February 22, 2005

2/22/2005: Kelo v. City of New London argued

Comments

[Dan Schiavetta]

Joshua DeShaney v. Winnebago County, 489 U.S. 189 (decided February 22, 1989): Due Process protection does not apply to actions of private actors and state has no duty to provide for citizen's safety absent a "special relationship" such as when he is in custody (here, child injured by father's abuse even after state welfare officials repeatedly told of abusive incidents but made no attempt to remove him from home) (as Blackmun memorably wrote in dissent, "Poor Joshua!")

Whalen v. Roe, 429 U.S. 589 (decided February 22, 1977): right to privacy not invaded by state statute requiring state to receive copies of all prescriptions of narcotics; valid use of police power, security procedures in place, and no showing that information will be misused such that patients become stigmatized as addicts

Buck v. Davis, 580 U.S. 100 (decided February 22, 2017): ineffective assistance of counsel when during penalty phase of capital murder trial counsel presented expert whose report said that being black was a plus factor for future violence (the expert's general opinion was that defendant himself was unlikely to be a future danger, but the damage had been done, and the prosecution hit on this in summation)

Messerschmidt v. Millender, 565 U.S. 535 (decided February 22, 2012): police searching for any and all firearms, and for gang paraphernalia, during warrant to search for black sawed-off shotgun were entitled to qualified immunity (warrant not overbroad because these were reasonable things to search for in connection with suspected crime of past shooting of girlfriend in retaliation for her calling police)

Oregon v. Guzek, 546 U.S. 517 (decided February 22, 2006): defendant can present alibi evidence at sentencing but not if it's inconsistent with conviction (here, testimony of mother which the jury had necessarily rejected in coming to its guilty verdict)

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This last one, Oregon v. Guzek, raises some questions for this non-lawyer.

1. What kind of alibi can be consistent with a conviction yet affect sentencing? I imagine something like saying he was present but did not hit any of the victims, so no additional time for that, unlike accomplices. But IANAL and don't know if that is a legal thing or just my imagination.

2. Why does sentencing allow different or additional evidence than what the main trial showed? Can it be a separate trial, complete with (the same?) jury, or is it a bench trial? Does it follow the same scripting as a regular trial, with prosecution and defense, cross examination, etc? I know there have been some recent cases about jury-acquitted evidence still being used by judges to enhance sentences, which sure seems wrong.

[Dan Schiavetta]

I can’t answer your first question, because criminal law is not my field, but from doing these summaries I get the impression that sentencing procedure varies by jurisdiction. Sometimes the sides submit briefs, sometimes there’s live testimony, and sometimes there’s a jury. If a jury, it’s the same one that rendered the verdict. Somebody correct me if I’m wrong.

[apedad]

Postscript: On Dec. 12, 2022, Oregon Gov. Kate Brown commuted the sentences of all 17 individuals on Oregon’s death row to life in prison without the possibility of parole - including Randy Lee Guzek.

[Frank Drackman]

in a righteous world she'd get gang raped by each and every one of them.

[not guilty]

In response to Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf:

1. If the defendant was present, he does not have an alibi. If the defendant was less culpable than other defendants, that may be a mitigating factor at sentencing. In capital a case with multiple defendants, the Eighth and Fourteenth Amendments prohibit imposition of a death sentence upon a defendant who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. Enmund v. Florida, 458 U.S. 782, 797 (1982). SCOTUS later modified Enmund to hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. Tison v. Arizona, 481 U.S. 137, 158 (1987).

2. Many states bifurcate guilt and imposition of sentence in cases where the state seeks the death penalty. The jury in the first phase of trial determines whether the guilt of the accused has been proven beyond a reasonable doubt. If that results in a finding of guilt of a death eligible offense, a separate sentencing hearing is held before the same jury to determine whether a death sentence should be imposed. Outside of the death penalty context, most states require the trial judge to determine the sentence at a separate hearing following a jury determination of guilt. In some jurisdictions the sentencing judge can enhance a sentence if he finds a history of criminal behavior prior to the offense(s) as to which the jury found guilt. If enhancement factors need be proven only by a preponderance of evidence, it is theoretically possible for a sentencing judge to enhance based on the preponderance standard even where a jury did not find proof beyond a reasonable doubt.

[SRG]

Recall that judges sometimes sentence on the basis of facts not proven...

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks -- but what does this mean then?

defendant can present alibi evidence at sentencing but not if it’s inconsistent with conviction

What kind of "alibi evidence" is valid but distinct from what convicted him?

[Dan Schiavetta]

Thanks ng!

[John F. Carr]

In Massachusetts sentencing is the time for victim impact statements. Same for parole hearings.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks for that -- wikipedia's summary astounds me: like you say, much more direct confiscation for little public purpose, and unanimous.

[Mr. Bumble]

So should either be considered "settled law" or should they be challenged in some future case?

[F.D. Wolf]

In Midkiff, the government took (with compensation portions of vast estates from the 72 extremely wealthy landowners that owned nearly half the private land in the state, and transferred it to parties who had been leasing the land for the “public purpose” of reducing the concentration of land ownership. In Kelo, the government took the homes of relatively poor homeowners to give to a land developer for the vague “government purpose” of economic development. Unable to secure financing, no actual “development” was ever done.

The former case has the sense of the government “taking from the rich to give to the poor”; the latter looks like the government “taking from the poor to give to the rich”. It is hardly surprising which case would engender more sympathy for the plaintiffs and more hostility towards the government. Notably, Justice O’Connor wrote both the majority opinion in Midkiff and the lead dissent in Kelo.

[David Nieporent]

Midkiff predates the Internet era. Kelo does not. I don't think it's much more than that.

[apedad]

“Let’s be clear; this is not as simple as Judge Kavanaugh saying that Roe is settled law,” Senator Chuck Schumer of New York, the minority leader, told reporters. “Everything the Supreme Court decides is settled law until it unsettles it."