Criminal Justice Decisions of the United States Supreme Court, 2007 Term

Published date01 December 2008
Date01 December 2008
Subject MatterArticles
CJR324119.qxd Criminal Justice Review
Recent Legal Developments
Volume 33 Number 4
December 2008 584-599
© 2008 Georgia State University
Criminal Justice Decisions of the
Research Foundation, Inc.
United States Supreme Court,
hosted at
2007 Term
Craig Hemmens
Boise State University
During its 2007 term, the United States Supreme Court decided a total of 71 cases,
issuing 67 signed opinions. This is the lowest number of cases decided in more than
50 years. Of these, 24 (33%) dealt primarily with a criminal justice-related issue. Although
a number of these decisions will have only a slight impact on the daily administration of
justice, there were a number of significant decisions involving criminal justice, including
decisions involving gun control, search and seizure, sentencing, and corrections.
Thirty percent (21 of 71) of the Court’s decisions were unanimous, whereas another 26
cases (37%) were decided by at least a 7 to 2 vote. A total of 17% (12 of 71) of the Court’s
decisions were decided by a narrow 5 to 4 margin. This was a significant decrease in 5 to 4
decisions from the 2006 term, when 33% of the decisions were decided by a 5 to 4 margin.
Although these numbers suggest that the Court may have retreated from the contentious-
ness that marked the 2006 term, it should be noted that the number of unanimous decisions
was actually down from the 2006 term, and there were still several opinions where the dis-
senting justices were extremely critical of the majority. Justice Scalia suggested that the
decision allowing Guantanamo detainees access to courts “will almost certainly cause more
Americans to be killed” and that the dissenters’ views in the gun control case were “wor-
thy of a mad hatter.” Justice Stevens responded by characterizing Justice Scalia’s argument
in the gun control case as “feeble.”
In the 2006 term, Justice Kennedy emerged as the crucial swing vote on a court that is
often divided 4 to 4. In the 2006 term, he was in the majority in 100% (24 of 24) of the
cases decided by a 5 to 4 margin and in the majority in 97% of all the decisions. This year
was a bit different, with Justice Kennedy in the majority in 8 of the 12 cases decided by a
5 to 4 vote and in the minority in 10 decisions. Replacing him as the justice most frequently
in the majority was none other than Chief Justice Roberts, who was in the minority in only
7 decisions, although 5 of those were 5 to 4 decisions.
Clear ideological divisions exist on the Court. Certain justices are consistently aligned
with some justices, and not with others. For instance, Chief Justice Roberts and Justice
Scalia agreed either in whole or in part in 88% of all cases, while on the other end of the
ideological spectrum, Justices Souter and Ginsberg agreed either in whole or in part in 87%
of all cases. Justice Thomas was in agreement with other members of the Court less than
any other justice, and cast more solo dissenting votes (4) than any other justice. Most of the
5 to 4 decisions broke down according to predictable ideological lines, with the most con-
servative justices (Justices Scalia and Thomas) being joined by the two newest members of
the court (Justice Alito and Chief Justice Roberts) and Justice Kennedy.

Hemmens / Recent Legal Developments
Of the 24 criminal justice-related decisions, 12 dealt with statutory definitions or sen-
tencing guidelines, whereas 7 others involved procedural issues. The other 5 involved con-
stitutional issues. Slightly over half of the decisions favored the defendant. The justices
upheld the authority of federal judges to depart from federal sentencing guidelines in crack
cocaine cases (critics of the federal sentencing guidelines have long decried the different
sentences for possession of crack and powder cocaine) and determined that the death
penalty was not appropriate for child rape. The prosecutors also won some big victories.
The Court upheld lethal injection as a means of execution and determined that the Fourth
Amendment allows police to arrest a person, even if state law prohibits the arrest, and to
search that person incident to arrest.
Several cases dealt with the War on Terror and the rights of individuals detained by
the government. Although these decisions involved issues beyond criminal justice, they
nonetheless clarify the centrality of individual rights such as habeas corpus. In another
rebuke of the Bush administration’s policy of detaining so-called enemy combatants, the
Court ruled that the detainees in Guantanamo Bay have the right to seek a writ of habeas
Five of the criminal justice-related decisions were decided by a 5 to 4 vote. Two of these,
the case involving Guantanamo Bay detainees and the case involving the death penalty for
child rape, were authored by Justice Kennedy and subject to withering criticism from
Justice Scalia. Justice Ginsburg voted for the defendant most frequently, in 18 of the 24
decisions. Justice Alito voted for the defendant least often, in only 6 of the 24 cases.
I present below a summary and analysis of the significant decisions involving criminal
justice. The cases are divided, roughly, into categories.
Child Pornography/First Amendment
United States v. Williams (2008)
Congress has, in recent years, passed a number of laws attempting to regulate child
pornography on the Internet. A number of these have run afoul of the First Amendment pro-
tection of speech. The 2003 Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today (PROTECT) Act criminalized the depiction of child
pornography on the Internet, regardless of whether the depiction was of real children or
computer-generated images. The law was an attempt to outlaw sexually explicit pictures of
children. Child pornographers had tried to get around other laws by making their work
appear to involve children even when it did not, in an effort to pander to those interested in
such material. Critics of the law claimed it was overbroad, as it could be applied to inno-
cent depictions of children, including baby pictures.
Writing for a 7 to 2 majority, Justice Scalia upheld the law on the grounds that the aver-
age person would know that mainstream movies use only nonchild actors and are not as
explicit as the work sought to be criminalized by this statute. Justices Souter and Ginsburg
dissented, arguing the law was overbroad and did not adequately safeguard individuals
from overzealous prosecutors.

Criminal Justice Review
Gun Control/Second Amendment
District of Columbia v. Heller (2008)
With this case, the Supreme Court reopened a rarely examined area of constitutional law,
the applicability of the Second Amendment to gun control laws. The issue was last
addressed by the high court in 1939, in United States v. Miller, dealing with a federal ban
on private possession of machine guns. The District of Columbia, in response to a tremen-
dous amount of gun violence, enacted what its supporters acknowledge is the strictest gun
control law in the country. It puts enormous restrictions on the ownership of firearms,
including requiring persons who lawfully owned guns to keep those guns unloaded and dis-
sembled or locked in their homes. Heller and several others brought suit, claiming the law
violated their Second Amendment right to bear arms. There is much debate about the mean-
ing of the Second Amendment. Some argue it provides individuals with the right to bear
arms, whereas others argue it is limited to allowing militias to arm themselves.
The Court struck down the District of Columbia’s broad ban on handgun ownership.
Writing for a 5 to 4 majority, Justice Scalia noted that the Second Amendment protects the
rights of individual gun owners and is not just a right of states or the people to create and
arm militias. He claimed the opening clause of the Second Amendment referring to the
need of militias to be armed was merely one of the reasons for an individual right to bear
arms. Justice Scalia focused a portion of his opinion on the role of handguns in self-
defense, suggesting that it was a fundamental right as well. Justice Scalia’s opinion empha-
sized, as is his wont, historical analysis, in a lengthy 64-page opinion, rebutted by Justice
Stevens in a 46-page opinion. The decision raised more questions than it answered, how-
ever. It will take further litigation to determine just what the decision will mean to state
efforts to regulate the purchase of firearms and handguns, and firearm registration policies.
The decision appears to allow for regulation but sets no standard for evaluating that regu-
lation. Justice Scalia said the decision is not meant to cast doubt on the constitutionality of
longstanding prohibitions, such as gun ownership by felons or the possession of firearms
in sensitive areas such as schools. Writing for the four dissenters, Justice Stevens charged
the majority with misreading the historical record, ignoring Supreme Court precedent, and
judicial activism.
Search and Seizure/Fourth Amendment
Virginia v. Moore (2008)
Moore was stopped by Virginia law enforcement officers for driving with a suspended
license. State law specified the proper police procedure was to issue a citation and a sum-
mons to appear in court. The officers could not arrest him for the violation. Nonetheless,
they arrested him and conducted a search incident to the arrest, finding cocaine in
Moore’s clothing. He was convicted of drug possession and sentenced to 5 years in
prison. He appealed, arguing the...

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