Recent Legal Developments: Criminal Justice Decisions of the U.S. Supreme Court, 2018 Term

• Author: Craig Hemmens,Elizabeth Dotson,Mary Miller
• Published date: 01 June 2020
• DOI: 10.1177/0734016819888671
• Date: 01 June 2020
• Subject Matter: Recent Legal Developments

Recent Legal Developments
Criminal Justice Review
2020, Vol. 45(2) 157-170
Recent Legal Developments:
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Criminal Justice Decisions
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DOI: 10.1177/0734016819888671
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of the U.S. Supreme Court,
2018 Term
Craig Hemmens1 , Elizabeth Dotson1, and Mary Miller1
Abstract
In this article, we review and analyze the criminal justice–related decisions of the 2018 term of the
U.S. Supreme Court. We also provide a summary of the Court’s voting patterns and opinion
authorship. Eighteen of the Court’s 72 decisions touched on criminal justice. There were significant
decisions involving due process, sentencing, and federal criminal statutes. Each of these is discussed
in turn.
Keywords
legal issues, courts/law, court
During its 2018 term, the U.S. Supreme Court issued a total of 72 decisions on the merits, including
66 signed opinions, 5 summary reversals, and 1 per curiam opinion. Of the 66 signed merits opinions
issued, 18 (32%) dealt primarily with a criminal justice–related issue. A number of these decisions
dealt with important, if not particularly newsworthy, issues such as due process, sentencing, and the
interpretation of federal statutes. A few, however, dealt with controversial issues, including police
liability and the death penalty.
An examination of all of the Court’s decisions reveals some interesting patterns. Thirty-nine
percent (28 of 72) of the Court’s decisions were unanimous, while 13 decisions had either 8-1 or 7-2
majorities. Fifty-seven percent (41 of 72) of the decisions were decided by a vote of at least 7-2.
Eleven cases were decided by a 6-3 margin, while 20 cases (28%) were decided by a 5-4 margin.
These numbers are in line with recent years, with the exception of an increase in the number of 5-4
decisions. This increase may be a result of the addition of Justice Kavanaugh to the Court, replacing
Justice Anthony Kennedy. The makeup of cases accepted and decided by the Court was in line with
past years. The vast majority of cases (77%) were taken from the U.S. Courts of Appeal. The Ninth
Circuit had the most cases reviewed (14) and was reversed 12 times.
1 Department of Criminal Justice and Criminology, Washington State University, Pullman, WA, USA
Corresponding Author:
Craig Hemmens, Department of Criminal Justice and Criminology, Washington State University, Pullman, WA 99163, USA.
Email: craig.hemmens@wsu.edu

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Chief Justice Roberts (85%) and Justice Kavanaugh (89%) were most frequently in the majority.
This is not surprising, as the Chief Justice has historically been in the majority very frequently, and it
is common for new Justices to join the majority rather than staking out their own position. Inter-
estingly, while there were 20 decisions decided by a narrow 5-4 vote, the alignments in these cases
did not always reflect a clear liberal/conservative breakdown. Half of the 5-4 decisions had the
conservative justices in the majority, with the majority in the other half comprised of the four liberal
justices and one conservative justice.
All of the Justices were in the majority in at least 10 of the 5-4 decisions and none was in the
majority in more than 13 decisions. Chief Justice Roberts and Justice Thomas each authored the
most (four) majority opinions in 5-4 decisions. This was a departure from recent years when Justice
Thomas rarely authored the majority opinion in a 5-4 decision. It suggests that his extreme views
may be finding more acceptance among his conservative colleagues.
As for opinion writing, majority opinion authorship was divided quite evenly, with every justice
writing either seven or eight opinions except Justice Ginsburg, who penned six. This even distri-
bution of opinions has been a hallmark of the Roberts Court and speaks to the Chief Justice’s
management skills. As in years past, Justice Thomas was the most prolific opinion writer, with the
most opinions overall (28), including 8 majority opinions, 14 concurring opinions, and 6 dissenting
opinions. The Justice with the second most total opinions was Justice Gorsuch, with 22 opinions (7
majority opinions, 4 concurring opinions, and 10 dissenting opinions). For the 8th year in a row,
Justice Kagan produced the fewest total opinions (12), with 8 majority opinions, 1 concurrence, and
3 dissents.
Justice Thomas issued by far the most concurring opinions (14) or 36% of all concurring opinions
filed. This is in line with years past. While Justice Thomas is a reliable conservative vote, he has a
unique approach to many areas of the law and this often leads him to write separately to lay out his
position. Justice Kagan (1) had the fewest concurrences. Justice Breyer and Justice Gorsuch
authored the most dissents, with 10 apiece.
We present below a summary and analysis of the most significant decisions involving criminal
justice. The cases are divided, somewhat roughly, into categories.
Fourth Amendment
Mitchell v. Wisconsin. In May 2013, Sheboygan police officer Gerald Mitchell was arrested for
operating a motor vehicle while intoxicated in Wisconsin. On the scene, Mitchell’s blood alcohol
concentration (BAC) was found to be triple the .08 legal limit. Following his arrest, the arresting
officer drove Mitchell to the police station to administer a second, and more reliable, breath test
utilizing “evidence-grade equipment.” However, on arrival at the police station, Mitchell was too
lethargic to take the second breath test, and he was then driven to a nearby hospital. When he arrived
at the hospital, Mitchell was unconscious. His blood was drawn without his consent based on a state
law that presumes that an individual who has a Wisconsin driver’s license has given their implied
consent for BAC testing. The blood analysis confirmed that Mitchell’s BAC was above the legal
limit, and he was subsequently charged with driving while impaired. Mitchell filed a motion to
suppress the blood test results on the basis that the blood draw violated his Fourth Amendment right
against unreasonable searches, because the blood draw occurred without a warrant or his express
consent. His motion was denied by the trial courts and he was convicted. The Wisconsin Supreme
Court affirmed the legality of Mitchell’s blood test.
In a 5-4 decision, with the majority opinion authored by Justice Alito, the Supreme Court held
that when a driver is unconscious and therefore cannot be given a Breathalyzer test, the exigent
circumstances doctrine allows for a blood test to be conducted without a warrant. Exigent circum-
stances allow warrantless searches “to prevent the imminent destruction of evidence” or when “there

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Hemmens et al.
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is compelling need for official action and no time to secure a warrant.” The majority applied the
exigent circumstances test first enunciated in Schmerber v. California (1966). Under this test, an
exigency exists when BAC evidence is dissipating and there is no reasonable alternative available to
law enforcement to obtain the evidence. According to the majority, an unconscious drunk driver
meets both those conditions, as waiting for the person to regain consciousness will result in a delay,
and the BAC level decreases over time.
Justice Sotomayor dissented, joined by Justice Ginsburg and Justice Kagan. Justice Sotomayor
argued that the Fourth Amendment’s prohibition on unreasonable searches requires that police must
get a warrant, if there is time, before ordering a blood draw of an unconscious individual suspected
of drunk driving. Furthermore, Wisconsin conceded that the police had time to procure a search
warrant to draw Mitchell’s blood and that should have concluded the issue. Justice Gorsuch also
dissented, arguing that he would have dismissed this case and waited for a case that better presented
exigent circumstances questions.
Fifth Amendment
Gamble v. United States. Terance Gamble pleaded guilty to violating Alabama’s felon-in-possession-
of-a-firearm statute after a traffic stop and subsequent search of his car found him in possession of a
loaded 9-mm handgun. Federal prosecutors then indicted him for violating federal law regarding
felons in possession of a firearm, based on the same incident. Gamble pleaded guilty to the federal
offense but argued that being charged under both state and federal laws were a violation of the
Double Jeopardy Clause of the Fifth Amendment. The District Court held that this did not qualify as
a Fifth Amendment violation due to the dual sovereignty doctrine as elucidated in Heath v. Alabama
(1985), where the Supreme Court found it does not count as the “same offense” if it is being
prosecuted by different sovereigns, in this case, the state and the federal government. The Eleventh
Circuit Court of Appeals affirmed.
In a 7-2 decision, with the majority opinion written by Justice Alito and joined by Chief Justice
Roberts and Justices Thomas, Sotomayor, Kagan, and Kavanaugh, the Court affirmed the dual
sovereignty doctrine. The primary question facing the Court was the interpretation of “offense”
under the Double Jeopardy Clause and the dual sovereignty doctrine. While the Double Jeopardy
clause protects against being put “twice in jeopardy” for the same offense, the dual sovereignty
doctrine allows an individual to be tried more than once for the same “conduct or action” if such
conduct is a crime in both jurisdictions. The majority also felt that Gamble did not present ample
historical precedent to support an overhaul of the current...