Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court, 2021 Term
| Author | Craig Hemmens,Arifa Raza,Hillary Mellinger |
| DOI | http://doi.org/10.1177/07340168221131800 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Recent Legal Developments:
Criminal Justice Decisions of
the United States Supreme
Court, 2021 Term
Craig Hemmens , Arifa Raza,
and Hillary Mellinger
Abstract
In this paper, we review and analyze the criminal justice-related decisions of the 2021 term of the
United States Supreme Court. We also provide a summary of the Court’s voting patterns and opin-
ion authorship. 18 of the Court’s 58 decisions touched on criminal justice. There were significant
decisions involving the Second Amendment, the Eighth Amendment, and federal criminal statutes.
Each of these is discussed in turn.
Keywords
courts/law, legal issues courts/law, court
Introduction
During its 2021 term, the United State Supreme Court issued a total of 63 decisions, including 58
signed opinions and 5 per curiam decisions, as well as 1 case that ended in a 4-4 tie and affirmance
of the lower court, and 2 cases that were dismissed as improvidently granted. Of the 58 signed merits
opinions issued, 18 (31%) dealt primarily with a criminal justice-related issue. A number of these
decisions addressed controversial issues, including the Second Amendment and Eighth
Amendment. Others dealt with less newsworthy but nonetheless important issues, including the inter-
pretation of federal statutes.
An examination of all the Court’s decisions reveals some interesting patterns. Only 29% (18 of
63) of the Court’s decisions were unanimous, the lowest percentage of the Roberts Court. Sixteen
decisions (25%) had either 8-1 or 7-2 majorities. Nineteen cases (30%) were decided by a 6-3
margin while just 10 cases (16%) were decided by a 5-4 margin. The makeup of cases accepted
and decided by the Court was in line with past years. The vast majority of cases were taken from
the United States Courts of Appeal. The Ninth Circuit had the most cases reviewed (11) and was
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, 717 Johnson Tower, Pullman,
WA 99164, USA.
Email: craig.hemmens@wsu.edu
Article
Criminal Justice Review
2023, Vol. 48(1) 106-127
© 2022 Georgia State University
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sagepub.com/journals-permissions
DOI: 10.1177/07340168221131800
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reversed in each case—as the Ninth Circuit is both the largest Court of Appeals and the most liberal,
neither of these results is particularly surprising. The Supreme Court heard 4 appeals from state
courts and reversed the state court in each of those appeals.
The addition of three justices during the Trump administration has dramatically altered the ideo-
logical makeup of the Court. Where in past years the Court was frequently split 5-4 with a swing
justice (Justice O’Connor and later Justice Kennedy) often determining the outcome of high-profile
cases, there is now a clear conservative majority.
Chief Justice Roberts and Justice Kavanaugh were most frequently (95%) in the majority. Each of
the six Justices in the conservative wing of the Court were in the majority at least 75% of the time.
Justice Sotomayor, perhaps the most liberal justice, was in the majority only 58% of the time (and in
only 41% of non-unanimous decisions). Chief Justice Roberts and Justice Kavanaugh were in agree-
ment in 100% of the decisions, while Justices Thomas and Alito were in agreement in 90% of the
decisions. On the other side of the ideological spectrum, Justices Kagan and Sotomayor were in
agreement in 90% of the decisions.
As for opinion writing, majority opinion authorship was divided quite evenly. Chief Justice
Roberts wrote the most majority opinions (8), while Justice Kavanaugh wrote the fewest (5). This
even distribution of majority opinions has been a hallmark of the Roberts Court and speaks to the
Chief Justice’s management skills. Justice Sotomayor was the most prolific opinion writer, with a
total of 24, including 6 majority opinions, 5 concurring opinions, and 13 dissenting opinions. The
Justice with the second most total opinions was the one on the opposite end of the ideological spec-
trum, Justice Thomas, with 23 (7 majority opinions, 8 concurring opinions, and 8 dissenting opin-
ions). For the first time in her ten years on the Court Justice Kagan did not produce the fewest
total opinions. Chief Justice Roberts (11) and the newest member of the Court, Justice Barrett
(12), wrote the fewest number of opinions. Three justices (Thomas, Gorsuch, and Alito) each
wrote 3 solo dissents, while Justice Breyer wrote 1 and 5 justices wrote none.
We present below a summary and analysis of the most significant decisions involving criminal
justice. There were eighteen criminal justice-related decisions, including two decisions involving
consolidated cases. The cases are divided, somewhat roughly, into categories.
Second Amendment
New York State Rifle & Pistol Association, Inc. v. Bruen. Brandon Koch and Robert Nash, both law-
abiding New York residents, applied for unrestricted licenses to carry a concealed handgun in
public for self-defense. New York denied their applications on the basis that state law required indi-
viduals to prove they had “proper cause”for carrying concealed handguns, and in the state’s view,
neither Koch nor Nash met this requirement. According to state law, to prove proper cause, an indi-
vidual must “demonstrate a special need for self-protection distinguishable from that of the general
community.”Koch and Nash sued the state officials responsible for processing firearm licensing
applications and alleged that their Second Amendment rights had been violated. The District
Court dismissed their complaint and the Second Circuit Court of Appeals affirmed. Both courts
based their decisions on a prior Second Circuit case which upheld New York’s proper-cause require-
ment on the basis that it was substantially related to the achievement of an important governmental
interest.
In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice
Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Court held that New York’s
proper-cause requirement violated the Fourteenth Amendment by preventing law-abiding citizens
from exercising their Second Amendment right to keep and bear arms for ordinary self-defense.
In addition, the Court stated that both District of Columbia v. Heller (2008) and McDonald
v. Chicago (2010) upheld an individual’s right to keep and carry arms for self-defense purposes.
Hemmens et al. 107
The Court determined that the Court of Appeals had erroneously interpreted Heller and McDonald to
require a “two-step”process to assess Second Amendment challenges, when only the first step is
needed. The Court explained that step one was consistent with Heller in that it focuses on
whether present-day firearm regulations are aligned with the Constitution’s text and historical tradi-
tion. However, step two’s requirement of a means-end scrutiny is inconsistent with both Heller and
McDonald. In fact, the Court noted that Heller explicitly rejected interest-balancing inquiries. In
addition, both Heller and McDonald state that there must be clear justification for imposing a
burden on an individual’s right to self-defense. The Court determined that New York failed to
provide an adequate justification for its proper-cause requirement. The Court then applied its
one-step standard to Koch and Nash’s case; this standard required the Court to assess two criteria:
(1) the Constitution’s text and (2) historical tradition. In terms of the Constitution, the Court deter-
mined that the text of the Second Amendment clearly protected the right to carry concealed weapons
in public for self-defense and noted that the very definition of “bear arms”included the public pos-
session of firearms. Regarding historical tradition, the Court assessed historical evidence from 1791,
when the Second Amendment was adopted, and 1868, when the Fourteenth Amendment was
adopted, and found no tradition that limited the scope of publicly bearing arms for self-defense.
The Court also asserted that referring to other periods of time, such as those that pre-dated or post-
dated the adoption of either amendment, might not shed sufficient light on the specific historical tra-
ditions in place in 1791 and 1868. Nevertheless, the Court analyzed the historical evidence that
New York submitted regarding restrictions on public carry in the colonies, early Republic, post rat-
ification of the Second Amendment, and from around the adoption of the Fourteenth Amendment,
and found that none of these restrictions—with the exception of two “outlier”cases from Texas—
bore similarity to the burden imposed by New York’s proper-clause requirement. In fact, the
Court found the historical record pointed to a long-standing tradition of bearing arms in public.
Citing McDonald, the Court asserted that the right to bear arms is not a “second-class right,”and
that no other constitutional rights require individuals to prove a special need in order to avail them-
selves of those rights. Having thus applied the one-step standard, the Court concluded that
New York’s proper-clause requirement violated the Fourteenth Amendment.
Three concurring opinions were filed. A concurring opinion authored by Justice Alito, fully joined
the opinion of the Court, but made three points in response to the dissent. First, Justice Alito argued
that the dissent primarily focused on issues that were beyond the scope of the Court’s decision
regarding the constitutionality of New York’s proper-clause requirement. Second, Justice Alito dis-
puted the dissent’s assertion that the Court had failed to analyze the difficulty that a law-abiding
New Yorker would encounter in applying for a carry permit, since New York’s solicitor general
had addressed this at argument. Third, Justice Alito disagreed with the dissent’s insistence that the
Court apply a means-end scrutiny on the basis that doing so would impose no limits on judges’
capacity to restrict the use of firearm ownership. The second concurring opinion, authored by
Justice Kavanaugh and joined by Chief Justice Roberts, fully joined the opinion of the Court but
emphasized two limitations of the opinion: (1) the opinion focused only on “may-issue”regimes
such as New York’s, and as such did not necessarily prevent states from imposing requirements
on the licensing of handguns for the purposes of self-defense; and (2) the opinion did not prevent
states from enacting gun regulations, so long as those regulations were consistent with the scope
of the Second Amendment. Justice Barrett also concurred, while joining the opinion of the Court
in full.
The dissent, authored by Justice Breyer and joined by Justices Sotomayor and Kagan, argued that
the Court erred by not conducting discovery or developing an evidentiary record, and asserted that the
Court was overly reliant on its interpretation of the historical record. The dissent noted that there were
compelling government interests that justified gun regulations, such as mass shootings, the use of
guns in suicide attempts, the use of guns in domestic disputes, and the number of children and
108 Criminal Justice Review 48(1)
youth killed by guns. The dissent also argued that the Court’s decision would hinder states’abilities
to pass legislation to mitigate the harms of gun violence.
Fifth Amendment
Denezpi v. United States. Merle Denezpi sexually assaulted V.Y., both citizens of the Navajo Nation,
while on the Ute Mountain Ute Reservation. Denezpi was charged with assault and battery in viola-
tion of the Ute Mountain Law and Order Code as well as with two violations of the Code of Federal
Regulations. The case was adjudicated through the Southwest Region Code of Federal Regulation
(CFR) court, which is a Court of Indian Offenses for the Ute Mountain Ute Agency. These CFR
courts were established by the Department of the Interior to act as the judicial arm for Indian
tribes until they establish their own courts. While most tribes have their own Tribal Courts, 16
tribes, including the Ute Mountain Ute Tribe, rely on the CFR courts to administer justice.
Denezpi pled guilty to assault and battery, and the other charges were dismissed. He was sentence d
to time served (140 days). Six months later Denezpi was indicted in federal district court on one count
of aggravated sexual abuse in Indian country, stemming from the conduct he was previously found
guilty of in the CFR court. Denezpi sought to dismiss the indictment arguing the Double Jeopardy
Clause precluded this second prosecution. The District Court denied his motion and Denezpi was
subsequently found guilty and sentenced to a 360-month prison term. He appealed to the Tenth
Circuit Court of Appeals, arguing the first prosecution was conducted by the federal government
as was the second prosecution, thereby violating the Double Jeopardy clause. The Court of
Appeals affirmed his conviction, concluding the second prosecution did not violate the Double
Jeopardy Clause because the dual sovereign doctrine applied. Under the dual-sovereign doctrine, dif-
ferent sovereigns (or jurisdictions) can prosecute a defendant for the same offense without violating
the Double Jeopardy clause. Applying the doctrine, the Court of Appeals found the Ute Mountain
Ute Tribe was the ultimate power undergirding the first prosecution and that it was a separate sov-
ereign from the federal government.
In a 6-3 decision, authored by Justice Barrett (joined by Chief Justice Roberts and Justices
Thomas, Alito, Kavanaugh, and Breyer), the Court held that the Double Jeopardy clause of the
Fifth Amendment does not prohibit successive prosecutions arising from a single act if the offenses
are distinct, even where a single sovereign prosecutes them. The Court determined that the text of the
Double Jeopardy Clause does not prevent subsequent prosecutions for the same conduct or action,
rather it focuses on whether successive prosecutions are for the same offense. The Court reasoned
that because the offenses stemmed from separate sovereigns, the Ute Mountain Tribe and the
United States, they were necessarily different from one another. Denezpi argued that for the dual sov-
ereignty doctrine to apply, both the offense and prosecution must stem from separate sovereigns and
that in his case, both offenses and prosecutions were conducted by the federal government making
the dual sovereignty doctrine inapplicable. The Court rejected this argument, finding that the Double
Jeopardy Clause prohibits successive prosecutions for the same offense, not successive prosecutions
by the same sovereign. Thus, even if Denezpi was prosecuted by the federal government in both the
CFR court and the district court, the offenses stemmed from separate sovereign powers, meaning the
federal government was not later barred from prosecuting him for violations of federal law.
Justice Gorsuch dissented, with Justices Sotomayor and Kagan joining in part. Gorsuch argued
that because the first prosecution before the CFR court was for a violation of federal regulations
that assimilated tribal law into federal law, Denezpi was not in fact tried for a violation of tribal
law, but rather for a violation of federal law. Gorsuch further noted that the CFR court itself is
part of the Department of the Interior. Therefore, both prosecutions were by organs of the federal
government, thereby violating the Double Jeopardy Clause.
Hemmens et al. 109
Vega v. Tekoh. In 2014 Terence Tekoh was questioned by Los Angeles County Sheriff’s Deputy
Carlos Vega regarding an alleged sexual assault. During the questioning, Deputy Vega failed to
provide Miranda warnings to Tekoh. Miranda warnings refer to the requirement of police officers
to inform a suspect prior to a custodial interrogation of their 5th and 6th Amendment rights
(Miranda v. Arizona, 1966). Tekoh wrote Deputy Vega a confession. Tekoh was subsequently
arrested and charged with unlawful sexual penetration. At trial the un-Mirandized confession was
admitted as evidence. Nevertheless, Tekoh was acquitted. Tekoh then brought suit under 42 USC
§1983 (Section 1983) against Deputy Vega. Section 1983 provides a cause of action for individuals
to sue government actors for violating their constitutional rights or federal laws. At the civil trial
Tekoh argued his constitutional rights were violated when Deputy Vega obtained the confession
without first providing Miranda warnings. The District Court rejected Tekoh’s argument, instead
finding that Miranda established a prophylactic rule which does not provide a ground for Section
1983 liability. The Ninth Circuit reversed the District Court’s reasoning that an un-Mirandized state-
ment used against a defendant violates their Fifth Amendment rights and may support a Section 1983
claim. The Supreme Court than granted certiorari. The issue in this case is whether a violation of the
Miranda rules provides a basis for a claim under 42 U. S. C. §1983.
In a 6-3 decision with Justice Samuel Alito writing for the majority (and joined by Chief Justice
Roberts and Justices Thomas, Gorsuch, Kavanaugh and Barrett), the Court held Miranda violations
do not provide a basis for Section 1983 claims as they are not themselves constitutional violations.
The Court reasoned Miranda established prophylactic rules that are constitutionally based and
intended to safeguard constitutional rights but are not themselves a constitutional right. Thus, a vio-
lation of Miranda is not itself a constitutional violation, and therefore cannot provide a basis for
Section 1983 liability. The Court went on to explore whether Miranda violations may provide a
basis for Section 1983 claims as a federal law (as opposed to a constitutional right). Applying a cost-
benefit analysis for judicially crafted prophylactic rules, as outlined in Maryland v. Shatzer (2010),
the Court reasoned the benefits of expanding Section 1983 claims to include Miranda violations are
outweighed by the judicial costs of adjudicating such cases. Thus, Miranda violations cannot estab-
lish a basis for Section 1983 claims.
Justice Elena Kagan authored a dissent (with Justices Breyer and Sotomayor joining) arguing that
Miranda is a right secured in the Constitution as a “constitutional rule”of “constitutional origin”
(Dickerson v. United States, 2000). The dissent further noted that as a constitutional rule, Miranda
provides a judicially enforceable right to exclude un-Mirandized statements at trial, indicating that
Miranda rights are secured by the Constitution. As such violations of Miranda do provide a basis
for Section 1983 claims.
Sixth Amendment
Hemphill v. New York. In 2006 a fight ensued between several individuals, wherein a 9-millimeter
handgun was fired resulting in the death of a two-year-old bystander. An investigation led to the
arrest of Nicholas Morris after police officers found a 9-millimeter cartridge and three.357-caliber
bullets in his apartment. New York state charged Morris with murder but later offered him a plea
deal for a lesser charge. The State agreed to dismiss the murder charge if Morris admitted to posses-
sion of a.357 magnum revolver. The State did not have sufficient evidence to obtain an indictment
against Morris for possession of the.357 revolver, however, against advice of defense counsel,
Morris admitted to possessing the revolver in his plea allocution. Later, in 2011, DNA connected
Darrell Hemphill to the killing, and he was subsequently arrested and indicted for murder. At trial
Hemphill argued Morris was to blame for the shooting, noting that officers had found a 9-millimeter
cartridge in Morris’apartment. The State contended Hemphill’s argument was misleading because
officers also found.357-caliber bullets, and Morris pled guilty to possessing a.357 revolver. To
110 Criminal Justice Review 48(1)
rebut Hemphill’s claim, the State introduced Morris’plea allocution because Morris was unable to
testify. The trial court allowed the plea allocution over hearsay objections made by Hemphill.
Specifically, Hemphill objected to the evidence because of the inability to cross-examine Morris
in violation of the Confrontation Clause (Crawford v. Washington, 2004). The Confrontation
Clause of the Sixth Amendment provides that defendants have the right to confront witnesses
against them through cross-examination. In allowing the evidence, the trial court relied on People
v. Reid, a New York state case, which allows the introduction of otherwise inadmissible evidence
where reasonably necessary to correct a misleading impression made by the defendant. Hemphill
was found guilty and sentenced to 25 years to life in prison. Hemphill appealed the conviction on
the basis that he was denied his Sixth Amendment right to confront a witness against him when
the trial court admitted Morris’testimony. The New York State Appellate Division affirmed the
introduction of the plea allocution on the basis that Hemphill opened the door to such testimony
when he created a misleading impression regarding Morris’possession of a 9-millimeter handgun,
making it reasonably necessary to allow the testimony. The New York Court of Appeals (the
highest court of the state) also affirmed the decision, and Hemphill sought review in the U.S.
Supreme Court.
In an 8-1 opinion authored by Justice Sotomayor, the Court held Hemphill was denied his right to
confront a witness against him, when the trial court admitted Morris’plea allocution. Before address-
ing the merits of the case, the Court held Hemphill presented his Sixth Amendment constitutional
claim to the New York state courts, therefore establishing a federal claim that the Court could
hear. Then, turning to the merits of the case, the Court relied on Crawford to explain that testimonial
statements are inadmissible unless the defendant had a prior opportunity to cross-examine the
unavailable witness in question. The Court further held that the “door opening”rule in Reid infringed
on the Confrontation Clause by allowing trial judges to determine the reliability of testimonial
hearsay evidence rather than having it tested through cross-examination. Lastly, the Court rejected
the State’s contention that the “door opening”rule in Reid is necessary to prevent the introduction
of misleading evidence, reasoning that the truth-seeking function of the trial does not override a
defendant’s constitutional rights. The Court further noted that the common law rule of completeness
did not apply in this case. Under the completeness rule, if one party introduces part of a statement, the
other party may introduce the remainder, even if there is no opportunity for cross-examination of the
statement. Here, the plea allocution was not part of any statements introduced by Hemphill and thus
the Court did not address the validity of the rule as applied to testimonial evidence. Justice Alito
issued a concurring opinion (with Justice Kavanaugh joining), discussing under what conditions a
defendant is deemed to have validly waived their right to confrontation, including implicit
waivers such as those found in the rule of completeness.
Justice Thomas issued a dissent arguing the Supreme Court lacked jurisdiction to review the
New York Court of Appeals decision because Hemphill did not properly present his Sixth
Amendment concerns before the state court.
Eighth Amendment
United States v. Tsarnaev. On April 15, 2013, Dzhokhar Tsarnaev and his older brother, Tamerlan
Tsarnaev, detonated two homemade bombs near the Boston Marathon finish line, killing three
people and injuring hundreds of others. Three days later, the Tsarnaev brothers, who had been iden-
tified as suspects by the FBI, fled the area; in so doing, they shot and killed a Massachusetts Institute
of Technology (MIT) campus police officer. They also carjacked and robbed a graduate student.
Subsequently, law enforcement located the Tsarnaev brothers in Watertown, Massachusetts. The
Tsarnaev brothers fired their weapons and threw homemade bombs at the police. Dzhokhar drove
away in the carjacked SUV, but ran over his elder brother, Tamerlan, in the process, killing him.
Hemmens et al. 111
Dzhokhar drove a few blocks and then hid under a covered boat in someone’s backyard. The follow-
ing day, police found and arrested him. Dzhokhar was convicted and sentenced to death. The First
Circuit Court of Appeals vacated his death sentence on two grounds: (1) the District Court did not ask
prospective jurors what facts about the case they learned from the media; and (2) the District Court
excluded evidence regarding Dzhokhar’s elder brother, Tamerlan’s, possible involvement in an unre-
lated triple homicide known as the “Waltham murders.”Regarding the first reason, the First Circuit
Court of Appealsargued that Patriarca v. UnitedStates (1968) provided it with “supervisory authority”
to oblige the District Court to ask specific media-content questions. Concerning the second reason, the
First CircuitCourt of Appeals cited the FederalDeath Penalty Act (FDPA), whichstates that any aggra-
vating or mitigating information is admissible in determining the appropriate sentence, even if such
information is not admissible under the rules of evidence to determine guilt. Consequently, the First
Circuit Court of Appeals ruled that evidence regarding Tamerlan’s possible involvement in the
Waltham murders should have been considered, since such evidence was crucial to Dzhokhar’sargu-
ment that his elder brother, Tamerlan, had unduly influenced Dzhokhar’s actions.
In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice
Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Court ruled that the First Circuit
Court of Appeals erred in overturning Dzhokhar’s death sentence. First, the Court determined that the
District Court had not abused its discretion by refusing to ask prospective jurors what facts they
learned from the media; to the contrary, the Court held that the District Court properly exercised
its discretionary authority in determining which questions to pose to prospective jurors, citing
Skilling v. United States (2010) and other precedents. The Court also noted that the any “supervisory
authority”held by the First Circuit Court of Appeals was delimited by the Constitution, federal stat-
utes, and prior Court precedents. Second, the Court ruled that the District Court was correct to
exclude evidence of Tamerlan’s potential involvement in the Waltham murders, given that the
FDPA permits the exclusion of evidence when “its probative value is outweighed by the danger
of creating unfair prejudice, confusing the issues, or misleading the jury”(FDPA Section
3593(c)). The dissent, authored by Justice Breyer and joined in whole by Justice Sotomayor and
in part by Justice Kagan, argued that the District Court abused its discretion when it excluded evi-
dence regarding Tamerlan’s possible involvement in the Waltham murders. The dissent asserted
that this evidence had significant mitigating value, and as such should have been admissible.
Nance v. Ward. Michael Nance robbed a bank, then shot and killed a bystander. A Georgia jury found
him guilty of murder and sentenced him to death. Nance unsuccessfully challenged his conviction
and sentence via direct appeal, state collateral proceedings, and a habeas petition. Nance then
sued George under 42 U.S.C. § 1983, arguing that lethal injection—Georgia’s only authorized
method of execution—violated the Eighth Amendment’s prohibition on “cruel and unusual”punish-
ment. As an alternative method of execution, Nance proposed death by firing squad, which is autho-
rized by four states. The District Court dismissed Nance’s § 1983 suit as untimely, and the Eleve nth
Circuit Court of Appeals rejected it on the ground that Nance should have filed a federal habeas peti-
tion rather than a § 1983 suit. The Eleventh Circuit then “reconstrued”Nance’s § 1983 suit as a
habeas petition. In so doing, the Eleventh Circuit believed Nance to be contesting his death sentence,
rather than his method of execution, on the ground that Georgia’s law regarding the method of exe-
cution was clear, and as such, the preclusion of lethal injection would effectively prevent the state
from carrying out Nance’s death sentence. The Eleventh Circuit then dismissed Nance’s petition,
since he had previously filed a habeas petition to invalidate his death sentence, and as such was
barred by law from filing a “second or successive”petition for the same legal issue.
In a 5-4 decision, with the majority opinion authored by Justice Kagan (joined by Chief Justice
Roberts and Justices Breyer, Sotomayor, and Kavanaugh), the Court reversed the judgment of the
Eleventh Circuit, and held that a §1983 suit is the appropriate procedural vehicle for a
112 Criminal Justice Review 48(1)
method-of-execution claim in which a prisoner seeks an alternative method of execution that has not
yet been authorized by the state in which the prisoner is to be put to death. The Court explained that
two prior decisions permitted § 1983 suits for method-of-execution claims: Nelson v. Campbell
(2004), which permitted prisoners to request an alternative method of execution that was already
authorized under state law, and Hill v. McDonough (2006), which held that a prisoner’s request
for an alternative method of execution was not the same as a prisoner’s request to invalidate a
death sentence, and as such, should not be viewed as a successive habeas corpus petition. The
Court also noted that Bucklew v. Precythe (2019) enabled prisoners to request methods of execution
that were legal in other states. The Court concluded that the Eleventh Circuit erred in construing
George’s statute as immutable. The Court stated that in order for Nance to succeed on his
method-of-execution claim, he must satisfy two criteria outlined in Glossip v. Gross (2015): (1)
he must prove that the State’s method of execution poses a “substantial risk of serious harm”, and
(2) he must “identify an alternative [method] that is feasible, readily implemented, and in fact signifi-
cantly reduce[s]”the risk of serious harm. Nance met both criteria. First, he explained that his veins
were not conducive to intravenous access and that his use of a prescription drug for back pain could
negatively interact with the sedatives in the lethal injection. Second, he argued that death by firing
squad would be “swift and virtually painless,”and that Georgia could readily implement this
method of execution by consulting a state in which it was authorized. The Court elaborated that
States should not decide the appropriate procedural vehicle for a method-of-execution claim, since
doing so could result in different outcomes in different states, based on whether a state required pris-
oners to file a habeas petition (which has a second-or-successive rule) versus a §1983 suit (which has
no such rule). That said, the Court emphasized that §1983 suits are not meant to unjustifiably delay
executions.
The dissent, authored by Justice Barrett (joined by Justices Thomas, Alito, and Gorsuch), argued
that the Eleventh Circuit was correct in its assertation that a habeas petition was the appropriate
vehicle for a method-of-execution claim under current Georgia law.
Criminal Law
Oklahoma v. Castro-Huerta. In 2015 Victor Manuel Castro -Huerta, a non-Indian, was charged with
child neglect by the state of Oklahoma. The child victim was a member of the Cherokee Indian
Nation. Castro-Huerta was convicted and sentenced to 35 years imprisonment. After his conviction,
the Supreme Court decided McGirt v. Oklahoma (2020) holding that parts of eastern Oklahoma
remained Indian Country, including Tulsa. Castro-Huerta’s crime was committed in Tulsa, which
is now recognized as Indian Country. Relying on the McGirt decision, Castro-Huerta appealed his
conviction, arguing that Oklahoma lacked jurisdiction to prosecute him, and that the jurisdiction
laid exclusively with the federal government. The Oklahoma Court of Criminal Appeals agreed,
finding that the State did not share jurisdiction with the federal government to prosecute crimes com-
mitted by non-Indians against Indians in Indian country and therefore vacated his conviction. The
federal government then brought charges against Castro-Huerta. He subsequently took a plea agree-
ment sentencing him to 7 years imprisonment, a 28-year reduction from his initial sentence. The
Supreme Court granted certiorari to clarify the McGirt decision, specifically regarding concurrent
jurisdiction. The issue in this case was whether the states share concurrent jurisdiction with the
federal government to prosecute crimes committed by non-Indians against Indians in Indian country.
In a 5-4 decision authored by Justice Kavanaugh and joined by Chief Justice Roberts and Justices
Alito, Thomas, and Barrett, the Court held that states have concurrent jurisdiction to prosecute
non-Indians for crimes committed in Indian country, unless preempted by Congress. The Court
came to this conclusion by first reviewing its precedents finding that Indian country is part of a
state’s territory, therefore states maintain jurisdiction over crimes committed on those lands. The
Hemmens et al. 113
Court then examined whether federal law preempts state jurisdiction, finding that it does not. The
majority relied on the General Crimes Act, finding that under the text of the statute the federal gov-
ernment and states share concurrent jurisdiction. The majority also examined Public Law 280, which
grants certain state’s criminal jurisdiction over Indian country, finding it does not preempt state juris-
diction. Lastly, the Court applied the Bracker balancing test to decide whether Oklahoma’s jurisdic-
tion would unlawfully infringe upon Tribal self-government or the federal government (see, White
Mountain Apache Tribe v. Bracker, 1980). Under Bracker, the court considers Tribal, federal, and
state interests. Applying the test, the majority reasoned the state is not barred from prosecuting
crimes committed by non-Indians in Indian country for three reasons. First, state jurisdiction does
not infringe on tribal sovereignty as tribes lack criminal jurisdictions over non-Indians generally
(see, Oliphant v. Suquamish Tribe, 1978). Second, state prosecutions of these cases do not infringe
on the federal government’s interest in protecting Indian victims and rather acts as a supplement to
the federal government. Third, the state has an interest in advancing criminal justice within its juris-
diction. Thus, a state’s criminal jurisdiction over Indian country does not infringe on either Tribal
sovereignty or the federal government. Because federal law does not preempt state jurisdiction,
and it does not infringe on Tribal or federal authority, the Court held Oklahoma has concurrent juris-
diction over crimes committed by non-Indians against Indians in Indian country.
Justice Gorsuch filed a dissent, with Justices Breyer, Sotomayor, and Kagan joining, arguing
states do not have jurisdiction over non-Indians who commit crimes against Indians in Indian
country, unless explicitly provided for. In its reasoning the dissent reviewed precedent finding that
States have traditionally lacked criminal jurisdiction on tribal land (Worcester v. Georgia, 1832).
The dissent further emphasized Congress’s role in establishing statutes that do not expressly
provide state jurisdiction over non-Indian defendants who commit crimes against Indians in
Indian country. The dissent also rejected the majority’s application of the Bracker balancing test.
Lastly, the dissent suggested that Congress can amend Public Law 280 to make clear that a state
lacks criminal jurisdiction unless it obtains tribal consent.
Appeals/Habeas Corpus
Ramirez v. Collier. On July 19, 2004, Pablo Castro finished the night shift at a convenience store in
Corpus Christi, Texas, and was approached by John Ramirez and an accomplice. Ramirez stabbed
Castro 29 times and took $1.25 from his pockets. Castro subsequently died. For three years,
Ramirez evaded authorities by living in Mexico. In 2008, Ramirez was arrested, tried, and convicted,
and sentenced to death for Castro’s murder. Ramirez’s execution date was initially scheduled for
February 2, 2017, but he filed a motion to stay his execution on the grounds that he had received
ineffective assistance of counsel in his habeas case. The District Court granted the stay, but the
Fifth Circuit Court of Appeals did not issue a certificate of appealability. Ramirez’s execution was
rescheduled for September 9, 2020. Ramirez requested that his pastor enter the execution chamber
with him, but prison officials stated that Texas’s execution protocol forbade spiritual advisors
from doing so. Ramirez sued Texas on the grounds that the execution protocol violated the
Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment rights.
Texas withdrew Ramirez’s death warrant, and both parties dismissed the litigation without prejudice.
Ramirez’s execution was rescheduled for September 8, 2021. Ramirez then filed a Step 1 prison
grievance on the grounds that his pastor should be granted entry into the execution chamber.
Texas initially denied Ramirez’s request, but later granted it, after revising its execution protocol
to allow spiritual advisors into the execution chamber. Ramirez subsequently filed a second Step
1 prison grievance on June 11, 2021, in which he requested that his pastor be allowed to “lay
hands”on him and “pray over”him in the execution chamber. Texas denied the grievance on
July 2, 2021. Ramirez filed a Step 2 prison grievance on July 8, 2021. On August 10, 2021,
114 Criminal Justice Review 48(1)
Ramirez filed suit in Federal District Court on the basis that Texas had not yet responded to his Step 2
prison grievance, even though his execution date was less than a month away. Ramirez requested
preliminary and permanent injunctive relief from his execution and argued that Texas’s execution
protocol violated his rights under the RLUIPA and the First Amendment. On August 16, 2021,
Ramirez’s attorney asked Texas prison officials if Ramirez’s pastor could pray audibly during the
execution. On August 19, 2021, Texas prison officials replied that this would not be allowed. On
August 22, 2021, Ramirez’s attorney filed an amended complaint and requested that Ramirez’s
pastor be allowed to lay hands on him and pray with him during the execution. Both the District
Court and the Fifth Circuit Court of Appeals denied Ramirez’s request for a stay of execution.
In an 8-1 decision, with the majority opinion authored by Chief Justice Roberts, the Court deter-
mined that Ramirez was likely to succeed on his RLUIPA claims and reversed and remanded the
case. The Court recommended that the District Court grant Ramirez preliminary relief should
Texas continue to refuse audible prayer and religious touch in the execution chamber. The Court
based its decision on its assessment of Ramirez’s RLUIPA claims. RLUIPA prevents the government
from imposing a substantial burden on the ability of individuals to exercise their religion when those
individuals are confined to an institution unless the burden “is in furtherance of a compelling gov-
ernment interest”and “is the least restrictive means of furthering that compelling governmental inter-
est.”The Court found that Ramirez’s requests for his pastor to lay hands on him and pray over him
were based on his sincere religious beliefs, and that Texas’s denial of these requests would likely
cause Ramirez irreparable harm. The Court also stated that Texas would have difficulty demonstrat-
ing that its denials of Ramirez’s religious requests were the least restrictive means of advancing a
compelling governmental interest. Finally, the Court determined that Ramirez had exhausted all
other remedies prior to filing suit, in accordance with the Prison Litigation Reform Act (PLRA) of
1995.
Justice Thomas issued a solo dissent, arguing that Ramirez did not merit equitable relief because:
(1) Ramirez did not exhaust administrative remedies but instead used the judicial process to delay his
execution; (2) the equitable balance is in favor of the State and Ramirez’s victims, rather than
Ramirez; and (3) Ramirez’s litigation was focused on delaying the execution rather than pursuing
a sincere religious belief.
Brown v. Davenport. A jury convicted Ervine Davenport of first-degree murder for the death of
Annette White. During the jury trial, Davenport sat behind a privacy screen and was shackled at
his ankles, waist, and one of his hands. Davenport appealed his conviction on the grounds that the
shackling violated the Fourteenth Amendment’s Due Process Clause, which prohibits shackling
unless there is “a special need”for it (Deck v. Missouri, 2005). Although the Michigan Supreme
Court agreed that the shackling was a violation of Deck, the court also ruled that Davenport’s con-
viction could stand if the prosecution could prove that the shackling was harmless beyond a reason-
able doubt (Chapman v. California, 1967). On remand, the trial court held an evidentiary hearing
during which it asked all 12 jurors whether they recalled seeing Davenport’s shackles; five jurors
did, and seven did not. In addition, all 12 jurors professed that Davenport’s shackles did not
affect their deliberations or their unanimous guilty verdict. The trial court ruled that it had proven
that Davenport’s shackling was harmless beyond a reasonable doubt and reinstated his conviction.
Davenport appealed his case a second time. Both the Michigan Court of Appeals and the
Michigan Supreme Court declined to review the case. Davenport then filed a habeas petition,
which the Sixth Circuit Court of Appeals granted. In so doing, the Sixth Circuit Court of Appeals
based its decision on Brecht v. Abrahamson (1993), which held that a state prisoner who wishes
to challenge their conviction in federal court must prove that the error had a “substantial and injurious
effect or influence”on the outcome of their trial.
Hemmens et al. 115
In a 6-3 decision, with the majority opinion authored by Justice Gorsuch (joined by Chief Justice
Roberts and Justices Alito, Kavanaugh, Barrett and Thomas), the Court held that the Sixth Circuit
Court of Appeals had erred in granting habeas relief. The Court noted there was a split in the
federal courts of appeals, such that some courts assessed habeas cases under Brecht alone, while
other courts assessed habeas cases under both Brecht and the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996. The Court ruled that a federal court must apply both tests in
habeas cases. The Court explained that Congress had passed the AEDPA to ensure that a federal
court did not grant relief on claims adjudicated in state court unless the state court’s decision was
(1) “contrary to”or an “unreasonable application of”clearly established federal law, or (2) based
on an “unreasonable determination of the facts”from the state court proceeding. Thus, in addition
to satisfying Brecht, a federal court must also satisfy AEDPA.
The dissent, authored by Justice Kagan and joined by Justices Breyer and Sotomayor, argued that
the Court’s judgments in Fry v. Pliler (2007) and Davis v. Ayala (2015) clearly stated that federal
habeas courts should apply only the Brecht test, because it subsumes the AEDPA.
Shinn v. Ramirez. This Supreme Court decision involves two petitions filed by the state of Arizona:
Ramirez v. Ryan (2019) and Jones v. Shinn (2019). In the first case, an Arizona trial court sentenced
David Martinez Ramirez to death for two counts of premeditated first-degree murder for the killing of
his girlfriend and her 15-year-old daughter. The Arizona Supreme Court subsequently affirmed
Ramirez’s death sentence. Ramirez filed a petition for state postconviction relief. Later, Ramirez
filed a second petition for state postconviction relief in which he argued that he received ineffective
assistance of counsel during the state postconviction process. Arizona’s state court ruled that
Ramirez’s claim was procedurally defaulted since it was filed after the statutory deadline for filing
such claims. In response, Ramirez petitioned the U.S. District Court for the District of Arizona for
a writ of habeas corpus, but the U.S. District Court also considered Ramirez’s petition to be untimely
filed. The U.S. District Court permitted Ramirez to file evidence to excuse his procedural default;
after assessing this evidence, the U.S. District Court excused Ramirez’s procedural default but
rejected his claim of ineffective assistance of state postconviction counsel. The Ninth Circuit
Court of Appeals reversed and remanded the case for further factfinding regarding Ramirez’s
claim of ineffective assistance of state postconviction counsel. Arizona argued that the Ninth
Circuit Court of Appeals violated 28 U.S.C. § 2254(e)(2), which prevents federal habeas courts
from conducting an evidentiary hearing or considering evidence beyond the state-court record.
In the second case, an Arizona trial court sentenced Barry Lee Jones to death for felony murder,
three counts of child abuse, and sexual assault of his girlfriend’s four-year-old daughter. The Arizona
Supreme Court subsequently affirmed Jones’s death sentence. In his petition for state postconviction
relief, Jones argued that he received ineffective assistance from his trial counsel. The Arizona
Supreme Court denied Jones’s petition. Jones then filed a habeas petition with the U.S. District
Court for the District of Arizona. As with Ramirez’s case, the U.S. District Court considered
Jones’s case to be untimely filed but allowed Jones to file evidence to excuse his procedural
default. After reviewing the new evidence, the U.S. District Court excused Jones’s procedural
default and held that Jones had received ineffective assistance of trial counsel. Arizona appealed
and argued that the U.S. District Court had violated 28 U.S.C. § 2254(e)(2). The Ninth Circuit
Court of Appeals affirmed the U.S. District Court’s decision on the basis that § 2254(e)(2) did not
apply because Jones’s state postconviction counsel was ineffective.
In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice
Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett), the Supreme Court ruled that the
Ninth Circuit Court of Appeals violated 28 U.S.C. § 2254(e)(2), which prevents a federal habeas
court from conducting an evidentiary hearing or considering evidence not contained in the state
court record. Both Ramirez and Jones argued that Martinez v. Ryan (2012) applied to them; this
116 Criminal Justice Review 48(1)
case permitted federal courts to excuse procedural default and review habeas claims in certain narrow
circumstances, such as ineffective assistance of counsel. The Supreme Court, however, ruled that
Martinez could not be extended to include ineffective assistance of postconviction counsel. The
Supreme Court explained that federal courts had to respect federal-state dual sovereignty, since
infringing upon states’sovereignty imposes costs on the federal and state criminal justice systems.
Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) generally prohibits
federal courts from conducting hearings or considering evidence that was not introduced in state
courts. Federal courts can only excuse procedural default in specific situations, such as when a pris-
oner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law”(Coleman v. Thompson, 1991). Ramirez and Jones maintained that their attorneys were
to blame for not fully developing the state court postconviction record; however, the Supreme Court
disagreed, and explained that under AEDPA and Supreme Court precedent prisoners were responsi-
ble for developing their own state court postconviction records. The Supreme Court explained that
this is because the Sixth Amendment’s right to counsel does not extend to state postconviction pro-
ceedings; consequently, prisoners are held responsible for any errors made by their legal counsel.
The dissent, authored by Justice Sotomayor and joined by Justices Breyer and Kagan, argued that
two recent decisions, Martinez v. Ryan (2012) and Trevino v. Thaler (2013), permitted federal courts
to consider claims on habeas review that were not raised in state court if the reason those claims were
not raised was due to ineffective assistance of counsel. The dissent asserted that the majority’s
approach weakened the Sixth Amendment’s right to effective assistance of counsel at trial and main-
tained that neither Congress nor the AEDPA prevents federal courts from conducting an evidentiary
hearing or considering evidence beyond the state court record in situations involving ineffective
assistance of counsel.
Shoop v. Twyford. On September 23, 1992, Raymond Twyford and an accomplice kidnapped, shot,
and killed Richard Franks as revenge for the alleged rape of Twyford’s girlfriend’s daughter.
They mutilated Franks’body and hid it in a pond, where law enforcement discovered it a few
days later. Twyford confessed to the aforementioned crimes, and an Ohio jury sentenced him to
death. The Ohio appellate courts affirmed Twyford’s conviction and sentence. Twyford then
sought postconviction relief for ineffective trial counsel, but the Ohio courts dismissed his claim.
Twyford next filed a habeas petition in federal court. The District Court dismissed the majority of
Twyford’s claims on the basis that they were procedurally defaulted. Twyford subsequently filed
a motion for Ohio to transport him to a medical facility for the purposes of undergoing neurological
testing, with the goal of securing new evidence in support of his claims that he may have sustained
neurological defects as a result of childhood physical abuse, alcohol and drug use, and a self-inflicted
gunshot wound to his head. The District Court granted Twyford’s motion, and the Sixth Circuit Court
of Appeals affirmed. Both courts relied on the All Writs Act, which permits federal courts to “issue
all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages
and principles of law”(28 U.S.C. § 1651(a)).
In a 5-4 decision, with the majority opinion authored by Chief Justice Roberts (and joined by
Justices Thomas, Alito, Kavanaugh, and Barrett), the Court ruled that District Court and the Sixth
Circuit of Appeals erred in granting Twyford’s transportation request. The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) only permits federal habeas courts to collect or
review new evidence beyond the state court record in two situations: (1) if the Supreme Court retro-
actively applies a constitutional right, or (2) if there is “a factual predicate that could not have been
previously discovered through the exercise of due diligence”(28 U.S.C. § 2254(e)(2)(A)). If one of
these two situations is met, a prisoner must still prove that the new evidence would demonstrate “by
clear and convincing evidence”that “no reasonable factfinder”would have convicted him of the
charged crime (28 U.S.C. § 2254(e)(2)(B)). The Court stated that by granting Twyford’s
Hemmens et al. 117
transportation order, the lower courts facilitated Twyford’s ability to collect evidence in support of
his habeas petition, thereby contravening AEDPA. Moreover, the Court disagreed with the lower
courts’conclusion that Twyford’s motion for transportation was “necessary or appropriate”as
defined by the All Writs Act. Additionally, the Court noted that Twyford made no arguments for
how he would prove the usefulness or admissibility of any new evidence for his habeas claim or
for contesting his conviction. The Court argued that the lower courts’decision to grant Twyford’s
motion amounted to “needlessly prolong[ing] a habeas case,”in contravention of precedent
(Shinn v. Ramirez, 2022). Finally, the Court emphasized that precedent explicitly prevented lower
courts from using the All Writs Act to “circumvent statutory requirements or otherwise binding pro-
cedural rules”(Pennsylvania Bureau of Correction v. United States Marshals Service, 1985).
Two dissents were filed. The first dissent, authored by Justice Breyer and joined by Justices
Sotomayor and Kagan, noted that Courts of Appeals lack jurisdiction to hear interlocutory appeals
barring certain instances, such as when cases fall under the “collateral order doctrine.”This doctrine
permits Courts of Appeals to hear interlocutory cases when they “finally determine claims of right
separable from, and collateral to, rights asserted in the action”(Cohen v. Beneficial Industrial
Loan Corp., 1949). The dissent argued that the collateral order doctrine should not be extended to
include transportation orders. The second dissent, authored by Justice Gorsuch, also argued
against the extension of the collateral order doctrine, and additionally stated that, in general,
Courts of Appeals should keep “the class of collaterally appealable orders…‘narrow and selective’”
(Mohawk Industries, Inc. v. Carpenter, 2009).
Statutory Analysis
Federal Bureau of Investigation v. Fazaga. Between 2006 and 2007 the FBI instructed a confidential
informant to gather information on members of a Muslim community in Southern California. In
2011 Yassir Fazaga, an imam, Ali Malik, and Yasser Abdel Rahim, members of this community,
filed a class actionagainst the United States, the FBI,and two FBI officials claiming theywere the sub-
jects of illegal (warrantless) surveillance in violation of their rightsafforded under the Fourth and Fifth
Amendments, the Religious Freedom Restoration Act, and the Foreign Intelligence Surveillance Act
(FISA) among others. The Government moved for dismissal of all claims, invoking the state secrets
privilege. Derived from common law, this privilege permits the government to refuse disclosure of
information in litigation, if disclosure would compromise the national security of the United States
(United State v. Reynolds, 1953). This privilege can only be invoked after the head of the department
of the informationin question personally considersthe information and formally claimsprivilege. Once
the privilege is invoked, the court must determine whetherthe claim of privilege is appropriate consid-
ering the circumstances. Here, Attorney General Eric Holder asserted the state secrets privilege, declar-
ing that the information requested contained sensitive information regarding counterterrorism activities
which, if disclosed, would harm national security. Assistant Director of the FBI, Mark Giuliano, also
filed a declarationattesting to similar concerns. After a review of the filings, the District Court held the
state secrets privilege applied, and dismissed all claims against the Government except for the claim
under FISA, which was dismissed on other grounds. Fazaga appealed to the Ninth Circuit, which
reversed in part holding that the district court applied the wrong procedure, finding that it should
have used the procedures outlined in Section 1806(f) of FISA, rather than the state secrets privilege.
The Ninth Circuit reasoned that FISA displaced the state secrets privilege with respect to electronic
surveillance and therefore the district court should have used that procedure to determine whether
the surveillance in question was lawful. Under Section 1806 (f), whenever a motion is made by an
aggrieved person for disclosure of FISA evidence, the district court must first determine whether the
surveillance was lawfully authorized and conducted. This review is to be done in camera and
ex parte. If it is determined that the surveillance was not lawful the court shall grant the motion.
118 Criminal Justice Review 48(1)
The government appealed. While the appeal focused on the correct interpretation of Section 1806(f),
the Supreme Court limited the issue to whether Section 1806(f) of FISA displaces the state secrets
privilege.
In a unanimous 9-0 decision authored by Justice Alito, the Court held that Section 1806(f) does
not displace the state secrets privilege. The Court reasoned, first, there is no mention of the state
secrets privilege in FISA, indicating Congress did not intend for the privilege to be replaced by
FISA. Without clear statutory language, the common law privilege was not limited or eliminated
by FISA. Second, FISA and the state secrets privilege requires a court to conduct different inquires
and procedures and provides for different relief. Under Section 1806(f), the inquiry is whether the
surveillance was lawful, while under the state secret privilege, the inquiry is into whether the evi-
dence would harm national security, regardless of lawfulness. Under Section 1806(f) the procedure
includes review in camera and ex parte of the material to determine whether the surveillance was
lawful. This contrasts with the state secrets privilege which does not require examination of evidence
by a judge, where the Government has shown disclosure of evidence would harm national security.
Lastly, under Section 1806(f) the court has no authority to award relief if the evidence was lawfully
obtained, while under the state secrets privilege a court may order disclosure of lawfully obtained
evidence if it finds that disclosure would not affect national security. For those reasons, the Court
held that the state secrets privilege was not eliminated or modified by the enacting of Section 1806(f).
Wooden v. United States. William Dale Wooden burglarized a storage facility in 1997, where he broke
into, and stole items from ten different storage units in the facility. Prosecutors charged Wooden with
ten counts of burglary in a single indictment, and he pled guilty to all ten counts. Years later, in 2014,
Wooden was arrested and ultimately convicted for being a felon in possession of a firearm, in vio-
lation of 18 USC §922(g). At the sentencing hearing, the prosecution relied on the previous ten con-
victions to seek a sentencing enhancement based on the Armed Career Criminal Act (ACCA). The
ACCA provides a mandatory 15-year minimum sentence for illegal gun possession for offenders
who have three or more prior violent felony convictions. Importantly, these crimes must have
been committed “on occasions different from one another.”The District Court found that Wooden
qualified as an armed career criminal based on the ten counts of burglary in 1997 and sentenced
him to 188 months in prison for unlawful gun possession. Wooden appealed his sentence to the
Sixth Circuit which affirmed, finding the occasion clause of the ACCA is satisfied whenever a
crime takes place at a different moment in time, such as when Wooden went from one storage
unit to the next, despite all these burglaries occurring during a single criminal event. Wooden
then appealed to the Supreme Court. At issue was whether offenses committed as part of a single
criminal event, where each offense is committed sequentially, are committed “on occasions different
from one another”for purposes of the ACCA.
In a 9-0 opinion written by Justice Kagan, the Supreme Court held that each of Wooden’s ten bur-
glary offenses arose from a single criminal episode and not different occasions, thus counting as only
one prior conviction for purposes of the ACCA. In the Court’s interpretation of the occasion clause, it
looked to the ordinary meaning of the word “occasion,”and the history and purpose of the ACCA.
First, the Court relied on the ordinary meaning of the word “occasion”finding that in the criminal
context, an occasion means an event or episode, which can include “temporally discrete offenses,”
even when they are close in time. Second, the Court relied on the litigation history, and statutory
history and purpose of the ACCA, focusing on the outcome of United States v. Petty (1986). That
case involved a defendant who robbed a restaurant and was convicted of six counts of robbery,
one count for each of the six individuals who was robbed at the restaurant. Petty, like Wooden,
was later caught possessing a firearm and was convicted of violation §922(g). Prosecutors in Petty
asked for heightened penalties under the ACCA, based on the six robberies. The District Court
granted the sentencing enhancement and the Eight Circuit affirmed. However, when the case was
Hemmens et al. 119
appealed to the Supreme Court, the then Solicitor General acknowledged that the ACCA was incor-
rectly applied to Petty, as it was not intended to apply to multiple felony convictions arising out of a
single criminal episode. Based on this confession, Congress amended the ACCA to include the occa-
sion clause, which was meant to clarify the law was intended for “career criminals”deserving of the
enhanced punishment. Lastly, the Court offered a multi-factor test for determining whether criminal
activity occurred on separate occasions. Specifically, the factors include the timing of the crimes,
proximity of locations, and the character and relationship of the offenses. Applying these factors
to Wooden, the Court determined that the ten burglaries did not occur on separate occasions.
Thus, based on the common understanding of the term occasion, considering the litigation and stat-
utory history of the ACCA, and applying the multi-factor test, the Court held that Wooden’s ten bur-
glary convictions were for offenses committed on a single occasion, therefore counting only once for
purposes of the ACCA.
Justices Gorsuch, Barret, Kavanaugh and Sotomayor issued concurring opinions, agreeing with
the outcome but disagreeing in various degrees with Justice Kagan’s analysis. Justice Gorsuch
(with Justice Sotomayor joining in part), rejected Justice Kagan’s multi-factor balancing test,
arguing that the test may create unpredictable results. Justice Gorsuch argued that the outcome of
Wooden’s case is better understood through the concept of the rule of lenity. Under this rule,
“any reasonable doubt about the application of a penal law must be resolved in favor of liberty.”
Justice Kavanaugh penned a concurring opinion in response to Justice Gorsuch’s rule of lenity rea-
soning, arguing that the rule is only applicable where a statute is “grievously ambiguous,”and after
all tools of statutory interpretation has been exhausted by the Court. Justice Barrett wrote a concur-
ring opinion (with Justice Thomas joining) disapproving of Justice Kagan’s use of the litigation
history in Petty, including relying on the Solicitor’s General’s brief for guidance, and pointing to
limited evidence in the legislative history of the occasion clause amendment.
U.S. v. Taylor. Justin Taylor and an accomplice attempted to rob a fellow drug dealer, who was shot
and killed by Taylor’s accomplice. Taylor pleaded guilty to two charges: (1) violating the Hobbs Act,
which makes it a federal crime to commit or attempt to commit a robbery that involves interstate
commerce (18 U.S.C. § 1951(a)), and (2) committing a “crime of violence”under 18 U.S.C. §
924(c). While the maximum sentence for a Hobbs Act conviction is 20 years imprisonment, §
924(c) authorizes enhanced punishments for individuals who use a firearm in connection with a
crime of violence. Accordingly, the District Court sentenced Taylor to a total of 30 years in
prison. Taylor subsequently filed a federal habeas petition contesting his § 924(c) conviction. In
his petition, Taylor noted that § 924(c) has two clauses: an “elements clause”(§ 924(c)(3)(A))
and a “residual clause”(§ 924(c)(3)(B)). In addition, Taylor also asserted that his § 924(c) conviction
was based on two separate offenses: (1) conspiracy to commit Hobbs Act robbery and (2) attempted
Hobbs Act robbery. Taylor explained that in United States v. Davis (2019), the Court ruled that the
residual clause was unconstitutionally vague. Following this judgment, neither conspiracy to commit
Hobbs Act robbery nor attempted Hobbs Act robbery constituted a crime of violence under § 924(c).
Consequently, Taylor asked the Fourth Circuit Court of Appeals to retroactively apply Davis and to
vacate his § 924(c) conviction and sentence. The government contested Taylor’s habeas petition on
the grounds that Davis only pertained to the residual clause and that Taylor’s § 924(c) conviction was
valid under the elements clause. In addition, the government asserted that attempted Hobbs Act
robbery should still constitute a crime of violence under § 924(c), even if conspiracy to commit a
Hobbs Act robbery did not. The Fourth Circuit agreed with Taylor and ruled that attempted
Hobbs Act robbery did not qualify as crime of violence under the elements clause, since no
element of the offense required the government to prove that the defendant used, attempted to
use, or threatened to use force. It vacated Taylor’s § 924(c) conviction and remanded the case for
120 Criminal Justice Review 48(1)
resentencing. The Fourth Circuit noted that other circuits had also ruled that attempted Hobbs Act
robberies qualified as crimes of violence under the elements clause
In a 7-2 decision, with the majority opinion authored by Justice Gorsuch (joined by Chief Justice
Roberts and Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett), the Court affirmed the
Fourth Circuit Court of Appeals. The Court applied a “categorical approach”and determined that
an attempted, but unsuccessful, Hobbs Act robbery was not considered a crime of violence under
the elements clause. The Court explained that a conviction for attempted Hobbs Act robbery was
predicated on the government’s ability to prove: (1) that the defendant intended to take personal
property via actual or threatened force and (2) that the defendant took a “substantial step”towards
accomplishing this goal. The Court stated that “an intention is just that, no more”, and that “what
exactly constitutes a substantial step is beyond the scope”of the present case. The Court further clar-
ified that no element of an attempted Hobbs Act robbery required the government to prove that the
defendant used, attempted to use, or threatened to use force.
Two dissents were filed. The first dissent, authored by Justice Thomas, argued that the nullifica-
tion of the residual clause was a mistake and that United States v. Davis should be overruled. The
second dissent, authored by Justice Alito, offered an alternative interpretation of the elements
clause that classified the entire offense of attempted Hobbs Act robbery a crime of violence under
§ 924(c).
Concepcion v. United States. In 2007, Carlos Concepcion pled guilty to one count of distributing five
or more grams of crack cocaine in violation of 21 U. S. C. §841(a)(1) (2006 ed.). Based on th e stat-
utory sentencing range of 5 to 40 years, Concepcion was sentenced in 2009 to 19 years in prison, or
228 months. Concepcion was sentenced under the previous sentencing guidelines for crack cocaine
that created a 100-1 disparity between crack-cocaine and powder-cocaine offences. His initial sen-
tence included an enhancement as a “career offender.”One year after Concepcion’s sentencing
Congress passed the Fair Sentencing Act of 2010, that sought to correct the disparities between sen-
tencing of crack-cocaine and powder cocaine offenders. Specifically, Section 2 of the Fair Sentencing
Act increased the amount of crack-cocaine needed to trigger the statutory sentencing range from 5
grams to 28 grams. The new sentencing guidelines applied retroactively for those eligible.
Concepcion was not eligible for retroactive sentencing because of the career offender enhancement
to his sentence. However, in 2018 Concepcion became eligible for sentence reduction through the
First Step Act passed by Congress. The First Step Act authorizes district courts to reduce prison sen-
tences of defendants convicted of certain offenses involving crack cocaine by applying sections of
the Fair Sentencing Act as if they were in effect at the time the offense was committed. Based on
the First Step Act, Concepcion filed a pro se motion seeking sentence reduction arguing his sentence
was a “covered offense”because Section 2 of the Fair Sentencing Act “modified”the statutory pen-
alties for his conviction. In response to his motion, the Government conceded Concepcion’s eligibil-
ity for relief but opposed the motion, arguing the original sentence still fell within the new guidelines
range. The government further argued Concepcion’s prison record weighed against a sentence reduc-
tion. In his response to the Government, Concepcion argued that he would no longer be considered a
career offender under the amended guidelines because one of his prior convictions had been vacated,
and the remaining convictions would no longer be considered crimes of violence. Without the
enhancement, Concepcion argued that the revised guideline range should be 57 to 71 months, sig-
nificantly lower than his initial sentence of 228 months. Concepcion also pointed to evidence of
his rehabilitation while in prison. The District Court denied Concepcion’s motion, finding that his
sentence would be the same under the Fair Sentencing Act. The District Court declined to consider
that Concepcion no longer qualified as a career offender. Nor did it consider his evidence of rehabil-
itation. In declining to consider this evidence, the District Court reasoned that the Fair Step Act
required courts to apply changes created by the Fair Sentencing Act and no other legal or factual
Hemmens et al. 121
developments. The First Circuit Court of Appeals affirmed the District Court’s ruling. The question
in this case is whether a district court adjudicating a motion under the First Step Act may consider
other changes in law or fact beyond the Fair Sentencing Act.
In a 5-4 opinion authored by Justice Sotomayor in which Justices Thomas, Breyer, Kagan, and
Gorsuch joined, the Court held district courts may consider intervening changes of law or fact in
adjudicating First Step Act motions. The majority reasoned that judges have broad discretion in
initial sentencing and resentencing hearings. The only limitations to this discretion are those estab-
lished by the Constitution and Congress. Focusing on the First Step Act, the Court found the text of
the First Step Act includes no implicit or explicit limitation to the evidence a district court may con-
sider in resentencing hearings brought under the Act. The only limitations are that a district court may
not consider a motion if the sentence was already reduced under the First Step Act, or if it was con-
sidered and rejected previously. Thus, the Court reasoned, a district court may consider intervening
legal or factual changes when adjudicating a sentencing reduction pursuant to the First Step Act. The
Court further noted that district courts are required to consider nonfrivolous arguments made by both
parties when deciding First Step Act motions.
Justice Kavanaugh authored a dissent with Chief Justice Roberts and Justices Alito, and Barrett
joining. Relying on 18 U.S. C. § 358(c)(1)(B) which states courts may reduce a sentence only “as
expressly permitted by statute”, the dissent argued the text of the First Step Act only authorizes dis-
trict courts to reduce sentences based on changes to the crack-cocaine sentencing ranges, and no other
unrelated changes. Thus, for the dissent, district courts are not permitted to consider other factual or
legal developments when adjudicating First Step Act Motions.
Ruan v. United States and Kahn v. United States (Consolidated). Xiulu Rua n and Shakeel Kahn were
both licensed medical doctors accused of dispensing and distributing controlled substances in viola-
tion of the Controlled Substances Act (CSA). The CSA makes it a federal crime “Except as autho-
rized…for any person knowingly or intentionally…to manufacture, distribute, or dispense…a
controlled substance”(21 USC§ 841 (a) (referred to as Section 841)). Doctors are authorized to pre-
scribe these substances when done “for a legitimate medical purpose…acting in the usual course of
his professional practice”(21 CFR 1306.04(a) (2021)). The Government alleged Ruan and Kahn dis-
pensed such substances not as authorized. At their individual trials, both argued the Government
must prove they subjectively knew that the prescriptions written fell outside their authority as
medical doctors. The District Courts in both cases instead instructed the jury that a doctor is not
authorized to dispense controlled substances when it falls outside standard medical practices.
Ruan and Kahn were both found guilty and sentenced to 20- and 25-years imprisonment, respec-
tively. Both appealed their convictions, challenging the jury instructions which set forth an objective
standard to determine whether they had distributed the controlled substances not as authorized. The
11th and 10th Circuit Court of Appeals affirmed both convictions. The Supreme Court granted cer-
tiorari and consolidated the cases. At issue was determining the correct mens rea required in Section
841’s“except as authorized”clause.
In a unanimousdecision authored by JusticeBreyer, the Court held thatSection 841’s“knowinglyor
intentionally”mens rea applies to the “except as authorized”clause. The Court reasoned that the words
“knowingly or intentionally”apply to not only the words followingit, but also the statutory terms that
separate innocent from wrongful acts, which in the context of Section 841 is the “except as authorized”
clause. In its reasoning, the Court relied on the presumption in criminal law which requires a culpable
mental state to find wrongdoing. Because the “as authorized”clause plays a crucial role in separating
wrongful from innocent acts, the Court found the statute’s m ens rea applies to the clause. Thus, once
a defendant provides evidence that they are authorized to dispense controlled substances, the
Government must prove beyond a reasonable doubt that the defendant “knowingly or intentionally”
acted in an “unauthorized”manner. The Court rejected the Government’s argument that Section 841
122 Criminal Justice Review 48(1)
impliesan objective standard,whereby it need only prove beyonda reasonable doubt thata defendant did
not make objectively reasonable attempts to act withinthe standards of the medicalprofession. In reject-
ing this argument,the Court found that Section 841 contains no language to support that interpretation.
Justice Alito filed a concurring opinion (with Justices Thomas joining and Justice Barret joining in
part) agreeing with the outcome but disagreeing with the Court’s analysis. Justice Alito argued that
the “except as authorized”provision of Section 841 should be understood as an affirmative defense,
and as such objects to the mens rea requirement established by the Court. Further, as an affirmative
defense, he reasoned that the defendant should carry the burden of proof rather than the Government.
But should the Government carry the burden, Justice Alito favors the preponderance of evidence
standard over the reasonable doubt standard. Lastly, Justice Alito argued that a doctor claiming
this affirmative defense would have to establish a good faith belief that the prescription is a valid
means of pursuing a medical purpose.
Liability & Immunity
Thompson v. Clark. Larry Thompson lived in Brooklyn and shared an apartment with his fiancée (now
wife), their infant daughter, and his sister-in-law, who suffered from a mental illness. In January
2014, Thompson’s sister-in-law called 911 and stated that Thompson was sexually abusing his
infant daughter. Two Emergency Medical Technicians (EMTs) went to Thompson’s apartment,
where he turned them away, claiming that no one had called 911. Shortly thereafter, the two
EMTs returned with four police officers. Thompson informed the officers that they could not
enter without a warrant. Undeterred, the officers and EMTs entered. The EMTs took the baby to a
local hospital, where medical professionals found no signs of sexual abuse. The police arrested
Thompson and charged him with resisting arrest and obstructing governmental administration.
Thompson spent two days in jail before being released on his own recognizance. Prior to trial, the
prosecutor dismissed the charges without explanation.
Claiming a Fourth Amendment violation, Thompson sued the police for malicious prosecution.
To maintain this claim, Second Circuit precedent required Thompson to prove his criminal prosecu-
tion was terminated and to provide an affirmative indication of his innocence. Thompson was unable
to provide evidence for why his case was dismissed and the District Court ruled in favor of the defen-
dant police officers. Thompson appealed to the Second Circuit Court of Appeals, which affirmed the
District Court’s decision.
In a 6-3 decision, with the majority opinion authored by Justice Kavanaugh (joined by Chief
Justice Roberts and Justices Breyer, Sotomayor, Kagan, and Barrett), the Court held that
Thompson did not need to provide an affirmative indication of his innocence for purposes of a
Fourth Amendment claim of malicious prosecution. Instead, Thompson need only demonstrate his
criminal prosecution was terminated without a conviction. Since Thompson had met this criterion,
the Court reversed and remanded the case. In rendering its decision, the Court noted that there
was a split among the Courts of Appeals regarding how to interpret Fourth Amendment claims of
malicious prosecution. Whereas the Second Circuit required an affirmative indication of a defen-
dant’s innocence, the Eleventh Circuit only required a defendant’s criminal prosecution be termi-
nated without a conviction. To arrive at its decision, the Court referred to the Civil Rights Act of
1871, codified at 42 U.S.C. §1983. The Court determined that malicious prosecution was the
most analogous tort to a Fourth Amendment claim and analyzed malicious prosecution case law
as of 1871. Most courts and treatises of the time only required a defendant’s criminal prosecution
be terminated without a conviction. Consequently, the Court’s judgment was consistent with prior
precedent.
The dissent, authored by Justice Alito and joined by Justices Thomas and Gorsuch, argued that the
majority erroneously conflated two different types of claims: malicious prosecution claims and
Hemmens et al. 123
unreasonable seizure claims. In addition, the dissent asserted that the Fourth Amendment did not
apply to malicious prosecution claims.
Egbert v. Boule. Robert Boule is the proprietor of a bed-and-breakfast located in Blaine, Washington,
a small town that abuts the Canadian border. The bed-and-breakfast, called the “Smuggler’s Inn”,
provides access to Canada via the property’s backyard. Boule frequently provided transportation
and lodging to unauthorized border crossers. Later, Boule would contact federal agents to report
their illicit border activity. Boule estimates that the U.S. government paid him more than $60,000
for serving as an informant. On March 20, 2014, Boule informed Agent Erik Egbert of the U.S.
Customs and Border Patrol (USCBP) that he was providing transportation and lodging to a
Turkish national who arrived at the Seattle airport after a layover in New York. Agent Egbert
then followed Boule’s SUV, which bore a distinctive license plate with the letters “SMUGLER”,
into Boule’s driveway to check the Turkish national’s travel documents. Boule requested that
Agent Egbert leave. In response, Boule alleged that Agent Egbert picked him up, flung him
against the SUV, and tossed him to the ground. After verifying that the Turkish national had appro-
priate U.S. travel documents, Agent Egbert left the premises. That evening, the Turkish national
unlawfully entered Canada via Boule’s backyard. Boule filed a grievance with Agent Egbert’s super-
visors, but no action was taken against Agent Egbert. Boule also filed an administrative claim with
the USCBP pursuant to the Federal Tort Claims Act (FTCA), but his claim was denied. Boule alleged
that Agent Egbert retaliated by reporting Boule’s“SMUGLER”license plate to the Washington
Department of Licensing for possible illegal activity and by recommending that the Internal
Revenue Service pursue an audit of Boule’s tax returns. In 2017, Boule sued Agent Egbert in
Federal District Court for excessive force, a Fourth Amendment violation, and unlawful retaliation,
a First Amendment violation. Boule relied on Bivens v. Six Unknown Federal Narcotics Agents
(1971), which permitted individuals to sue federal officials for damages for alleged Fourth
Amendment violations. The District Court did not extend Bivens to Boule’s situation, but the
Ninth Circuit Court of Appeals reversed.
In a 6-3 decision, with the majority opinion authored by Justice Thomas (joined by Chief Justice
Roberts and Justices Alito, Kavanaugh, and Barrett), and with Justice Gorsuch concurring in the
judgement, the Court held that a Bivens remedy does not apply to alleged Fourth Amendment vio-
lations in situations where Congress or the Executive can provide “an alternative remedial structure”
and that recognizing a new cause of action under Bivens is a “disfavored judicial activity”(per Ziglar
v. Abbasi, 2017). In Boule’s case, Congress provided an alternative remedy in the form of 8 CFR
§§287.10(a)-(b), which requires the USCBP to investigate grievances. Although Boule expressed
dissatisfaction with USCBP’s investigation, the Court noted that Bivens alternatives do not have
to be judicial in nature; moreover, Congress has jurisdiction to determine whether a particular
remedy is sufficient or not. The Court also ruled that Bivens cannot be extended to alleged First
Amendment violations for two reasons: (1) officials might constrain their actions for fear of being
sued for monetary damages (see Anderson v. Creighton, 1987), and (2) alleged First Amendment
violations are better addressed by Congress (see Bush v. Lucas, 1983). Finally, the Court noted
that lower courts should hesitate before extending Bivens into contexts involving border security
due to “national security implications”(Hernandez v. Mesa, 2020).
Justice Gorsuch filed a concurring opinion in which he argued that while the Court correctly deter-
mined that Bivens did not apply to Boule, its precedent should not be extended in general, since
federal courts should not assume legislative authority. Justice Sotomayor, joined by Justices
Breyer and Kagan, filed an opinion concurring in part and dissenting in part. They agreed with
the majority that Bivens did not apply to Egbert’s alleged First Amendment violation but argued
that Bivens should apply to Boule’s alleged Fourth Amendment violation since that claim was, in
their view, “materially indistinguishable”from Bivens.
124 Criminal Justice Review 48(1)
Conclusion
While there were a number of high-profile decisions during the 2021 term, including the overturning
of Roe v. Wade (1973), there were relatively few significant decisions involving criminal justice,
aside from the decision in New York State Rifle & Pistol Association, Inc. v. Bruen. There were none-
theless a number of lower profile but significant decisions that will have an impact on the day-to-da y
administration of the criminal justice system. These cases included decisions involving the Second
Amendment, the Eighth Amendment, and the interpretation of criminal statutes.
It has become clear that there is a solid conservative majority on the Court. This is no surprise,
given that the Republicans were able to block President Obama’s nomination of Merrick Garland
in 2016 and then confirm all three of President Trump’s nominees. Where many of the most conten-
tious cases were in years past decided by a 5-4 vote, there are now 6 solidly conservative votes.
Where Chief Justice Roberts was sometimes a crucial fifth vote in cases in past terms, he is now fre-
quently mired in the middle of the road while five of his more conservative colleagues seek to move
the Court further rightward.
The liberal wing of the Court lost its most senior member, Justice Breyer, to retirement at the end
of the term. He was replaced by the newest Justice, Ketanji Brown Jackson. She was nominated by
President Biden and confirmed by the Senate by a 53-47 vote, with three Republicans voting for her.
She will join the Court for the 2022 term.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/
or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this
article.
ORCID iD
Craig Hemmens https://orcid.org/0000-0003-2909-260X
Cases Cited
Anderson v. Creighton, 483 U.S. 635 (1987).
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Brecht v. Abrahamson, 507 U.S. 619 (1993).
Brown v. Davenport, ___ U.S. ___ (2022).
Bucklew v. Precythe, 587 U.S. ___ (2019).
Bush v. Lucas, 462 U.S. 367 (1983).
Chapman v. California, 386 U.S. 18 (1967).
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
Coleman v. Thompson, 501 U.S. 722 (1991).
Concepcion v. United States, ___ U.S. ___ (2022).
Crawford v. Washington, 541 U.S. 36 (2004).
Davis v. Ayala, 576 U.S. 257 (2015).
Deck v. Missouri, 544 U.S. 622 (2005).
Denezpi v. United States, ___ U.S. ___ (2022).
Dickerson v. United States, 530 U.S. 428 (2000).
District of Columbia v. Heller, 554 U.S. 570 (2008).
Hemmens et al. 125
Egbert v. Boule, ___ U.S. ___ (2022).
Federal Bureau of Investigation v. Fazaga, ___ U.S. ___ (2022).
Fry v. Pliler, 551 U.S. 112 (2007).
Glossip v. Gross, 576 U.S. 863 (2015).
Hemphill v. New York, ___ U.S. ___ (2022).
Hernandez v. Mesa, ___ U.S. ___ (2020).
Hill v. McDonough, 547 U.S. 573 (2006).
Jones v. Shinn, ___ U.S. ___ (2019).
Kahn v. United States, ___ U.S. ___ (2022).
Martinez v. Ryan, 566 U.S. 1 (2012).
Maryland v. Shatzer, 559 U.S. 98 (2010).
McDonald v. Chicago, 561 U.S. 742 (2010).
McGirt v. Oklahoma, 591 U.S. ___ (2020).
Miranda v. Arizona, 384 U.S. 436 (1966).
Mohawk Industries, Inc. v. Carpenter, 558 U.S.100 (2009).
Nance v. Ward, ___ U.S. ___ (2022).
Nelson v. Campbell, 541 U.S. 637 (2004).
New York State Rifle & Pistol Association, Inc. v. Bruen, ___ U.S. ___ (2022).
Oklahoma v. Castro-Huerta, ___ U.S. ___ (2022).
Oliphant v. Suquamish Tribe, 435 U.S. 131 (1978).
Patriarca v. United States, 402 F.2d 314 (1968).
Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985).
People v. Reid, 287 A.D.2d 387 (New York, 1996).
Ramirez v. Collier, ___ U.S. ___ (2022).
Ramirez v. Ryan, ___ U.S. ___ (2019).
Roe v. Wade, 410 U.S. 113 (1973).
Ruan v. United States, ___ U.S. ___ (2022).
Shinn v. Ramirez, ___ U.S. ___ (2022).
Shoop v. Twyford, ___ U.S. ___ (2022).
Skilling v. United States, 561 U.S. 358 (2010).
Thompson v. Clark, ___ U.S. ___ (2022).
Trevino v. Thaler, ___ U.S. ___ (2013).
United States v. Davis, 588 U.S. ___ (2019).
United States v. Petty, 798 F.2d 1157 (1986).
United States v. Taylor, ___ U.S. ___ (2022).
United States v. Tsarnaev, ___U.S. ___ (2022).
United State v. Reynolds, 345 U.S. 1 (1953).
Vega v. Tekoh, ___ U.S. ___ (2022).
White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).
Wooden v. United States, ___ U.S. ___ (2022).
Worcester v. Georgia, 31 U.S. 515 (1832).
Ziglar v. Abbasi, ___ U.S. ___ (2017).
Author Biographies
Craig Hemmens is a professor in the Department of Criminal Justice and Criminology at Washington State
University. He has published more than 20 books and 200 articles and other writings dealing with criminal
justice and the law.
126 Criminal Justice Review 48(1)
Arifa Raza is an Assistant Professor in the Department of Criminal Justice and Criminology at Washington
State University. A prior immigration lawyer, her research examines race and racism in immigration law.
She is currently a Ford Foundation post-doctoral scholar.
Hillary Mellinger is an Assistant Professor in the Department of Criminal Justice and Criminology at
Washington State University. Before pursuing her Ph.D., Dr. Mellinger worked as a Board of Immigration
Appeals (BIA) Accredited Representative at the Tahirih Justice Center, a national nonprofit organization that
supports immigrant women and girls fleeing gender-based violence through a combination of legal representa-
tion, social services and public policy.
Hemmens et al. 127
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