June 19, 2010
"‘Smart on Crime’ Mantra of Philadelphia Prosecutor"
The story is in the New York Times:
PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.
. . . .
Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.
June 18, 2010
"Life Sentences And Civil Death"
City Limits has this op-ed by Eric Deadwiley, which begins as follows:
The powers that be are trying to make some sense of the extremely high unemployment rates blacks have here in New York State and across the country. Civil rights leaders recently met with President Obama to discuss his jobs agenda, and to suggest that he use “targeted measures” to combat joblessness in communities of color. There have been panel-discussions, forums and lectures from some of the premier thinkers and educators this country has to offer.
Yet, with all of these great minds discussing black unemployment, only a few key organizations have considered how the high conviction and incarceration rates of blacks relate to high unemployment. Every state in this country has laws which restrict or prevent ex-offenders from enjoying the same rights and privileges other citizens enjoy.
"Should Parents Be Jailed When Kids Drink?"An interesting debate among various experts in The New York Times.
Fedders on Ineffective Assistance in Juvenile Representation
Barbara Fedders (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Losing Hold of the Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency Representation (Lewis & Clark Law Review, Vol. 14, p. 771, 2010) on SSRN. Here is the abstract:
Lawyers for children in juvenile delinquency proceedings frequently provide their clients deficient representation. In addition to failing to investigate the facts of a case and research the applicable law, they ignore relevant ethical mandates and fail to address the demands created by the unique characteristics of children. The widespread nature of substandard legal representation, combined with delinquent adjudications' serious and long-term consequences, makes it imperative that juveniles harmed by deficient legal representation have access to some form of legal redress. Yet, at present, no such remedy exists. A child who is adjudicated delinquent can theoretically bring a claim of ineffective assistance of counsel (IAC), which, if granted, results in a new adjudicatory or dispositional hearing or a plea withdrawal. In practice, however, systemic and doctrinal barriers prevent children from filing IAC claims and from receiving appellate review of those claims. As a recent survey of IAC claims in delinquency cases suggests, children file these claims in an extremely small number of cases. Moreover, courts almost never grant relief on the basis of these claims. This form of appellate review fails to provide meaningful remedies to the large number of children harmed by substandard legal representation. Although commentators have explored this problem in the context of adult criminal defendants, this Article is among the first to examine the inadequacy of the IAC remedy for juveniles. It traces the history of the grant of the right to counsel to juveniles; analyzes substandard representation's nature, causes, and extent; details systemic and doctrinal barriers facing juveniles who wish to file IAC claims; and offers preliminary proposals for reform.
June 17, 2010
Green on Possession of Stolen Property
Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
Opinion on search of police officer's text messages
City of Ontario v. Quon is here. Here is the syllabus:
Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD’s internal affairs division. The investigating officer used Quon’s work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules.
He and the other respondents—each of whom had exchanged text messages with Quon during August and September—filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon’s pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. After the jury concluded that Scharf’s intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.
Held: Because the search of Quon’s text messages was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. Pp. 7–17.
(a) The Amendment guarantees a person’s privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 613–614. It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U. S. 656, 665. The Members of the O’Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some [government] offices may be so open . . . that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” to determine if an employee’s constitutional rights are implicated. 480 U. S., at 718. Second, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725–726. JUSTICE SCALIA, concurring in the judgment, would have dispensed with the “operational realities” inquiry and concluded “that the offices of government employees . . . are [generally] covered by Fourth Amendment protections,” id., at 731, but he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the . . . Amendment,” id., at 732. Pp. 7–9.
(b) Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O’Connor approaches, the plurality’s and JUSTICE SCALIA’s. Pp. 9–17.
(1) The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms,and the law’s treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners’ review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere. Pp. 9–12.
(2) Petitioners’ warrantless review of Quon’s pager transcript was reasonable under the O’Connor plurality’s approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U. S., at 726. There were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” ibid., in that Chief Scharf had ordered the audit to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. It was also “reasonably related to the objectives of the search,” ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon’s overages. And the review was also not “excessively intrusive.” Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD’s perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon’s life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be “regarded as reasonable and normal in the private-employer context” and thereby satisfy the approach of JUSTICE SCALIA’s concurrence, id., at 732. Conversely, the Ninth Circuit’s “least intrusive” means approach was inconsistent with controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 663. Pp. 12–16.
(c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court’s conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. Pp. 16–17.
529 F. 3d 892, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined except for Part III–A. STE-VENS, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.
Opinion limiting Booker decision on sentencing guidelines
Dillon v. United States is here. Here is the syllabus:
In 1993, petitioner Dillon was convicted of, inter alia, crack and powder cocaine offenses, which produced a base offense level of 38 and a Guidelines range of 262-to-327 months’ imprisonment. The court sentenced him at the bottom of the range for those counts. After the Sentencing Commission amended the Guidelines to reduce the base offense level associated with each quantity of crack cocaine, USSG Supp. App. C, Amdt. 706, and made that amendment retroactive, USSG Supp. App. C, Amdt. 713, Dillon moved for a sentence reduction under 18 U. S. C. §3582(c)(2). That provision authorizes a district court to reduce an otherwise final sentence pursuant to a Guidelines amendment if a reduction is consistent with the Commission’s policy statements. The relevant policy statement, USSG§1B1.10, precludes a court from reducing a sentence “to a term that is less than the minimum of the amended guidelines range” except in limited circumstances. In addition to the two-level reduction authorized by the amendment, Dillon sought a variance below the amended Guidelines range, contending that United States v. Booker, 543 U. S. 220, authorized the exercise of such discretion. The District Court imposed a sentence at the bottom of the revised range but declined to grant a further reduction. Finding Booker inapplicable to §3582(c)(2)proceedings, the court concluded that the Commission’s directives in §1B1.10 constrained it to impose a sentence within the amended Guidelines range. The Third Circuit affirmed.
Held: Booker’s holdings do not apply to §3582(c)(2) proceedings and therefore do not require treating §1B1.10(b) as advisory. Pp. 6–14.
(a) The statute’s text and narrow scope belie Dillon’s characterization of proceedings under §3582(c)(2) as “resentencing” proceedings governed by the same principles as other sentencing proceedings. Instead, §3582(c)(2) authorizes only a limited adjustment to an otherwise final sentence. This conclusion is further supported by the substantial role Congress gave the Commission with respect to sentence-modification proceedings, charging it with determining whether and to what extent a Guidelines amendment will be retroactive, 28 U. S. C. §994(u), and authorizing a court to grant a reduction under §3582(c)(2) only “if [it] is consistent with applicable policy statements issued by the Sentencing Commission.” Section 3582(c)(2) establishes a two-step inquiry: A court must (1) determine the scope of the reduction, if any, authorized by §1B1.10, and then (2) consider whether the authorized reduction is warranted according to the applicable §3553(a) factors. At step one, the court must follow the Commission’s instructions in §1B1.10 to impose a term of imprisonment within the amended Guidelines range unless the sentencing court originally imposed a below-Guidelines sentence. §1B1.10(b)(2). Because reference to §3553(a) is appropriate only at step two, that provision does not transform §3582(c)(2) proceedings into plenary resentencing proceedings. Pp. 6–10.
(b) Given §3582(c)(2)’s limited scope and purpose, proceedings under that section do not implicate Booker. The section represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines. Taking the original sentence as given, any facts found by a judge at a §3582(c)(2) proceeding do not serve to increase the prescribed range of punishment; instead, they affect only the judge’s exercise of discretion within that range. That exercise does not contravene the Sixth Amendment, even if it is informed by judge-found facts. Apprendi v. New Jersey, 530 U. S. 466, 481. Thus, Dillon’s Sixth Amendment rights were not violated by the District Court’s adherence to §1B1.10’s instruction to consider a reduction only within the amended Guidelines range. Dillon’s argument that Booker’s remedial opinion nonetheless requires the Guidelines to be treated as advisory in such proceedings is unpersuasive given that proceedings under §3582(c)(2) are readily distinguishable from other sentencing proceedings. Pp. 10–13.
(c) Also rejected is Dillon’s argument that the District Court should have corrected other mistakes in his original sentence, namely, a Booker error resulting from the initial sentencing court’s treatment of the Guidelines as mandatory and an alleged error in the calculation of his criminal-history category. Because those aspects of Dillon’ssentence were not affected by the crack-cocaine Guidelines amendment, they are outside the scope of the §3582(c)(2) proceeding, and the District Court properly declined to address them. Pp. 13–14.
572 F. 3d 146, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion. ALITO, J., took no part in the decision of the case.
June 16, 2010
McCormack on Prosecuting Terrorism
Wayne McCormack (University of Utah - S.J. Quinney College of Law) has posted Prosecuting Terrorism - Models for Confronting Organized Violence on SSRN. Here is the abstract:
This article reviews application of the two existing paradigms of law and crime to international terrorism. Terrorism is not an entity with which the model of war makes sense, and ordinary crime is not an adequate model for addressing the problem. Rather than contorting the traditions of either existing paradigm, it would be better to recognize the applicability of a third paradigm that has been applied successfully to piracy and slavery - the model of crimes erga omens under jus cogens which can be supported by military operations other than war (MOOTW). There is already the emerging supra-state body of international humanitarian law (IHL) to address offenses that are characterized by ongoing violence against civilians that is "widespread or systematic."
A valuable corollary is the US experience with racial terrorism and the so-called KKK statutes. The reason for supra-state intervention by international organizations into the affairs of a nation-state is the same as the reason for supra-state intervention by the U.S. federal government into the affairs of a U.S. state. It is the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. This is the identical problem with terrorism today.
This realization feeds into the need for recognition of an international norm of counter-terrorism in which "widespread or systematic" attacks on civilians can be addressed by any nation with use of MOOTW. The model avoids most, but not all, of the confusion and problems that have surrounded the concept of "enemy combatant" in recent U.S. initiatives. Some of the problems not addressed are what to do with tortured miscreants such as KSM and how to address targeted killings – those are to be resolved by other analysis suggested at the end of this article.
"Shoot Me Now: Are firing squads a better means of execution than lethal injection?"This article by Margot Sanger-Katz is at Slate. Particularly timely in light of Utah's plan to resurrect the firing-squad execution this Friday.
June 15, 2010
"Governor Rebuffs Clemency Board in Murder Case"
Adam Liptak's column in the New York Times is here. In part:
Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed.
But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.
"Mass State Court Rejects Collective Knowledge"Ellen Podgar has the post on this important corporate liability issue at White Collar Crime Prof Blog.
2011 Innocence Network conferenceThis conference will be held in Cincinnati on April 8 to 10. The agenda has not yet been posted.
June 14, 2010
Today's criminal law/procedure review grants
Issue summaries are from ScotusBlog, which also links to briefs and opinions below. In the second case listed, the Court postponed further consideration of the jurisdictional question to the hearing of the case on the merits.
- Cullen v. Pinholster: (1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.
- Schwarzenegger v. Plata: (1) Whether the three-judge court below properly determined that crowding was the “primary cause” of continuing violations of prisoners’ constitutional rights to adequate health care, and that no remedy existed other than issuance of a Prisoner Release Order pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626; (2) whether the system-wide Prisoner Release Orders issued by the three-judge court are “narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [are] the least intrusive means necessary to correct the violation of the Federal right” in compliance with the PLRA, 18 U.S.C. § 3626(a)(1)(A); and (3) whether the same court properly gave ”substantial weight to any adverse impact on public safety or the operation of a criminal justice system” in ordering a reduction in population of approximately 46,000 inmates.
Opinion on equitable tolling of habeas filing deadline
Holland v. Florida is here. Here is the syllabus:
Petitioner Holland was convicted of first-degree murder and sentenced to death in Florida state court. After the State Supreme Court affirmed on direct appeal and denied collateral relief, Holland filed a pro se federal habeas corpus petition, which was approximately five weeks late under the 1-year statute of limitations set forth in the An-titerrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(d). The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like.
1. Section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases. Pp. 12–21.
(a) Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense . . . is not ‘jurisdictional,’ ” Day v. McDonough, 547 U. S. 198, 205, 213, it is subject to a “rebuttable presumption” in favor “of equitable tolling,” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96. That presumption’s strength is reinforced here by the fact that “equitable principles” have traditionally “governed” substantive habeas law. Munaf v. Geren, 553 U. S. 674, ___, and the fact that Congress enacted AEDPA after Irwin and therefore was likely aware that courts, when interpreting AEDPA’s timing provisions, would apply the presumption, see, e.g., Merck & Co. v. Reynolds, 559 U. S. ___, ___. Second, §2244(d) differs significantly from the statutes at issue in United States v. Brockamp, 519 U. S. 347, 350–352, and United States v. Beggerly, 524 U. S. 38, 49, in which the Court held that Irwin’s presumption had been overcome. For example, unlike the subject matters at issue in those cases—tax collection and land claims— AEDPA’s subject matter, habeas corpus, pertains to an area of the law where equity finds a comfortable home. See Munaf, supra, at ___. Brockamp, supra, at 352, distinguished. Moreover, AEDPA’s limitations period is neither unusually generous nor unusually complex. Finally, the Court disagrees with respondent’s argument that equitable tolling undermines AEDPA’s basic purpose of eliminating delays in the federal habeas review process, see, e.g., Day, supra, at 205–206. AEDPA seeks to do so without undermining basic habeas corpus principles and by harmonizing the statute with prior law, under which a petition’s timeliness was always determined under equitable principles. See, e.g., Slack v. McDaniel, 529 U. S. 473, 483. Such harmonization, along with the Great Writ’s importance as the only writ explicitly protected by the Constitution, counsels hesitancy before interpreting AEDPA’s silence on equitable tolling as congressional intent to close courthouse doors that a strong equitable claim would keep open. Pp. 12–16.
(b) The Eleventh Circuit’s per se standard is too rigid. A “petitioner” is “entitled to equitable tolling” if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Pace v. DiGuglielmo, 544 U. S. 408, 418. Such “extraordinary circumstances”are not limited to those that satisfy the Eleventh Circuit’s test. Courts must often “exercise [their] equity powers . . . on a case-by-case basis,” Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating“flexibility” and avoiding “mechanical rules,” Holmberg v. Armbrecht, 327 U. S. 392, 396, in order to “relieve hardships . . . aris[ing] from a hard and fast adherence” to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248. The Court’s cases recognize that equity courts can and do draw upon decisions made in other similar cases for guidance, exercising judgment in light of precedent, but with awareness of the fact that specific circumstances, often hard to predict, could warrant special treatment in an appropriate case. Coleman v. Thompson, 501 U. S. 722, 753, distinguished. No pre-existing rule of law or precedent demands the Eleventh Circuit’s rule. That rule is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least sometimes, an attorney’s unprofessional conduct can be so egregious as to create an extraordinary circumstance warranting equitable tolling, as several other federal courts have specifically held. Although equitable tolling is not warranted for “a garden variety claim of excusable neglect,” Irwin, supra, at 96, this case presents far more serious instances of attorney misconduct than that. Pp. 16–19.
2. While the record facts suggest that this case may well present “extraordinary” circumstances, the Court does not state its conclusion absolutely because more proceedings may be necessary. The District Court incorrectly rested its ruling not on a lack of such circumstances, but on a lack of diligence. Here, Holland diligently pursued his rights by writing Collins numerous letters seeking crucial information and providing direction, by repeatedly requesting that Collins be removed from his case, and by filing his own pro se habeas petitionon the day he learned his AEDPA filing period had expired. Because the District Court erroneously concluded that Holland was not diligent, and because the Court of Appeals erroneously relied on an overly rigid per se approach, no lower court has yet considered whether the facts of this case indeed constitute extraordinary circumstances sufficient to warrant equitable tolling. The Eleventh Circuit may determine on remand whether such tolling is appropriate, or whether an evidentiary hearing and other proceedings might indicate that the State should prevail. Pp. 19–21.
539 F. 3d 1334, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, GINSBURG, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined as to all but Part I.
Opinion in restitution case
Dolan v. United States is here. Here is the syllabus:
Petitioner Dolan pleaded guilty to assault resulting in serious bodily injury and entered into a plea agreement, which stated that the District Court could order restitution for his victim. Dolan’s presentence report also noted that restitution was required, but did not recommend an amount because of a lack of information on hospital costs and lost wages. The Mandatory Victims Restitution Act provides that “if the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing,” the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). On July 30, the District Court held a sentencing hearing and imposed a sentence of imprisonment and supervised release. On August 8, the court entered a judgment, stating that restitution was “applicable” but leaving open the amount of restitution given that no information had yet “been received regarding possible restitution payments.” On October 5, 67 days later, an addendum documenting the restitution amount was added to the pre-sentence report. The court did not set a hearing until February 4, about three months after the 90-day deadline had expired. At the hearing, Dolan argued that because that deadline had passed, the law no longer authorized restitution. Disagreeing, the court ordered restitution, and the Tenth Circuit affirmed.
Held: A sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where, as here, that court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount. Pp. 3–15.
(a) To determine the consequences of a missed deadline where, as here, the statute does not specify them, this Court looks to the statutory language, to the relevant context, and to what they reveal about the deadline’s purposes. A “jurisdictional” deadline’s expiration prevents a court from permitting or taking the action to which the statute attached the deadline. The prohibition is absolute. It cannot be waived or extended for equitable reasons. See John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 133–134. Other deadlines are “claims-processing rules,” which do not limit a court’s jurisdiction, but regulate the timing of motions or claims brought before the court. Unless a party points out that another litigant has missed such a deadline, the party forfeits the deadline’s protection. See, e.g., Kontrick v. Ryan, 540 U. S. 443, 454–456. In other instances, a deadline seeks speed by creating a time-related directive that is legally enforceable but does not deprive the judge or other public official of the power to take the action even if the deadline is missed. See, e.g., United States v. Montalvo-Murillo, 495 U. S. 711, 722. In light of its language, context, and purposes, the statute at issue sets forth this third kind of limitation. The fact that a sentencing court misses the 90-day deadline, even through its own or the Government’s fault, does not deprive the court of the power to order restitution. Pp. 3–5.
(b) Several considerations lead to this conclusion. First, where, as here, a statute “does not specify a consequence for noncompliance with” its “timing provisions,” “federal courts will not” ordinarily “impose their own coercive sanction.” United States v. James Daniel Good Real Property, 510 U. S. 43, 63. A statute’s use of “shall” alone, see §3664(d)(5), does not necessarily bar judges from taking the action to which the missed deadline refers. Second, the statute places primary weight on, and emphasizes the importance of, imposing restitution upon those convicted of certain federal crimes. See §3663A. Third, the statute’s procedural provisions reinforce this substantive purpose. They reveal that the statute seeks speed primarily to help crime victims secure prompt restitution, not to provide defendants with certainty as to the amount of their liability. Fourth, to read the statute as depriving the sentencing court of the power to order restitution would harm the victims, who likely bear no responsibility for the deadline’s being missed and whom the statute seeks to benefit.That kind of harm to third parties provides a strong indication that Congress did not intend a missed deadline to work a forfeiture. See Brock v. Pierce County, 476 U. S. 253, 262. Fifth, the Court has interpreted similar statutes, such as the Bail Reform Act of 1984, similarly. See Montalvo-Murillo, supra, at 721. Sixth, the defendant normally can mitigate potential harm by telling the court that he fears the deadline will be, or just has been, missed, and the court will likely set a timely hearing or take other statutorily required action. Pp. 5–10.
(c) This Court has not understated the potential harm to a defendant of a missed deadline. Petitioner claims that because the sentence will not be a “final judgment” for appeal purposes without a definitive determination of the restitution amount, to delay that determination beyond the deadline is to delay his ability to appeal. But a defendant who knows that restitution will be ordered and is aware of the amount can usually avoid additional delay by asking for a timely hearing; if the court refuses, he could seek mandamus. And in the unlikely instance that delay causes the defendant prejudice, he remains free to ask the appellate court to take that fact and any other equitable considerations into account on review. This does not mean that the Court accepts petitioner’s premise that a sentencing judgment is not “final” until the restitution amount is determined. Although that question need not be decided here, strong arguments favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount. A judgment imposing “ ‘discipline’ ” may still be “freighted with sufficiently substantial indicia of finality to support an appeal.” Corey v. United States, 375
U.S. 169, 174. And several statutes say that a “judgment of conviction” that “includes” “imprisonment” is a “final judgment.” E.g., 18 U.S. C. §3582(b). Moreover, §3664(o) provides that a “sentence that imposes an order of restitution,” such as the later restitution order here, “is a final judgment.” Even assuming that the rule of lenity could be applied to a statutory time provision in the criminal context, here there is no statutory ambiguity sufficiently grievous to warrant its application in this case. Muscarello v. United States, 524 U. S. 125, 139. Pp. 10–15.
571 F. 3d 1022, affirmed.
BREYER, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which STEVENS, SCALIA, and KENNEDY, JJ., joined.
June 13, 2010
Top-Ten Recent SSRN Downloads
|1||358||Disentangling Child Pornography from Child Sex Abuse |
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010
|2||279||Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction |
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010
|3||224||Vigilante Justice: Prosecutor Misconduct in Capital Cases |
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010
|4||215||Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law |
Georgetown University - Law Center,
Date posted to database: March 23, 2010
|5||178||Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency |
DePaul University - College of Law,
Date posted to database: March 28, 2010
|6||161||Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws |
University of South Carolina - School of Law,
Date posted to database: April 5, 2010
|7||154||Two Kinds of Retributivism |
Mitchell N. Berman,
University of Texas School of Law,
Date posted to database: April 20, 2010
|8||139||The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants |
Adam M. Gershowitz, Laura Killinger,
University of Houston Law Center, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: April 5, 2010
|9||113||Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release |
Cecelia M. Klingele,
University of Wisconsin Law School,
Date posted to database: March 22, 2010
|10||110||The Swan Song of Universal Jurisdiction in Spain |
Ignacio de la Rasilla del Moral,
Watson Institute for International Studies, Brown University,
Date posted to database: April 16, 2010