Supreme Court Report

Sentencing, Gitmo Key New Term

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Can federal judges rely on their judgment, rather than sentencing guidelines, to set the punishment for a convicted criminal? Did Congress violate the Constitution when it stripped the Guantanamo detainees of the right to habeas corpus?

Do the political parties have too much power, or may­be not enough, when it comes to deciding who appears on the election ballot? And—this may call for a double take—did Presi­dent George W. Bush go too far in requir­ing Texas courts to reconsider several death sentences?

Those are a few of the questions before the U.S. Su­preme Court this fall. Unlike in years past, the justices do not have attention-grabbing disputes on abortion, race or religion before them.

They do, however, have a series of cases whose outcome will be important to lawyers and courts.

(Two key business law cases—StoneRidge Investment Partners v. Scientific-Atlanta Inc., No. 06-43, involving securities fraud claims; and Riegel v. Medtronic Inc., No. 06-179, on state tort suits—are featured in this month’s ABA Connection, page 50.)

A prime example is the pair of sentencing cases sched­­uled to be heard Oct. 2. Sentencing law has been in flux for several years as the justices have rethought what can and cannot be considered when imposing punishment.

Two years ago, they took on the federal sentencing system and managed to walk up one side of the hill and down the other. In United States v. Booker, 543 U.S. 220, one group of five justices said the 1984 Sentencing Re­form Act was unconstitutional to the extent it authorized judges, acting on their own, to increase a defendant’s prison term based on aggravating facts that were not considered by a jury. This violated the defendant’s Sixth Amendment right to a jury trial, the majority said.

A separate group of five justices all but erased that conclusion by relabeling the federal sentencing rules as advisory guidelines. As such, they did not violate the Sixth Amendment. (Only Justice Ruth Bader Ginsburg joined both majorities.) This confusing outcome left in its wake a question of practical importance: When and under what circumstances may judges impose sentences that are below or above the range set by the sentencing guidelines?

In June, the court was prepared to rule on that question in the case of Mario Claiborne, a street-level drug dealer from St. Louis, but he was shot and killed on the eve of the decision. His case was dismissed, and in its place the court granted appeals from two defendants who had won a measure of leniency from a sentencing judge.


The first, Brian Gall, was a sophomore at the University of Iowa when he began selling Ecstasy in 2000. Gall v. United States, No. 06-7949. His drug-selling career was short, however. He broke away from the drug ring, focused on his studies and graduated in 2002. From there, he moved to Arizona and started a construction business.

Three years later, FBI agents asked him about selling drugs in Iowa, and he admitted what he had done. He was later indicted and pleaded guilty to the charges. The sentencing guidelines set a recommended range of 30 to 37 months for Gall, a calculation based mostly on the quantity of drugs sold by him and his conspirators.

But Judge Robert W. Pratt said it made no sense to send Gall to prison, since he had rehabilitated himself from a youthful mistake. He put Gall on probation. Federal prosecutors appealed, and the 8th U.S. Circuit Court of Appeals, based in St. Louis, ordered a sentence in line with the guidelines. “An extraordinary reduction must be supported by extraordinary circumstances,” the appeals court said, adding that Gall’s case was not so extraordinary.

“If this is not an extraordinary circumstance, I don’t know what an extraordinary circumstance is,” says Jeffrey T. Green, a partner at the Washington, D.C., office of Sidley Austin who, along with law students at Northwestern University in Chicago, appealed Gall’s case. “He quit selling drugs after a short time. He earned a degree. He started a business. And he confessed when he was first questioned. He did what we would hope everyone in this situation would do.”

In his brief, Green argues that if the guidelines are indeed advisory, judges must have the discretion to weigh the relevant facts before deciding upon a sentence. But U.S. Solicitor General Paul Clement countered that allowing judges to ignore the guidelines entirely will result in wide­ly varying sentences for the same crime, exactly what the Sentencing Reform Act was supposed to prevent.

The second case concerns Derrick Kimbrough, a Gulf War veteran who was sentenced to 15 years in prison after pleading guilty in Norfolk, Va., to selling crack cocaine and possessing a gun. Kimbrough v. United States, No. 06-6330. “No one can say that 15 years is a lenient sentence,” says Michael Nachmanoff, a federal public defender in Alexandria.

Nonetheless, federal prosecutors appealed and won a reversal from the Richmond-based 4th U.S. Circuit Court of Appeals, which said it was per se unreasonable for the judge to impose a lower prison term “based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.”

The case gives the court its first chance to rule on the “100-to-1 disparity,” whereby, for example, selling five grams of crack cocaine triggers the same five-year prison term as selling 500 grams of powder cocaine. In the past five years, 25,000 defendants, nearly all of them black males, have been sentenced to federal prison for crack cocaine offenses, according to U.S. Sentencing Com­mission data.

The court will decide not whether this disparity is illegal or unconstitutional—it is written into the man­datory-minimum drug statutes—but instead whether judges may consider it as a reason for setting a prison term below the range in the sentencing guidelines.


The long-term prisoners at Guantanamo Bay may well feel they received their sentence first, before a charge or conviction. Fawzi al Odah, a teacher from Kuwait, has been imprisoned there for more than five years. He says he went to Afghanistan in the summer of 2000 to teach. “I traveled to Afghanistan before the events of Sept. 11. It was my bad luck and bad timing that these events happened while I was in Afghanistan,” he told the Combatant Status Review Tribunal, a panel of three military officers.

After the 9/11 attacks, al Odah says, he tried to flee the country through Pakistan and hoped to reach the Kuwaiti embassy. Instead, the Pakistani border guards turned him over to U.S. troops, who have held him since. They said he was “associated with al- Qaida and the Taliban.” He is the lead plaintiff in one of two lawsuits that challenge the Bush administration’s detention policy at Guantanamo. Their goal is to win a full evidentiary hearing for the inmates in federal court. Boume­diene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196.

“All we are asking for is a fair hearing,” says D.C. lawyer Matthew J. MacLean. “Our clients deny they ever took up arms against the United States. They were not on any kind of battlefield. But they have not had an opportunity to challenge the evidence against them.”

Al Odah did, however, get to tell his story to the review tribunal. The Pentagon established the panels after the Supreme Court ruled in 2004 that enemy com­batants could be held indefinitely so long as they had a chance to challenge the evidence against them before a neutral judge. Moreover, the detainees can seek a review of their cases before the U.S. Court of Appeals for the D.C. Circuit.

The Guantanamo prisoners have been given “an unprecedented degree of access to our courts in wartime,” Clement said in urging the court earlier this year to stand back from the dispute. “As aliens outside the sovereign territory of the United States, [they] have no rights” under the Constitution, he added.

His plea was granted in April. The justices refused to hear the pair of lawsuits, over a dissent by Justices Gins­burg, Stephen G. Breyer and David H. Souter. Two others—John Paul Stevens and Anthony M. Kennedy— said the court should wait while the detainees try the available remedies of appealing to the D.C. Circuit.

Shortly after, the court received an affidavit from Lt. Col. Stephen Abraham, a lawyer, who said he observed the review tribunals and found them to be biased and superficial. When one panel found no factual basis for holding a detainee, the commanding officer ordered a new panel to reconsider that conclusion.

On June 29, on the final day before the summer recess, the court announced it would hear the cases.

A key issue, once again, will be a threshold matter: Does the Supreme Court have jurisdiction to grant a writ of habeas corpus from the Guantanamo prisoners? Three years ago, in Rasul v. Bush, 542 U.S. 466, the court said habeas extended to Guantanamo Bay because, for all practical purposes, it was territory under U.S. control. But the ruling relied on the habeas statute, not the Constitution.

Last year, in the waning days of Republican control, Congress revised the statute. The Military Commissions Act leaves no doubt: “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien de­tained by the United States … as an enemy combatant.”

Now the court will decide whether that law violates the Constitution’s suspension clause, which says, “The privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.”

If the court agrees the habeas right extends to Guan­tanamo, it then may rule on whether the prisoners have been denied due process of law. “It’s really hard to predict what they will do in this case. My guess is they won’t go any further than the threshold question,” says Stanford University law professor Jennifer Martinez, who argued a separate enemy combatant case before the court.


Election law is on the court’s agenda for the first week in October. Voters in Washington state, apparently unimpressed with the two traditional parties, adopted an election law that puts on the fall ballot the two top vote getters in an open primary election, regardless of party affiliation.

Both Republicans and Democrats went to court, and the 9th Circuit at San Francisco declared the law unconstitutional under the First Amendment, saying the election scheme “severely burdens … the political party’s associational rights.”

Al­though the candidates were permitted to identify themselves by party, the winners—because of the nonpartisan voting—might not be representative of the Republicans or Democrats whose standards they bear. Washington v. Washington State Republican Party, No. 06-730, is slated for arguments Oct. 1.

Meanwhile, the 2nd U.S. Circuit Court of Appeals at New York City concluded that state’s 85-year-old system of electing judges gives party leaders too much power. Judges are nominated in party conventions, and it is said that only party leaders can round up enough delegates to choose the nominee. The result, critics say, is party bosses choose the judges. This, too, was said to violate the First Amendment because it denies voters and candidates the “right to a meaningful election.” New York State Board of Elections v. Lopez Torres, No. 06-766, is scheduled for Oct. 3. (See also “Questioning Conven­tional Behavior,” ABA Journal, April 2007.)

On Oct. 10, the court will revisit a case of strange bedfellows. It brings together anti-death penalty activ­ists and President Bush, who is wielding an international treaty and demanding that the Texas courts reopen the cases of dozens of Mexican immigrants who are on death row in the Lone Star State. Medellin v. Texas, No. 06-984.

It began in 2004 when the Interna­tional Court of Justice, acting on a suit by Mexico, ruled the U.S. had violated its obligations under the Vienna Convention when it tried, convicted and sentenced to death 51 Mexican nationals without notifying Mexican authorities. The treaty also protects Amer­icans traveling abroad because it requires notice to the U.S. Embas­sy if they are arrested and charged with a serious crime.

Two years ago, the Supreme Court took up this case in an appeal filed on behalf of Jose Medellin, a murderer from Houston, but dismissed it after the president announced the U.S. would comply with the ICJ decision by “having state courts give effect” to it. That sent the case back to Texas. But there, the state’s Court of Criminal Appeals rejected Bush’s order and issued a “Don’t mess with Texas” decision. It said that the international treaty is not binding on American courts, and that Bush had exceeded his constitutional authority by telling state judges what they must do.

The ABA filed an amicus brief saying that despite the unusual posture of the case, the right answer is set forth clearly in the Constitution. Article VI says “all treaties made … under the authority of the United States shall be the supreme law of the land, and judges in every state shall be bound thereby.” The case poses “a conflict between a federal treaty obligation and a state procedural rule,” the ABA brief argues, “and it is clear that, under the supremacy clause, the federal treaty obligations must prevail.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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