The Supreme Court yesterday upheld the method used by the Bureau of Prisons (BOP) to determine the amount of good time inmates get. The BOP gives inmates 54 days good time for each year they serve. Michael Gary Barber and Jihad-Black filed suit saying that they should get 54 days off for every year of the sentence. This can be a significant difference since due to the good time inmates serve they may spend significantly less time in prison than their sentence. This is particularly true on long sentences.

The Federal sentencing statute states:

A prisoner who is serving a term of imprisonment of more than 1 year … may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term … . Credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

The majority opinion agreed with the BOP. It ruled that since the statute says that the good time days are given at the end of the year it has to be based upon time served. Otherwise prisoners would be getting time off after they were released.

Justice Kennedy in dissent gives the statute a very literal reading. He states:

Consider the Court’s example of a prisoner subject to a ten-year sentence. . .The sentence is divided into ten 365-day segments. Each segment constitutes a year of the term. The prisoner will spend the first 365 days behind bars. In the statute’s words, he has reached “the end of the first year of the term.” Now is the time for credit to be awarded, and he may receive up to 54 days if sufficiently well behaved. Because he has already completed a full year of his term, those credits go toward completion of the next year. If, based on good behavior, he has earned the maximum of 54 days, he would need another 311 days behind bars before the second year of his term of imprisonment is at an end (because 54 + 311 = 365). If he has earned fewer than 54 days, a longer incarceration will be required to reach 365. Regardless, once the prisoner reaches the end of the second year of his term, he will again be eligible to receive good time credits.

On a ten year sentence the inmate would get 63 more days good time than under the BOP procedure. This would not only give the inmates more reason to behave but would provide millions of dollars in tax savings to the taxpayers

A New York Times editorial points out that lawyers and courts are ignoring the landmark case of Batson v. Kentucky. In Batson the Supreme Court held that peremptory challenges to jurors could not be based upon race.

Yet, according to the Times, prosecutors often challenge African American jurors in death penalty cases who are less likely to vote for the death penalty. In Jefferson Parish, Louisiana African Americans are challenged three times as often as Whites. In Houston County, Alabama 80 percent of the African Americans placed on jury panels in capital cases are subject to peremptory challenges.

If opposing counsel can make a prima facia case to show race-based peremptory challenges the lawyer, and it is not only prosecutors, must give a race-neutral
explanation of the peremptory challenge. One Alabama prosecutor who challenged eleven of fourteen African Americans on a panel gave excuses such as one African American panel member was arrogant and another was not sophisticated enough.

The editorial is based on an excellent report by the Equal Justice Initiative, (EJI) a Montgomery, Alabama based private organization which represents indigent defendants, which reviews the enforcement of Batson in eight Southern states. Among the EJI findings is that the appellate courts in Tennessee have never reversed a conviction for Batson error and that some District Attorney’s teach their deputies how to select jurors based on race and avoid sanctions. Among the recommendations are that courts and bar associations be more vigilant in enforcing Batson and that increased diversity be required among prosecutors, court personnel and defense attorneys.

Justice Thurgood Marshall who wrote a concurring opinion in Batson predicted that prosecutors would come up with excuses and he suggested that we abolish peremptory challenges. By taking the first twelve jurors we would not only abolish race-based challenges but we would speed up trials considerably. Not a bad idea.

Jennifer Lee was woken up in the middle of the night by the sounds of a dog in pain coming from the condominium above her unit. She had heard the noise before and she thought a dog was being tortured. She called the police. They went upstairs and spoke to Keith Chung through a crack in his door. Chung denied having a dog. The police asked for permission to search his residence. He refused. They invited him into the hallway. While talking to him one of the officers heard a dog whimper. Without getting a search warrant the officers entered the condominium. They found a nearly dead dog on the patio and a dead dog in the freezer.

Chung challenged the search. The Fourth Amendment requires a search warrant, supported by probable cause to search a residence. There are a limited number of well defined exceptions to the rule. One of the exceptions is where exigent circumstances exist. Generally exigent circumstances only exist where there is threat of serious injury to people or property. The question facing the California Court of Appeals in this case is whether exigent circumstances can involve injuries to animals. The Court ruled it can. It found that there was sufficient evidence that an animal was in distress and that it is a proper governmental duty to protect animals. Therefore it upheld the search and the sixteen month prison sentence.

The Supreme Court ruled that in order to assert Miranda rights an arrestee must verbally tell the officer that he/she does not want to talk to the officer or that he she wants to maintain silence.

Van Chester Thompkins was charged with murder in a Michigan Court. After his arrest in Ohio two Michigan police officers traveled to Ohio to interrogate him. They spent three hours questioning him but during most of that time he was silent. Towards the end of the interrogation the officers asked him if he prayed to god to forgive him for the murder. He said yes and the answer was used against him at trial after his motion to suppress the answer was denied.

On habeas the Michigan Court of Appeals held that Thompkins did not invoke his Miranda rights and that he waived the right by answering the officer’s question, a position rejected by the Sixth Circuit Court of Appeals but accepted by the Supreme Court.

Justice Sotomeyer wrote the dissent. She pointed out that in the Supreme Court held that “If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent” or if he “states that he wants an attorney,” the interrogation “must cease.” It would seem that a two and three quarter hour silence would be an indication that Thompkins wanted to remain silent. In Miranda the Court wrote:

“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.”

As Sotomeyer points out this seems to be pretty much on point but it was ignored by the majority. As the Court stated in Miranda: “a valid waiver will not be presumed … simply from the fact that a confession was in fact eventually obtained.”

Perhaps the most ironic part of the decision is that arrestees must now verbally assert their desire to remain silent. The common Miranda right read to arrestees says that the arrestee has a right to ask for an attorney and the right to remain silent. It says nothing about stating that the arrestee must state that he/she wants to remain silent.

The United States Supreme Court reversed a conviction for violating the Sex Offender Registration and Notification Act (SORNA). SORNA, passed by Congress in 2006 makes state sex offenders registration laws more uniform and effective. It makes it a Federal crime for 1) people who are required to register as a sex offender to (2) travel in interstate or foreign commerce, and (3) knowingly fail to register or update a registration.

The Seventh Circuit Court of Appeals ruled that a conviction could be upheld even though the required travel occurred prior to the passage of the act as long as the defendant had sufficient time after the passage of the act to register. The Supreme Court ruled that since the restriction on interstate travel only affects those who are required to register and since the Federal requirement to register did not occur before the passage of the act in 2006, the travel had to occur after the act’s passage. Furthermore the act uses the present tense to indicate the travel requirement and Congress thereby indicated that the travel that the travel could not occur before the act was imposed.

In May 2004 Thomas Carr plead guilty to first-degree sexual abuse in Alabama. Later that year or in the beginning of 2005 he moved to Indiana and failed to comply with Indiana’s registration requirements. Even though SORNA did not take effect until 2006 the United States Attorney charged him with violating the act when he failed to register after the act took effect. The Seventh Circuit Court of Appeals upheld the conviction based on the pre-enactment travel and the Supreme Court reversed.

By holding that the law requires that the travel occur after the enactment of the act the Court avoided considering whether or not the law violated the Constitution’s ex post facto clause which bans punishing people for acts committed before a law is passed making the act illegal.

In either case the decision is for the best. Otherwise people could be punished for acts that occurred many years ago. State registration statutes have been in effect for many years and the states are capable of punishing people who failed to register prior to 2006.

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.