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Sentencing Law and Policy
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Will criminal defendants keep winning as SCOTUS completes its work this Term?

By Douglas Berman

The press and others are gearing up for the finishing up of the current Supreme Court Term.  Most court-watchers reasonably expect that we will get the last dozen or so opinions from the Court over the next 10 days.  And, as has been true in the last few Terms, the current SCOTUS Term is almost certain to be most remembered for decisions outside the core realm of criminal justice.  The coming decision on affirmative action in higher education and a number of First Amendment rulings are especially likely to be the defining decisions of the Term.

But, as I have mentioned before, it has still been quite an interesting SCOTUS Term for hard-core criminal justice fans with seemingly lots of (small?) wins for criminal defendants in cases like Reed, Cruz, Ciminelli, Percoco, Dubin and Lora.  I am certain the winning record for criminal defendants largely reflects selection effects as to what cases result in cert grants, but the pattern of outcomes in those cases is still pretty striking for a court that is purportedly so conservative.  That said, there are still a few big criminal cases still yet to be resolved this Term, and I suspect many federal defenses attorneys will not look back at this Term fondly if Jones v. Hendrix ends up creating significant new limits for collateral review.

As we await final decisions for this Term, I would be eager to hear how folks view the current Justices and the overall court on various criminal justice fronts.  Given the age of the current Justices, we could have the current composition of the Court in place for many years.  Could this particular Court end up more defendant friendly than might have been predicted?  Or is it only the “little” issues that defendants are likely to win with this SCOTUS?  (Readers will not be surprised to hear me say that my opinion of this Court will certainly be significant shaped by how it eventually resolves the multiple oft-relisted acquitted conduct cases that have now been pending for nearly a year.)