Blog Topic

Will Justice Stevens be the next Supreme Court retiree?
Posted by: Gerald Smith
September 08, 2009

Supreme Court Justice John Paul Stevens has ignited speculation that he may step down by the end of the Court’s term which begins in October. Justice Stevens hired only one clerk for the term. Justices normally have four clerks. Retired justices are allowed on law clerk.

Many observers and commentators have pointed to Justice David Souter’s retirement, noting that came after he had hired only one clerk. Justice Stevens confirmed he has hired only one clerk, but did not indicate whether he plans to step down.

At 89 years old, Stevens is the second oldest Justice to serve on the Court. Only Justice Oliver Wendell Holmes was older while still on the bench. Stevens also has the seventh longest term of service on the Court, with nearly 34 years already served. He was appointed in 1975 by President Gerald Ford.

Justice Stevens has been recognized as one of the more liberal voices on the Court, arguing for limitations on the death penalty and increasing gay rights. It is unlikely his retirement would change the general philosophical balance of the Court, as President Barrack Obama will almost surely appoint an equally liberal judge. Nonetheless, he has been also recognized as a skilled strategist and his loss on the Court might very well lead to a reduction in compromised rulings.

There has also been some speculation about Justice Ruth Bader Ginsburg, who reportedly has fully recovered from pancreatic cancer. Ginsburg is 76, but has stated she plans to serve into her 80s. She has hired the full contingent of four law clerks for the coming term.

Read more:

Associated Press

Washington Post

New York Times

True Slant

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A very busy summer
Posted by: Gerald Smith
August 30, 2009

This has been a very busy summer for me and I have been unable to contribute to the blog as often as I had hoped.

Not only has this been a busy summer for me, but it has also been a time of important developments in the legal and political world. One of the more important developments was the confirmation of Justice Sotomayor to replace Justice Souter. Historically, this was a significant appointment by President Obama, leading to the seating of the first Latina on the Court. It will be some time before we will know whether she will be a good appointment for those seeking fairness and reason, but we hope that she will indeed prove to be a "wise Latina."

An encouraging, perhaps surprising, decision from the Supreme Court has broadened the protections of the Fourth Amendment. In Arizona v. Gant, 129 S.CT. 1710 (2009), the Court held an automobile could be searched incident to arrest only if the vehicle is within reaching distance of the arrestee or it reasonable to believe the vehicle contains evidence of the offense of arrest. The Tenth Circuit held a good faith exception to Gant applied to pending cases. United States v. McCane, 08-6235, (10^th Cir. Jul 28, 2009). However, a recent Ninth Circuit case, United States v. Gonzalez, 07-30098 (9^th Cir. Aug. 24, 2009), held there is no good faith exception. It is likely the good faith issue will find its way to the Supreme Court soon.

One of the saddest events of the summer was the death of Senator Edward Kennedy. A long-time consistent and effective champion for civil rights, health care, providing for the poor, and other important issues, Sen. Kennedy will be greatly missed.

In the weeks to come, I will be posting more specific articles relating to court decisions and legal news. I hope this has been a good summer for all readers.

Arizona v. Gant

U.S. v. McCane

U.S. v. Gonzalez

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A ray of hope for crack defendants
Posted by: Gerald Smith
June 17, 2009

For two decades, individual criminal defense attorneys, professional organizations such as the National Association of Criminal Defense Attorneys (NACDL), and lay organizations such as Families Against Mandatory Minimums (FAMM) and the Sentencing Project have fought to correct the injustices involved in the 100:1 penalty scheme that applies to cocaine base (crack) compared to powder cocaine. Under both the statutory minimum sentences and the sentencing guidelines, a person convicted federally for an offense involving a given quantity of crack would be sentenced the same as if he or she had been convicted for 100 times that quantity of powder cocaine.

The myths and factual distortions that were the foundation of this disparity have long been debunked, but the law has remained unchanged. The tragedy has been that a generation of young people, predominately African American, have received unnecessary sentences that have done little to solve any drug problem the country faces and even less to address the individual needs of the defendants involved. Arguments aimed at equal protection, Eighth Amendment issues, and common sense have gone unheeded.

The federal sentencing guidelines have undergone recent revisions recently that have lessened the impact somewhat. Additionally, now that the guidelines are advisory, judges have exercised more discretion in sentencing below the guideline ranges. In the larger framework, however, these changes have done little to alleviate the injustice.

There appears, however, to be some hope on the horizon. The Obama administration, according to an April 29, 2009, announcement by Larry Breur, the chief of the criminal division of the Department of Justice, will support legislation aimed at equalizing punishment for cocaine in any form. President Obama had pledged to do so in his campaign.

Such legislation will undoubtedly face stiff opposition and, in any event, will take some time to come to fruition. Whether changes will benefit those currently incarcerated is not clear and certainly the damage that has been done to thousands of defendants and the country as a whole cannot be undone. Nonetheless, the announcement does provide some hope, not only in the area of crack cocaine, but also for a reasonable reassessment of the entire mandatory minimum sentencing scheme.

More information and reaction to the announcement can be found at:

Washington Post

The Sentencing Project

NACDL

FAMM

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