Vol. 9, No. 1
Covering Cases Published in the Advance Sheets through January 7, 2002

Highlights of this Issue:

Supreme Court Cases:

Convicted Felons Held Not to Have a Right to DNA Tests to Support Appeals:

U.S.S.G. and Sentencing Issues:

Don't forget to visit the "Apprendi Watch" section in the Member's Section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to and summaries of more than 400 published lower-court Apprendi decisions.

Kansas v. Crane, No. 00-957 (U.S. Sup. Ct. 01/22/2002) (Justice Breyer)

In this case, the Supreme Court set some loose limits on the growing state practice of keeping sexual predators in extended civil confinement after their criminal sentences expire - holding that a state must show that a sexual offender lacks some ability to control his violent behavior to justify confining him under its sexually violent predator laws.

At issue in this case was the Kansas version of a Sexually Violent Predator Act (SVPA) which permits the civil confinement of sexual predators who are deemed to pose a risk to society if released because they are unable to control their behavior. At present, some 16 states have adopted versions of the SVPA and, nationwide, there are more than 1,200 sex offenders being held involuntarily and indefinitely under such statutes.

The Supreme Court first addressed such civil confinement statutes in Kansas v. Hendricks, 521 U.S. 346 (1997). In Hendricks the Court noted that "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety." (Hendricks, id., at 357). It continued that "we have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled . . . with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality'." (Hendricks, id., at 357-358).

In upholding the validity of the SVPA in Hendricks, the Court's ruling was premised in part on the Court's conclusion that the law was limited to sex offenders who were "unable to control their dangerousness." In that case, however, the phrase "unable to control" was not at issue because the lifelong child molester in that case, Leroy Hendricks, had testified that he would never be able to control himself. Thus, the Court was not called upon to define that phrase more precisely.

In the instant case, Kansas was seeking the civil commitment of Michael Crane, who had pled guilty to sexual battery after he was charged with exposing himself to women who worked in retail establishments. As part of its proof, the state presented one psychiatric witness who concluded that Crane suffered from both exhibitionism and antisocial personality disorder. After a jury trial, the Kansas District Court ordered Crane's civil commitment.

On appeal to the Kansas Supreme Court, Crane argued that Hendricks required the state to show that he had a total lack of control over his sexual behavior. The Kansas Supreme Court agreed with Crane and reversed the commitment order. It concluded that due process, as interpreted in Hendricks, insists upon "a finding that the defendant cannot control his dangerous behavior" - a burden which the state did not meet in this case. The state then appealed to the U.S. Supreme Court.

The Supreme Court disagreed with the Kansas Supreme Court's interpretation of Hendricks. Writing for a 7-to-2 majority, Justice Breyer stated that "[i]t is enough to say that there must be proof of a serious difficulty in controlling behavior." (Emphasis added). That standard would require the state to prove not only that an offender remained dangerous and was likely to repeat the crime, but also that the "serious difficulty in controlling behavior" standard was part of the state's psychiatric diagnosis. While recognizing that such a standard "will not be demonstrable with mathematical precision," Justice Breyer concluded that the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules."

[Justice Breyer's decision is not easy to read, in part because of his penchant for focusing on subtle distinctions he has perceived; and he often leaves the reader guessing as to the Court's intended direction. For those interested, an excellent analysis of the issues involved in this case was set forth in the amicus brief prepared by Lisa Kemler, Esq. of Alexandria, VA and filed jointly on behalf of the NACDL and the ACLU. That brief is available in the Briefs section of this Web site and can also be accessed by clicking here.]

Justices Scalia and Thomas dissented. They argued that Hendricks had previously upheld "the very same statute against the very same contention in an appeal by the very same petitioner (the State of
Kansas) from the judgment of the very same court." Contending that the State of Kansas had satisfied all the requirements of due process and all the mandates of Hendricks in ordering the civil confinement of Crane, they argued that the decision of the Kansas Supreme Court should have reversed outright - and not vacated and remanded.

Taking the gloves off, the dissenters accused the majority of creating bad law through a feat of "jurisprudential jujitsu" that both "both distorts our law and degrades our authority." In his opinion, Justice Scalia argued that the majority not only "gutted" the holding in Hendricks but had failed to give the states adequate guidance for the future. He concluded that, while the majority's opinion "certainly displays an elegant subtlety of mind," it left the states with "not a clue as to how they are supposed to charge the jury."

Harvey v. Horan, No. 01-6703 (4th Cir. 01/23/2002) (Judge Wilkinson)

In 1990, the plaintiff in this case, James Harvey, was convicted by a jury in a Virginia state court of rape and forcible sodomy and sentenced to 40 years in prison. Subsequently, represented by the New York-based Innocence Project, Harvey attempted to obtain access to the biological evidence used at his trial so he could conduct new DNA testing using technologies that were unavailable at the time of his trial and show that he had been wrongly convicted. Harvey's lawyers even offered to pay for the costs of the new DNA testing. When the state denied his request for access to that evidence, Harvey filed the instant action, pursuant to 42 U.S.C. § 1983 (Civil Action for Deprivation of Rights), in the Federal district court for the E.D.Va., claiming, inter alia, that the state's failure to let him retest the biological evidence used against him at his trial violated his constitutional rights of due process.

In an unpublished decision dated April 16, 2002, Judge Bryan of the E.D.Va. held that Harvey did have the right, under the Due Process Clause, to have access to the DNA evidence, as well as an accompanying right to test the evidence using technology that was unavailable at the time of his trial. That decision attracted wide attention among prosecutors and defense attorneys alike, because it was the first time that a Federal court had specifically defined a defendant's rights regarding DNA testing.

The state appealed and, in this decision, a panel from the Fourth Circuit unanimously overturned Judge Bryan's ruling. As a preliminary matter, the state contended that § 1983 "is not an appropriate vehicle" for the claims asserted in this action; while Harvey argued that a § 1983 action was an appropriate vehicle to vindicate a fundamental right protected by the Due Process Clause - and much of the decision addressed that issue. The Court responded: "While we agree with Harvey that the question of guilt or innocence lies at the heart of the criminal justice system, we also believe that the proper process for raising violations of constitutional rights in criminal proceedings cannot be abandoned. Because the substance of a claim cannot be severed from the proper manner of presenting it, we find Harvey's § 1983 action to be deficient." It also concluded that § 1983 "does not exist to provide an open-ended assault on the finality of criminal judgments."

Despite its conclusion that Harvey had failed to state a valid claim for purposes of § 1983, the panel decided not to ignore the magnitude and impact of the lower court ruling. Thus it stated: "We now explain why his claim is more properly pressed as a habeas corpus petition - and as such, why his claim fails."

In addressing the merits of Harvey' claim, the Court first emphasized that the Supreme Court has made clear that "the finality of convictions cannot be brought into question by every change in the law. . . . The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon final criminal judgments."

The Court then continued: "In so holding, we acknowledge that finality is not a value that trumps all others. In some circumstances newly discovered evidence may warrant a new trial. . . . But there is no newly discovered evidence in this case. Instead, Harvey seeks to subject existing biological evidence to new DNA testing. This evidence was already subjected to DNA testing using the best technology available at the time Harvey's conviction became final. Establishing a constitutional due process right under § 1983 to retest evidence with each forward step in forensic science would leave perfectly valid judgments in a perpetually unsettled state. This we cannot do."

Second, the Court noted that , under the admittedly less precise science that was available at the time of Harvey's trial, neither Harvey nor a co-defendant (who was also convicted of the same crime and who testified at trial that Harvey had instigated the attack and had admitted the rape) could be excluded as the rapists. Moreover, the panel concluded, "there was other substantial evidence of Harvey's guilt."

Finally, the panel also suggested that the question of whether subsequent advances in DNA testing should be made available to convicted felons was one for the legislatures - not the courts - to decide. Thus, the panel stated: "In holding that Harvey has failed to state a claim under § 1983, we do not declare that criminal defendants should not be allowed to avail themselves of advances in technology. Rather, our decision reflects the core democratic ideal that if this entitlement is to be conferred, it should be accomplished by legislative action rather than by a federal court as a matter of constitutional right. Permitting Harvey's § 1983 claim to proceed would improperly short-circuit legislative activity by allowing judges, rather than legislatures, to determine the contours of the right."

Proposed Guideline Amendments for 2002

The U.S. Sentencing Commission has published in the Federal Register a series of proposed new amendments to the Sentencing Guidelines for the year 2002. The proposed amendments, which take up 96 pages of text, can be seen at: http://www.ussc.gov/FEDREG/FEDR01_02.pdf/.

A major portion of the new amendments deal with the revisions required to respond to the provisions of the Patriot Act and other terrorism laws which Congress adopted last fall.

There are also a number of amendments dealing with the drug laws, including a number of significant enhancements for aggravating conduct and a request for comments on whether the current penalty structure for crack cocaine offenses is appropriate.

Finally, the Commission has asked for comments on three different options for changing the current sentencing zones, one purpose of which would be to provide increased sentencing alternatives in Zone B of the Sentencing Table.

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