Recent Criminal Law Developments
by Attorney Paul Bergman
Get the latest news in criminal law – from vehicle searches to federal sentencing to death penalty trends.
In general, 2007 saw few major national changes in rules pertaining to criminal law and procedure. However, there were a few developments of note, including new search and seizure rights, continued decisions on sentencing those convicted of federal crimes, and certain trends in the death penalty area.
Police Have More Rights to Search Cars and Occupants
When police officers pull a vehicle over for a traffic infraction, they usually cite the driver and allow the driver to continue on his or her way. However, recognizing the potential danger to police officers and the mobility of cars, in 2007 the U.S. Supreme Court issued rulings that authorize police officers to protect themselves by asking the driver and any passengers to stand outside the vehicle.
In the case of Brendlin v. California (2007), the U.S. Supreme Court ruled that police officers who carry out traffic stops “seize” all of a car’s occupants. The decision makes clear that police officers have the same power over passengers that they do over drivers. For example, if a police officer reasonably suspects that a car’s occupant is armed, the officer can conduct a “pat down” search of that person regardless of whether he is the driver or a passenger. As a result of this ruling, drivers as well as passengers alike can challenge the legality of a stop and any ensuing search and arrest.
Federal Trial Court Judges Have More Say in Sentencing
In 2007, the U.S. Supreme Court continued its trend of allowing federal trial courts more discretion in sentencing those convicted of crimes.
History of the “Sentencing Guidelines.” Concerned about disparities and leniency in sentencing, over two decades ago the U.S. Congress enacted The Sentencing Reform Act of 1984. The law led to the creation of a Guidelines Manual, which set forth mandatory sentences for almost all federal crimes. Mandatory sentencing requires judges to impose specific and identical sentences on all defendants who violate laws, rather than allowing the judge to consider various factors when deciding on an appropriate punishment, such as the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse.
Over the years, many judges, defense attorneys, and even prosecutors came to oppose the mandatory sentence scheme, believing that it was too rigid and too harsh. Finally, in the case of U.S. v. Booker (2005), the U.S. Supreme Court ruled that the sentences set forth in the Guidelines Manual were advisory and not mandatory.
2007: Sentencing Discretion for Federal Judges Continues. In 2007, the U.S. Supreme Court issued several opinions that further clarified the discretion of federal trial court judges in sentencing those convicted of crimes.
In Gall v. U.S. (2007), the Court ruled that appellate court judges cannot substitute their judgment for that of a trial judge. An appellate court judge can only reverse a trial judge’s sentence if it constitutes an abuse of discretion. (An appellate court is a higher court that reviews the decision of a trial court when a losing party files an appeal.)
If a trial judge issues a sentence that is within the range specified in the Guidelines Manual, it is presumed to be reasonable. ( Rita v. U.S. (2007).) But a trial judge can issue a sentence that departs from this range, and it will still stand on appeal as long as it is reasonable. For example, if a trial judge believes that the Guidelines’ recommended punishment for possession of crack cocaine is unduly harsh compared to the recommended punishment for powder cocaine, the trial judge can give a lesser sentence for possession of crack cocaine. Such a decision is final as long as it is reasonable. (Kimbrough v. U.S. (2007).)
Death Penalty Update
The number of death sentences handed out and the number of executions carried out continued to decrease in 2007. Forty-two executions were carried out in 2007, compared to 53 executions in 2006, 60 executions in 2005, 59 executions in 2004, 65 executions in 2003, and 71 executions in 2002. In 2007, 110 convicted murderers were given death sentences, compared to 114 in 2006 and 128 in 2005.
Another state abolishes the death penalty. New Jersey abolished the death penalty in 2007. As a result, 37 states now authorize the death penalty.
Lethal injection method under attack. The U.S. Supreme Court has heard arguments in the case of Baze v. Rees and should issue its decision sometime in 2008. Baze v. Rees centers on whether the most frequently used combination of drugs used for execution by lethal injection, sometimes called a “three drug cocktail,” violates the 8th Amendment’s proscription of cruel and unusual punishment. Ten states placed a moratorium on executions by lethal injection even before the Supreme Court announced its decision to hear the case, and after its announcement, a few more states did so.
To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).