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Criminal Law Voting Records

While the Supreme Court’s opinions this Term produced sweeping rulings on the death penalty and on the rights of enemy combatants, the criminal law docket in OT07 was all about the details. Of the 24 cases on criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases dealt with strictly procedural issues. (Here is a visual breakdown of the cases.)

Just over half of the decisions went in favor of criminal rights. Big wins for the accused included the ability of federal judges to depart from the federal sentencing guidelines in crack cocaine cases (Kimbrough and Gall), and of state courts to retroactively apply Supreme Court decisions to criminals seeking post-conviction relief even where federal judges cannot (Danforth).The Court gave wins to both prosecutors and defense attorneys.

While the Court ruled Kentucky’s protocol for lethal injections constitutionally sound (Baze), it barred states from applying the death penalty to convicted child rapists (Kennedy).The Armed Career Criminal Act played a central role in several cases and the Court came down with two different definitions of weapons “use” during a felony: receiving a gun in exchange for drugs doesn’t count (Watson), but having explosives on one’s person while committing a felony, even if unrelated to the crime in question, does (Ressam).Of the five criminal cases decided by a 5-4 vote — Santos, Boumediene, Irizarry, Munaf, and Kennedy — two featured particularly noteworthy alliances: the Chief Justice and Justices Stevens, Scalia, Thomas, and Alito ruled against the criminal in Irizarry, and Justices Stevens, Scalia, Souter, Thomas, and Ginsburg ruled for the defendant in Santos. Stevens wrote the opinion for Irizarry, siding with the judges’ right to depart from sentencing guidelines without notifying the defendant, and Scalia wrote the plurality opinion for Santos that narrowed the definition of money laundering and “proceeds.”

Justices Ginsburg, Stevens, and Kennedy each wrote four majority opinions in criminal cases. Although Ginsburg led the left of the court with 18 pro-defendant votes, only two of her majority opinions favored criminals, in Kimbrough and Greenlaw, and those cases focused on sentencing guidelines and a specific sentencing statute, respectively.

Appropriately, the swing vote of Justice Kennedy placed him squarely in the middle between prosecution and defendants, casting 12 votes in favor of each.Despite his even-handedness in voting, Kennedy wrote two of the most controversial criminal case opinions this year, Boumediene, on the habeas rights for Guantanamo detainees, and Kennedy v. Louisiana.

The most notable voting record this Term was Justice Stevens, who was unusually pro-prosecution compared with previous terms. He voted for the defendant in 13 criminal cases, or 54%. Last year, Stevens sided with the defendant in 16 of the 21 criminal cases (76.5%), the highest of any justice that Term and a record on par with most of his recent years. In 1990, he voted for the defendant in 83.3% of criminal cases, the strongest pro-defendant trend of any justice on the Rehnquist or Roberts courts.

This movement away from supporting the rights of criminal defendants occurred concurrent to Stevens’ rise into the majority in non-criminal cases as well. The longest-serving sitting Justice joined the majority 65% of the time in divided cases — up from 37% in OT06. He was in the majority for nine of the 11 cases in which he voted against the defendant, 81%, and was in the majority for 12 of the 13 cases in which he voted for the defendant, 92%.

Furthermore, in his 23 years on the court, Stevens has written 142 solo dissents, the greatest percentage of any justices’ participation in cases with solo dissents. But this year he had no solo dissents at all; in OT05, he wrote two solo dissents and in OT06 he wrote four.

Conversely, the Chief Justice more frequently voted for the rights of the accused; he agreed with the defendant in nine cases, 38% of criminal cases, compared to OT06, in which he voted for the defendant only four times out of 22 cases, 18%. His 20 percentage-point jump to the left in criminal cases likely contributed to his solid 84% concurrence with the majority in all cases, as he and Justice Stevens met in the middle.

On the other end of the spectrum, Justice Alito voted for the defendant in six of 24 cases, 25%, and he was part of the majority in all six. But this is an increase from OT06, in which he voted for the defendant in only three out of 22 cases, 13%; of those three cases, two votes were 9-0 and one was 8-1. Alito has so far affirmed the speculation from his confirmation hearings that the former U.S. Attorney would vote in support of prosecutors.