On September 25, the justices will meet for their first conference after their summer recess, which is also known as the “long” conference. At that conference, they will consider more petitions than they do at any time of the year (usually somewhere around 2,000) but will grant relatively few – last year, the number was eight. Last week I began a series of posts that will focus on the cases that have been distributed for the “long” conference; this is the second post in that series.
The Constitution prohibits states from passing “ex post facto” laws – that is, laws which (among other things) make illegal an act that was legal when it was performed or increases the penalties for a violation. In Snyder v. Doe, the state of Michigan has asked the justices to review a decision by the U.S. Court of Appeals for the Sixth Circuit ruling that parts of the state’s sex-offender registry violate the bar on ex post facto laws.
In an effort to stem recidivism, Congress has created a national registry for convicted sex offenders. It has also required states to maintain their own registries, which must comply with requirements outlined by federal laws; states that fail to meet those requirements risk losing federal funding for law enforcement. In 2006 and 2011, Michigan made several changes to its sex-offender registry, which it had created over a decade before: It established “safety zones” that block sex offenders from living, working, or loitering within 1000 feet of a school; it classified offenders into “tiers” based on their prior offenses; it required offenders to report a wide range of changes in their lives – anything from residence and employment to email addresses – to law-enforcement officials; it made information about the offender available on the Internet; and it imposed a lifetime-registration requirement for the most serious offenders.
A group of convicted offenders who are subject to the lifetime-registration requirement went to court, arguing that the 2006 and 2011 changes violate the Constitution’s ban on ex post facto laws. A federal district court in Michigan rejected the challenge, but on appeal the Sixth Circuit reversed. It concluded that, even if the state legislature did not intend for the registry to be punitive, the registry still has punitive effects: It “brands registrants as moral lepers solely on the basis of a prior conviction” and “consigns them to years, if not a lifetime, of existence on the margins.”
The state then took its case to the Supreme Court, where it argues that the Sixth Circuit’s decision was, in several respects, inconsistent with both the decisions of other courts of appeals (as well as state supreme courts) and the Supreme Court’s own cases. Moreover, the state suggests, it is effectively caught between a rock and a hard place: although the Sixth Circuit’s decision invalidates parts of the state’s sex-offender registry, the state was actually required by federal law to implement these features or it would risk losing federal funds.
In late March, the Supreme Court asked the federal government to weigh in. In a brief filed last month, the United States tells the justices that they should deny review. The government acknowledges that other lower courts, reviewing the constitutionality of other states’ schemes for tracking sex offenders, “have reached different conclusions in analyzing particular features” of those schemes. But, the government contends, any discrepancies in those decisions are attributable to differences in the schemes themselves, “rather than any divergence in the legal framework.” The government also dismisses Michigan’s concerns about losing federal funding as “premature,” adding that nothing about the Sixth Circuit’s decision would keep the state “from implementing a sex-offender-registry scheme that is consistent with federal law.”
When the federal government recommends that review be granted, the justices are overwhelmingly likely to do so: one empirical study revealed that, during a six-year period in the late 1990s and early 2000s, the court granted review in 75% of the cases in which the federal government had recommended that it do so. However, the same study found that a case in which the court invites the federal government to weigh in still has roughly a 20% chance of being granted even if the government recommends that review be denied. Given those relatively good odds (at least as far as petitions for Supreme Court review are concerned) and the ubiquity of sex-offender registries, the state’s hopes are likely to remain high unless and until the court announces that it will allow the Sixth Circuit’s ruling to stand.
The Roberts court has been very protective of free speech, even when many (if not most) people would not approve of the speech that is being shielded: In the past eight years, for example, it has struck down federal laws that made it a crime to lie about receiving military medals and to sell videos showing animal cruelty; it has also invalidated a California law that barred the sale of violent video games to minors. The petitioners in Final Exit Network, Inc. v. Minnesota hope that the justices will also agree to decide whether the First Amendment bars the state from convicting an individual or group that provides information on how someone can induce his own death “in a painless and effective manner.”
Final Exit, which describes itself as “one of the nation’s leading organizations advocating for the right to death with dignity,” and four of its volunteers were indicted in Minnesota in 2012 on charges arising from the death of Doreen Dunn, who committed suicide five years before. Final Exit was charged with violating a Minnesota law that imposes a sentence of up to 15 years in prison for “intentionally” advising, encouraging, or assisting someone else in committing suicide. In a similar case, the Minnesota Supreme Court ruled that the parts of the law which criminalized “advising” and “encouraging” suicide violated the Constitution. But it upheld the section of the law which makes it a crime to “assist” a suicide, which it defined as “enabling the person to commit suicide” – including through the defendant’s speech.Under the state supreme court’s interpretation, Final Exit was convicted. It appealed to an intermediate state appellate court, which deemed itself bound by the Minnesota Supreme Court’s ruling, and the Minnesota Supreme Court declined to weigh in.
In its petition seeking review by the U.S. Supreme Court, Final Exit concedes that there is “abundant evidence” that it “provided Ms. Dunn with information about how to induce her own death.” But there was nothing special about that information, it stresses; instead, the information was “readily available in bookstores, libraries, and on the Internet.” And its conviction, it argues, is not only “irreconcilable with” the Supreme Court’s First Amendment case law, but also conflicts with decisions by the California Supreme Court, which allows convictions under a similar law only when the defendant “undertook some active and direct participation in bringing about the suicide.” And, Final Exit adds, the kind of speech that Minnesota law prohibits is too far removed from the state’s “compelling interest in the preservation of human life to stand as a compelling interest in a ban on speech.”
In his brief opposing review, Dakota County Attorney James Backstrom pushes back. He contends that there is no conflict between Final Exit’s conviction and rulings by the California Supreme Court, because that court did not consider whether California’s law violated the First Amendment. And there is no constitutional problem because Minnesota’s law “allows persons the right to freely express viewpoints on the merits and methods of suicide in a public forum, while proscribing only speech and actions that are specifically intended to assist a specific individual in committing suicide.”
The Constitution gives criminal defendants the right to call witnesses for their defense. But, unlike prosecutors, criminal defendants cannot give a would-be witness immunity if he asserts his Fifth Amendment privilege not to incriminate himself. In Davis v. United States, Michael Davis has asked the court to weigh in on a question that, he contends, lower courts “have struggled for almost three decades to determine”: whether a criminal defendant’s right to due process is violated when the government gives immunity to an important prosecution witness but declines to do the same for a defense witness whose testimony would directly contradict that of the government witness, when the only reason for the denial is that government prosecutors do not believe the defense witness.
The case arose when Davis was charged with attempted extortion, accused of threatening R.J. Serpico – who owed him money – and conspiring to have Serpico’s legs broken. Two witnesses in the case were a pair of brothers, John and Gigi Rovito, who were allegedly involved in Davis’ scheme. The federal government called John as a witness and gave him immunity. John testified that he had learned from either Gigi or someone else that Gigi’s friend “Mickey” wanted to have R.J. Serpico beaten. Davis wanted to call Gigi as a witness to contradict that testimony, but Gigi asserted his Fifth Amendment rights and the government declined to give him immunity, describing John as “a more truthful witness.”
Davis was convicted and sentenced to two years in prison; the Seventh Circuit affirmed. It concluded that prosecutors have “significant discretion to decline immunity to a witness, especially when it is likely that the witness will perjure himself.” In his petition for review, Davis asserts that the federal courts of appeals are divided on the question presented by his case, with the majority holding “that federal courts are powerless to remedy the evidentiary balance that results from the government’s refusal to immunize a defense witness absent prosecutorial misconduct or bad faith,” while two others have held to the contrary.
In its brief opposing review, the government urges the court to leave the Seventh Circuit’s decision in place, describing it as correct. And in any event, it continues, Davis’ petition for review “overstates” any “tension among the circuits” on the question of immunity for defense witnesses and due process: The government acknowledges that some courts of appeals have found due process violations when prosecutors have failed to give defense witnesses immunity, but it counters that even those courts impose a very high bar – which, according to the government, Davis cannot meet. For that reason, the government concludes, the justices should deny the petition for review despite any “limited disagreement” in the courts of appeals.