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Stephen Breyer on Crime

Supreme Court Justice (nominated by Pres. Clinton 1994)


Government is responsible for abuses in private prisons

In Malesko v. Correctional Services Corp., 2000, an inmate who served time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation sought to sue the corporation for injuries that he suffered in the halfway house. Sotomayor held that the inmate could bring an action against a private corporation acting under color of federal law. Such a result, she explained, "provides redress for constitutional rights." The Supreme Court granted certiorari and reversed by a 5-to-4 vote, in 2001. In an opinion by then-Chief Justice Rehnquist, the Court held that [the courts should be] "concerned solely with deterring the unconstitutional acts of individual officers." Justice Stevens--joined by Justices Souter, Ginsburg, and Breyer-- dissented. In their view, because the violation at issue "was committed by a federal agent--a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government."
Source: ScotusBlog.com, "Civil Litigation" , Jul 25, 2009

Live witness not required for all scientific testing.

Justice Breyer joined the dissent on BULLCOMING v. NEW MEXICO on Jun 23, 2011:

Bullcoming was arrested for drunk driving. A blood sample seized by police was given to a state laboratory for testing of its blood alcohol content (BAC). A state chemist performed the test and completed a portion of a document intended for use in a criminal trial. At trial this chemist was not present--was, in fact, on an unexplained unpaid leave--but another chemist appeared to describe the lab's process and read the results from the form over defense counsel's objection.

HELD: Delivered by Ginsburg; joined by Scalia, Sotomayor, Kagan & Thomas

The Sixth Amendment Confrontation Clause confers on the accused in criminal cases "the right … to be confronted with the witnesses against him." The testing chemist was not a mere scrivener of results, but performed the test and recorded significant facts about its integrity and accuracy. The substituted chemist had no personal knowledge of the blood test at all, or information as to whether the testing chemist was on unpaid leave owing to a failure in his duties. The Sixth Amendment provides a particular guarantee. Courts are not invited to look behind the text for the purpose, and from there to craft something "fair." Further, the report of BAC analysis was "testimonial." It was prepared as part of a duty imposed by law on state chemists to assist with police investigations, and included formalities intended for its introduction as evidence in a criminal case.

CONCURRED: Sotomayor concurs in part

This holding does not control non-testimonial documents, testimony by a person with some personal knowledge of a test, an expert witness, or introduction of machine-generated results.

DISSENT: Kennedy dissents; joined by Roberts, Breyer, and Alito

The Confrontation Clause is intended to ensure a fair trial with reliable evidence, not that every person who conducts routine evidence testing appear in court for the prosecution.
Source: Supreme Court case 11-BULL-NM argued on Mar 2, 2011

Delay executions if asked by International Court of Justice.

Justice Breyer wrote the dissent on HUMBERTO LEAL v. TEXAS on Jul 7, 2011:

Leal, a Mexican citizen residing in the US since age 2, was convicted of murder in Texas and sentenced to death. When arrested, he was newver advised of his Vienna Convention right to contact his consulate. In a case filed by Mexico against the US in the International Court of Justice (ICJ), that court found the US had violated the rights of Leal and other Mexicans by failing to inform them of the Vienna Convention rights.

HELD: Delivered by the Court: SCALIA, THOMAS, ALITO, ROBERTS & KENNEDY

Leal requests a stay of execution to allow Congress time to enact a bill filed in the Senate and supported by the President that would implement the ICJ's view of the Vienna Convention as US law. The Supreme Court would then have jurisdiction to determine Leal's case. Yet this Court has never issued a stay in light of proposed legislation. Further, Congress has not acted though 7 years have passed since the ICJ decision, and 3 since a similar defendant requested a stay of his execution in hopes Congress would act. If this were truly a legislative priority, Congress would have acted. Whatever might be the international consequences, Congress did not see them as sufficiently grave as to prompt it to change the law. Last, the US refused to argue that Leal was prejudiced by the failure to provide Vienna Convention rights. This argument would be the beginning point for the Court to consider a stay.

DISSENT: BREYER dissents; joined by GINSBURG, SOTOMAYOR & KAGAN

The President's representative requested that the Court issue a stay of execution. Grave harm to international relations may follow if this death sentence is carried out despite the US failure to heed the ICJ's ruling. Rapid consideration of legislation by Congress is promised. This Court usually gives great deference to the President in foreign relations. A short delay in Leal's 16 year old death sentence will do little harm compared to a violation of US international obligations.
Source: Supreme Court case 11-LEAL argued on Jul 7, 2011

Fleeing police is not in itself sufficient to allow search.

Justice Breyer joined the dissent on ILLINOIS v. WARDLOW on Jan 12, 2000:

Respondent Wardlow fled upon seeing police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers caught up with him on the street, they conducted a protective pat-down search for weapons because in their experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The State Supreme Court overturned Wardlow’s conviction, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a stop because flight may simply be an exercise of the right to “go on one’s way.”

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas)
The officers’ actions did not violate the Fourth Amendment. An officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While “reasonable suspicion” is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual’s presence in a “high crime area” is not enough, but in this case, it was also Wardlow’s unprovoked flight that aroused the officers’ suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion.

Dissent:

(Stevens, joined by Souter, Ginsburg, and Breyer)
Illinois asks for authorizing the temporary detention of anyone who flees at the mere sight of a police officer. Respondent Wardlow counters by asking us to adopt the opposite rule--that the fact that a person flees upon seeing the police can never, by itself, be sufficient to justify a temporary investigative stop.

Although I agree with the Court’s rejection of both rules proffered by the parties, unlike the Court, I am persuaded that in this case the brief testimony of the officer who seized respondent does not justify the conclusion that he had reasonable suspicion to make the stop.

Source: Supreme Court case 98-1036 argued on Nov 2, 1999

No death penalty without considering mitigating evidence.

Justice Breyer joined the Court's decision on WILLIAMS v. WARDEN TAYLOR on Apr 18, 2000:

A Virginia jury convicted petitioner Williams of robbery and capital murder, and, after a sentencing hearing, found a probability of future dangerousness and unanimously fixed his punishment at death, applying the Antiterrorism and Effective Death Penalty Act of 1996.

In habeas corpus proceedings, a federal trial judge [overruled] the death sentence [because it] was constitutionally infirm on ineffective-assistance grounds, identifying five categories of mitigating evidence that counsel had failed to introduce. The Virginia Supreme Court then re-imposed the death penalty.

Held:

(Stevens, joined by O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
The death penalty conviction is overturned on ineffective-assistance grounds.

Held:

(O’Connor, joined by Rehnquist, Kennedy, Thomas, and in part by Scalia)
The section of the Anti-Terrorism and Effective Death Penalty Act intended to shorten the time between sentencing and executions in capital punishment cases is upheld.

Dissent:

(Rehnquist, joined by Thomas and Scalia)
I agree with the Court’s interpretation upholding the Anti-Terrorism and Effective Death Penalty Act but disagree with its decision to grant habeas relief in this case. The murder was just one act in a crime spree that lasted most of Williams’s life. There was strong evidence that petitioner would continue to be a danger to society, both in and out of prison. A jury would not have been swayed by potential mitigating evidence demonstrating that petitioner had a terrible childhood and a low IQ.
Source: Supreme Court case 98-8384 argued on Oct 4, 1999

OK to lengthen prison sentences retroactively.

Justice Breyer joined the Court's decision on GARNER v. JONES on Mar 28, 2000:

Respondent Jones escaped while serving a life sentence for murder, committed another murder, and was sentenced to a second life term. Georgia law at that time required considering inmates serving life sentences for parole after three years, but the law was later amended to eight years. The Georgia Parole Board has the discretion to shorten that interval, but declined to do so in Jones’ case, citing his multiple offenses. Jones sued, claiming that retroactive application violated the Ex Post Facto Clause [which disallows laws that are implemented retroactively].

Held:

(Kennedy, joined by Rehnquist, O’Connor, Thomas, Breyer, and in part by Scalia)
Georgia parole officials had the right to extend the time a state prison inmate must wait before he or she can be considered for parole. Georgia law gives the Parole Board broad discretion in determining whether an inmate should receive early release. Such discretion does not displace the Ex Post Facto Clause’s protections, but the idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience.

Dissent:

(Souter, joined by Stevens and Ginsburg)
A change in parole policy violates the Ex Post Facto Clause if it creates a “sufficient” or substantial risk that the class affected by the change will serve longer sentences as a result. The changed rule threatens to increase punishment for all life-sentenced prisoners, not just those who would have been paroled at or before the average time. Georgia has given us nothing to suggest the contrary. And statements by the Parole Board indicate that its policies were intended to increase time served in prison. There is no indication that the board adopted the new policy merely to obviate useless hearings or save administrative resources, the justification the Court accepted in the Morales case. Thus, I dissent.
Source: Supreme Court case 99-137 argued on Jan 11, 2000

Life-sentence alternative should affect death sentence.

Justice Breyer joined the dissent on RAMDASS v. ANGELONE on Jun 2, 2000:

Petitioner Ramdass was sentenced to death in Virginia for murder. In two other cases, Ramdass had been found guilty of two armed robberies. Arguing for a life sentence in the murder trial, Ramdass claimed that his prior convictions made him ineligible for parole under Virginia’s three-strikes law. The prosecutor argued for a death sentence because of future dangerousness. The court sentenced Ramdass to death, without the jury being told that the defendant is parole-ineligible.

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas)
The death sentence is valid, even though Ramdass was not allowed to tell jurors that he would not be eligible for parole if sentenced to life in prison.

Concurrence:

(O’Connor)
In Simmons v. South Carolina (1994), a majority of the Court held that “where the defendant’s future dangerousness is in issue… due process entitles the defendant to inform the capital sentencing jury that he is parole-ineligible.” [This precedent does not apply here because], although Ramdass had been found guilty of the armed robbery, that verdict did not count as a prior conviction because final judgment had not yet been entered on that verdict at the time of Ramdass’ capital sentencing proceeding.

Dissent:

(Stevens, joined by Souter, Ginsburg, and Breyer)
There is an acute unfairness in permitting a State to rely on a recent conviction to establish a defendant’s future dangerousness while simultaneously permitting the State to deny that there was such a conviction when the defendant attempts to argue that he is parole-ineligible and therefore not a future danger. Even the most miserly reading of Simmons supports the conclusion that Ramdass was denied the right to meet the State’s case against him. The plurality’s criticism [is] formalistic; there are times when judgment is far more important than technical symmetry. I respectfully dissent.
Source: Supreme Court case 99-7000 argued on Apr 18, 2000

Other Justices on Crime: Stephen Breyer on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

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David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 12, 2013