Supreme Court Preview, Second Session: Access to Justice, National Security, and Civil Liberties

In advance of the second session of the Supreme Court's 2011 term, the Brennan Center calls attention to five cases involving important issues of access to justice, national security, and civil liberties.

October 26, 2011

*Mr. Rosdeitcher is Senior Policy Advisor at the Brennan Center and Of Counsel at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Mr. Taylor is an associate at Paul, Weiss.

On October 31, the Supreme Court will begin the second session of its 2011 Term. As we previously noted, throughout the Term, the Brennan Center will be calling attention in advance to cases to be argued raising issues of access to justice, the intersection of national security and civil liberties, and voting rights, campaign finance and fair elections. This week we call attention to five cases on the Court’s docket for these two weeks, involving important issues of access to justice, national security, and civil liberties.

Two of these cases — Perry v. New Hampshire (No. 10-8974) and United States v. Jones (No. 10-1259) — have drawn considerable publicity and media attention. Perry, which will be argued on November 2, considers the role of the courts in assessing the reliability, and admissibility at trial, of eyewitness identifications under the Due Process Clause. Jones, to be argued on November 8, asks whether warrantless, and prolonged, GPS surveillance of a person’s vehicle and its public movements is permissible under the Fourth Amendment.

Two other cases, Lafler v. Cooper (No. 10-209) and Missouri v. Frye (No. 10-444), both of which will be argued on October 31, raise common questions concerning the applicability of the right to effective assistance of counsel at the plea- bargaining stage: whether and to what extent that right entitles a defendant to relief, where, as a result of counsel’s deficient performance, the defendant loses an opportunity for a plea deal that would have resulted in a more favorable sentence than he subsequently received after a fair trial or a waiver of his trial rights.

Finally, in Minneci v. Pollard, which will be argued on November 1, the Court will address whether employees of a private contractor performing functions assigned to it by the federal government face the same liability for infringement of constitutional rights, under the Supreme Court’s landmark decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that federal officials do.

Here are the details:

Perry v. New Hampshire

In Perry v. New Hampshire, the Supreme Court will address an issue that has recently received much public attention, in state court opinions, legal and social science research, and the popular press: the reliability of eyewitness identifications and their proper use as the bases for criminal convictions.

The precise question before the Court in Perry is whether the Due Process Clause of the Constitution mandates a judicial inquiry into the reliability of all problematic eyewitness identifications, or only those made after the police used improperly suggestive procedures. Petitioner Barion Perry, who was convicted in New Hampshire state court of one count of theft and sentenced to three to ten years of imprisonment, argues the former — that the eyewitness identification of him admitted at his trial was made under circumstances that caused it to be unreliable and that, for this reason, it should have been examined more closely by the court and excluded from evidence on due process grounds regardless of whether police procedures were at fault. The State of New Hampshire argues to the contrary that due process review for reliability is only required where the challenged identification is the result of improper (i.e., unnecessarily suggestive) law-enforcement procedures.

The New Hampshire courts, including the New Hampshire Supreme Court, sided with the State. Specifically, the New Hampshire Supreme Court held that, under the Supreme Court’s precedents, the “admissibility of identification evidence over a due-process objection” is determined by a two-step analysis, which asks first whether the identification procedure employed by the police was unnecessarily suggestive and second whether that procedure is so unreliable that its introduction at trial would violate due process. The court held that Perry’s claim failed on the first step, because the “identification [at issue] was not derived from any suggestive technique employed by the police.” In reaching this decision, the New Hampshire Supreme Court rejected holdings from the First Circuit and several other federal courts that found a broader role for due process in assessing troublesome eyewitness identifications.

Perry now asks the Supreme Court to reverse. He points to an earlier case, Manson v. Braithwaite, 432 U.S. 98 (1977), in which the Court stressed that “reliability is the linchpin in determining the admissibility of identification evidence,” id. at 114, and argues that, under this and other controlling precedents, due process considerations are intended to provide safeguards for a fair trial, not, as the New Hampshire Supreme Court mistakenly determined, deterrence for improper police conduct. Perry also notes that eyewitness identification is especially resistant to challenge at trial because witnesses have been shown to stick tenaciously to the identification once made, and that eyewitness identification has a uniquely powerful effect on jurors and therefore if mistaken is unusually prejudicial. These last two points are borne out by several studies cited by Perry in his brief, as well as in the amicus briefs submitted by the American Psychological Association and the Innocence Network, showing that anywhere from 75 to 85 percent of post-conviction exonerations result in whole or in part from mistaken identifications and that, based on many factors having nothing to do with improper police conduct, the rate of inaccurate eyewitness identifications is roughly 33 percent.

The Obama Administration has weighed in here in support of the State of New Hampshire, arguing that “[t]he Due Process Clause does not require a judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances orchestrated by law enforcement.” In the Administration’s view, any “[c]oncerns about reliability may be fully addressed through the right to counsel at post-indictment lineups, through vigorous cross-examination at trial, through state and federal rules of evidence, and through jury instructions concerning eyewitness identification.”

The Administration also argues that treating the admissibility of eyewitness testimony, absent police suggestion, as a due process issue “would exact a substantial societal cost by excluding relevant and probative evidence in criminal trials, would take away the jury’s crucial role in finding facts in our adversary system, and would invite criminal defendants to bring freestanding due process challenges to all sorts of potentially unreliable evidence.” Some commentators have stressed the latter point, suggesting that a ruling for Perry raises the specter of constitutionalizing admissibility issues, even beyond eyewitness identification evidence.

The Supreme Court’s decision in Perry, its first serious foray into the issue of eyewitness identification in over thirty years, is highly anticipated. Whether the Court finds for Barion Perry or not, however, its ruling in this case is unlikely to be the final word on the matter. As noted, the question before the Court is simply whether police misbehavior is a necessary prerequisite for a due process challenge to an eyewitness identification on reliability grounds. No matter how it decides this question, the Court seems unlikely to resolve the larger and arguably more important question of what, precisely, a judicial assessment as to the reliability of eyewitness identification under the Due Process Clause must entail. Moreover, as the New Jersey Supreme Court made clear in an important recent decision, the federal Constitution is by no means the sole avenue through which the serious concerns raised about the reliability of eyewitness identifications may be addressed. State v. Henderson, 27 A.3d 872 (N.J. 2011) (adopting additional procedures for eyewitness identifications under the state constitution). Thus, whatever the result is in Perry, the future role of eyewitness evidence in criminal trials will undoubtedly remain an open question.

United States v. Jones

The Supreme Court will also hear argument next month in United States v. Jones, a Fourth Amendment case that has significant implications for the future of individual privacy in the face of major advances in technology that threaten to make government surveillance an even more prevalent, and intrusive, part of American life.

In particular, Jones raises the question whether, in the absence of a warrant, installing and using a GPS device to detect the location of a person’s car over a prolonged period of time violates the Fourth Amendment ban on unreasonable searches and seizures and its requirement of a search warrant. The relevant facts of the case are as follows: In September of 2005, FBI agents and Washington, D.C. police approached respondent Antoine Jones’s Jeep Grand Cherokee while it was parked in a public lot in Maryland, and affixed a GPS surveillance device to the undercarriage of the vehicle without Jones’s knowledge or consent — and without a valid warrant. By means of satellite-tracking, this GPS device calculated the vehicle’s precise location in ten-second intervals and automatically conveyed that data to law enforcement. For the four weeks that it was attached, the device tracked the movements of Jones’s vehicle 24 hours a day.

Prior to trial, Jones moved to suppress the data obtained from the GPS device under the Fourth Amendment. The district court granted the motion as to data obtained while the jeep was parked in Jones’s garage, but denied it as to the data obtained while the vehicle was on public roads. Based largely on the admitted GPS evidence, Jones was convicted of conspiracy to distribute five kilograms or more of cocaine and sentenced by the court to life imprisonment.

On appeal to the D.C. Circuit, Jones argued, just as he now does in the Supreme Court, that both the installation of the GPS device and the resulting GPS surveillance violated his Fourth Amendment rights. While the court of appeals did not reach the installation question, it agreed with Jones that the government’s use of the device for 24 hours a day for a month constituted an unconstitutional search.

In the D.C. Circuit’s view, Jones had a reasonable expectation of privacy in “the totality and pattern of his movements from place to place to place” over this four-week period, and the government’s warrantless tracking of those movements was thus violative of the Fourth Amendment. In reaching its decision, the D.C. Circuit distinguished United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held that the monitoring of the public movements of a vehicle with a beeper was not a search within the meaning of the Fourth Amendment, noting that Knotts involved the tracking of one “discrete journey” of about 100 miles, not the extended monitoring at issue in this case. Indeed, as the D.C. Circuit recognized, the Knotts Court expressly reserved the question whether a warrant would be required before police could use electronic devices as part of a “dragnet-type law enforcement practice,” such as “twenty-four surveillance.”

GPS technology is a major leap from the sort of beeper tracking involved in Knotts. GPS, in truth, now makes prolonged, 24-7 tracking of individuals a relatively easy task for law enforcement. The question the Supreme Court will decide in Jones is whether, under the dictates of the Fourth Amendment, it is a surveillance technique that may be conducted without a warrant properly authorized by a court.

The Obama Administration contends that it is. Specifically, the Administration argues that the use of a GPS tracking device to monitor the movements of Jones’s vehicle on public streets was not covered by the Fourth Amendment because Jones had no reasonable expectation of privacy and because information “knowingly exposed to the public” is a not a “search” and the absence of intrusion into Jones’s possessory interests meant it was not a “seizure”; that the installation of the device on Jones’s vehicle was “neither a search nor a seizure” because no information was disclosed or obtained by the installation; and that, in any event, even if installing or using the GPS tracking device was a search or seizure, the warrantless surveillance here was still valid under the Fourth Amendment, on general reasonableness grounds. 

Jones raises several points in response. He argues that, contrary to the Administration’s cramped view of the Fourth Amendment, there is, as the D.C. Circuit found, an expectation of privacy in the whole of one’s movements over a prolonged period, even if in public places. Jones also argues that because the government’s surreptitious installation of the GPS device is a plain invasion of his possessory interest in the vehicle, the information thereafter generated from the device is plainly an unlawful search under the binding precedent of Silverman v. United States, 365 U.S. 505 (1961). Indeed, if the rule were otherwise, Jones notes, “the government would be free to install devices onto all effects carried in public — briefcases, and even clothing — and to do so indiscriminately without any justification at all.” Finally, Jones asserts that affirmance is essential here to protect individuals from the grave threat that unrestrained GPS surveillance presents for political and expressive association, both of which often depend on privacy to survive.

The Brennan Center also disagrees strongly with the position taken by the Administration. In a recently filed amici curiae brief, the Brennan Center, along with the National Association of Criminal Defense Lawyers and others, agrees with Jones that the D.C. Circuit’s ruling that the tracking procedures utilized in this case were unlawful in the absence of a warrant is the only proper result under the Fourth Amendment. Moreover, like Jones, the amici brief stresses that the interests at stake here are not only the privacy protections encompassed in the Fourth Amendment, but also the fundamental right of freedom of association found in the First Amendment. As the D.C. Circuit observed below:

A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

The brief contrasts the heavy burden on First and Fourth Amendment rights with streamlined warrant application procedures that permit law enforcement in the vast majority of states to apply for warrants remotely, thereby minimizing the risk of significant investigative delay.

In sum, allowing law enforcement to obtain individuals’ private information on its own whim and without judicial supervision is unwarranted and unconstitutional. It must not be sanctioned by the Supreme Court in Jones.

Lafler v. Cooper and Missouri v. Frye

The issue before the Supreme Court in these two cases is whether a defendant who turns down a plea bargain offer because of the deficient performance of counsel is entitled to relief on the basis of ineffective assistance of counsel if he subsequently receives a longer sentence after conviction than the prosecution initially offered, and, if so, what remedy is available for this ineffective assistance.

In Lafler v. Cooper, a federal habeas challenge to a Michigan state court conviction, defendant Anthony Cooper was accused of shooting a woman several times in the thigh and buttocks as she was fleeing from him and was charged with several crimes, the most serious being assault with intent to murder, for which he faced a potential life sentence. Prior to trial, the prosecution offered Cooper the following plea deal: he could plead guilty to assault with intent to murder and face a below-sentencing-guidelines minimum sentence of 51 to 85 months (approximately 4 to 7 years) of imprisonment.

Cooper’s court-appointed counsel advised him to reject this plea offer. Cooper’s counsel erroneously, and quite oddly, believed that because the victim was injured below the waist, the prosecution could not establish the requisite element of intent to kill. Following his counsel’s incorrect advice, Cooper went to trial, where he was convicted on all charges and received a sentence of 185 to 360 months (15 to 30 years) of imprisonment — approximately four times longer than the prosecution’s original plea offer.

On habeas review, the federal district court in Michigan held that Cooper’s counsel had provided him with ineffective assistance, under the Sixth Amendment and the governing standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), by wrongly advising him that the circumstances failed to satisfy the elements of assault with intent to commit murder. The district court concluded that the remedy for this ineffective assistance should be “specific performance” of the plea deal that the defendant would have accepted but for his lawyer’s erroneous advice. Thus, the court ordered the State to offer Cooper a sentence agreement of 51 to 85 months or to release him.

The Sixth Circuit affirmed. In its decision, the court of appeals, among other things, expressly rejected the argument that Cooper had suffered no cognizable prejudice from his counsel’s deficient performance because he was convicted at a fair and error-free trial and sentenced accordingly. In the Sixth Circuit’s view, Cooper had established prejudice by showing that he would have accepted the plea offer but for counsel’s recommendation, and that he ultimately received a sentence “greater than that promised by the plea deal.” Thus, the court concluded that Cooper’s Sixth Amendment rights were violated when, due to counsel’s constitutionally deficient advice, he “lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him.”

Like Lafler, Missouri v. Frye, which will be argued the same day, also involves the critical issue of the right to counsel at the plea-bargaining stage. In Frye, defendant Galen Frye was charged in Missouri state court with the felony of driving with a revoked license, and a public defender was appointed to represent him. Before Frye’s preliminary hearing, the prosecutor mailed a written plea offer to the public defender, offering two alternative deals: (i) Frye could plead guilty to the felony charge and the prosecutor would recommend a three-year prison sentence while deferring to the court on whether Frye should instead receive probation (but the prosecutor would request that, in any event, Frye serve ten days in jail as “shock” incarceration); or (ii) Frye could plead guilty to an amended information charging only a misdemeanor, in which case the prosecutor would recommend a sentence of ninety days in jail. The offer would expire, the prosecutor stated, a week before the preliminary hearing.

Frye’s counsel never informed him of this plea offer. Ultimately, prior to trial, Frye entered an “open” guilty plea (i.e., a plea entered without the benefit of a plea agreement) to the felony charge of driving with a revoked license and was sentenced to three years of imprisonment. After he was convicted and sentenced, Frye finally learned of the prosecution’s original plea offer. On his motion for post-conviction relief, Frye stated that had he been informed of the opportunity to plead guilty to the misdemeanor charge (and resulting 90-day sentence), he would have done so, and thus alleged that his counsel’s failure to communicate the State’s plea offer to him violated his Sixth Amendment right to the effective assistance of counsel.

The Missouri Court of Appeals agreed with Frye. Like the Sixth Circuit in Lafler, it applied the two-part Strickland standard and determined that counsel’s deficient performance in failing to inform him of a plea offer was prejudicial to Frye. Therefore, the court determined, Frye was denied his constitutional right to the effective assistance of counsel. Unlike Lafler, however, the Missouri court did not order “specific performance” of the original plea offer. Instead, the court “deem[ed] the guilty plea withdrawn” and remanded to the trial court to allow Frye to decide whether to “insist on trial” or to “plead guilty to the charged [felony] offense or to such other amended charge as the State may deem it appropriate to offer.” The court recognized that this result “may not seem a satisfactory remedy,” but it concluded that it was “not empowered to order the State to reduce the charge against Frye” to a misdemeanor, and the only other option was to “ignore the merits of Frye’s claim” by denying relief, which it could not sanction.     

In both Lafler and Frye, the State petitioners argue in the Supreme Court that the effective assistance of counsel guaranteed by the Sixth Amendment exists only to ensure that criminal defendants receive the rights associated with a fair trial. Thus, because, in Lafler, Anthony Cooper received a fair and error-free trial and, in Frye, Galen Frye knowingly and intelligently waived his rights to a criminal trial, there can be, petitioners contend, no violation of the constitutional right to effective assistance of counsel in either case.

Moreover, petitioners argue that there is no appropriate remedy for defendants. The court, they assert, cannot properly order the State to re-offer the original plea deal; a new trial will result either in an acquittal (contradicting defendants’ claims that they would have pleaded guilty) or the same felony conviction that is being challenged; and allowing the parties to negotiate a new plea agreement, they contend, is equally flawed because it is impossible now to restore the status quo, including the risks and incentives that might have formerly led to an acceptable plea bargain. This lack of an acceptable remedy, the State petitioners argue, underscores that there has been no Sixth Amendment violation here, and that there is simply a lack of a constitutional injury to either Cooper or Frye that warrants any remedial action by the courts.

The Obama Administration has filed amicus briefs in both Lafler and Frye, siding in each case with the State and against any finding of ineffective assistance of counsel. Echoing the arguments raised by the State petitioners, the Administration asserts that the purpose of the Sixth Amendment right to the effective assistance of counsel is simply “to ensure that the defendant receives a fair trial that reliably determines guilt or innocence” and “to justify reliance on the ultimate outcome of the criminal proceeding.” Like the States, the Administration asserts that because Anthony Cooper received a fair trial and Galen Frye properly waived his rights to one, and because there is no feasible remedy in any event, reversal and reinstatement of each defendant’s conviction and sentence is the proper outcome here.

The Supreme Court has long held that the right to the effective assistance of counsel exists not just at trial, but at every “critical stage” of the criminal proceedings. And just last year, in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Court made clear that “the negotiation of a plea bargain is a critical phase of the litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Nevertheless, as noted, the State petitioners, as well as the Obama Administration as amicus, argue that errors by counsel at the plea-bargaining stage can only result in constitutionally ineffective assistance if they affect the fairness of trial or the defendant’s decision to waive trial and plead guilty. Respondents and the lower courts in Lafler and Frye take a much less cramped view of the Sixth Amendment right.

Whichever side prevails here, the Supreme Court’s decisions in these cases will have wide practical implications. As has been true for many years, the great majority of criminal cases — approximately 97 percent of all convictions in federal court and 95 percent of felony convictions in state court, according to the most recent data — are now resolved not by trial but by guilty plea. Thus, even more so than cases addressing this right at trial or on appeal, a Supreme Court decision addressing the extent to which the constitutional right to the effective assistance of counsel applies at the plea-bargaining stage, as well as the role of the courts in supervising the manner in which pleas are (or are not) reached, is sure to have significant impact on the real-world rights of criminal defendants and the future path of criminal justice.

Minneci v. Pollard

This case raises an important question about the continuing reach and scope of the Supreme Court’s seminal 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Court recognized, for the first time, an implied damages cause of action against federal officials for violations of constitutional rights. More specifically, the issue here is whether a Bivens remedy lies against employees of a private contractor performing functions delegated to it by the federal government.

In Minneci v. Pollard, respondent Richard Lee Pollard, a federal inmate, was incarcerated from March 2001 to November 2002 in a California federal prison operated under contract by a private corporation. Pollard alleges that while serving time at this privately run facility, he sustained various injuries due to his failure to receive adequate medical care. Pollard filed suit in federal district court against both the corporation and its employees, alleging that their treatment of him was in violation of the Eight Amendment and seeking money damages for his constitutional injuries under Bivens.  

The district court dismissed Pollard’s claims against the defendant corporation under the Supreme Court’s holding in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), that private prison corporations are not subject to Bivens liability, and those claims are no longer at issue in this case. Pollard’s claims against the individual defendants, which are what is still at issue before the Supreme Court, were dismissed as well.[1] The district court reasoned that these private-prison employees were not subject to Bivens liability because they did not act under color of federal law and because state tort law provided a more than adequate alternative damages remedies.

In a 2-to-1 decision, the Ninth Circuit reversed, holding that Pollard’s Bivens claims against the individual defendants could proceed. Specifically, the court of appeals concluded that the individual employees had acted under color of federal law for Bivens purposes because their job duties at the prison served a “fundamental governmental function,” that the availability of alternative state-law remedies was not enough to preclude an implied cause of action under Bivens, and that no other “special factors counseling hesitation” in recognizing a Bivens claim existed in the present context.

The Ninth Circuit acknowledged that its holding was in conflict with decisions from two other federal courts of appeals (the Fourth Circuit and the Eleventh Circuit). And, after the Ninth Circuit denied rehearing en banc, the Supreme Court granted certiorari to resolve this circuit split and determine whether employees of a privately operated prison are subject to suit under Bivens for claimed violations of the constitutional rights of federal prisoners in their care.

Pollard maintains that this case is on all fours with the Court’s earlier decision in Carlson v. Green, 446 U.S. 14 (1980), holding that Bivens provided a cause of action against federal prison officials for denial of adequate care in violation of the Eighth Amendment. Pollard further maintains that the Court has refused to consider the adequacy of state remedies as a bar to a Bivens remedy, that the attempt to determine their adequacy would create undue burdens and complexities for lower courts, and that, in any event, state remedies are not adequate here.

The Obama Administration has filed an amicus brief in support of the prison-employee petitioners. Like petitioners, it argues that the Ninth Circuit’s decision in this case extends Bivens beyond existing precedent. The Administration contends that because individual employees in a privately run prison, unlike their federal-government-employee counterparts, are subject to liability under state tort law and do not enjoy the protections of qualified immunity, such an extension would have unfair and negative effects on the operation of contract prisons. It also maintains that available state remedies, even if not completely adequate, are sufficient to bar a Bivens remedy.

It goes without saying that the Supreme Court’s decision in Minneci will have significant practical impact in the area of prisoners’ rights. But the import of this case is likely to go well beyond the prison walls. Indeed, given the federal government’s increasing reliance on private contractors not only to run prisons, but also to operate immigration detention centers and to provide numerous services and perform various functions that have traditionally been carried out by the government directly, the Court’s ruling may have wide-reaching implications as to both the future of Bivens and federal constitutional remedies more generally. And while the outcome here remains uncertain, predictions as to the result in Minneci must take into account the Court’s hostility to the Bivens remedy and its refusal to extend Bivens to new circumstances for more than 30 years.

*          *          *          *

These five cases raise important issues of access to justice and, in Jones, a critical question involving the intersection of liberty and security. As with the cases we noted from the Court’s first session, we will follow them with great interest as the Term progresses.


[1]       In Corrections Corp. v. Malesko, the Court reasoned that Bivens liability was intended to deter individual officials from violating constitutional rights and therefore did not entail vicarious liability for the government-contractor corporation for its employees’ alleged misconduct. The Supreme Court did not consider whether the individual employees alleged to have violated constitutional rights had Bivens liability.