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In 2 new Supreme Court cases ? one a clear conservative-liberal split and one decidedly not ? the government wins and the criminal defendant loses.

Here's Herring v. United States:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County?s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database....

Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply....

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.

The opinion was written by the Chief Justice, joined by Justices Scalia, Kennedy, Thomas, and Alito. There is a dissenting opinion by Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer. Here we see a clear split between conservative and liberal Justices, with the conservatives siding with the government and the liberals with the criminal defendant.

Here's Oregon v. Ice:

Respondent Ice twice entered an 11-year-old girl?s residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim?s vagina; and first-degree sexual assault for touching her breasts....

Held: In light of historical practice and the States? authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses.

Justice Ginsburg wrote the opinion, joined by Justices Stevens, Kennedy, Breyer, and Alito. Justice Scalia wrote the dissenting opinion, joined by the Chief Justice, and Justices Souter and Thomas. In this case too, the government wins, but it is not a clear split between conservative and liberal Justices, and, interestingly, there are more conservatives seeing a constitutional right, and more liberals siding with the government and conservatives and liberals on both sides.

Justice Ginsburg writes:

Members of this Court have warned against ?wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.?.... The jury-trial right is best honored through a ?principled rationale? that applies the rule of the Apprendi cases ?within the central sphere of their concern.?... Our disposition today?upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury?is faithful to that aim.

Justice Scalia writes:

The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000) , is clear: Any fact?other than that of a prior conviction?that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury. Oregon?s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since....

The Court?s peroration says that ?[t]he jury-trial right is best honored through a ?principled rationale? that applies the rule of the Apprendi cases ?within the central sphere of their concern.? ? ... Undoubtedly so. But we have hitherto considered ?the central sphere of their concern? to be facts necessary to the increase of the defendant?s sentence beyond what the jury verdict alone justifies. ?If the jury?s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.?... If the doubling or tripling of a defendant?s jail time through fact-dependent consecutive sentencing does not meet this description, nothing does.

Full post as published by Althouse on January 14, 2009 (boomark / email).