U.S. Sentencing Commission

Suspect evidence informed a momentous Supreme Court decision on criminal sentencing

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More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes. The worries were many. Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants. In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.

Quick Reads

AG asks Supreme Court to let states tax internet sales

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New Mexico’s Attorney General is joining with others who say the state should be able to collect sales or gross receipts taxes on all internet sales. Hector Balderas announced Monday that he filed an amicus curiae, or friend of the court, brief in a case challenging a 1992 U.S. Supreme Court decision. In all, 36 attorneys general from 35 states and the District of Columbia signed onto the brief, led by Colorado AG Cynthia H.Coffman. That decision, Quill Corp. v. North Dakota, was aimed at determining whether a state could collect taxes on sales originating from a company with no physical presence, or “nexus,” in that state.

10th Circuit Court of Appeals

Young, out-of-state lawyer could be a new federal judge for NM

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A federal court of appeals judge from New Mexico, who is expected to step down soon, could be replaced by a lawyer with less than 10 years of legal work under his belt and very loose ties to the state. NM Political Report learned the White House sent a short list of possible replacements for the 10th Circuit Court of Appeals Judge Paul Kelly Jr. Names on the list include  prominent judges and lawyers who currently practice in New Mexico—and one is a lawyer from Washington D.C. who previously worked for a Utah senator and whose family owns a cattle ranch in New Mexico. William Levi, a lawyer in his early 30s who graduated law school in 2010, spent a year as a clerk for U.S. Court of Appeals Judge Anthony Scirica and later for U.S. Supreme Court Justice Samuel Alito. Levi also spent about two years as a staffer for Utah Senator Mike Lee, a libertarian-leaning member of the Republican Party. NM Political Report left a voice message for Levi at his Washington D.C. office and emailed him, but only received an out of office reply.

Border

U.S. Supreme Court tosses cross-border shooting case back to lower court

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The nation’s highest court on Monday sent a case involving the cross-border shooting death of a Mexican teenager back to the U.S. 5th Circuit Court of Appeals for reconsideration. 

That leaves the question of whether the teen’s family can sue the U.S. Border Patrol agent who fired across the Rio Grande and killed him unanswered.  

The case involves the 2010 death of Sergio Adrian Hernandez Guereca during what officials called a “rock-throwing incident.” The teen was shot and killed by agent Jesus Mesa Jr., who was patrolling the banks of the Rio Grande in El Paso. Hernandez Guereca was on the Mexican side of the border, in Ciudad Juárez, when Mesa fatally shot him from the Texas side. 

The teen’s family initially sued the U.S. government, U.S. Customs and Border Protection, the Department of Homeland Security and Mesa, alleging the teen’s civil rights had been violated. A district judge dismissed the charges because Hernandez was a Mexican national and was on Mexican soil when the shooting occurred. 

An appellate court ruled in 2014 that Mesa could be sued in his individual capacity although the American agencies could not. Then, in April 2015, the U.S. 5th Circuit Court of Appeals sided with Mesa, saying he was entitled to immunity because Hernandez was south of the Rio Grande when the shooting happened.  

The teenager’s family appealed to the U.S. Supreme Court, and in October 2016, the high court agreed to consider the case. On Monday, the Supreme Court sent the case back to the 5th Circuit, ordering the court to revisit its previous ruling in light of other court decisions that have happened since.  

“The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life,” the court wrote.

Congress & Federal Issues

Heinrich will vote against Gorsuch confirmation

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U.S. Sen. Martin Heinrich will vote against the confirmation of Neil Gorsuch to the U.S. Supreme Court. He cited ties between the Donald Trump administration and Russia as one reason. Heinrich also indicated he would join other Democrats in a rare filibuster of the Supreme Court nominee by not voting to invoke cloture. Sixty senators are needed to invoke cloture and end debate, moving toward a final vote. There are 52 Republicans in the Senate.

Congress & Federal Issues

Udall will vote against Gorsuch, says should need 60 votes

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Senator Tom Udall will not vote to confirm Neil Gorsuch to the Supreme Court and will support the need for 60 votes for the confirmation. The Democratic U.S. Senator made the announcement Friday in a statement to media. Udall, one of the more liberal members of the U.S. Senate, was never likely to vote for Gorsuch. But his decision to support the filibuster of Gorsuch is significant. If enough senators oppose cloture—which ends debate on the nomination—it would require 60 votes to move forward to a final vote, essentially blocking Gorsuch.

Abortion

House panel passes bill to remove pre Roe v. Wade law criminalizing abortion

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A Democratic-majority House committee voted along party lines Thursday afternoon to remove pre-Roe v. Wade language in state statute that criminalizes abortion practices. The original state law, passed in New Mexico in 1968, makes “criminal abortion” subject to a fourth-degree felony. It defines “criminal abortion” as any action or attempt at an “untimely termination” of a pregnancy that is not “medically justified.” A medically justified abortion, according to state law, is limited to abortions in cases of pregnancy from rape, incest or when the pregnant woman’s life is in danger. The landmark 1972 Roe v. Wade decision, which legalized abortion in most cases across the country, made state laws like this obsolete. Related story: House committee stalls another round of abortion bills

But proponents of the bill to strike the old state statute argue that the state language would go right back into law should the U.S. Supreme Court change Roe v. Wade in the future.

Texas

Texas appeals voter ID rulings to U.S. Supreme Court

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Texas wants to take its voter identification battle to the U.S. Supreme Court. Texas Attorney General Ken Paxton on Friday asked the justices to hear his arguments about why the state’s photo ID requirements for voting do not discriminate against Hispanics and African-American voters. “Safeguarding the integrity of our elections is essential to preserving our democracy,” the Republican said in a statement. “Voter ID laws both prevent fraud and increase the public’s confidence in our elections. Texas enacted a common-sense voter ID law and I am confident that the U.S. Supreme Court will ultimately reinstate it.”

Texas officials say the voter ID law prevents voter fraud, which Gov. Greg Abbott has called “rampant.”

Abortion Access

Game Changer: The best analysis of the Supreme Court’s abortion decision

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This week’s Supreme Court decision in Whole Woman’s Health v. Hellerstedt was an unexpectedly sweeping victory for reproductive rights advocates 2014 a “game changer,” said Nancy Northrop of the Center for Reproductive Rights that “leaves the right to an abortion on much stronger footing than it stood on before this decision was handed down,” long-time court-watcher Ian Millhiser wrote. Abortion foes had hoped the court would use the Texas abortion case as an opportunity to gut not just Roe v. Wade, but also 1992’s seminal Planned Parenthood v. Casey, which held that abortion laws creating an “undue burden” on women were unconstitutional. Instead, the court clarified and strengthened Casey while striking down two of Texas law H.B. 2’s key provisions 2014 strict building rules for abortion clinics and a requirement that abortion doctors have admitting privileges at local hospitals. This could invalidate anti-abortion laws in another 25 states. The ruling is expected to have a monumental ripple effect, invalidating strict clinic laws in about half the states.

Texas

Abortion ruling a vindication for Wendy Davis and ‘unruly mob’

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When the U.S. Supreme Court on Monday struck down Texas’ 2013 abortion restrictions as unconstitutional, it was a victory years in the making for former state Sen. Wendy Davis and her “unruly mob.”

Almost three years to the day after her 11-hour filibuster of the restrictive legislation, the high court’s ruling was in some ways a personal vindication for Davis — and a defining moment for her legacy — particularly after she backed away from the spotlight following a gubernatorial election loss in 2014. But it was also a victory for Texas abortion providers and the reproductive rights community, many of whom were among the thousands that packed into the Texas Capitol to be part of the filibuster. As Davis worked to fill hours of debate time and run the clock to midnight — when a 30-day special session would end — reproductive rights activists watched from the gallery and lined up along the rotunda and halls near the Senate chamber. Some were regulars at the pink dome; others had traveled from around the state. They stayed for as many hours as Davis remained standing on the Senate floor.