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Supreme Court Clinic: Criminal Justice

The Supreme Court Clinic has been at the forefront of cutting-edge criminal litigation, ranging from the new field of crimmigration (the overlap of criminal and immigration law) to the government’s ability to search cellphones. 

The Clinic’s first case was a blockbuster: Padilla v. Kentucky (2010) held, 7-2, that defense lawyers must warn noncitizen defendants that they will or may be deported before they plead guilty. The Clinic team persuaded the Court that deportation has become so automatic and draconian a penalty for even minor criminal convictions that advising clients about it is part of defense lawyers’ job.  For their work on that case, the Padilla team won the 2011 Jack Wasserman Memorial Award from the American Immigration Lawyers Association. 

In Ohio v. Smith (2010), police officers arrested Mr. Smith and, as part of the arrest, searched his cellphone. The Clinic successfully opposed Ohio’s certiorari petition by distinguishing cell phones from other containers that police may open as part of an arrest, stressing how quickly the technology is changing, and dismantling the alleged disagreement among various courts on the issue. The Clinic’s success allowed the issue to develop for several more years and gave time for other pro-privacy precedents to develop, paving the way for the Supreme Court’s eventual unanimous ruling that officers may not search an arrestee’s cellphone without a warrrant.

In Tapia v. United States (2011), the Supreme Court needed a sentencing expert to explain why judges could adjust sentences to get inmates into drug treatment, so it appointed then-Professor Bibas to brief and argue the case as amicus curiae, a “great honor.” The Clinic offered a fresh account of the Sentencing Reform Act’s history and policy, one no other lawyers had seen. In announcing the Court’s opinion, Justice Kagan went out of her way to compliment the “exceptionally good job” they had done with a difficult case.

In Peugh v. United States (2013), Marvin Peugh was convicted in 2010 of a bank fraud that had happened a decade earlier.  At the time of the crime, his sentencing guideline range called for 2 1/2 to 3 years’ imprisonment. Years later, the U.S. Sentencing Commission more than doubled the recommended sentence for such frauds, and the sentencing judge followed these guidelines in imposing a much longer sentence on Mr. Peugh. The Supreme Court agreed with the Clinic’s arguments and ruled, 5-4, that the Ex Post Facto Clause of the U.S. Constitution forbids retroactive application of increased sentencing guidelines, even though they are not binding, because in practice they create a significant risk of increasing the punishment for earlier crimes.