It’s that time of year again: The U.S. Supreme Court will convene next week for a new term. While the last few terms have seen the court deliver seismic decisions on abortion, affirmative action, and voting rights, they’ve been tougher to read in another crucial area: criminal justice.

So, before the term begins on October 2, let’s try to break this down. Here’s a look at where the court stands on criminal law reform issues today, and two cases to keep an eye on.

In general, the Supreme Court’s recent criminal law decisions have been less polarized compared to other areas like abortion and affirmative action. Though the court often rules in favor of the government in criminal matters, it sides with defendants in a surprising number of cases.

There’s just one catch: The court tends to side with defendants under narrow circumstances, when their decisions won’t have a wide-ranging impact.

Take the 2020 case of Ramos v. Louisiana, which invalidated non-unanimous juries. The ruling required juries to reach unanimous guilty verdicts in trials for serious felony crimes. In so doing, the 6-3 majority acknowledged the roots of non-unanimous juries in the enforcement of Jim Crow. Blurring ideological lines, conservative justice Neil Gorsuch penned the majority opinion, joined by fellow conservatives Brett Kavanaugh and Clarence Thomas, while liberal justice Elena Kagan joined an opinion written by conservative justice Samuel Alito, along with conservative Chief Justice John Roberts. This decision could help prevent innocent defendants from being convicted and safeguard against decisions based on racial bias.

However, this ruling only affected Louisiana and Oregon, the last two states to maintain this practice. Further, due to excessively harsh sentencing laws and coercive plea bargaining tactics, jury trials have become a rarity. And the court ruled the very next term that its decision is not retroactive, so it can’t be applied to past felony cases; the states will be left to decide which older cases it applies to. The court went even further and held it would no longer apply new rules of criminal procedure retroactively at all.

The one consistent throughline in the court’s rulings involving the criminal legal system is its continued draconian interpretation of federal habeas law. For instance, in Jones v. Hendrix, the Supreme Court ruled that federally incarcerated people who are actually innocent — because the Supreme Court later found the conduct was not criminal — can still be held in prison without any ability to petition a court for release.

Basically, the Supreme Court used a strict interpretation of the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The law states that incarcerated people generally can’t challenge their conviction more than once. There are two exceptions: when new evidence demonstrating innocence emerges, or when a new rule of constitutional law is made retroactive by the Supreme Court. According to the court, Jones’ situation did not fit either exception. He fell into a gaping hole in federal habeas: Though he was actually innocent, it was because of a new legal ruling, not new evidence, and that ruling was based on a federal statute, rather than the Constitution. There were other ways to interpret the statute, but the court rejected them. So an innocent man sits in jail to this day, with no judicial recourse.

More broadly, the court has avoided answering important criminal procedural questions. For one, the court recently denied review of the ACLU’s case Hester v. Gentry. That lawsuit challenges the widespread practice in Alabama of detaining people prior to trial for weeks or months simply because they cannot afford cash bail. The case argues this practice is unconstitutional, in part because the right to pretrial liberty is fundamental, and cannot be denied unless the government has a compelling reason. The court has not ruled on these issues in nearly 40 years. In its silence, practices like those in Alabama have proliferated across the country.

The court has also generally declined to review cases challenging the qualified immunity doctrine, such as Novak v. Parma. Qualified immunity prevents government officials and law enforcement officers from being sued for money damages for violating someone’s rights. The ACLU has long called for the court or Congress to abolish this doctrine. After Ohio resident Anthony Novak was arrested for publishing a parody of the Parma Police Department’s Facebook page, he filed a civil lawsuit against the department for violating his First Amendment rights. By rejecting Novak’s appeal, the Supreme Court denied any remedy for this constitutional violation.

As the next term approaches, we’re unlikely to see any major changes in the Supreme Court’s stance on criminal justice issues. One case of interest is Pulsifier v. United States, in which the court will decide whether “and” means “and” or “or” under the 2018 First Step Act in determining whether a defendant qualifies for the “safety valve” provision under federal sentencing law. The safety valve allows federal judges to sentence defendants convicted of certain drug crimes below the mandatory minimum, an effort by Congress to mitigate some of the harms from the failed war on drugs. Though a favorable result maintaining broad access to the safety valve is uncertain, it is likely made more plausible by the fact that relief in the case would be narrow: Judges would not be required to sentence below the mandatory minimum; they would simply have the discretion to do so.

McElrath v. Georgia will likely follow a similar pattern. That case involves a law unique to Georgia that creates an exception to the Double Jeopardy clause, namely, by allowing a defendant to be prosecuted a second time for a crime of which they were previously acquitted. The question rests on whether the jury’s acquittal in the first prosecution was “repugnant,” meaning it was inconsistent with the same jury’s findings of guilt on related charges. The case invites the court to reaffirm the importance of both the Double Jeopardy clause and the right to a jury in criminal cases, which the court may well accept given a victory for the defendant would only directly impact a handful of individuals in a single state.

Wins in either of these cases, while welcome, will not change the fact that the court has staked out a conservative middle ground where it will only advance individual rights in cases with less of a ripple effect, while maintaining an inscrutable combination lock on the courthouse doors for defendants asserting these rights. We’ll be watching closely to see if this trend continues in the new term.

Right now, educators across the country are welcoming a new class of learners. At the same time laws that censor teachers and stifle classroom conversations about race, gender, and sexuality are threatening our right to an inclusive education.

Under the guise of “transparency” and “parents’ rights,”’ state lawmakers have been pushing bills that regulate how educators address systemic racism, LGBTQ+ issues, and other so-called “divisive concepts.” The ability to discuss and debate ideas, even those that some may find uncomfortable, is a crucial part of our democracy and barring discussion of our history or lived experiences is anathema to free speech.

The ACLU has challenged classroom censorship laws in Florida, New Hampshire and Oklahoma to protect educators’ and students’ right to teach and learn. This back-to-school season, we stand with the teachers, students, parents, and school systems on the frontline of our fight against classroom censorship.

We asked our audience to share how diverse teaching has impacted their lives and why they, too, support access to an inclusive education system.

“Finding the color purple on the shelf of my high school library changed my life.” – Naomi Olivia

“If you don’t teach diversity and the truth as it was, we risk repeating the horrors of the past. Not only that, but we actively harm and further oppress the voices of the marginalized.” – Dezz

“History isn’t always pretty. Knowing what really happened [is] critical to understanding our past and how [it is] impacting our present.” – Jeff W.

“People should be able to learn whatever they wish to learn.” – Daniel L.

“How are we supposed to help bring about a better world for all when we are no longer supposed to learn about and talk about other people and their life experiences. “ – Kathy G.

“Let’s stop being paranoid about children learning diversity, it won’t harm them, in fact it will bring good to the world as not only will it help them with their own self discovery, it will help them be more kind, caring, empathetic, and understanding towards those who are different from them.” – Kortniey J.

“I am a parent, a grandparent, and a recently retired public school teacher and school librarian. My school library was a safe place for all of the students who felt different, left out, or who felt they could not talk to their parents.” – Ann

“I grew up in the 1970s in a pretty progressive city. We were starting to talk about race then. What I didn’t learn in school left me ignorant about the world around me and my role in it.” – Anonymous

“As a parent raising a non-binary child in the early 2000s, I again didn’t know what I didn’t know, didn’t recognize what I was seeing. With no representation or discussion of gender identity in schools at that time, they truly were alone and struggling.” – Anonymous

“By not teaching our kids about themselves and about others, by depriving them of the images and stories and histories of diverse people and cultures, we deprive them and ultimately our society of the opportunity to reach our full potential.” – Anonymous

After Ronald Miller registered to vote in 2020, the State of Florida sent him a voter information card in the mail. Mr. Miller did not find out that a prior felony conviction made him ineligible to register or vote until, in 2022, Florida state officers arrested him. Now, Mr. Miller is one of several returning citizens that Florida’s Office of Statewide Prosecution (OSP) is prosecuting for making what appear to be good-faith mistakes about their voter eligibility. Rather than helping their citizens understand Florida’s complicated voter eligibility rules, the State has instead resorted to these intimidating, anti-democratic prosecutions.

Today, we — along with our partners at the ACLU of Florida, the NAACP Legal Defense Fund, and the Brennan Center for Justice — filed an amicus brief in Mr. Miller’s case highlighting OSP’s unlawful prosecution against Mr. Miller and other returning citizens in Florida, which disproportionately implicate Black citizens.

In 2018, Florida voters passed Amendment 4, which aimed to permanently end felony disenfranchisement in the state and restored voting rights for returning citizens who had completed the terms of their sentences. That amendment would’ve restored the right to vote for an estimated 1.4 million people. But, the following year, Florida’s legislature passed a new law requiring returning citizens pay off certain fines and fees before they can regain their right to vote. The ACLU and our partners challenged Florida’s pay-to-vote system for returning citizens, but were ultimately unsuccessful.

For Betty Riddle, Amendment 4 Win Makes Her A Part of Society, Not Apart

Betty was one of 1.4 million Floridians re-enfranchised by Amendment 4. This is her story on the fight to restore her rights.

Source: American Civil Liberties Union

Now, in the words of one federal court, Florida’s system of rights restoration for returning citizens is an “administrative train wreck.” Florida has essentially abdicated its responsibility to returning citizens in the state, refusing to provide meaningful guidance to individuals looking to navigate this byzantine system and figure out if they are eligible or not. When a registrant is ineligible, that should be flagged by the state before the person mistakenly casts a ballot, but Florida hasn’t consistently provided registrants with that clarity. In many cases, Florida has misled its citizens about their voter eligibility, including by sending them voter information cards in the mail.

And after telling multiple federal courts that returning citizens who made good-faith mistakes about their voter eligibility need not fear prosecution, the State has instead decided to prosecute nearly two dozen individuals for what appear to be honest mistakes. Fifteen out of the 19 returning citizens being prosecuted by OSP are Black.

Because Florida’s system for knowing whether you’re eligible to vote is so confusing, some of Florida’s local state attorneys have declined to prosecute people who try to register or vote while mistakenly thinking they’re eligible to do so. And for good reason: Voting while ineligible is a crime in Florida, but only when someone knows they’re ineligible and purposefully decides to vote anyway. People like Mr. Miller who don’t know and are never told they’re ineligible, and try to vote, aren’t guilty of a crime. That’s why, for example, one local prosecutor last year decided not to prosecute some people in a similar situation.

But just before a major election in 2022, Gov. Ron DeSantis announced OSP’s arrests of 19 returning citizens — including Mr. Miller — for allegedly voting while ineligible in 2020. He called those arrests the “opening salvo” of his state government’s efforts to prosecute voting where local prosecutors hadn’t. OSP, however, only has authority to prosecute crimes that happen in multiple judicial circuits. Registering to vote or voting while ineligible, of course, happens only in one location. So, several state courts have dismissed the charges against Mr. Miller and some other returning citizens, finding that OSP didn’t have authority to bring the prosecutions. The State has appealed the dismissal.

Our amicus brief, filed before Florida’s intermediate appellate court, argues that the OSP doesn’t have the power to prosecute Mr. Miller. That’s because it was created to go after organized, complex, criminal conspiracies that are hard for one local prosecutor’s office to handle alone. The legislators who authorized OSP didn’t intend for it to wield its power to prosecute people like Mr. Miller, who vote or register because of a good-faith mistake. Instead, they were careful to give it a limited authority over only some kinds of crimes and not to usurp the discretion of local prosecutors. The State’s argument — that registering and voting occurs throughout the state as a whole, so any voting offense is a statewide crime — blows up that balance entirely. Under that theory, the OSP would have prosecutorial power over almost any offense. The State, in other words, wants OSP to have boundless authority.

Florida’s attempt to assert free reign to carry out unjust voter prosecutions, instead of fixing its registration system, is just one of many ways it has tried to chill and suppress the votes of Black people in the state. In Florida, one in eight Black people are disenfranchised, twice the rate of non-Black people. Nationwide, Black people are more likely to face jail time for voting violations. Knowing that any simple mistake on a voting form could lead to a prosecution has already made many eligible voters afraid to vote.

The Fight for Voting Rights: How the Past Informs the Current Discriminatory Landscape

For decades, Black voters fought for equal access to the ballot. Today, that access is still under attack.

Source: American Civil Liberties Union

These arrests and prosecutions, in other words, are another dramatic attempt at suppressing votes in Florida, particularly for Black citizens. The ACLU and our partners are committed to combatting these shameful prosecutions that work to endanger our democracy.