Elena Kagan on Drugs



Individual suspicion required before administering drug test

Q: In Von Raab (1989), the Court upheld a Customs Service drug testing program for employees whose jobs involved drug interdiction. You wrote that the issue presented by the case--whether the government must demonstrate individualized suspicion in order to administer an employee a drug test--was important for the Court to decide. Nonetheless, you advised Justice Marshall to "think twice" before granting certiorari: "I think the facts of this case may militate against a decent result. Customs officials are almost necessarily involved in enforcing drug smuggling laws. This involvement may lead a majority of the Court to find that the Customs Service's drug-testing program is perfectly reasonable. It might be wise to wait for a case in which the government is testing employees who have no involvement with the enforcement of narcotics laws." Comment?

A: Based on Justice Marshall's view of the law, I thought he would believe that the 4th Amendment required probable cause to perform a drug test.

Source: ScotusBlog.com on Elana Kagan confirmation hearing , Jul 9, 2012

Sentencing rules change allows crack sentence reductions.

Justice Kagan joined the Court's decision on FREEMAN v. UNITED STATES on Jun 23, 2011:

The defendant entered into an agreement with the prosecution to plead guilty to crack cocaine possession. Following this plea, the sentencing guidelines federal judges must consider when they impose prison terms were retroactively revised to lower the prison time required in crimes involving cocaine base [crack cocaine], which were higher than those for powder cocaine. The law permitted defendants who were sentenced based upon the old guideline to seek the lower prison sentence if the guideline was revised downward.

HELD: Delivered by KENNEDY, joined by GINSBURG, BREYER & KAGAN

The Court must determine whether this defendant may take advantage of the lowering of the sentencing guidelines for the [crack cocaine] offense he was sentenced for. Even though this defendant was sentenced in accordance with an agreement, the Court finds that district court judges have a duty to consider the sentencing guidelines at all times, includinwg when deciding whether to accept a guilty plea that is contingent upon one of these agreements. Since the guidelines are the starting point for all sentencing decisions, even a defendant who agrees to a sentence may seek to have his sentence revised after a guidelines change.

CONCURRED: SOTOMAYOR concurs in the judgment

A sentence under one of these agreements is based upon the agreement itself, not on the judge's calculation of the guidelines. However, the agreement in this case expressly used the guidelines sentencing range to establish the term of imprisonment. When an agreement uses the guidelines, a defendant may seek reduction of his prison term based upon a guideline revision.


A sentence based upon an agreement is based upon the agreement alone, whether or not the sentencing guidelines were considered, and a defendant so sentenced should not be allowed the opportunity for a sentencing revision when the guidelines are changed.
Source: Supreme Court case 11-FREEMAN argued on Feb 23, 2011

Other Justices on Drugs: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

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Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022