The practice of sentencing juvenile offenders of serious crimes to life in prison with no chance of parole is not effective and a different approach should be used, write the authors of a recent ACS Issue Brief. In "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole," Jody Kent, of the Campaign for the Fair Sentencing of Youth, and Beth Colgan, of the Institutions Project at Columbia Legal Services, write that no other country except America sentences juvenile offenders to life without the possibility of parole, a practice banned by the United Nations Convention for the Rights of the Child.

The authors cite the significance of research showing that juvenile offenders should be treated differently than adults:

Youth do not have adult levels of judgment, impulse control, or ability to assess risks. There is widespread agreement among child development researchers that young people who commit crimes are more likely to reform their behavior and have a better chance of rehabilitation than adults.

The U.S. Supreme Court is currently considering two cases involving the constitutionality of sentencing youth to life in prison without parole. Oral argument in Graham v. Florida and Sullivan v. Florida were heard in November and decisions in the cases are expected soon. For more on the constitutional issue in those cases, see a guest post from constitutional law expert Charles Ogletree here. 

[image via lawanddisorder.org]

Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Following the Supreme Court decision on corporate campaign finance regulation, ACS hosted a national event exploring potential ramifications on democracy and the future of regulating corporate expenditures on elections.

Joseph E. Sandler, a nationally recognized expert on elections law, joined the panel discussion and afterwards talked with ACSblog about how the decision in Citizens United v. FEC could alter electoral politics. Conceding that the decision's impact may be "very difficult to predict," Sandler said nonetheless it may now be "tempting" for some corporations "to get into the game in a way they wouldn't have done before."

Video of the entire event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead," is available here. Watch Sandler's interview below or download it as a podcast here.

The Supreme Court granted certiorari in three cases for its term starting this fall, including one involving a $5 million jury verdict against the fiercely anti-gay group led by Kansas preacher Fred Phelps. SCOTUSblog's Lyle Denniston writes that in Snyder v. Phelps, the high court will focus on "a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting." Phelps and members of his Westboro Baptist Church, which consists largely of his relatives, picket funerals of soldiers as part of their campaign attacking America for allegedly being tolerant of lesbians and gay men. That campaign involves posting invective on a Web site called "godhatesfags.com," and hoisting signs at soldiers' funerals with messages like "God Hates the USA," and "Semper fi fags." When Phelps and members of his outfit picketed the funeral of Marine Lance Corporal Matthew Snyder several years ago in Maryland, his father, Albert, lodged a lawsuit against Phelps, winning a $5 million jury verdict.

But that verdict was overturned by the U.S. Court of Appeals for the Fourth Circuit. Even though the appeals court found Phelps' messages "utterly distasteful," it said they were protected by the First Amendment. The Fourth Circuit, as noted by the Religion Clause blog, also concluded that Phelps' Web site postings concerning the dead solider were "imaginative and hyperbolic rhetoric intended to spark debate."

The justices added two other cases to its next term - NASA v. Nelson and Bruesewitz v. Wyeth. Denniston also has details of those cases here. 

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

By vacating the D.C. Circuit's decision, the Supreme Court has for the time being lifted the perceived constraints on release orders for Guantanamo prisoners who win their habeas cases (as have 32 of 40 to date). Whether any of the district court judges will now issue direct release orders remains to be seen. It also is unclear what will happen on remand. The appellate panel could promptly reinstate its decision, finding that the changed facts do not affect its prior ruling. This seems unlikely, given that the appellate court is no more institutionally qualified to consider new facts than is the Supreme Court. More likely, the case will be remanded to Judge Urbina, who will hear evidence on the current status of the remaining Uighurs, then decide whether a new release order is needed, and, if so, what the order should be, or whether the case is moot. How that will play out is anybody's guess.

One thing is certain, however: Guantanamo, and the legal and political controversies it has spawned, will be with us for a long time to come.

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

The second way to think about "reasonable regulation" is not as a formal test but as shorthand for allowing lawmakers broad leeway to regulate guns. This seems to be what the Court did in Heller. The Justices did not formally adopt the state law standard of review. Instead, they adopted categorical rules and recognized a number of gun control "safe harbors." While they don't create a standard of review, the exceptions listed out in Heller encompass most forms of gun control. None of these are constitutionally infirm under the Second Amendment.

The distinction between these two ways of thinking about reasonable regulation may be more theoretical than practical. The legal effect of Heller has been to permit the vast majority of gun control laws to survive judicial review. In fact, not a single law has been invalidated for violating the Second Amendment since Heller. That's not for a shortage of cases. There have been over 150 federal court decisions on the constitutionality of gun control since Heller and none ruled that the Second Amendment was infringed. Whether the Court promotes the state law standard of review or approaches the Second Amendment with categorical reasoning, the effect on gun control is the same. It almost always survives.

Of course, even if the Court makes clear in McDonald that most gun control laws don't run afoul of the Second Amendment, there are certain to be some laws invalidated in the future. Permitting or licensing laws that give unfettered discretion to police chiefs over who can have or carry a firearm are troublesome, and open the door to arbitrary determinations. Constitutional rights shouldn't be subject to anyone's discretion. But even if that type of law is invalidated, almost all other sorts of gun control laws seem destined to survive.

Maybe McDonald will "supersize" the right to bear arms by applying it to the states. But the effect on gun control is likely to make this landmark case little more than a small fry.

[Image via slimmer_jimmer.]

Yesterday, the Supreme Court heard oral argument in the latest big gun case, McDonald v. City of Chicago. The Court will decide whether the individual right to keep and bear arms recognized in 2008's D.C. v. Heller extends to the states. I was at oral argument and there seemed to be two big winners: gun rights advocates and gun control advocates.

The gun rights folks, like the NRA, seemed poised to win the case. Of the five Justices who voted with the majority in Heller, all appeared to be inclined to hold that the right to bear arms is a "fundamental" right such that it applies to state laws. (Well, not all of the five: Justice Clarence Thomas said nothing, extending his streak of silent oral arguments that dates back to 2006.)

Just like in the Heller oral argument, Justice Anthony Kennedy, the swing vote, showed his cards. "If [the right to bear arms is] not fundamental, then Heller is wrong, it seems to me." Chief Justice John Roberts said, "I don't see how you can read Heller and not take away from it the notion that the Second Amendment, whether you want to label it fundamental or not, was extremely important to the framers in their view of what liberty meant."

As Paul Clement, representing the NRA said, the question of whether the right to bear arms was fundamental or not was "remarkably straightforward." The fact that Clement was there at all was a surprise. The NRA was not formally a party to the suit. More striking still was that Clement was representing the NRA. After Clement, then serving as Solicitor General, filed a brief in Heller suggesting that D.C.'s handgun ban might be constitutional, gun rights activists branded him a traitor. Now he is their lawyer.

The more interesting set of questions about incorporation came from Justice John Paul Stevens, who asked repeatedly why the right should apply in exactly the same way to federal laws, on the one hand, and state laws, on the other. "Why does this incorporation have to be every bit as broad as the Second Amendment itself," he asked. He harkened back to the second Justice John M. Harlan's view that incorporated rights might impose different limits on the federal and state governments. Justice Harlan proffered this view repeatedly during his tenure, especially in obscenity cases. Courts, he argued, should treat federal speech restrictions less leniently than similar state restrictions. Federal laws apply nationwide and thus inhibit experimentation, whereas state laws impact a smaller population. The federal government is also one of limited powers, so some issues aren't appropriate for national regulation even if they are appropriate for state regulation.

Incongruent treatment of federal versus state laws never took off. Even since the mid-1950s, the Court has virtually ignored which level of government is behind a law restricting fundamental rights, be it speech, religion, or privacy. But the question is a good one. Should all levels of government be treated the same? Aren't there institutional differences between different governmental actors that should be accounted for in constitutional jurisprudence? The last time the Court considered this question was in the context of affirmative action. There, the Court held in Adarand Constructors v. Pena that federal and state laws should be treated exactly the same.

In some empirical studies of constitutional law decisionmaking, I found that federal courts often treat state and local laws differently than federal laws. In a large study of every federal decision applying strict scrutiny over a fourteen year period, I found that the best predictor of whether a law would survive that demanding standard was the identity of the governmental actor behind the challenged law. Federal laws survived far more often than state or local laws, even though the courts say they are applying the same standard. The effect is especially pronounced in free speech cases. A separate study I did of core free speech cases found that federal laws survived in over 55% of the cases, state laws about 24%, and local laws only 3%.

Note that my findings were precisely the opposite of what Justice Harlan suggested. Courts appear to be more hostile to state and especially local laws than they are to federal laws. There may be good reasons for this pattern. Federal laws are usually vetted by many different interest groups, congressmen have large staffs with good lawyers, and every law must satisfy a heterogeneous national constituency. State laws, and especially local ones, often are enacted without any vetting by interest groups and lawyers, and the demographics are often homogenous rather than diverse. If that is right, then Justice Stevens' proposal about the Second Amendment had it backwards. Courts should be more skeptical of state and local gun laws, not more deferential to them.

So gun rights advocates are likely going to win on incorporation.

Then why do I still say that gun control advocates are also seemed to be big winners?

[Part II of  "Supersizing the Second Amendment?" was subsequently published here. Image via barjack.]

Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

Ohio became the first state to adopt the one-drug method of lethal injection after the botched execution of Rommel Broom. In Broom's case, executioners tried for hours to find an accessible vein, prompting Gov. Ted Strickland to call off the execution. Ohio then made the switch to its one-drug injection, which has since been used in carrying out death sentences of three inmates. Ohio is currently on pace to challenge Texas as the state executing the most inmates in 2010.

[Image via Dirty Bunny.]