June 2010

  • June 2, 2010
    Yesterday's Supreme Court opinion further weakening Miranda protections highlights, what University of Maryland law school professor Sherrilyn Ifill says is a troubling aspect of the legal profession, which has come to be dominated by a prosecutorial mindset. Like other commentators, Ifill notes that the 5-4 opinion in Berghuis v. Thompkins "reflects our legal system's sharp tilt in favor of the prosecution."

    The slim majority concluded that it is not enough for criminal suspects to remain silent to invoke their right to remain silent; they must speak up to do so. Writing for the majority, Justice Anthony Kennedy said that suspects must tell interrogators that they want to remain silent before their rights are raised.

    "So police officers may now interrogate detainees for hours on end - no limit is suggested by the court - and so long as the detainee does not use the magic words that expressly indicates a refusal to answer questions or the desire for an attorney, any words uttered - no matter how few - may be used against him," Ifill writes in a post for The Root.

    Unlike former Supreme Court Justice Thurgood Marshall, none of the current Supreme Court justices have experience defending criminal suspects. So, Ifill notes, it is "ironic that the strongly worded dissent comes from Justice Sotomayor - a career prosecutor." Yet Sotomayor's "hands-on experience with criminal prosecutions, fully on display in her real-world understanding of the pressures of interrogation in custody and the incentives of police that she articulates in her dissent, demonstrates the importance of having justices on the Supreme Court whose practical experience can inform the court's approach to criminal cases."

    But the decision reflects a troubling trend in the legal profession, Ifill concludes:

    The highest echelons of the legal profession have been dominated by former prosecutors. There are currently three former prosecutors serving on the Supreme Court (Sotomayor, Samuel Alito and Stephen Breyer). Justice Marshall is the last Supreme Court justice who devoted a large part of his practice to criminal defense work. Criminal defense attorneys are almost never included on Supreme Court shortlists, despite the fact that some of the most prominent and accomplished lawyers in the profession, like Bryan Stevenson, have devoted their lives to defense work.

  • June 2, 2010
    Guest Post

    By Anthony F. Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
    Wielding the Eighth Amendment as a sword, the Supreme Court in Graham v. Florida outlawed as "cruel and unusual" punishment the imposition of life without parole sentences for all persons convicted of non-homicide offenses when they were juveniles (17 and younger). The Court held that life sentences for juveniles who do not kill violate the Eighth Amendment unless such juveniles have "some meaningful opportunity" to seek release by demonstrating rehabilitation and reform.

    Terrance Jamar Ghaham was 17 years old at the time he violated his probation on an armed burglary offense. He was sentenced to life imprisonment by a trial judge who concluded that Graham was incorrigible despite recommendations of limited term sentences by the Department of Corrections and the State prosecutor. Since Florida had abolished its parole system for all crimes, the life sentence left Graham with no opportunity for release for the rest of his life barring executive clemency. Graham's Eighth Amendment challenge to his sentence was rejected on appeal to the Florida District Court of Appeal, which concluded that Graham was "incapable of rehabilitation." In an opinion by Justice Kennedy, the Supreme Court reversed, finding such sentences so disproportionate and rare that they could not bear the weight of the Eighth Amendment.

    That the Eighth Amendment's ban on cruel and unusual punishments extends to prison sentences has been treated as settled law for 100 years until the appointment of the current crop of arch-conservatives to the Court, led by Scalia and Thomas, who, joined by Justice Alito, dissented in Graham. Their view is that the original meaning of the Eighth Amendment was limited to outrageous methods of punishment such as torture and did not extend to the proportionality of prison sentences, which, according to their theory, was left to the limitless discretion of State and federal legislative bodies. The majority in Graham takes a quite different approach. In a complete rejection of the dissenters' rigid and narrow reading of "cruel and unusual punishments," the Court reaffirms once again that "courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.'" Inherent in this process is an inquiry into "proportionality," which is "central to the Eighth Amendment."

  • June 2, 2010
    The federal court considering a challenge to California's Proposition 8, the anti-marriage equality ballot measure, should and need not issue a sweeping opinion that touches on broader constitutional questions, writes Professor Rebecca L. Brown in a recently published ACS Issue Brief.

    Instead, Brown, a constitutional law expert and professor at the University of Southern California, Gould School of Law, says the U.S. District Court for the Northern District of California should fulfill "the best expectations we have of the federal judicial role, to resolve the case on strong, unassailable, time-honored, and yet narrow, grounds. The result would be that same-sex couples in California would benefit from the ruling, because it would be very precisely tailored to the unique facts of the case."

    These unique circumstances surrounding the California controversy in Perry v. Schwarzenegger should compel the federal court to leave for other day and other forums broader questions, such as whether the U.S. Constitution "requires states to permit marriage between people of the same sex."

    But California's Proposition 8, as already noted by the California Supreme Court, has a stigmatizing effect on gay couples and essentially sets them apart as second class citizens, Brown maintains in her Issues Brief.

    Based on established Supreme Court equal protection jurisprudence, the federal court should conclude that the state has arbitrarily carved out a proportion of the population for burdensome treatment, Brown writes.

    See Brown's Issues Brief, "The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role," here.

  • June 1, 2010
    There's an odd - and therefore probably not surprising - proclivity among some Tea Party members to bemoan the Constitution's 17th Amendment, and call for its repeal.

    David Firestone, in an op-ed for The New York Times, notes for us that the 17th Amendment was added to the Constitution in 1913 and provided "for the direct popular election" of U.S. senators. Before the amendment was adopted, state legislatures, "filled with men of property and stature," chose senators, Firestone writes.

    Beyond some Tea Partiers, is there a groundswell of support for dumping the 17th Amendment and allowing state legislatures to select senators?

    As Firestone notes, "A modern appreciation of democracy - not to mention a clear-eyed appraisal of today's dysfunctional state legislatures - should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights."

    Firestone concludes:

    It may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism - including everything from the minimum wage to the new health care reform law.

    Not enough Americans vote. But, fortunately, almost all like the idea that they can, a thoroughly modern sentiment that will confine this elitist notion to the fringes. That means Tea Partiers who are infuriated by the health care law and everything else now going on in Washington can no longer look to James Madison for a bailout. Their best remedy is the one they seem to spurn: a vote at the ballot box.

  • June 1, 2010
    Most states and local governments are counting prisoners in creating election districts, maintains a report released today by the NAACP Legal Defense and Educational Fund, Inc. (LDF).

    In "Captive Constituents," the LDF notes that "most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there."

    "This practice is known as ‘prison-based gerrymandering,' and it distorts our democratic process by artificially inflating the population count - and thus, the political influence - of the districts where prisons and jails are located," said John Payton, LDF president and director-counsel, said in a press statement about the report."

    The full report is available here.