June 2010

  • 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.

  • June 1, 2010
    Among its five decisions issued today, was one adding to requirements surrounding the invocation of Miranda rights. The Court ruled 5-4 that suspects must tell police or interrogators that they want to remain silent in order to invoke the Miranda protections. In analysis for SCOTUSblog, Lyle Denniston said today's opinion, another interpretation of the Court's 1966 opinion in Miranda v. Arizona, "decisively tilted the warnings procedure toward the police."

    Denniston continued, "the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police - that is, to invoke a right to silence - he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect's continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess."

    The decision in Berghuis v. Thompkins arose from a Michigan case where the suspect Van Chester Thompkins remained mostly silent through a lengthy police interrogation before implicating himself in a murder. He appealed his case arguing that his statements should not have been admissible because he had invoked his right to remain silent, by largely doing so, The Associated Press reported.

    Writing for the majority, Justice Anthony Kennedy concluded that Thompkins did not properly raise his Miranda rights. "Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.' Here he did neither, so he did not invoke his right to remain silent."

    Justice Sonia Sotomayor lodged a dissent blasting the majority for what she described as an inconsistent reading of precedent.

    "Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

    For more information on all of the Court's decisions see SCOTUSblog here.

    The high court also added a case to its forthcoming term. In Mayo Foundation v. United States, the Court will consider whether medical residents are students or employees for purposes of collecting Social Security taxes, The AP reports.