What Does the Constitution’s Text Say About Juvenile Life Without Parole Sentences?

Yesterday, the much-awaited and highly-anticipated oral arguments in Sullivan and Graham took place at the Supreme Court.  The transcripts of those arguments are available here and here.

Though the Justices focused much of their attention on the arbitrariness that line-drawing inherently entails (as well as some procedural problems presented in Sullivan), little attention was given to the text of the Eighth Amendment.  Professor Berman at Setencing Law and Policy has this timely post on his blog.  I wanted to share a sizable portion of it as food for thought:

I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan’s punishment under these circumstances is “cruel and unusual.”  

Part two of the textual analysis seems easy: Joe Sullivan’s sentence is surely “unusual.”  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references “unusual” (as opposed to “unique”) punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan’s sentence satisfies the second prong of the Constitution’s punishment prohibition.

The claim the Joe Sullivan’s sentence is also “cruel” could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more “cruel” than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

Juvenile Life Without Parole Cases Argued Today

This morning, the Supreme Court heard oral arguments in Graham v. Florida and Sullivan v. Florida.  These cases have received lots of attention in the media.  Several articles, op-eds, and editorials are linked to on this Blog’s Twitter sidebar.

Oral argument transcripts should be available later today, and we will certainly review them and provide our own impressions.  In the meantime, I wanted to share something from an Atlanta Journal & Constitution Op-Ed that struck me as fairly powerful:

What is striking about these cases, Sullivan v. Florida and Graham v. Florida, is they entail the permanent denial of freedom for juveniles who, though they committed serious crimes, did not commit homicides. Such sentences for juveniles express more than just the view that these children are beyond rehabilitation. In effect, they are a societal admission that we do not believe we are capable of teaching children to do better. When we sentence a 13-year-old or 17-year-old to life in prison without any chance of parole, we not only convey our views on the child’s actions, we also make a powerful statement about ourselves. Such a penalty, when given to a child, says we do not believe that child can ever change. And because it is our job as adults to mentor children, we are conceding that we don’t have confidence as a society that we will provide the necessary guidance to ensure that child becomes a productive member of society. Why do we have such little faith in ourselves, and our children?

For a look at some of the arguments at play, check out our earlier posts on the subject here and here.

More Scrutiny Needed in Texas, Where Death Penalty Continues to Run Rampant

Sorry for the radio silence the past few weeks.  Things have ramped up at work for all of the bloggers here, but we hope to reconnect with the blog more fully very soon.

In the meantime, I wanted to bring attention to this AlterNet piece.  Most importantly, it points out something about the Willingham saga worth repeating here:

Perry’s role in this continuing injustice should be cause for a national uproar at least as big as the one that attended Mark Sanford’s dalliance in Argentina or Elliot Spitzer’s patronage of prostitutes. What could be more sordid than hushing up an illegitimate state-sanctioned killing? What more obvious abuse of power exists? Yet one can easily read the country’s major papers and faithfully watch TV news and barely hear a word about what’s happening in Texas.

Why this is not an issue of national importance is a question that frustrates me every day.  But, the death machine keeps working in Texas.  Our friend at StandDown notes that:

Texas carried out its 20th execution of 2009, tonight in Huntsville.  It was the state’s 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation’s post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

For more on the Willingham/Perry issue, check out our prior post here.

Criminalizing the Vulnerable: Asylum seekers an easy target

Since 2001, ‘asylum seeker’ has become a dirty word in Australia. ‘Boat people’, ‘illegal immigrants’ and (used far less frequently) ‘refugees’ are terms used interchangeably to refer to people arriving on Australian shores by boat in an effort to seek asylum. And now ‘terrorist’ has been added to the list.

West Australian backbencher Wilson Tuckey recently stated that terrorists could be masquerading as asylum seekers on the unauthorised boats that reach Australian waters. Fear-mongering has been the most successful policy used by Australian politicians to resist influxes of ‘boat people’ over the last decade since the Child Overboard incident.

While Tuckey’s comments have sparked outrage amongst human rights groups and received backlash from the Prime Minister, there is no shortage of Australian politicians, media outlets and citizens who share his fears. Public debate has once again flared over how to deal with asylum seekers.

There is one interested party who often remains almost entirely silent in the midst of these recurring debates: those people seeking asylum. Locked in detention with no materials to identify who they are, no ensured legal representation and little means of communication with the outside world, only statistics can speak for these people.

So GetUp, a grass-roots community advocacy organization that allows Australians to get involved in holding Australian politicians accountable, has put together a short Myth-busting Factsheet to educate us Aussies on how big of a ‘threat’ asylum seekers really are. It’s a short but interesting read: http://www.getup.org.au/files/campaigns/asylum_myths_factsheet.pdf.

Perhaps the most compelling myth-busting fact is that those ‘queue jumpers’ arriving by boat are actually the most likely to be genuine refugees:

There is also data to suggest that people who arrive by boat are more likely to be legitimate refugees. Of asylum claims made by people who arrive by aircraft, 55% are rejected. Only 2-15% of claims made by people arriving by boat are denied.

Yet the war of words continues to criminalize these silent few who come with nothing, asking for help. It can only be hoped that researched and rational thinking on this subject speaks with a louder voice than the likes of Wilson Tuckey.

Court-Watching: Smith v. Spisak

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Spisak case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

The State’s cert petition to the Supreme Court raised two issues for the Court to resolve: (1) Whether the Sixth Circuit’s ruling that the trial court’s jury instructions violated Mr. Spisak’s constitutional rights contravened the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) Whether the Sixth Circuit’s ruling that the defense lawyer’s closing argument rendered his assistance ineffective contravened AEDPA.  When the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.  See Hudson v. Spisak, 128 S. Ct. 373 (2007) (noting that three liberal Justices – Justice Stevens, Justice Ginsburg, and Justice Breyer – would deny the petition for writ of certiorari).  By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.

To the extent facts about offenders influence how courts view the legal issues presented in a case, Mr. Spisak has effectively made himself as unsympathetic as possible.  The State’s brief on the merits highlights some of the key facts from the notorious Ohio case:

Respondent Frank G. Spisak, Jr. killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. . . . He said that his actions were motivated by his hatred of gay people, blacks, and Jews, and he specifically targeted the campus of Cleveland State University. . . . During his days-long testimony, Spisak . . . identified Hitler as his spiritual leader. . . . Other cues during the trial reinforced the depravity of Spisak’s beliefs. Before trial, Spisak grew a moustache and shaved it to resemble Hitler’s. And on cross examination, after the prosecutor read into evidence a violent letter from Spisak that was laced with racist epithets, Spisak declared “HeilHitler” and performed the corresponding salute.

With these facts in the background, Richard Cordray, the Attorney General of Ohio, began his oral argument on behalf of the State.  He first addressed the Sixth Circuit’s ruling that the trial court’s jury instructions violated the rule set forth by the Supreme Court in Mills v. Maryland.  Justice Sotomayor immediately asked the first question, pointing out an oddity to the Sixth Circuit’s ruling:

JUSTICE SOTOMAYOR: Why? I — I have been trying to figure out why the State court would know in its decisionmaking that Mills commanded a different result when Mills was issued after the State denied its petition for rehearing.

MR. CORDRAY: It’s a bit of a conundrum, Your Honor, because Mills was issued after the Ohio Supreme Court’s decision here, but before it became final on direct review when cert was denied by this Court in March of 1989.

Kent Scheidegger over at Crime & Consequences elaborates on the conundrum here (http://www.crimeandconsequences.com/crimblog/2009/10/spisak-new-rules-and-justice-s.html), and appreciates the signal that Sotomayor may be willing to enforce AEDPA “vigorously.”

As the argument proceeded, Mr. Cordray explained why the State believes the Sixth Circuit’s ruling is a new extension of the rule enshrined in Mills.  One might wonder if Mills itself is in trouble with this Court, or if the Court will give a green light to states that want to stop the practice of instructing the jury about the effect of one juror holding out on a death sentence:

MR. CORDRAY: At the time, the instructions pushed the jury toward unanimity one way or the other. Do the aggravators outweigh the mitigators or do they not? Since that time, the Ohio Supreme Court as a matter of practice has been willing to go further and instruct the jury, or have the jury be instructed, that if a single one of you feels that the aggravators do not outweigh the mitigators, that will preclude a death sentence. But that has never been constitutionally required by this Court. It is an extension of Mills v. Maryland that has never been so held by this Court, and in fact is a source of a — of a significant overwhelming majority of circuits the opposite way.

The State’s argument proceeded on to the second issue – the defense counsel’s closing argument.  Based on the questions the Justices asked Respondent, it seemed that the State’s argument here was well-received by most Justices.

Mr. Michael Benza argued on Mr. Spisak’s behalf.  At the outset, Chief Justice Roberts and Justice Scalia jumped on his claim that the defense counsel’s closing argument constituted ineffectiveness assistance.  Even Justice Breyer seemed to endorse the trial counsel’s strategy to agree that his client was a cold-blooded and unsympathetic murderer, but argue that he is clearly mentally ill and therefore should not be executed:

JUSTICE BREYER: What would you have done? I mean, I’m — I’m not experienced in this. But I mean, I have heard the other side and I have read the argument. And it makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: I’m going to kill a lot more. He sounds totally bonkers. And — and he says to the jury, I can’t tell you that what he did was not aggravating; it was terrible. I can’t tell you that there’s anything here that should make you feel better about him; there is nothing. But we are a nation of people who are humane and our law says don’t put a person to death when he fills with his nuttiness that third prong, which is a lower standard of insanity than I had to meet. But it’s clearly met and here are the experts; I point to their testimony, and that’s what they said. So be humane.

In what seems to be a rare occurrence, Justice Scalia agreed with Justice Breyer, and went even further: “I thought it was a brilliant closing argument. . . . This was an extraordinary trial, and it seems to me that the — that the technique that — that counsel used to try to get mercy for this fellow was — was the best that could have been done.”

After Mr. Benza defended his position, he and the Justices were sidetracked for several minutes on an interesting question about AEDPA deference.  I explore this discussion below.  That peripheral discussion became so involved that Justice Ginsburg had to remind the Respondent that he had a limited amount of time: “Mr. Benza, you might want to use what time is remaining to deal with the other issue, which we haven’t talked about at all.”

On the Mills issue, Mr. Benza gave a straightforward answer to the timing conundrum originally raised by Justice Sotomayor:

Teague says that the decision for application of a newly established law or a new established constitutional rule is predicated on the denial of direct appeal, which in this case would be the cert denied by this Court of the direct appeal of the case, which happened in 1989, a year after the decision in Mills was handed down.

He then argued that the Ohio jury instructions were confusing because they would lead a reasonable juror to believe that there must be unanimity on the existence of a mitigating factor before it could be considered and given effect by any juror.

As this AP article points out, “most of the justices were skeptical of Benza’s arguments.”  There is little doubt about how this case will come out.

Although not central to the dispute in this case, Mr. Cordray raised a suggestion that later became the source of a major discussion between the Justices and Mr. Benza.  In arguing that appellate courts must give deference to trial court decisions under AEDPA, Mr. Cordray explained why the trial court’s summary disposition of the ineffective assistance claim warranted deference under the two-prong Strickland test:

If the court simply gives a summary affirmance or summary disposition and doesn’t specify which prong, I think the Court has to give deference under both prongs, because the alternative would be to give deference under neither prong, which is inconsistent with the — the AEDPA statement that we have to did defer to an adjudication on the merits by a State court.

Mr. Benza, however, argued that the trial court’s summary adjudication did not trigger AEDPA’s deference requirement:

MR.BENZA: We have no idea whether they decided that there was deficient performance, but no prejudice — that there was, in fact, deficient performance, but no prejudice, that this was not deficient because it was reasonable strategy. It is also possible that the lower courts were misapplying [the law].

I found this line of argumentation fascinating because it implicates the vast majority of decisions made by trial courts in habeas review.  Rather than give detailed reasons for their rulings, many trial courts deal with claims summarily.  I have always found it troubling that such cursory explanations become essentially unreviewable on appeal.  Apparently, the Respondent’s lawyer in this case agrees.  Justice Scalia does not, however:

JUSTICE SCALIA: When we — when you don’t know what a lower court has done, the rule is you assume the best, not the worst. Isn’t that the standard rule of review?

But, Mr. Benza elaborated on the problem as it applied to this case: “The problem that you have in that is, when you try to apply AEDPA to this particular claim, you don’t know how the state court, in fact, decided this case.”

Justice Breyer explained that the Respondent’s position has far-reaching implications:

JUSTICE BREYER: How — how does that work? Certainly, it’s a fairly common thing, that the defendant will make — let’s say, 20 arguments, maybe he would even number them. And it’s fairly common to find a court of appeals in a state that says, as to argument number 17, and then they characterize it, we reject that argument.

Mr. Benza took the (gutsy) position that:

MR. BENZA: I would — I think the issue then would become that, when a state court chooses to summarily deny, without evaluation, an explanation of the merits of the claim, that, when it comes to habeas review, the constraints of AEDPA are lifted.

The Justices took exception with this proposition, and worried that it would overburden lower courts to require that they elaborate on all of their decisions.  Yet, if giving reasons for rulings is the essence of providing justice, Mr. Benza’s proposition does not seem so crazy to me.

Court-Watching: Padilla v. Kentucky

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Padilla case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

According to his merits brief to the Supreme Court, the Petitioner, Jose Padilla, arrived in the United States in the 1960s and is a permanent resident here.  In 2001, Padilla was arrested and charged with felony trafficking in marijuana after he was pulled over with more than 1,000 pounds of marijuana in his commercial truck.  When he asked his defense lawyer if there were any immigration consequences to pleading guilty to the felony, the attorney said that he “did not have to worry about immigration status since he had been in the country so long.”  The crime, however, is a deportable crime that subjects Padilla to deportation.

In his petition to the Supreme Court, Jose Padilla raises the question of whether the Sixth Amendment right to the effective assistance of counsel protects him from his attorney’s misadvice.

The heart of the dispute is whether the Sixth Amendment right to the assistance of counsel in all “criminal” prosecutions includes a guarantee of effective assistance in advising the client on the collateral consequences of that prosecution.  In American law, immigration matters are considered ‘civil’ in nature, even though they can lead to deportation.  Here, the Petitioner argues that the current standard that governs ineffective assistance of counsel claims (Strickland) evaluates the misadvice claim based on if the counsel’s performance is deficient and prejudicial to the client.  The deficiency prong of the Strickland is met when the counsel’s actions are objectively unreasonable.  The State, however, argues that civil collateral matters fall beyond the scope of the Sixth Amendment, and that misadvice on collateral matters does not give rise to a claim of ineffective assistance.

In addition to the two parties slated to appear, the U.S. government made a (somewhat surprising) appearance.  Though the government supported ‘affirmance’ of the ruling below in favor of Kentucky, the argument demonstrated that the government did not support the Respondent’s legal reasoning.

Stephen B. Kinnaird of the firm Paul, Hastings argued the case for Mr. Padilla.  In a clear effort to pitch to the Roberts’ Court purported affinity for judicial minimalism, he began by articulated the “narrowest ground” for the resolution: “The narrowest ground on which this Court may reverse the Kentucky Supreme Court is to hold that mis-advice claims are cognizable under the Sixth Amendment.”  Justices Roberts, Alito, and Ginsburg all immediately asked questions about what conduct this principle covers – for example, does it extend to advice on whether the defendant should take the stand?  The concern is how the Court should decide which consequences receive Sixth Amendment protection and which do not.  Mr. Kinnaird said, “Your Honor, the issue here is simply the legal standard that applies to any of — any of these claims, and it would be the same two-part standard under Strickland v. Washington.”

Justice Kennedy raised a distinct concern – he worried that the court had no means to insulate its proceedings from ineffective assistance.  Drawing on principles in contract law, he asked whether the court could require the defendant to assume the risk of collateral consequences by including a warning in the colloquy that happens when the defendant pleads guilty:

You take the risk of any mis-advice, any misunderstanding, with respect to collateral conduct. That’s your risk, and it’s part of the guilty plea. If we said that, would that foreclose this kind of argument in your case?

Kinnaird maintained that the Sixth Amendment right to counsel put unique duties on the lawyer that do not similarly bind the trial court.  This response didn’t seem to satisfy Kennedy, who said, “Well, then there is no way the government or the court can protect itself against the — these consequences . . . .”

Justice Alito raised the last major strand of concerns with the Petitioner’s argument.  He worried that public defenders who handle hundreds of cases each year will have trouble remembering exactly what advice they gave their clients when they are hauled in to testify on ineffective assistance hearings.  Alito seemed particularly worried in the context where the defendant decided to plead guilty because there is no trial proceeding to refer to.  Mr. Kinnaird insisted that these proceedings would look like other Strickland hearings.

After the Petitioner closed, Michael Dreeben appeared on behalf of the United States.  He took the position that the Sixth Amendment does not impose upon defense counsel a duty to advise his client about collateral consequences, but that “mis-advice given by defense counsel on a material collateral consequence to a defendant” is a different concern. In a back-and-forth exchange with Dreeben, Chief Justice Roberts probed this position.  He posed the following question:

CHIEF JUSTICE ROBERTS: Won’t — won’t your test result in a net loss to defendants? I assume if this is adopted as a rule, the affirmative misrepresentation rule, then every lawyer is going to say what you said they should say: I’m here for the criminal case; I’m not telling you anything about anything else, as opposed to saying, sitting down and saying: Here’s what you need to know. And in most cases we expect the lawyer to do a professional job. If you have got an alien, he is going to tell him: Well, what — you know, this will cause you to be deported. Instead, every lawyer now is going to say: I’m not giving you any advice about anything else.

Dreeben responded,

No, I don’t think that it will lead to sort of defensive malpractice type of counseling where lawyers do not do the job that they feel that they should do, and experience tends to support that.

Alito riffed off of the Chief Justice’s question, arguing that indigent immigrant defendants will meet with public defenders who will tell them to go hire an immigration lawyer to answer their immigration questions.  Essentially, the conservative justices tried to spin economic arguments that undermined the liberal concern with the well-being of indigents on their own terms.

Once Mr. Dreeben finished on behalf of the U.S. government, Mr. Wm. Robert Long, Jr. argued for Kentucky.  The questions to the Respondent noticeably came from the ‘liberal’ Justices.  Justice Sotomayor – who had been silent until this point – fired the first question.  At the same time, she demonstrated her understanding of the considerations at play in a criminal prosecution:

Counsel, a plea is something more than: I’m guilty. It is a strategic decision not to put the government to its burden of proof. Your definition of voluntariness suggests that there is only one component to it, do I know what my rights are, as opposed to, do I know what they are and making an informed decision to waive those rights.  Your articulation of the rule leaves out the second component: Am I making an informed decision to waive those rights?

Justice Breyer attempted to corner Mr. Long by getting him to concede that had he been the lawyer and knew his client would be deported, he would have given informed his client.  As usual, Justice Scalia took the chance to clash with Breyer at oral argument:

JUSTICE SCALIA: Well, but assuming it’s a norm and that all lawyers do it [tell the client of the consequences], including those that know diddly about immigration law, the norm is to give bad advice. And here — here the norm was met, right?

After this line, Justices Stevens and Ginsburg asked a few more questions about what the State means when it says the Sixth Amendment does not apply to “collateral” consequences.  The bench then cooled, and the State finished the final few minutes of its presentations with relatively few questions.

In his rebuttal, Mr. Kinnaird may have made a statement that could snipe one of the conservative Justices and win a narrow opinion in his client’s favor:

CHIEF JUSTICE ROBERTS: So you can make a claim when the lawyer disavows the knowledge on the question? In other words, he is trying to be helpful, but he also warns the defendant.

MR. KINNAIRD: Yes. Under the broader rule, you would have a Strickland claim. It would be very hard to prevail on that because you would have to show that it was unreasonable for him not to investigate . . . .

Essentially, the Petitioner’s rebuttal was a timely reminder that Strickland is not exactly the easiest standard for defendants to meet.  Maybe that reminder will be enough to satisfy those Justices concerned that the floodgates to ineffective assistance will be opened if the Court recognizes that the Sixth Amendment imposes some obligations on defense attorneys to understand collateral consequences of a criminal prosecution.

My initial take from the oral argument was the same as Adam Liptak’s.  As he wrote in this piece in the New York Times:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

Others have also commented on the oral argument.  SCOTUSblog’s take is here; law.com’s review is here.

I find this case extremely fascinating because it has implications in a number of important contexts:

1. It directly implicates the scope of the Sixth Amendment right to counsel.  After listening to Chief Justice Roberts emphasize the importance of the attorney-client relationship (in the corporate context) in the Mohawk oral argument, I wonder how this Court will treat that same relationship in the criminal (and collateral) context.
2. This case might turn out to touch on how we think about the rights of immigrants and whether we believe they can access a panoply of rights in the U.S. Constitution.
3. Padilla could also have serious implications for immigrants in new communities in the U.S.  As immigrant populations continue to grow in parts of the country that are historically unfamiliar with cultural diversity, a ruling in Mr. Padilla’s favor will create a stir for local defense bars.  On the other hand, if the Court rules in Kentucky’s favor, immigrants will become more vulnerable to unfair policing practices that could result in their deportation.
4. The outcome in this case will also give insight into whether the Constitution entails some notion of client-centered advocacy.  If the Court recognizes that the Sixth Amendment right to effective assistances governs Mr. Padilla’s claim, there will be (at least a limited) constitutional command for client-centered advocacy that recognizes that “collateral” issues have constitutional significance.
5. Finally, a ruling in Mr. Padilla’s favor could cast some official doubt on the farcical notion that immigration proceedings are merely civil/administrative in nature.  It is this notion that underpinned the Supreme Court’s ruling in INS v. Lopez-Mendoza that an immigrant does not have the right to counsel at deportation proceedings.  Though we may never see that decision revisited, we could see an emergent recognition that immigrants deserve more serious protection under our Constitution and laws.  (For more on the civil/criminal distinction as applied to immigration cases, check out this post).

Is There A Free-Standing Actual Innocence Claim?

See Previous Post: The Next Round for Troy Davis (discussing background of SCOTUS action on Troy Davis’ Original Writ Application)

On August 29, Judge William Moore of the United District Court for the Southern District of Georgia (who is on the receiving end of the Supreme Court’s transfer of Troy Davis’ Original Writ Petition) ordered Georgia to respond first (within 45 days) and Davis to respond (within 45 days of notice of Georgia’s filing). Among the issues to be addressed:

In his Petition for a Writ of Habeas Corpus, Petitioner has asserted a free-standing actual innocence claim. (Doc. 2 at 28-32.) The Supreme Court has never explicitly held that such a claim is cognizable under the Constitution, much less explicitly determined the appropriate burden of proof in such a case. See House v. Bell, 547 U.S. 518, 554-55 (2006), Herrera v. Collins, 506 U.S. 390, 417 (1993) . Accordingly, Petitioner and Respondent should be mindful to address not only the merits of this claim, but also whether such a claim is constitutionally cognizable and, if so, the appropriate burden of proof.

Georgia filed its response on Oct 9th. The State breaks into three categories its argument that there is no such thing as an actual innocence claim on federal habeas review:

1. The Court has not recognized such a right (which falls easily into the “no shit, Sherlock” category)

2. The parole board heard Davis’ claim and did a thorough job of considering it (including hearing from witnesses, etc)

3. Georgia has an independent process for evaluating actual innocence claims (unlike in Herrera) and Davis was able to avail himself of that process–the Extraordinary Motion for a New Trial– at any time.

…………..

This seems a wholly insufficient response. The first and second points are facially unpersuasive (I doubt that even the State is convinced by its argument that a parole board hearing is equal to a judicial hearing). The third point is more interesting. If a state were to provide co-extensive process, then I think there is a good argument to be made that federal courts would owe the same level of deference as under AEDPA. But the Extraordinary Motion for a New Trial employs procedural defaults (strict definition and timing requirements based on availability  of “new evidence”, an unfavorable view of recantation evidence, and, in this case, the possibility that an evidentiary hearing is not granted despite what has to meet any threshold for evaluation of new evidence).  But none of this answers the question of whether an “actual innocence” claim exists under the 8th Amendment.

I would love discussion on this issue (as it is necessarily amorphous and inevitably encompasses several competing considerations (individual fairness, finality, federalism, systemic integrity, etc.). Here are some knee-jerk preliminary thoughts:

1. Maybe there should be two standards. If a defendant can demonstrate his guilt phase innocence based on new reliable evidence by showing that no reasonable juror could find him guilty then he gets a new trial (this is the Jackson standard in habeas, but there is room to play with the would/could distinction. Would might be more accurate as it is closer to Strickland and Brady than to the Jackson insufficiency standard).

But, since death is different in kind than any other punishment and the possibility of future exonerating evidence is irrelevant once the person is executed(think Willingham), a showing of innocence (innocence of guilty, not innocence of the death penalty) by  clear and convincing evidence (as opposed to the more probable than not under Schlup or the “no reasonable juror” standard that should get you a new trial) then he cannot be executed.

It seems to me that this compromise balances the tensions between 1. finality 2. the difficulty in re-trying old cases with stale evidence 3. the individual’s liberty interest and 4. society’s confidence in the legitimacy and accuracy of the criminal justice system.

The language in House demonstrates that the Court believed House to be far away from any possible Herrara claim, but it might be that the best standard for not being executed (as opposed to getting a new trial) is  the “probably innocent” standard.

2. I like Souter’s argument in his dissent in Kansas v. Marsh, as I think it helps to rebut the argument that innocence has never been an independent 8th Amendment issue.

We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and Stevens, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.

3. My guess is that the historical landscape is distorted because of (1) the short time between conviction and execution and (2) the lack of the science, etc, to determine innocence after the fact. But if we look to the purpose animating the “better to let 10 guilty go free” or the “beyond a reasonable doubt standard” we find that the Framer’s had an abiding interest in not letting an innocent person be executed…. but they felt that (as we did until recently) any error came from imperfect process and so cementing solid constitutional procedures and protections would eliminate risk. But we know now that isn’t true. So if we abstract from the purpose of protecting the innocent we likely would find that executing the innocent (even those who have had a perfect trial) would defy original intent.

4. All that said, I wonder if there were cases at Common Law or in England where someone confessed to the crime after the trial and conviction of someone else. Perhaps there is some authority that contradicts the historical arguments made by Rehnquist, etc..

5. The most appealing counter-argument is the “serious disruption to the federal courts” that freestanding innocence claims will have. But I doubt it pans out. First, in the death penalty context, there are only roughly  3,200 death row inmates in the state and federal system combined. Out of these inmates, a sizeable percentage have (1) (small percent) plead guilty, but received death by 3 judge panel or penalty jury or (2) (big percent) admit guilt at trial and ask for remorse. So really..what rush to the courthouse. And if the Court adopts Schlup as the threshold for even hearing the claim, then are we really to expect more of an outpouring of petitions to federal courts than we see now under Schlup? And won’t most of them be easily disposed of anyway? Schlup discusses the minimal disruption in actual innocence cases. Also finality claims are at a low in those context and individual rights claims at a high.

I’ll end with these words from the Herrera dissent:

The execution of a person who can show that he is innocent comes perilously close to simple murder.” The dissent also talks about how Courts cannot complain about only having affidavit evidence when they truncate review by not holding an evidentiary hearing. I think this is from Schlup, but could be important in terms of casting doubt on the remaining testimony (based on physical impossibility evidence, etc, not presented at trial but that could be presented at an evidentiary hearing now that the science exists):  ”In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.

Four questions:

(1) Is “innocence” mentioned anywhere in the AEDPA legislative history?

(2) Do any other questions recognize free-standing innocence claims?

(3) How many states have recognized an actual innocence claim based on the federal (or their respective State) constitution?

(4) Is there reliable polling data on how the public feels about allowing actual innocence claim without procedure defaults, etc?

Abolitionist Australia proves indecisive on capital punishment

When people down here in the South ask me why I have come all the way from Australia to work in an anti-death penalty law office, I reply that I’m really interested in the work and that I can’t do it in Australia since we don’t have capital punishment. Once and a while this conjures a surprised and even shocked response – “Australia doesn’t have the death penalty?”

The city of Melbourne in south-east Australia held a rally on October 10 for the seventh World Day Against the Death Penalty. Two thousand people attended. This may sound like a meager number, but keep in mind two things: 1) Australia’s population is pretty small and 2) there is little reason for people there to care about capital punishment at all since it no longer affects them… right?

But capital punishment is still a live issue in Australia. What’s more, Australia’s position on the death penalty is far from clear cut.

In 2003, then Prime Minister John Howard publicly called for a national debate on the reintroduction of the death penalty following the handing down of a death sentence to one of the Bali Bombers. Howard suggested that in the climate of the War on Terrorism, it was a much needed discussion that should take place in parliament.

In times of peace there is no question that, even when popular opinion does not reflect it, Australia is an abolitionist nation. As one of the 31 sponsors of the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, Australia has made an international statement that it does not support the use of capital punishment in any context. Yet when heinous acts are perpetrated against Australian citizens, particularly offenses of terrorism, Australia cannot seem to take a firm stand.

In fact, the Australian Federal Police (AFP) have been involved in a number of cases in recent years that have resulted in the handing down of death sentences. Prime Minister Howard authorised the AFP to help gather evidence and statements and to subpoena witnesses to assist in the conviction and sentencing to death of the Bali Bomber, Amrozi. Likewise, in the case of the Bali Nine – which involves nine Australian drug mules caught in Indonesia, three of whom were sentenced to death in 2006 – the AFP assisted the Indonesian authorities in the Nine’s arrest and conviction. The AFP’s co-operation with Indonesian police in this way violates Australia’s international obligations to work towards the worldwide abolition of the death penalty, as was recognised by the UN Human Rights Committee in the case of Judge v Canada:

For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.
Judge v Canada (2002) UN Doc CCPR/C/78/D/829/1998, [10.4]

What’s more, Howard’s position on the Bali Bombers has endangered Australians fighting death row abroad: when petitioning for an Australian’s life in Singapore, Howard’s earlier remark that he didn’t see why ‘anyone would consider execution barbaric for the Bali Bombers’ was thrown back in his face. The Australian was hanged.

The Bali Nine case is particularly worrisome since it involves non-violent drug offenses and the imminent execution of Australian citizens – yet even the current Australian government seems reluctant to try to bring them home.

The father of Scott Rush, one of the Bali Nine, recently launched a petition put forward by the Australian Services Union and the Victorian Committee of Make the Death Penalty History that calls for the national outlawing of capital punishment in Australia and for Australians convicted of capital offenses overseas. In August, Australia’s federal Attorney General also publicly called for capital punishment to be nationally outlawed.

In a time of ‘peace’, there may be enough parliamentary support to push through such a bill if a politician is willing to take up the cause. But anti-death penalty advocates know time is short. In the event that a terrorist attack reaches Australian shores in the next few years (which, we are reminded, is a real possibility) then there is reason to think that Australians might see capital punishment as the only appropriate response.

This Week at the Supreme Court

This Tuesday and Wednesday, I’ll be watching four oral arguments at the Supreme Court (assuming I can get in line earlier enough both mornings).

Professor Berman the Sentencing Law and Policy blog notes in this post that it will be a big week for sentencing followers:

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

• Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea
• Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case

To be argued Wednesday, October 14:

• Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in “big” ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.

Court-Watching: Johnson v. United States

I had the opportunity to sit in on the second oral argument that the Supreme Court heard this Tuesday: Johnson v. United States.  For this post, I’ve relied on my own notes from the argument as well as the transcript posted on the Supreme Court’s website.

The federal Armed Career Criminal Act (ACCA) provides that a person who violates section 922(g) of the Act who “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another . . . shall be . . . imprisoned not less than fifteen years . . . .”  The State introduced three prior convictions against Curtis Johnson to enhance his sentence to the 15-year minimum under ACCA.  Johnson challenged the State’s use of a third-degree felony simple battery as a partial basis for his sentence enhancement.  Under Florida law, a simple battery can include “any intentional touching, no matter how slight . . . .”  State v. Hearns, 961 So. 2d 211, 218-19 (Fla. 2007).  The question presented to the Supreme Court is whether Johnson’s simply battery conviction qualifies as a “violent felony” under ACCA.

The oral argument was primarily shaped by the questions posed by Justices Breyer and Scalia.  Justice Breyer appeared to think that ACCA was designed to include the Florida simply battery as a “violent felony.”  Scalia, on the other hand, was extremely skeptical that the statute would qualify the slightest conduct as a violent crime.

Ms. Lisa Call appeared on behalf of Mr. Johnson.  She summarized her client’s legal position succinctly:

Mr. Johnson’s conviction for battery in the State of Florida can be sustained by the slightest contact. Such a conviction does not qualify as a violent felony under the Armed Career Criminal Act. A violent felony means one that has as an element the use, attempted use, or threatened use of physical force against the person of another. Physical contact is not the same as physical force.

Though Ms. Call agreed with Justice Scalia’s suggestion that the total number of cases that actually entailed the consideration of mere touching as a violent felony is irrelevant, Breyer pushed back:

JUSTICE BREYER: I would say that’s certainly wrong under our cases. I mean, I would have thought that the reason that burglary, for example, is a violent crime is not because in every instance there is a risk of physical harm, because in the mine run of instances there is a risk of physical harm, and I thought we said that in at least three cases.

Breyer’s underlying concern was that the Petitioner was asking the Court to interpret Congress’s words differently in the first subsection of the Act than it does in the second subsection.  Ms. Call explained why Mr. Johnson’s interpretation is viable:

MS. CALL: Your Honor, the reason why is that Congress was directing in the first prong those crimes that were directed against persons and would be defined by their elements. In the second prong Congress did list out four enumerated offenses that they thought were committed, A, by career criminals, and, B, that created that substantial risk. In the first part it does not talk about risk to others. It’s that offender’s conduct and an elements-based test.

Breyer was not convinced:

So if we interpret 1 a different way, we are going to take outside the statute the very things that Congress wanted inside; and, if we interpret it the same way, I think we would get to the right result.

When Justices expressed the concern that exempting the Florida simple battery statute from ACCA’s reach would “dramatically” reduce the number of cases that ACCA applies to, Ms. Call insisted that States had other avenues to trigger the ACCA sentencing enhancement.  Scalia supported this view:

JUSTICE SCALIA: You — you would have to have other States which only have a battery statute that is defined as broadly as this misdemeanor battery statute in Florida.  If they have a higher degree of battery, just as Florida does, which is a felony, then, if the –if the prosecutor wants this fellow to be convicted of a violent crime, he — he could charge him with that –with that higher degree.

Ms. Leondra Kruger appeared on behalf of the United States.  She summarized the Government’s position succinctly as well:

The primary definition of violent felony in the Armed Career Criminal Act, as, Justice Alito, you have noted and, Mr. Chief Justice, as you have noted, almost precisely tracks the general definition of the crime of battery; that is, the unlawful application of physical force to the person of another.

Justice Scalia became quite animated when he questioned Ms. Kruger:

JUSTICE SCALIA: You — you — you would have us believe that by “violent felony” in this — in this statute, Congress meant the threat — the threat? It doesn’t even have to be the act. You know, if you don’t shut up, I am going to come over and thwonk you on your shoulder with my index finger. I’m going to (snap). This is a violent felony under this statute which gets him how many more years? . . .  Fifteen years for (snap).

Ms. Kruger progressed continued to answer questions posed by Justices Scalia and Ginsburg when Justice Sotomayor posed an incisive question that clarified the Government’s ultimate position:

JUSTICE SOTOMAYOR: Counsel, you see that you don’t have the inquiry. The issue is not whether it causes serious injury or not, the issue is whether the nature of the force used is physical force.

Ms. Kruger responded:

Our submission is that every battery under Florida law, under common law and under the laws of 27 states and the Federal Government does have an — as an element the use of physical force. . . . The fact of the matter is, it is actually a very common usage in the criminal law. There are a number of judicial opinions, for example, that we instead of using the formulation that we see in Florida’s battery statute, instead use the formulation use of force of the slightest degree.

I think, in the end, Justice Scalia summarized the most critical question that the Justices must answer when they decide the case:

JUSTICE SCALIA: You know, I guess it comes down to whether we think that in — in B1, Congress was using technical language or Congress was using simply ordinary language, because you are quite right that the definition of — of battery covers even the slightest touching. The use of physical force, which would include the slightest touching.

He then made his own views on the matter clear:

But in using that definition to define the term “violent felony,” I find it hard to believe that Congress was using the term in a technical sense, and was not using the term “physical force,” “the use of physical force” to mean something more than a mere touching.

After argument, there is no doubt that Scalia leans towards Johnson’s position and Breyer leans towards the Government’s position.  The other Justices did not clearly stake out their territory, and it will be interesting to see how they (especially Sotomayor) will come out on this matter of statutory interpretation.

Professor Doug Berman at the Sentencing Law and Policy Blog notes that one of the interesting dynamics in this case is that the Justice Scalia sides with the criminal defendant.  Berman notes that this happens more often that people realize, and that our “knee-jerk” assumptions about the Justices do not always hold true.  That post can be found here.  The SCOTUSblog argument recap is here.