Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

Myron Gordon I did not know, but the Chief’s remarks certainly gave me a strong sense of the man and the times. Gordon attended college at the University of Wisconsin and graduated from Harvard Law School in 1942. In his academic successes, the Chief—with some perspective on the matter—stated, “Myron Gordon lived the dream of Eastern European Jewish immigrant parents.” He became a Milwaukee County Civil Court judge in 1950, holding a seat on the state trial bench for eleven years; was a justice of the Wisconsin Supreme Court from 1961 to 1967; and served as a judge of the United States District Court for the Eastern District of Wisconsin from 1967 until his retirement several decades later.

Gordon seems not to have forgotten his forbears. The Chief recalled one incident to make a large point: “When Myron Gordon was on the Supreme Court, several prominent Madisonians wanted to nominate him for membership in a private eating club that discriminated against Jews. They wanted to eliminate religious discrimination and selected Myron Gordon and Gordon Sinykin as their nominees because Myron and Gordon were above reproach. Myron understood the publicity that would ensue (which was not pleasant) and ill will that might follow (and it did). Neither he nor Gordon needed to be a member of the club—it added little if anything to their lives. But discrimination should be battled wherever it raises its head. And if Myron and Gordon were asked to lead the battle, they would do so. A small win, but every little win makes a difference.”

I asked Chief Justice Abrahamson for a copy of her 2010 remarks, and I have made them available here.

Terry Evans I knew, though scarcely so well as did Judge Sykes, who was both his law clerk and, for some seven years, his colleague on the Seventh Circuit. Judge Evans attended Marquette University for both college and law school and was of Milwaukee in just about every other respect as well. He, too, became a trial judge in Milwaukee County at a young age (34 years old), before also being appointed to the federal district court here in Milwaukee (in 1979). Judge Evans joined the Seventh Circuit in 1995 and passed away quite unexpectedly this past year.

It is perhaps natural that Judge Sykes would especially remember Judge Evans as a trial judge, where he spent the majority of his time on the bench and she served as his law clerk for a year: “He was steeped in everything that is Milwaukee—its people, its traditions, and its institutions. Add to that his legendary sense of humor and his considerable powers of perspective and intuition and you’ve got a truly masterful trial judge. He could read the courtroom, size up each case really quickly, cut through the clutter, pull the story line from mountains of evidence, identify the real clash of interests, and articulate a concise and well‐reasoned decision that everyone could grasp. He did all this with a clarity of expression and wit rarely found in the world that we lawyers and judges inhabit.”

Judge Sykes has been kind enough to share her remembrance of Judge Evans.

Judges are a mixed lot—as is the case for any large category of individuals. Some are good, others less so. Some work hard; others are unwilling to do all the work that is the premise of an efficient litigation system (e.g., superintending discovery disputes), and the practice (along with the society) suffers for it. But, in all events, the role of the judge is at the heart of the legal system, and so it is a contribution to our continuing education that Chief Justice Abrahamson and Judge Sykes would spend, no doubt, a considerable amount of time preparing their remembrances of Judges Gordon and Evans and permit us to share these in written form. These writings may, indeed, teach us some of “the lessons of the law (and life).”

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. To be sure, such reasoning held meaningful sway with the Supreme Court until 1937, when a majority of the Court, after a game of chicken with FDR, relented and began recognizing greater congressional power to legislate under the Interstate Commerce Clause. Among other things, Congress could regulate activities that, in the national aggregate, substantially affected interstate commerce, regardless of whether a given activity was interstate or intrastate and regardless of Congress’ actual motives or purposes. Under this approach, not only were various New Deal statutes upheld, but so were subsequent statutes in the 1960s and 1970s concerning such matters as civil rights and environmental protection.

Over the past two decades, however, the Court has again shown a willingness to henpeck Congress regarding its commerce-based legislation. The turning point occurred in a 1995 case, United States v. Lopez, in which the Court by a 5-4 vote struck down a federal statute criminalizing gun possession within 1000 feet of a school. Five years later, in United States v. Morrison, the Court again by a 5-4 vote struck down a federal statute creating a cause of action, and authorizing civil liability, for gender-motivated violence.

Both of these statutes, said the Court, governed conduct that was not commercial in nature, and neither statute was part of a larger federal scheme of commercial regulation. Nor did either law require proof that a defendant’s conduct actually bore a relationship to interstate commerce. The Court also noted that the statutes touched on one or more areas, such as criminal law, traditionally within the legal domain of the states. Given these factors, the Court in both cases concluded that Congress had exceeded its interstate commerce authority.

In light of these recent decisions, the defendants’ arguments can hardly be characterized as frivolous, much less bird-brained. Like all litigants, however, they should be wary of counting their legal chickens before they’ve hatched. As it turns out, most statutes challenged since Lopez have not suffered the same fate as those at issue in Lopez and Morrison. Lower courts have generally been reluctant to apply the Lopez factors too strictly, and the Supreme Court itself—with the exception of Morrison—has only made suggestions of potential unconstitutionality with regard to other statutes, otherwise upholding every law it has reviewed under the Interstate Commerce Clause. In the 2005 case of Gonzales v. Raich, for example, the Court (by a different majority) upheld an application of the federal Controlled Substances Act to the intrastate cultivation and possession of marijuana used for medical purposes pursuant to a state law. Congress, meanwhile, seems to have taken at least somewhat seriously the admonitions of Lopez and Morrison and appears less likely today to enact statutes possessing the flaws of the statutes struck down in those cases.

The relevant provision of the Animal Welfare Act, 7 U.S.C. § 2156, covers a range of conduct related to “an animal fighting venture.” (This provision, among others, resulted in NFL quarterback Michael Vick’s 2007 federal conviction for financing and participating in dogfighting operations, which partly took place in South Carolina.)  Taken together, § 2156’s subsections make it criminal “to knowingly sponsor or exhibit an animal in an animal fighting venture,” § 2156(a)(1); “to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture,” § 2156(b); “to knowingly use the mail service of the United States Postal Service or any instrumentality of interstate commerce for commercial speech for purposes of advertising an animal, or an instrument described in subsection (e), for use in an animal fighting venture, promoting or in any other manner furthering an animal fighting venture,” § 2156(c); or “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture,” § 2156(e). A violation of any of these subsections can lead to a fine, to imprisonment up to five years, or to both (see § 2156(j) and 18 U.S.C. § 49). The term “animal fighting venture,” though expressly excluding hunting, is defined as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment,” § 2156(g)(1).

Applying the Lopez and Morrison factors to § 2156, it is apparent that some of its prohibitions are clearly constitutional. Those that target inherently commercial activities such as buying and selling, and especially those that also expressly link the activity to interstate commerce or to a channel or instrumentality of interstate commerce, seem well within the judicially defined scope of Congress commerce power. Conversely, those that target activities that are not inherently commercial—for example, exhibiting or possessing—potentially stand on a weaker footing, but they do explicitly require proof that the animal or object be knowingly destined for use in an animal fighting venture that (by statutory definition) is “in or affecting interstate or foreign commerce . . . .” To be sure, the federal prosecution introduced evidence of out-of-staters that traveled to the event; of out-of-state items—including feed and a host of resources used for the fighting—that were shipped to individuals at, or seized from the scene of, the event giving rise to the convictions; and of the deposit of event proceeds into a bank account, from which funds were drawn by checks that were then processed out-of-state.

In past Supreme Court cases, most notably Katzenbach v. McClung from 1964, it has been held that Congress’ commerce power can reach a business that receives from out-of-state a portion of the goods that it then sells to customers, even if the customers are generally from in-state. Moreover, the size or amount of the actual portion of goods (or its monetary value) is generally not relevant insofar as Congress may aggregate all like activities when tallying or gauging the overall effect on interstate commerce. Nor does it matter whether or not one can plausibly characterize an activity as local rather than national or interstate. As the Court remarked in the 1942 decision of Wickard v. Filburn, “even if . . . [the] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . .”

These are older, pre-Lopez precedents, it is true, but neither Lopez nor Morrison expressly overruled any prior decisions, and the Raich decision approvingly invoked both McClung and Wickard, drawing particular support from the latter. Indeed, in response to the challengers’ heavy reliance on the Court’s more recent cases of Lopez and Morrison, the Raich majority stated that “[i]n their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases” and that “even in the narrow prism of [their] creation, they read those cases far too broadly.”

This could very well be the same response that the Court of Appeals, without much brooding over precedent, will give to most if not all of the appellants in their challenges to the Animal Welfare Act. It may be that the appeals court will find that one or even a few of them have reasonable arguments against the application of the statute, though probably not arguments of sufficient strength to prevail. Insofar as they all contributed to or operated a commercial operation—the interstate effects of which, if aggregated with similar operations nationwide, can plausibly be deemed substantial—the likelihood of an affirmance with regard to their convictions under the Animal Welfare Act would seem to be high. Should such an affirmance occur, one might venture to say that, in the end, the chickens will have indeed come home to roost.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln.

First of all, let us consider Theodore Roosevelt’s defense of an active federal government. In his “New Nationalism” speech in 1910, Roosevelt argued:

The absence of effective State, and, especially, national, restraint upon unfair money-getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power. The prime need to[day] is to change the conditions which enable these men to accumulate power which it is not for the general welfare that they should hold or exercise. We grudge no man a fortune which represents his own power and sagacity, when exercised with entire regard to the welfare of his fellows. . . . We grudge no man a fortune in civil life if it is honorably obtained and well used. It is not even enough that it should have been gained without doing damage to the community. We should permit it to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.

In Roosevelt’s view, the great industrialization of the America economy following the end of the Civil War had created an unprecedented degree of economic inequality. This economic inequality created a threat to democratic self-government:

At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth.

The solution, according to Roosevelt, was for the federal government to police the private markets on behalf of the “have-nots,” in order to ensure that the “haves” do not use their concentrated economic power for objectives that are destructive to the common good. Theodore Roosevelt returned to this theme of the federal government as a counterpoint to the economic elite in his “Autobiography.” In that book, he summarized the evolution in his thinking that led to the “New Nationalism” speech:

[A] few men recognized that corporations and combinations had become indispensable in the business world, that it was folly to try to prohibit them, but that it was folly to leave them without thorough-going control . . . They realized that the government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud . . .

The more active federal government that Roosevelt envisioned did, in fact, come into being. The combination of two World Wars, and the response to the Great Depression, led to a more powerful federal government and the subordination of corporate power to government control. However, in recent decades the overarching trend has been towards deregulation and a reduction of government power. The result has been a reduced government role in policing the economy, and an increased anxiety on the part of workers and retirees who feel that they are at the mercy of market forces. It makes sense, therefore, that President Obama would return to progressive themes that speak to similar anxieties that existed during the Roosevelt era.

However, historian Heather Cox Richardson of the University of Massachusetts, Amherst has traced Roosevelt’s idea of an active federal government back to an even earlier Republican: Abraham Lincoln. In a 2010 article published in the Marquette University Law Review, entitled “Abraham Lincoln and the Politics of Principle,” Professor Richardson argued that Lincoln created a new idea of an activist federal government that focused on promoting economic progress for individuals. She points to Lincoln’s policies in support of homestead legislation, the creation of the Department of Agriculture, and the Land-Grant College Act.

Professor Richardson considers Lincoln’s speech in Milwaukee on September 30, 1859 as the first time that Lincoln publicly espoused his vision for an active federal government. He spoke of a federal government that did not leave poor laborers to their own devices, but rather that provided those born into the lower economic strata with the land and the education that these economically disadvantaged Americans could use as tools in order to better their condition. She summarizes:

Lincoln’s concern about the growing power of Southern slave owners in the 1850s convinced him that the government must not privilege an economic elite. Rather, it must leave the economic playing field free for hard-working individuals to rise. By 1859, the idea of government support for individuals had combined with his conception of a “nonpolitical” politics to suggest that ‘equality’ might mean something more active than simply staying out of the way of the man on the make. For decades, men had called for government promotion of individual economic advancement, an idea that Republicans like Lincoln were ready to adopt.

One important policy initiative of Lincoln’s was the promotion of higher education for all, not just for the wealthy. In 1862, Congress passed the Land-Grant College Act, using public land to fund state universities. A second important policy initiative was the establishment of a federal Bureau of Refugees, Freedmen, and Abandoned Lands in 1866 to create homesteads for freed slaves and poor whites in the aftermath of the Civil War. The purpose of this law was to break the hold of the Southern elite on the Southern economy, by promoting self-sufficiency for small farmers.

The fate of the so-called Freedman’s Bureau is telling. After President Lincoln’s death, President Andrew Johnson repudiated the idea that the federal government had any legitimate role to play in promoting economic advancement for the average worker. He attacked the Freedman’s Bureau as a giveaway of tax dollars to the “indigent.” Johnson also attacked the Freedman’s Bureau as a federal program that spent tax dollars exclusively for the benefit of blacks, when the reality was that the legislation was intended to foster farm ownership for poor whites in the South as well as poor blacks. As Professor Richardson summarizes: “Johnson’s equation – that government activism equaled special help for blacks paid for by hard-working taxpayers – became the equation that opponents of government activism have used ever since.”

Tomorrow morning, leaders of the current Republican Party will undoubtedly assail President Obama’s State of the Union address on the grounds that it engages in “class warfare” and divisiveness. However, it is worth recalling that the idea that the federal government should take the lead in reducing economic inequality in our society is an idea that has deep Republican roots.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. Because the D.C. Circuit’s decision gave rise to a circuit split, the Supreme Court granted certiorari to resolve the conflict, and will thus decide one of the most important Fourth Amendment cases since 1983. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. The Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. The Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.

Here’s what happened.  Maples was convicted of murder and sentenced to death by an Alabama state court.  His direct appeals were unsuccessful.  He then launched a collateral attack in state trial court.  The Supreme Court recounted what happened next: 

His petition, filed in August 2001, was written by two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.

In the summer of 2002, while Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples.They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in fact acting on Maples’ behalf, the time to appeal ran out.

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denying him postconviction relief. Maples, it is uncontested, was blameless for the default.

In order to overcome a procedural default, a habeas petitioner must normally show cause to excuse the default and resulting prejudice.  The Supreme Court granted cert. in Maples’ case to decide whether he satisfied the “cause” prong.  (Thus, although Maples won in the Supreme Court, the Court seems to have left open the possibility that he might still lose on “prejudice” on remand.)

In trying to establish “cause,” Maples’ big problem was Coleman v. Thompson, 501 U.S. 722 (1991), which held that the ineffectiveness of postconviction counsel does not qualify as cause:

That is so, we reasoned in Coleman, because the attorney is the prisoner’s agent, and under “well-settled principles of agency law,” the principal bears the risk of negligent conduct on the part of his agent.  (12)

So, was there something in the conduct of Maples’ lawyers that went beyond mere negligence?  Yes, ruled the Court:

A markedly different situation is presented, however, when an attorney abandons his client without notice, and thereby occasions the default. Having severed the principal agent relationship, an attorney no longer acts, or fails to act, as the client’s representative.  His acts or omissions therefore “cannot fairly be attributed to [the client].” (12-13 (citations omitted))

The Court thus drew a “distinction between attorney negligence and attorney abandonment.” (14 n.7)  And, reviewing the whole course of conduct of Maples’ pro bono attorneys, the Court seemingly had little difficulty concluding that they crossed the line from negligence into abandonment.

One interesting question that all of this raises is whether Maples will provide any benefit to any other habeas petitioners.  The Court’s decision rested on a lengthy analysis of the facts specific to Maples’ situation, and those facts were indeed quite extraordinary.  Certainly, if the Court were so inclined, it would have a ready basis for distinguishing Maples from just about any other case that is likely to arise in the future.  Recall Alito’s remark, in his concurring opinion, that Maples was a “perfect storm.”

Yet, if there is one thing we have learned from more than a quarter century of litigation under the Strickland test for ineffective assistance of counsel, it is that the seemingly stark difference between not having a lawyer and having an ineffective lawyer is illusory.  As a practical matter, the failure to appoint a lawyer at all stands merely as the endpoint in a continuum of failures of representation.  We’ve seen cases of drunk lawyers, sleeping lawyers, depressed and despondent lawyers, lawyers who do absolutely no pretrial preparation, and on and on.  In many of these cases, it seems that the client might actually have been better off not having a lawyer at all — at least that way, the client would have been on notice that he had to look out after his interests.

Similarly, attorney abandonment is not a simple either/or proposition, but is instead a question of degree.  Again, think of a continuum, with simple negligence at one end and the Maples facts at the other.  In between, one may find any number of fact patterns that go beyond mere carelessness and suggest a more thoroughgoing disregard for the client’s interests — even if not quite at the level of Maples’ attorneys.  It seems possible that the Court’s endorsement of a negligence/abandonment distinction may open the door for habeas petitioners in some of these other factual scenarios, too.

Put differently, there seems nothing intrinsic to the concept of “abandonment” that would necessarily limit its reach to the most extreme cases.

This brings us to the most mysterious aspect of the Maples majority opinion: the lengthy discussion of the manifest deficiencies in Alabama’s system for providing indigent defense.  Reading the first few pages of the opinion, one might get the mistaken impression that this was a class-action lawsuit seeking structural reform, rather than a single petitioner litigating over the application of a narrow, technical aspect of habeas law.  So why do we get all of this structural stuff, which seemingly ends up not playing into the Court’s resolution of Maples’ appeal?

Indeed, this is precisely why Alito filed his concurring opinion — to emphasize that “whatever may be said about Alabama’s system, I do not think that Alabama’s system had much if anything to do with petitioner’s misfortune.”  (2)

The motives of Justice Ginsburg, writing for the majority, are not entirely clear in this regard, but perhaps she was trying to suggest that what happened to Maples was not just bad luck, but rather a predicable consequence of systemic failure.  Although the facts of Maples were  particularly extreme, the systemic flaws that produced Maples will also predictably produce many other cases on the abandonment continuum.  And if we keep our eyes on the underlying systemic problems that run through all of these cases, perhaps we will be less inclined to see Maples as so readily distinguishable from the next case of procedural default.

Here are the (quite critical) conclusions of the Sentencing Project:

Results vary somewhat, but when inconsistencies and research errors are adjusted the savings associated with investing in private prisons appear dubious. Even minimal savings are far from guaranteed, and many studies claiming otherwise have been criticized for their methodology. The available data belies the oft-claimed economic benefits of private contracting, and points to the practice being an unreliable approach toward financial stability.

Even if private prisons can manage to hold down costs, this success often comes at the detriment of services provided. Nationwide, public funds for prisons are already limited, leaving little excess spending that can be cut. Therefore, private prisons must make cuts in important high-cost areas such as staff, training, and programming to create savings.  The pressure that companies feel to maintain low overhead costs combined with less direct oversight are likely what led researchers at the University of Utah to conclude that, “quality of services is not improved” in private prisons.

Finally, private prison companies’ dependence on ensuring a large prison population to maintain profits provides inappropriate incentives to lobby government officials for policies that will place more people in prison. This is evidenced by the creation and coordination of model legislation through conservative lobbying groups, as well as in the political contributions and lobbying efforts of individual companies. This effort to increase reliance on incarceration comes at a time where America’s rate of imprisonment is the highest in the world and when the prison population is far beyond the point of diminishing returns in terms of public safety.

The available evidence does not point to any substantial benefits to privatizing prisons. Although there are instances where private prisons result in small savings, the structure and demands of for-profit prisons appear to produce a negative overall impact on services. In order to reconcile this information with the continued claims that private prisons are superior, one must assume that these contentions are couched more in ideology than in facts.

With that backdrop in mind, here’s what happened in Minneci v. Pollard.  The inmate plaintiff, Pollard, alleged that he was injured in a fall and that the injury was mishandled by prison medical staff and other prison employees in ways that amounted to “deliberate indifference” in violation of the Eighth Amendment.  He sued for damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits such lawsuits against federal agents for violations of constitutional rights.  However, the Supreme Court has generally taken a restrictive approach to Bivens actions since about 1980, including its decision in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), which ruled out Bivens actions against the corporations that run private prisons.

Malesko did not necessarily foreclose Pollard’s claim because Pollard was suing individual employees, not the corporation as a whole.  In the end, however, eight justices saw no reason to recognize the distinction, with only Justice Ginsburg deciding to the contrary.

For the majority, the key to the case was that the defendants could have been sued under state tort law; in their view, it seems that Bivens only provides a stop-gap remedy for constitutional violations that lie beyond the reach of tort law.  This does seem consistent with the thrust of recent Bivens jurisprudence.

But it is important to note that the Court does not insist that plaintiffs must necessarily fare as well under state law as under Bivens:

We note, as Pollard points out, that state tort law may sometimes prove less generous than would a Bivens action, say, by capping damages, see Cal. Civ. Code Ann. §3333.2(b) (West 1997), or by forbidding recovery for emotional suffering unconnected with physical harm, see 629 F. 3d, at 864, or by imposing procedural obstacles, say, initially requiring the use of expert administrative panels in medical malpractice cases, see, e.g., Me. Rev. Stat. Ann., Tit. 24, §2853, (Supp. 2010); Mass. Gen. Laws, ch. 231, §60B (West 2010). But we cannot find in this fact sufficient basis to determine state law inadequate.

. . . .

Rather, in principle, the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations.  (10-11)

This begs the question, of course, of just how robust a state-law remedy must be in order to count as “roughly similar.”  The Court did leave itself a little wiggle room in this regard to handle different sorts of Eighth Amendment claims against private defendants differently in the future:

[W]e concede that we cannot prove a negative or be totally certain that the features of state tort law relevant here will universally prove to be, or remain, as we have described them. Nonetheless, we are certain enough about the shape of present law as applied to the kind of case before us to leave different cases and different state laws to another day. That is to say, we can decide whether to imply a Bivens action in a case where an Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises. (11-12)

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him.  Stevens sat beside Antonin Scalia for much of his time on the Court and was the “beneficiary of [Scalia’s] wonderfully spontaneous sense of humor.”  The year Scalia was appointed, they heard two cases involving police questioning of rather unsophisticated suspects.  (Stevens does not identify the cases by name, another instance of his tact, but they are readily identifiable from his brief description of the facts as Colorado v. Spring and Connecticut v. Barrett, both decided in 1987).  Scalia apparently leaned over and whispered to Stevens that it must be “dumb defendant day.”  Now, anyone who has read a Scalia opinion knows that this cannot be the apogee of his wit and can be fairly certain that, in their twenty-four years on the bench together, he made sharper comments in the course of their duties.

One gets the sense that Stevens is reluctant to write anything that might reflect poorly on the Court or its Justices.  And it is perfectly understandable that he would be unwilling to besmirch the institution with idle gossip.  The Court is both a vital force and symbol of American democracy and, in the words of his dissent in Texas v. Johnson (1989), where the majority held that burning an American flag at a demonstration was protected by the First Amendment, it is “worthy of protection from unnecessary desecration.”

Nevertheless, Stevens does not shy away from criticizing his colleagues and even President Reagan when their decisions diverge from his closely held principles.  Though he found common ground with Chief Justice Rehnquist on issues involving separation of powers, Stevens was sharply critical of Rehnquist’s stance on state sovereign immunity, particularly in Seminole Tribe of Florida v. Florida (1996).  “Like the gold stripes on his robe, Chief Justice Rehnquist’s writing about sovereignty was ostentatious and more reflective of the ancient British monarchy than our modern republic.”  Invariably, however, Stevens’ criticisms are based on what he considers to be flawed reasoning and not personal animus.  His disapproval of Rehnquist’s decision to adorn his robe with gold stripes does not detract from his admiration for Rehnquist’s other fine qualities: his impartiality in both private conference and open court and his efficient administration of the Court’s business.

Stevens’ evaluation of the current Chief Justice, John Roberts, is very favorable.  He describes him as “a better presiding officer than both of his immediate predecessors” as well as a more skilled representative of the Court in non-judicial settings.  He is particularly appreciative of Roberts’ concurrence in Graham v. Florida (2010) because it represents for him a rejection of the interpretive approach that looks at the “original intent” of the Framers in determining the constitutionality of a given case.  In Graham, Roberts agreed with the majority that imposing a life sentence on a juvenile defendant for a non-homicide offense violated the Eighth Amendment but rejected a categorical bar to such a sentence on the grounds that courts should weigh factors like the offender’s age and criminal conduct on a case-by-case basis.  Roberts recognized a proportionality requirement at variance with Scalia’s dissenting opinion in Harmelin v. Michigan (1991) that would prohibit certain, specific punishments under the Eight Amendment but would not require, in Stevens’ words, “that the punishment fit the crime.”

Stevens’ discussion of Roberts’ opinion in Graham highlights two themes of his own judicial philosophy.  According to Stevens, judges and justices should exercise restraint, and decide only what a case “actually presented” without trying “to craft an all-encompassing rule for the future.”  Kyllo v. United States (2001) (dissenting).  This, of course, stems in part from his understanding of the separation of powers in our system of government.  As he wrote in Kyllo, Congress is the branch that “grapple[s] with. . . emerging issues” and it is counterproductive to “shackle them with prematurely devised constitutional constraints.”

Secondly, Stevens disagrees with an uncompromising insistence on the specific intent of the Framers because it does a disservice to the emerging problems of a changing society.  Which is not to say the principles enshrined in the Constitution are readily susceptible to modification; if they were they would not be principles.  Rather, it is that the strength of the principles lies in their flexibility and not in a code-like rigidity.  Stevens quotes Justice McKenna in Weems v. United States (1910), “[A] principle, to be vital, must be capable of wider application than the mischief which gave it birth.”

These two aspects of Stevens’ jurisprudence help explain what comes across in his memoir: a reticence that displays itself in distaste for superfluous gossip on the one hand, and a generosity of spirit capable of disagreement without rancor on the other.  Towards the end of Five Chiefs, Stevens writes that he has “no memory of any member of the Court raising his or her voice.”  Whether this is strictly true, and as far as it is his memory there is no reason to doubt that it is, it sheds light on how Stevens envisioned the work of the Court as a civil pursuit for justice.

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

Before conviction, it is imperative for both sides to have adequate time to prepare for trial so as to ensure that trial results are as reliable as possible.  After conviction, it is fair to assume (to some extent) the defendant’s guilt, and to give relatively greater weight to the system’s interests in efficiency and finality.

Still, the one-year statute of limitations, introduced into federal habeas law in 1996, seems unnecessary and unfair, especially in cases (like Gonzalez) that do not involve the death penalty.  While capital defendant do indeed have incentives to drag out the process, other habeas petitioners, cooling their heels in prison based on convictions they believe are unjustified, will have every reason to move as swiftly as they can.  It is important to realize, though, that habeas petitioners have no right to counsel, and the vast majority are forced to do what Gonzalez did: figure out how to draft and file a habeas petition on their own, with all of the challenges posed by incarceration (limited legal research capabilities, periodic lockdowns, inability to communicate with potentially helpful witnesses on the outside, etc.).

What’s more, that one-year statute of limitations — such a seemingly bright line — presents many complications in practice.  In particular, when the SOL is put alongside two other aspects of habeas law, the exhaustion requirement and the restrictions on successive petitions, there are many traps for the unwary.  I can attest that my post-conviction remedies students — most working with the benefit of two and a half years of legal education — find it plenty difficult to understand the interaction of these three rules, including the many glosses that have been put on them over the years by the Supreme Court.

Bearing in mind all of the other habeas rules that exist to prevent “abuse of the writ,” the one-year SOL ought to be repealed.

Of course, the Supreme Court did not have that option in Gonzalez.  But the Court could have construed the SOL more generously than it did, so as to give pro se inmates like Gonzalez a fairer shot at having their constitutional claims addressed on the merits.

Here’s what happened.  Convicted of murder in 2006, Gonzalez took his case to the Texas Court of Appeals and lost.  He did not seek further review in the Texas Court of Criminal Appeals, the state’s highest court for criminal appeals, and the time for doing so expired on August 11, 2006.  The Court of Appeals then issued its mandate, formally terminating the appellate process, on September 26, 2006.  Gonzalez then unsuccessfully pursued state habeas relief, which indisputably tolled the federal SOL.

Gonzalez filed his federal habeas petition on January 24, 2008.  If the SOL had begun to run on the date the mandate issued (9/26/06), Gonzalez’s petition would have been timely; however, the Supreme Court ruled the SOL actually began to run about six weeks earlier, when Gonzalez’s time to appeal to the Court of Criminal Appeals expired (8/11/06).  Using that date, Gonzalez missed his federal deadline by about five weeks.

According to the statute, the clock begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”  Gonzalez argued that “the conclusion of direct review” occurs when the mandate issues, and that he should get the benefit of that later date.  This is at least a facially plausible interpretation.  The Court decided, however, that the “conclusion of direct review” prong is not available to petitioners who fail to seek direct review all the way up to the United States Supreme Court.  This, too, is a plausible interpretation.  How to choose between them?

Citing “administrability” concerns, the Court worried that Gonzalez’s approach — in effect, deferring to each state’s own rules about when direct review is concluded — would impose on federal courts the burden of making “state-by-state determinations.”  (Mem. Op. at 17-18.)  But most habeas decisions are not appealed beyond the district court level, and each district court would only have to figure out the law of one state.  And even at the level of the circuit courts, there would only be a handful or so of states to keep track of.  Only the Supreme Court would potentially have to worry about the divergent laws of 50 different states, and habeas cases presenting SOL issues in the Supreme Court are quite rare.  Do the administrability concerns really outweigh the danger that a meritorious habeas claim will be dismissed because a pro se petitioner has failed to understand that he cannot rely on what state law says about when state proceedings are finished?

The concerns are heightened in states like Texas that preclude state habeas review until after the mandate issues.  As Gonzalez pointed out, the operation of state and federal rules in his case effectively shortened his federal SOL by six weeks.  He could not file his federal petition until he exhausted his speedy trial claim in state habeas, but he had to sit around for six weeks after his federal clock began to run before be could initiate the state habeas process.

True, even taking those six weeks out, he had more than ten months left on his federal clock, which may seem like plenty of time to draft and file a federal petition.  But, again, consider the general challenges facing a pro se inmate, as well as the particular complications of dealing with the state habeas litigation and sorting out how the two rounds of state post-conviction proceedings will interact with federal rules relating to the statute of limitations, exhaustion, procedural default, and deference to state-court decisions on the merits.  A difference of six weeks may be much more significant than first appears to be the case — as indeed it was for Rafael Gonzalez.

Cross posted at Life Sentences.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? As long as the faith expressions of Tim Tebow and his imitators don’t implicate the government, then the Constitution, which generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos wish to place limits on Tebowing—e.g., as “excessive celebration” prohibited by NFL Rule 12 § 3 art. 1(d)—is a matter that could potentially infringe players’ rights under federal or state civil rights statutes. But neither the First Amendment to the Constitution’s ban on religious establishments nor its guarantee of religious free exercise would come into play.

The conduct of Tim Tebow, alas, has not been confined either to Tim Tebow or to non-governmental settings. At least two public school students in New York, for instance, were suspended last month after Tebowing in a school hallway, allegedly for causing an obstruction. Whether or not their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such punishments?—but there can be no doubt that Constitution applies to the school’s actions.

Nor has Tebow-related conduct been confined to students. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a sentiment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconstitutional. The same might even be true of Tebow-like touchdown prayers by players if encouraged, let alone directed, by the coaching staff.

To be sure, it was in the context of a public high school football game that even student-initiated and student-led prayer, when using the school’s public address system on school property and under school faculty supervision, was held by the U.S. Supreme Court to be unconstitutional under the Establishment Clause. Although the Court noted that “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,” it further remarked “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In summary, Tebowing or other Tebow-like conduct may in some instances be protected by the Constitution’s First Amendment, while in others it may be circumscribed if not absolutely prohibited. Such calls, of course, will ultimately be made not by zebra-striped referees on the field of play but by black-robed judges in a court of law, with no set limit on either challenges or the use of instant replay footage.

I learned a lot from Judge Ihlenfeldt over the years, but one of the most valuable lessons he taught me came very early in my legal career, and I see this story as making an important point for law students and new lawyers. The practice of law requires constant learning; you’ve barely begun to know what you need to know when you leave law school. And you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.

Back in the mid ’70s, as an associate at Foley & Lardner, I first appeared in bankruptcy court for banks and other creditors, often seeking to recover collateral or to oppose the discharge of a debt. I had appeared before Judge Ihlenfeldt a few times, and on this particular occasion he had ruled against me. I don’t remember the details, but the decision may well have involved the judge’s exercising some discretion, and he exercised it against my client. The case was over, and (as often happened in his court) the lawyers had lingered in chambers to talk. He could tell that I was upset at losing (not then having much experience at it—a condition that time has healed), and he turned to me, in his gentle way, and said, “Oh, Tom, you have to understand that we’re the bankruptcy court. Bankruptcy law is intended to benefit debtors, and you shouldn’t expect to win all the time when you represent creditors.”

This comment struck me at the time and many times since as one of the best lessons that a judge could teach a young lawyer. And it has implications beyond bankruptcy law. Good judges like Judge Ihlenfeldt call them as they see them and follow the law as they understand it. But a lawyer should never lose sight of the fact that much of the law (understood as being what judges do) is not black and white, but gray, and a judge’s instincts in the gray area—whether to afford a debtor relief, to let a plaintiff try to prove her case, or to cut a lawyer some slack—are every bit as much a part of the law as the stuff in the books. I’m glad that I learned that lesson early from a great judge.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Prawfs and Life Sentences.

According to their announcement, here are some of its attributes:

– Instant return of a time-series plot for one or more comma-separated phrases.

– When you access the site, the default search is currently interstate commerce, railroad, deed (with plots for each of the term displayed simultaneously), as displayed below:

– You may test out any phrase of up to four words in length. Examples include: Habeas Corpus, Clear and Present Danger, Custodial Interrogation, Due Process, Economics, Unconstitutional, Property, and Privacy.

– Each of the phrases you search will be highlighted in blue. If you click on these highlighted phrases you will be taken to the full list of U.S. Supreme Court decisions that employ the selected phrase.

– Click to export the list to Excel or click on an individual case and you will be able to access this case for free.

– Advanced features, including normalization (controlling for docket size) and alternative graphing tools.

– There is available a brief slide-based tutorial as well as an academic presentation by its creators explaining the theory and design of this type of database.

As described by its creators, the database is in a “beta pre-release” phase, and they invite your feedback. Eventually they hope to expand coverage to lower courts, such as the U.S. Courts of Appeals.

Thanks to the creators of this new and free resource, which will no doubt be of significant value to legal historians, other scholars, and legal practitioners.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

The cases both involve fourteen-year-old murderers sentenced to life without parole.  In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder.  The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants.  Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:

He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.

Jackson v. Norris,  2011 Ark. 49 (Danielson, J., dissenting).  If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, that holding might have some interesting implications for Tison.  Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.

Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions.  I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.

This is in part because the way the Court performs the objective analysis has changed, and in part because several states have modified their laws since 1987.  You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where theTison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it.  Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.

As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:

First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence.  Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis.  (1406-07)

On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework.  I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.”  (1408)  Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed.  (1404)

I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.

Although not directly at issue in the litigation, Kiobel seems to raise an interesting question about the method by which courts go about ascertaining custom. A core principle of international law is that binding customary norms develop from “general and consistent practice that states follow from a sense of legal obligation.” According to Sosa v. Alvarez-Machain, the ATS provides for federal jurisdiction over civil actions by aliens who have alleged violations of a particular subset of these norms–i.e., those that are “accepted by the civilized world” and defined with a fairly high degree of specificity. Thus, determining whether the ATS provides jurisdiction in any given case often requires a judicial analysis of the nature, extent, and rationale of the practice that has allegedly given rise to the norm that the defendant has allegedly violated. In some cases–such as those involving piracy, offenses against ambassadors, and torture–the jurisdictional analysis is relatively easy because the underlying norm is widely accepted and well-defined. In others, it may be difficult to ascertain whether a given norm has the requisite levels of state acceptance and definitional precision.

The circuit split underlying the decision to grant cert in Kiobel suggests that the norm of corporate liability falls into the latter category. After canvassing selected treaties, precedent from international tribunals, and scholarship, the Second Circuit concluded that corporations have never been prosecuted for violating customary international law, and that a custom of liability therefore does not exist. But upon completing the very same inquiry, the Seventh Circuit reached precisely the opposite conclusion in Flomo v. Firestone National Rubber Co. Notably, Flomo disagreed with the Second Circuit on the ground that that court had simply overlooked a salient example of corporate liability–that of the German company I.G. Farben for its conduct during WWII.

Assuming the Seventh Circuit was correct, the Second Circuit’s failure to recognize the I.G. Farben precedent seems significant. But from the standpoint of judicial process, the failure was also understandable, for federal courts lack the resources to systematically identify all relevant international practice for the purpose of resolving 12(b) motions. A thorough inquiry would seem to require reviewing the mundane, day-to-day behaviors of the entire “civilized world”–to use Sosa‘s words–over a course of years, even decades. And yet, there is no database of such practice, no analogue to the essentially complete and well-organized federal and state case reports on Westlaw and Lexis. Thus, standard legal research techniques won’t necessarily generate reliable answers. Courts can take shortcuts by focusing their research on salient indicia of state practice in the form of treaties and important decisions from international tribunals, but those examples are inevitably incomplete.

One conclusion to draw from this observation is that the disagreement between the Second and Seventh Circuits does not necessarily itself show that the norm of corporate liability lacks the acceptance and precision that Sosa demands. Instead, the circuit split may simply reflect the difficulties inherent in federal judicial identification of international custom. Perhaps the Seventh Circuit was right, and the Second simply overlooked relevant precedent. Perhaps both circuits did so. Absent a rigorous historical inquiry, it’s hard to say with certainty. Either way, to say that it is difficult to accurately identify whether any given customary norm enjoys the clarity and acceptance necessary to create ATS jurisdiction is not to say that the norm lacks such characteristics.

Another possible conclusion to draw is that federal courts should find ways to supplement their capacity to ascertain international custom. One potential solution lies in Rule 53 of the Federal Rules of Civil Procedure, which permits courts to appoint special masters “to address pretrial . . . matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” If the problems of research method that I have described preclude courts from “effectively and timely” identifying customary international law, then the Rule would seem to permit courts to use special masters to supplement their efforts. These special masters would ideally be international legal experts or historians with expertise in the relevant area of custom, and would have a more comprehensive and nuanced understanding of state practice than the court could possibly obtain through standard legal research techniques. Briefly looking at the Federal Reporter, I did not see any examples of courts using special masters in this way, but perhaps it’s a step worth considering.

Cross-posted at PrawfsBlawg.

One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

The expression of political speech receives the greatest protection under the First Amendment when it takes place in a public forum:

Speech restrictions in traditional public forums are generally subject to the most exacting forms of judicial scrutiny. A government entity may never restrict all forms of communicative activity in these spaces. Public forum doctrine also requires that all restrictions based upon the content of the speech must be subject to strict scrutiny; that is, they must further a compelling state interest in a narrowly tailored way. Courts strike down restrictions on speech in traditional public forums when the restrictions do not satisfy strict scrutiny. In traditional public forums a government may, however, impose content-neutral time, place, and manner restrictions as long as those restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Michael J. Friedman, Dazed and Confused: Explaining Judicial Determinations of Traditional Public Forum Status, 82 TUL. L. REV. 929, 933 (2008).

In contrast, a far lower form of judicial scrutiny applies to evaluate speech restrictions in nonpublic forums. In a nonpublic forum, speech restrictions need only be reasonable and viewpoint-neutral. See id. at 935.

In Gaylor v. Thompson, 939 F. Supp. 1363 (W.D. Wis. 1996), District Judge Barbara Crabb held that the Wisconsin State Capitol is a public forum. This ruling is unsurprising. The interior of the Wisconsin State Capitol building has traditionally been a site for public expression and protest. As a result, any restrictions on speech within the Wisconsin State Capitol building must meet the stricter standard described above.  As stated by Judge Crabb:

In this instance, the state of Wisconsin has opened the capitol rotunda to a variety of displays and exhibits and must be considered a public forum for the purpose of First Amendment analysis. However, that decision does not mean that the state is prohibited from imposing certain regulations on the time, place and manner of the displays. The state can implement such restrictions provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

However, in the case of Bynum v. U.S. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000) the court ruled that the United States Capitol is not a public forum.  The court noted that as early as 1946 the U.S. Congress had passed a law banning protests and demonstrations inside of the U.S. Capitol. That law, coupled with a lack of a tradition of public access to the U.S. Capitol building for protests, and the exclusive control that Congress exercises over the District of Columbia, led the court to conclude that the U.S. Capitol is not a public forum:

Which brings the Court to what may seem a somewhat surprising conclusion that the inside of the United States Capitol is a nonpublic forum for First Amendment forum analysis purposes. While in many respects the Capitol must be viewed as sui generis, it appears that its designation as a nonpublic forum most closely conforms with Congress’ intent and the forum-based approach adopted by the Supreme Court. As a nonpublic forum, the government may restrict First Amendment activity in the Capitol so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” [citations omitted]

Because it found the U.S. Capitol building to be a non-public forum, the court evaluated restrictions on speech within the U.S. Capitol building under the more forgiving standard of reasonableness.

However, it is important to note that, even under this lower constitutional standard, the court still found that the only reasonable justification for government rules restricting speech would be the disruptive effect of the protestor’s conduct. Therefore, even under the nonpublic forum standard, the United States Capitol Police were still prohibited from banning expressive conduct that was non-disruptive.

In the case of plaintiff Bynum, he was a pastor who led a small group in prayer and meditation, in a conversational tone, within Statutory Hall and other portions of the Capitol Building. The Bynum court held:

The Court, however, cannot conclude that the regulation is reasonable in light of the purposes it could legitimately serve. While the regulation is justified by the need expressed in the statute to prevent disruptive conduct in the Capitol, it sweeps too broadly by inviting the Capitol Police to restrict behavior that is in no way disruptive, such as “speechmaking . . . or other expressive conduct. . . .” Because the regulation’s proscriptions are not limited to the legitimate purposes set forth in the statute, it is an unreasonable and therefore an unconstitutional restriction on speech. [citation omitted]

The Bynum court issued an injunction ordering the U.S. Capitol Police not to enforce restrictions on First Amendment conduct within the Capitol Building unless they are addressed towards disruptive or obstructive conduct.

Therefore, even under the lesser standards applicable in a nonpublic forum, the First Amendment prevents the U.S. Capitol Police from completely banning small, non-disruptive protests within the U.S. Capitol building. Any statement in the current written policy of the U.S. Capitol Police that purports to completely ban protests inside of the U.S. Capitol cannot be enforced. For example, in one highly publicized recent case, the U.S. Capitol Police apologized to an individual for mistakenly removing her from the Capitol Gallery for wearing a T-shirt with a political slogan.

[Note: Unlike the interior of the U.S. Capitol building, the grounds surrounding the building are a public forum. See Lederman v. United States, 291 F.3d 36 ( D.C. Cir. 2002).]

The bottom line is that it makes a difference for the constitutional analysis of the new DOA policy that the Wisconsin State Capitol is a public forum.

Might the legislators in Madison pass a bill declaring that the Wisconsin State Capitol is no longer a public forum? Not really, because once a location has become a public forum by tradition the government may not arbitrarily remove that status. In any event, such a law would violate the Wisconsin State Constitution, which provides that the doors of the State Capitol shall remain open while the legislature is in session. There is, of course, no analogue for this provision in the federal Constitution. Even though the Wisconsin Supreme Court has recently treated the “open doors” provision of the Wisconsin Constitution in a rather cavalier manner, it is difficult to conceive how any legislative attempt to completely foreclose protests within the State Capitol building could survive a state constitutional challenge.

It should be obvious by now that the permit policies currently in place at the United States Capitol are completely irrelevant to the First Amendment analysis that applies to a public forum like the Wisconsin State Capitol. As I previously wrote, the new DOA policy is overbroad because it allows fees to be imposed on the indigent as a condition of protesting, it vests unbounded discretion in the Capitol police to determine whether to impose advance fees for security costs, and it requires permits from small groups of four or more protesters. These restrictions fail to meet the strict standards used to evaluate limitations on speech in a public forum. Even in a nonpublic forum like the U.S. Capitol, the federal courts have enjoined attempts to prevent small groups from engaging in non-disruptive protests without a permit.

By looking to the policies in place at the U.S. Capitol, the defenders of the DOA policy have fallen into a logical trap. The advocate thinks to himself, “If only I can argue Proposition X, then I will win the argument.” So the advocate searches high and low for evidence in support of Proposition X. Alas, arguing backwards from a conclusion never works.

Here, Proposition X is the assertion that “Restrictions on speech in the United States Capitol reflect what may be constitutionally restricted in the Wisconsin State Capitol.” As the above discussion illustrates, this assertion rests upon a myriad of mistaken assumptions.

By drafting an overbroad policy with little or no guidance for how the security staff is supposed to implement it, the Department of Administration has placed the Wisconsin State Capitol Police in a very difficult position. Rather than continue in its attempts to justify restrictions that indefensibly infringe upon the First Amendment rights of citizens, the DOA should withdraw its new policy and start from scratch.

I think it’s helpful to appreciate, however, that the basic problem of partisanship trumping merit as a determinant of judicial appointments is anything but new. Recently, I was reading Gerald Gunther’s biography of Learned Hand and came across a reminder of how the appointments process has long been an overwhelmingly political affair, even for lower-court judgeships. Gunther explains that when Jerome Frank’s death in the late 1950s left vacant a seat on the Second Circuit, advocates from opposing political orientations lobbied heavily for their favored candidates to receive the next appointment. Many Republicans pushed for the selection of Leonard Moore, the U.S. Attorney for E.D.N.Y., while Democrats favored Irving Kaufman, the federal judge who had presided over the espionage trial of Julius and Ethel Rosenberg. Moreover, many on both sides appear to have viewed the choice between Moore and Kaufman as essentially political rather than merit-based. One of the significant arguments made in favor of Kaufman, for example, was that elevating him to the Second Circuit could function as a way for the President and Senate to signal their approval of his handling of the Rosenberg trial, of which leftist organizations had been fiercely critical.

The debate left Judge Hand extremely dissatisfied with the way in which it downplayed or left out considerations of merit. To Felix Frankfurter, a longtime friend, Hand wrote:

Did you see today’s Times and the reasons said to be put forward in Washington for moving up Kaufmann [sic]? “To show the President approved his decision to execute the Rosenbergs.”

Oh, oh, oh! How low people can get! I don’t mean [Kaufman]; he didn’t start that, I believe; but the Swine, the Swine, the Swine!!

Hand later repeated to Frankfurter that he was “‘thoroughly sick of [his] government, especially [with respect to] the appointment of judges,’” even adding, “‘What a mistake it was to let the Senate in on any appointments anyway! Democracy! How many crimes are committed in thy name!!!’”

Hand’s statements were obviously hyperbolic, but now seem to reflect a sentiment held by many observers of the appointment process today. That Judge Hand critiqued the same problem fifty years ago shows that it is not a new one, and suggests that its source must lie deeper than the contemporary divisiveness of American politics.

Cross-posted at PrawfsBlawg.

The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.”

The requirement that a fee be paid in advance of the exercise of First Amendment rights constitutes a prior restraint on the exercise of free speech. See Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123 (1992). Advance fee requirements are recognized as a prior restraint because some individuals will forego the exercise of their rights rather than apply for advance permission or pay the fee. Prior restraints on the exercise of free speech are highly disfavored under constitutional law. While they are not per se unconstitutional, prior restraints will be subjected to heightened scrutiny. The Supreme Court has articulated the following standard for evaluating the constitutionality of government permitting schemes:

Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

Nathan Kellum, Permit Schemes: Under Current Jurisprudence, What Permits Are Permitted?, 56 DRAKE L. REV. 381 (1985).

The Supreme Court’s precedent in the First Amendment area has been criticized by academics for lacking a clearly articulated standard that successfully reconciles the Court’s various (and varied) holdings. This is a common complaint in areas such as First Amendment jurisprudence, where the Court’s decisions are typically closely tied to the particular facts of the case before it. Nonetheless, in the context of fees charged in advance as a condition of exercising the right of free speech, the Court’s precedent establishes at least three principles:

1. Fees Cannot Be Imposed If They Deny Speech to the Indigent

The Court has emphasized that the indigent cannot be denied their First Amendment rights solely because they are unable to pay a required fee. The lack of an “indigency waiver” is not fatal in circumstances where an alternative means of expression exists that is available to the demonstrator, however where no such alternative exists there is ample precedent striking down restrictions on speech that do not take into account the demonstrators ability to pay. See Sullivan v. City of Augusta, 511 F.3d 16, at footnote 15 (1st Cir. 2007).

This conclusion is not surprising. As summarized by Professor Eric Neisser:

In addition to what is formally referred to as the public forum doctrine, there are other strands of law designed to maintain ready access to opportunities for public expression. For example, even avenues of expression not strictly designated as public forums, such as the voting booth or the elective ballot, must be kept open to persons or groups of limited income, although it remains unclear which avenues will be held subject to indigents’ access and how poor one must be to qualify for protection. Clearly however, financial obligations cannot be fixed at a level or applied to groups or persons in a manner that effectively bars access to protected forums.

Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Market For Free Ideas, 74 GEO. L. J. 257 ( 1985).

The State Capitol building is a unique location for the expression of protected speech, and there is no equivalent alternative location available to would be protestors.

2. Fees May Not Be Imposed By Government Officials Left With Unbounded Discretion

The Supreme Court has struck down advance payment requirements when officials are left with unbounded discretion to determine when the fee may be required and when it may be waived. Instead, the Court has demanded that the official charged with implementing the fee requirement must be given objective criteria to guide their decision. The ability to impose or waive a fee without any objective criteria allows the government official the ability to favor one viewpoint over another, and unbounded discretion transforms an otherwise content neutral regulation into a regulation that is directed at the content of the speech.

In the Forsyth County, Ga. Case, the Supreme Court struck down a permit process that gave the county administrator unbounded discretion to assess advance fees from a nominal amount up to $1,000 in order to defray security expenses. The Court said:

Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards” guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time–or even whether to charge at all–is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. [citations omitted]

The new DOA policy allows the State Capitol police to determine, with no objective criteria, whether or not to impose advance fees for public safety and in what amount, all in the context of groups containing as few as four protestors.

There is some argument over whether fee policies must still contain written objective criteria for police in the context of parades and marches. The First Circuit has held that no objective written criteria are necessary when police officials estimate costs related to traffic control, street closures and parade security. See Sullivan v. City of Augusta, 511 F. 3d 15 (1st Cir. 2007). However, the Ninth Circuit has disagreed and ruled that the delegation of unbounded discretion to the police is a violation of the First Amendment even when it occurs in the parade context. Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle, 550 F.3d 788 (9th Cir. 2008). And, in the context of a march and rally, the Eleventh Circuit struck down a regulation that allowed police to pass along the costs of additional police protection to those demonstrating in a public forum as a pre-condition to the granting of a permit. See Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985).

Regardless, the new DOA policy does not apply to parades, but rather to government facilities and in particular the State Capitol building. There is no dispute that the lack of objective criteria for the police to determine whether extra security is required violates the Forsyth prohibition on unbounded discretion when it occurs outside of the parade context — such as when advance fees are charged to cover security for campus speeches, Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010). See also Driver v. Town of Richmond, 570 F. Supp.2d 269 (D. R.I. 2008) (involving unbounded police discretion to issue permits for permission to post signage).

3. Fees May Only Be Imposed When Necessary to Advance Significant Government Interests

The government may not use fees on First Amendment activities as a revenue raising device, but instead must clearly demonstrate that any fee is necessary to advance a legitimate interest in regulating the time, place and manner of speech. See Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943). The state does have a significant interest in safeguarding public safety and property. However, the new DOA policy allows the police to charge for extra security for groups as small as four persons.

The legitimate state interest in safeguarding public safety is not advanced by charging advance fees for groups of such small size. The state cannot demonstrate that a group of four persons will of necessity require the assignment of any extra security at all. Parades, rallies and concerts, where large numbers of attendees are expected, may justify the need for extra security and therefore may provide the state with a sufficient interest in charging an advance fee for security expenses. See, e.g., Thomas v. Chicago Park District, 534 U.S. 316 (2002) (upholding advance permit requirement for events of 50 or more people). However, the fact that fees may be imposed on events attended by large groups does not lead to the conclusion that fees may be imposed in advance any time the state wishes.

The Supreme Court has expressed concern over regulations that act to restrict the political expression of individuals or of small groups of people. In the case of Watchtower Bible & Tract Society v. Village of Stratton, 536 U. S. 150 (2002), the Supreme Court struck down a village ordinance that required advance permitting of every door to door solicitor, saying:

The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.

The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

Reviewing the First Amendment precedent, attorney Nathan Kellum concludes:

The constitutional hurdle of demonstrating a legitimate governmental interest before any regulation of speech can be constitutionally valid leads to inquiries about the size of the group impacted by a permit scheme and whether the government has an interest in regulating singular individuals and small gatherings. One of the most frequent justifications for the use of a prior restraint is the preservation of public safety and order. This oft-cited purpose of safety and order only gains practical legitimacy, however, if the ordinance in question seeks to regulate large group activities, such as parades and rallies. Courts entertaining this issue routinely hold that a permit requirement imposed on individual or small group speech to be overly burdensome.

See Nathan Kellum, Permit Schemes, supra.

The Ninth Circuit summarized the precedent on the issue in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009):

It is therefore not surprising that we and almost every other circuit to have considered the issue have refused to uphold registration requirements that apply to individual speakers or small groups in a public forum. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039 (9th Cir. 2006) (“As the cautionary language in our earlier opinions indicates, the significant governmental interest justifying the unusual step of requiring citizens to inform the government in advance of expressive activity has always been understood to arise only when large groups of people travel together on streets and sidewalks.”); see also Grossman, 33 F.3d at 1206 (holding that the possibility that the ordinance at issue could reach “the actions of single protestors” rendered it unconstitutional); Rosen, 641 F.2d at 1247-48 (invalidating a one-day advance registration requirement because it applied to individuals and therefore “regulate[d] far more than mass conduct that necessarily interferes with the use of public facilities”); Cox v. City of Charleston, 416 F.3d 281, 285 (4th Cir. 2005) (“[U]nflinching application” of a permitting requirement “to groups as small as two or three renders it constitutionally infirm.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“[A]pplying the permit requirement to groups as small as ten persons compounds our conclusion that the parade permit ordinance is not narrowly tailored [to advance the government's interest in protecting the safety and convenience of users of public sidewalks and streets.]“); American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down a permit requirement as “hopelessly overbroad” on the ground that the requirement could conceivably apply to groups as small as “two or more persons”).

In summary, the new DOA policy is susceptible to legal challenge on the grounds that it is a facially overbroad infringement upon the First Amendment rights of protestors. This is because, as written, the new policy can be applied in a way that allows the state to impose advance fees on the indigent, on the basis of unbounded police discretion, and in circumstances where the size of the group affected does not justify any purported state interest in public safety. Potential plaintiffs do not need to wait and bring an “as applied” challenge to the law when it is actually applied against them in an unconstitutional fashion. This is because there is a long established First Amendment exception to the “as applied” rule that will permit a facial challenge to be brought. See Forsyth County, Ga., supra.

The federal courts have approved advance fee requirements in certain contexts, such as overnight camping, parades and rallies. However, courts have consistently rejected regulations on the exercise of free speech that are so broad that they reach expressive conduct by small groups of people, whether by regulatory design or because government officials possess the discretion to apply the rules in such a fashion. The drafters of the new DOA policy seem to have taken language from a variety of permitting policies from other jurisdictions that have survived constitutional challenge, without regard to whether advance fees were imposed by those policies, or the relative size of the groups affected by the policies, or the context in which public expression was subjected to those policies. It is a mistake to assume that because advance fees may be imposed under the First Amendment in some circumstances that fees therefore may be imposed any time the state wishes.

The state is not prevented from charging advance fees that are tied to objective criteria, such as the number of anticipated attendees, and that do not violate the three principles discussed above. The state is not prevented from assessing fees after the fact, in order to receive compensation for any damage actually caused by protestors. However, any prior restraint on the exercise of free speech should be designed carefully and crafted narrowly. The new DOA policy announced on December 1 does not meet this standard.

In the new case, Vasquez v. United States (No. 11-199), the defendant’s cert. petition focused squarely on this ambiguity, arguing that the majority opinion below (635 F.3d 889 (7th Cir. 2011)) rested on one formulation, while the dissenting opinion rested on the other.  In Vasquez’s view, the choice of harmless error standard is more-or-less dispositive in his case, thus making the case an appropriate platform for deciding which standard is the right one.  In its response, however, the government disputes that there is any substantive difference between the standards.

Here are the (allegedly) competing standards.

On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

It requires some effort to appreciate a difference between the standards, but the formulations do indeed suggest two distinct ways of performing the analysis.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.  That is because the appellate court will rarely have any reliable basis for determining what really mattered to a particular jury.  Juries normally render bare-bones general verdicts — a simple declaration of guilty or not guilty — and formal examination of jurors about what happened during deliberations is almost always forbidden.  In light of these limitations, an appellate panel really has no alternative in most cases but to try to imagine what it would have done if it had been the jury.  This no doubt helps to explain why the courts have not felt it necessary to resolve the longstanding ambiguity.

It is possible, though, that there are some cases in which the formulation really does matter, and Vasquez just may be such a case.  Here’s what happened.  Vasquez drove to a Denny’s parking lot to meet Perez, who was attempting to complete a purchase of a kilogram of cocaine.  It turned out, however, that the seller was working with the police, and Vasquez soon found the car surrounded by cops.  Rather than surrendering, Vasquez attempted a getaway, crashing into a couple of police cars in the process.  After a chase by car and on foot, Perez and Vasquez were apprehended and prosecuted on drug charges in federal court.  Perez pled guilty, but Vasquez went to trial.

At trial, Vasquez’s defense was that he was simply in the wrong place at the wrong time.  Perez’s wife was his key witness. She testified that she had asked Vasquez to pick up Perez at the parking lot, apparently indicating that he did it as a favor for her, not as a knowing participant in a drug deal.

In order to undermine the testimony of Perez’s wife, the government played for the jury recordings of phone conversations between Perez and his wife while Perez was in jail following his arrest.  Through those recordings, the jury learned that Vasquez’s lawyer had advised his client that he would likely lose at trial and should plead guilty.  When Vasquez’s lawyer then stood up to deliver his closing argument a little while later, one imagines that he had very little credibility left with the jury.

On appeal to the Seventh Circuit, all three members of the panel agreed that the trial judge had committed an error in admitting the sensitive portions of the recordings, at least without an appropriate limiting instruction for the jury.  However, the majority concluded that the error was harmless, reasoning that the evidence of Vasquez’s guilt was “overwhelming.”  The majority particularly emphasized the importance of Vasquez’s getaway attempt as evidence of guilt.  The majority also cited some other items of evidence, including testimony indicating that Vasquez knew the car contained $23,000 in cash.

For the majority, the harmless error determination was quick and easy, requiring only a brief recounting of the evidence against Vasquez, with no attention to the question of what the jury actually thought about the evidence.  The dissenting judge provided much more extensive analysis, carefully parsing the trial record to determine what impact the evidence actually had on the jury.  Here’s a taste:

The [Chapman] standard is not easy to satisfy, and four factors here lead me to conclude this error was not harmless: the modest strength of the rest of the government’s case against Vasquez, the prejudicial character of the evidence that was admitted erroneously, the fact that the jury acquitted Vasquez of one of two charges, and the importance that the government itself attributed to its flawed rebuttal evidence.

. . .

Without the flight evidence and the MCC tapes erroneously admitted for their truth, then, the government had evidence that was legally sufficient to convict Vasquez, but the case was far from a slam-dunk. The dramatic evidence of the dangerous flight strengthened the case substantially and makes it easier for my colleagues to describe the district court’s error as harmless. But the flight evidence cannot carry that much weight, in my view. The Supreme Court and we have repeatedly cautioned against too much reliance on flight as evidence of guilt for the crime charged because there are so many links in the chain of inferences . . . .

We must also consider the prejudicial effect of the improper evidence. The evidence from the MCC tapes, admitted here erroneously for their truth and with no true probative value, was just about as prejudicial as one could expect to encounter in a trial. The jury heard that Vasquez’s lawyer — the man who would soon make a closing argument asking them to find reasonable doubt in the government’s case — had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, “everyone is going to lose.” A juror who heard and believed that evidence would surely discount anything she heard from that lawyer. In terms of prejudice, these harpoons are comparable to evidence of a defendant’s own withdrawn guilty plea. Such a plea is virtually never admissible because of its powerful force.

We also have strong indications from both the jury and the government itself that the erroneous admission of the MCC tapes was not harmless. Even with the prejudicial and erroneous evidence, the jury still found Vasquez not guilty on the charge of attempted possession with intent to distribute. That verdict is hard to reconcile with the jury’s conviction on the conspiracy charge, and the split verdict certainly has the whiff of a compromise verdict in a close case. Such verdicts are permissible in criminal cases, of course, but when determining whether, beyond a reasonable doubt, a conceded error was harmless, we should not ignore that strong signal that the jury viewed the case as a close one, even with the evidence of flight and the improper rebuttal evidence.

The government also showed how important it believed the improper rebuttal evidence was by its extraordinary efforts to obtain its admission. The trial seemed nearly over when the government filed its emergency Sunday motion for a continuance to enable it to prepare this rebuttal case. The events of the next several days, including especially the government’s emphasis on the improper evidence in its closing argument, showed that the government believed that Mrs. Perez had seriously weakened its case and that the improper rebuttal evidence strengthened its case considerably.

In light of the considerations highlighted by the dissenting judge, I think Vasquez does have a plausible argument that the choice of which harmless error test to use was critical in his case.

On the other hand, it’s not clear to me that Vasquez must necessarily lose under the “overwhelming evidence” test.  It really comes down to how much weight you want to give the flight evidence: does this really demonstrate in an “overwhelming” way that Vasquez was conspiring to deal drugs?  I’m skeptical, although I’d really like to know more about the circumstances of the flight.  Minority men (based on his surname, I’m assuming that Vasquez is Hispanic) have plenty of reason to fear encounters with the police even if they are not doing anything illegal.  Although trying to bull his way through a cordon of police cars was stupid and dangerous on many levels, Vasquez seems to have made a snap decision in a high-stress setting that may not really say much at all about what he was thinking when he drove to the parking lot.

So, the Court may be able to dodge sorting out the harmless error standard yet again.

If it does resolve the ambiguity, which way will it go?  Given the restrictions on finding out what a jury was actually thinking, I’m dubious that the sort of approach exemplified by the dissenting judge in Vasquez can really work on its own terms.  Applying the test will almost always seem a highly speculative exercise.  And it may be one that actually works against defendants in some cases.  For instance, if a jury convicts on all counts with only a very short period of deliberation, that would seem rather compelling evidence that the jury did not find the case at all close and would help to support a finding of harmlessness.  (This would be the flipside of the compromise verdict in Vasquez.)

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.

Cross posted at Life Sentences.

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.

Sosa’s guidance notwithstanding, the frequent indeterminacy of international custom creates a significant risk of disagreement among circuit courts tasked with identifying the precise contours of ATS jurisdiction. And indeed, over the past year, appellate courts have split on a new and important aspect of the statute—namely, whether it creates federal jurisdiction over claims alleging corporate violations of customary international law. The D.C. and Seventh Circuits have answered the question affirmatively, and thus permitted plaintiffs to sue corporations for engaging in conduct that violates international custom. But in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit reached precisely the opposite conclusion. The plaintiffs in Kiobel alleged that Royal Dutch helped the Nigerian government to suppress dissent among Nigerian citizens who were unhappy with the environmental effects of oil exploration in the region, and in doing so aided and abetted the government’s commission of various human rights abuses. The complaint asserted, for example, that Royal Dutch provided transportation to Nigerian forces, allowed its property to be used as a staging ground for military attacks on protestors, and provided food and compensation to soldiers involved in the attacks. The Nigerian forces allegedly used this support to engage in extrajudicial killings, crimes against humanity, torture, and arbitrary arrest and detention, among other acts. The plaintiffs asserted jurisdiction under the ATS, but Royal Dutch moved to dismiss on the ground that the statute does not confer jurisdiction over corporate defendants because there is no norm of corporate liability under international custom for the types of offenses alleged. The Second Circuit agreed, and therefore dismissed for lack of jurisdiction.

Given the circuit split and the importance of the question, the Supreme Court granted certiorari in Kiobel last month. It is difficult to predict how the Court will decide the case, but a ruling in favor of either side of the split will have significant implications for corporate responsibility abroad. If the Court agrees with the D.C. and Seventh Circuits, we can expect that plaintiffs will use the ATS to hold corporations accountable for conduct at odds with important international legal norms. If the Court agrees with the Second Circuit, however, plaintiffs will lose a valuable tool for constraining corporate behavior.

Why has the A.B.A. been less enthusiastic about the Obama judicial nominees? One simple theory is that the organization is more conservative than many think. It used to be assumed the A.B.A. had a liberal bias, but the rejected nominees are Obama-style liberals.

Another theory involves the experiences and career paths of the nominees. Most were government lawyers and academics, but the A.B.A. apparently wants significant trial experience. The A.B.A., like the general public, may think that “true” lawyers are litigators.

The most troubling theory for the high rejection rate is that the A.B.A. continues to imagine a white, male federal judiciary. Eight of the fourteen rejections are African American or Hispanic, and nine are women.

President Obama could still seek Senate confirmation for his nominees, but regardless of what he decides on that score, the rejections provide new perspectives on the A.B.A. The emerging image is hardly attractive.

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.

Why Do Many Indian Tribes Have Casinos?

Tribes are considered sovereigns, albeit to a degree different than the federal and state governments.  The sovereignty of tribes generally prevents a state from applying its laws to reservations or other Indian land held in trust by the federal government.  Even states like Wisconsin, which Congress has authorized to extend its criminal laws to most Indian land, cannot apply its non-criminal (i.e., civil or regulatory) laws to these Indian lands.  Moreover, because the people of the state of Wisconsin amended their Constitution to authorize certain gambling while repealing the prohibition on lotteries, the state’s gambling laws can no longer be considered criminal in nature and cannot, as a result, be applied to Indian lands.  It should noted, however, that Indian casinos, including their location and operation, are heavily regulated by federal law, often requiring the input or consent of state and local government.

Why Do Some Indians Have Unique Hunting and Fishing Rights?

Some tribes have treaty rights or other agreements with the federal government that guarantee access and enjoyment of off-reservation hunting, fishing, or gathering.  These are property rights, typically reserved in the process of giving up vast tracts of territory, rather than forms of reparation or special treatment.  As property rights, they are protected not only by federal statutes but also by the U.S. Constitution, just like the property rights of non-Indians.  Indeed, were Congress to take these rights away, the Constitution would require the federal government to pay just compensation under the Fifth Amendment.

Do Tribes or Tribal Members Pay Taxes?

Tribes and tribal entities, being governments, do not pay taxes as such.  They may pay contractual obligations, much like other governments do.  Regarding tribal members, it is slightly more complicated.  Tribal members pay federal income taxes on ordinary income, but whether they pay state or local taxes depends on what is being taxed.  Specifically, tribal member land (like tribal land) that is held in trust by the federal government is exempt from local property taxation, though it should be noted that this trust status also imposes limitations, particularly on the sale of the land.  The income of tribal members, living on their reservation, that is earned from the tribe or a tribal entity is also exempt from state income taxation, but income that is earned off of the reservation or is otherwise unrelated to the tribe is normally subject to state taxation.

Why Does this Blog Post Use the Term “Indian” Instead of “Native American”?

“Indian” is generally the preferred term among Indians themselves, despite its European (and geographically mistaken) origin.  Also, while “Native American” may be a useful way of describing ethnicity or ancestry, “Indian” is the legal term describing one who is a member of a federal recognized tribe.  Although there have been disputes in recent years regarding athletic mascots based on Indian characters (or caricatures)—some of which are often not opposed by Indians themselves—the propriety of using the term “Indian,” as opposed to “Native American,” is largely unrelated to these disputes.

Postscript:  The above, as noted, is just a sampling of the questions that get asked (or could get asked) about contemporary Indian tribes and their members.  Comments, critical feedback, and of course additional questions are welcome.

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.  

First, the court strongly embraced self-motivated rehabilitation as a sentencing factor.  Here’s some of the language:

The Supreme Court recently reiterated “the principle that ‘the punishment should fit the offender and not merely the crime.’” Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), quoting Williams v. New York, 337 U.S. 241, 247 (1949). “Highly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Pepper, 131 S. Ct. at 1235, quoting Williams, 337 U.S. at 247. This aim is codified in 18 U.S.C. § 3553(a), which requires that any sentence imposed be “sufficient, but not greater than necessary” to serve the sentencing goals of punishment, deterrence, protection of the public, and rehabilitation, and which requires the court to consider “the history and characteristics of the defendant.” Adequate consideration of a defendant’s evidence of rehabilitation fits squarely within these parameters. Demonstrated self-motivated rehabilitation is direct and relevant evidence of “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; [and to] provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).

The power of evidence of self-rehabilitation was evident inGall, where the Supreme Court noted that it was reasonable for the district court to attach “great weight” to a defendant’s decision to change his life and withdraw from a drug distribution conspiracy: “Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant’s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.” 552 U.S. at 57. Such self-motivated rehabilitation “lends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.” Id. at 59.  (12-13)

It’s interesting to see such reliance on the Supreme Court’s recent decision in Pepper.  As I discussed here, Pepper strikes me as a potentially significant break from the Court’s recent federal sentencing jurisprudence.  If lower courts were to read Pepper for all it’s worth, we might start to see a real shift in federal sentencing practices.

Also notable in Robertson is the fact that the defendants’ arguments were not entirely passed over in silence, as they were in Cunningham.  Whereas some Cunningham-type cases involve district judges who literally say nothing to indicate that they have even heard a defendant’s argument, the judge in Robertson expressly indicated some awareness of the facts emphasized by Mr. and Mrs. Robertson:

Concerning the Robertsons’ criminal histories, the court acknowledged that Henry had not committed any crimes since 2002 and that Elizabeth lacked any criminal history. But other than noting, without further detail or explanation, that Elizabeth had provided “excellent service . . . as a professional in the medical field,” it is not apparent that the sentencing court considered the Robertson’s unusually strong evidence of self-motivated rehabilitation over the past ten years. Because the court’s silence makes it impossible to discern that it appropriately balanced the Robertsons’ rehabilitated lives and characters against the seriousness of their offense for purposes of 18 U.S.C. § 3553(a), we find this minimal treatment to be insufficient.

. . . The probation office and the government agreed that it would be appropriate to treat Henry’s criminal history as overstated due to the passage of time, yet the district court’s only acknowledgement of this argument was its comment that Henry was not “youthful or immature” when he committed the reckless driving offense in 2002.  (15-16)

I think it unfortunate that the Cunningham rule is sometimes treated as satisfied when there is mere acknowledgement of a defendant’s argument, as opposed to substantive responsiveness.  I’m glad to see Robertson suggesting a more rigorous approach to Cunningham.

In this regard, I thought it interesting that the Seventh Circuit made nothing of the fact that “the district judge agreed to modify Elizabeth’s date to report to prison to allow her to continue to work as a nurse long enough to become eligible for retirement benefits.”  (15 n.3)  This contrasts with the Sixth Circuit’s opinion in United States v. Liou, 491 F.3d 334 (6th Cir. 2007), in which the district judge’s decision to give the defendant a more favorable report date was held to constitute an adequate response to the defendant’s argument for a below-guidelines sentence.

An interesting question about Robertson is why the Seventh Circuit formally treated the district judge’s error as merely procedural, remanding for a resentencing at which the original sentence could be reimposed.  It is seems clear enough that the panel felt the district judge erred substantively, not just procedurally, in imposing multiyear prison sentences on two defendants who led exemplary lives for a decade after their crimes were committed.  For instance, it’s hard not to read this view between the lines of the final words of the Seventh Circuit’s opinion: “the [district] court should carefully weigh and explain its consideration of the Robertsons’ evidence of self-motivated rehabilitation.”  (17)  Why not end the possibility of misunderstanding or mischief at the district court level and forthrightly hold that a guidelines sentence would be substantively unreasonable in this case?

Appellate courts have been loathe to hold guidelines sentences substantively unreasonable.  (As a side note, it is actually a debatable question whether the Robertsons’ sentences can be fairly characterized as guidelines sentences, since their guidelines ranges were calculated using a newer and harsher version of the guidelines than existed at the time they committed their crimes.)  This reluctance doubtlessly owes much to the presumption of reasonableness that may be accorded guidelines sentences under Rita v. United States, 127 S. Ct. 2456 (2007), and to the underlying premise of Rita that the guidelines embody the research and expertise of the Sentencing Commission.  Appellate courts should recognize, however, that is does no violence to the logic of Rita to hold guidelines sentences substantively unreasonable in unusual circumstances that the Commission did not contemplate in crafting the guidelines.  To start holding more guidelines sentences substantively unreasonable — where there are sound, principled grounds for doing so — would in effect start to build the common law of sentencing for which many scholars have been advocating for a very long time.  Such a common law holds out the hope for greater transparency, consistency, and proportionality in federal sentencing.

But are there persuasive grounds for holding the Robertsons’ sentences substantively unreasonable?  But my lights, this is a complex and uncertain question.  The underlying principle would be that defendants who have led productive, crime-free lives for many years before being charged present almost no recidivism risk, rendering multiyear prison terms a needless burden on the both the defendants and our overcrowded federal prison system.

However, as someone who believes that punishment should be based more on the severity of the crime than the risk of the criminal, this principle leaves me a little cold.

On the other hand, as I’ve been exploring in some of my recent writing, I also think that retributive approaches to punishment may be compatible with crediting defendants for acts that have a penitential character.  I don’t know, though, whether anything the Robinsons did could fairly be characterized as penitential.

Aside from the questions relating to self-motivated rehabilitation, Robinson also raised a couple of other interesting questions.  First, the Seventh Circuit adhered to its precedent in holding that the Ex Post Facto Clause is not violated when defendants are sentenced under a harsher version of the guidelines adopted after their crimes were completed.  Several other circuits take a contrary view, which may make the question ripe for Supreme Court consideration.

Second, the Seventh Circuit noted, but felt it did not have to resolve, continuing uncertainty over whether the aggravating role enhancement of U.S.S.G. § 3B1.1 requires that the defendant have exerted control over other participants in a criminal activity.

Cross posted at Life Sentences.

The two cases are Miller v. Alabama (opinion below: 63 So. 3d 676 (Ala. Crim. App. 2010)) and Jackson v. Hobbs (2011 Ark. 49).  The question granted in each case is the same, and they are to be argued together.  It appears that the defendants are presenting a categorical challenge to the constitutionality of “LWOP” as applied to fourteen-year-olds.

In Graham, the Court used the categorical approach to Eighth Amendment analysis for the first time outside the death-penalty context, so we know that the Court is open to the idea of protecting particular classes of offenders from LWOP.  But the Court also heavily emphasized the homicide-nonhomicide distinction — are the justices prepared to reject or blur that bright line so soon after drawing it?

In the defendants’ favor is their very young age.  There are precious few fourteen-year-olds who are convicted as adults of homicide, so the Court could carve out the very young from the Graham distinction without affecting many cases.  But that will just invite a fresh set of challenges from fifteen-year-olds, and then sixteen-year-olds, and then seventeen-year-olds.  Any line drawn based on chronological age is bound to be somewhat arbitrary, and the Court may not want to head down a path that will eventually require such a line to be drawn.

There may also be distinctions to be drawn based on the type of homicide crime.  In this regard, Miller seems differently situated than Jackson (which may explain why the Court took both cases for argument on the merits).  Both were convicted of capital murder, but Jackson on a more technical, felony-murder theory; he was a minor accomplice in an armed robbery that went bad.  Miller, however, was more directly responsible for his murder and even made a statement indicating an intent to kill.  It might be possible in the juvenile LWOP context to draw a protective rule for relatively low-culpability accomplices, much as the Court has already done for adults in the death-penalty setting.

There are a lot of different directions the Court might go in these two cases.  However they turn out, the one thing for certain is that Justice Kennedy will be in the majority.

Cross posted at Life Sentences Blog.

• Overarching Themes
• Fourth Amendment: Kentucky v. King
• Fourth Amendment: Davis v. United States
• Miranda: J.D.B. v. North Carolina
• Right to Counsel: Turner v. Rogers
• Ineffective Assistance: Pinholster and Moore
• Confrontation Clause: Bullcoming and Bryant
• Other Cases
• Last Term by the Numbers