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.

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.

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.

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.

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

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application.

In an effort to resolve some of these problems, I’ve written an article that examines the U.S. Supreme Court’s approach to the choice-of-law component of severability doctrine. I contend that, in two recent decisions, the Court quietly established the severability of state statutes in federal court to be a matter of general federal common law, and that this doctrine is not only inexplicably inconsistent with dozens of cases decided since Erie Railroad Co. v. Tompkins, but also displaces a large body of diverse state law without constitutional authorization or any supporting federal interest. I argue that the new doctrine thus challenges standard accounts of the limits of federal common law and calls into question the contemporary vitality of Erie’s principle of judicial federalism. I then close by proposing an alternative that would harmonize the precedent, help to revitalize Erie, and honor the bounds of Article III judicial power.

A draft of the article is available here. Please let me know if you have any comments or criticisms; I’d appreciate any feedback, either below or at ryan.scoville@marquette.edu.

A. The Right to Vote Under the U.S. Constitution

The text of the United States Constitution does not expressly guarantee the right to vote. Nonetheless, in Harper v. Virginia State Board of Elections the United States Supreme Court ruled that the right to vote in state elections is a fundamental right protected by the Equal Protection clause of the United States Constitution. A large body of precedent has reaffirmed the primacy of the right to vote under our constitutional structure, holding that the ability to vote cannot be arbitrarily abridged or denied to groups of otherwise legitimate voters.

Notwithstanding the recognition that the right to vote is fundamental, the United States Supreme Court has declined to apply strict scrutiny to all election regulations which place some minor, even-handed burden on the ability to cast a ballot. Beginning in the case of Anderson v. Celebrezze, and continuing in the case of Burdick v. Takushi, the Court has held that state election regulations are subject to a sliding scale of judicial review, with laws that significantly burden the right to vote receiving greater scrutiny than laws of general application which operate merely as an inconvenience to voters. This sliding scale of scrutiny has come to be called the Anderson/Burdick test.

B. Crawford v. Marion County Election Board

The key United States Supreme Court case analyzing the constitutionality of state voter ID laws is the 2008 case of Crawford v. Marion County Election Board. In 2005, Indiana passed a state law requiring every person casting a ballot in person to present a government-issued photo ID. The law did not apply to votes cast via absentee ballot. Various exemptions allowed indigent individuals and those with religious objections to being photographed to cast a provisional ballot which would be counted if the voter traveled to the circuit court clerk within 10 days after the election date and executed an affidavit. Under the Indiana law, residents are entitled to free state-issued photo IDs.

The Indiana Democratic Party, among others, filed a lawsuit challenging the Indiana Voter ID law. The plaintiffs alleged that the Indiana Voter ID law was unconstitutional on its face because the requirement of a photo ID imposed a substantial burden on the right to vote as guaranteed by the Fourteenth Amendment.

In a fractured ruling by the United States Supreme Court, a total of six Justices voted to uphold the Indiana Voter ID law but none of the written opinions was joined by more than three Justices. In a plurality opinion authored by Justice Stevens, and joined by two other justices, the Court applied the Anderson/Burdick balancing test. The plurality opinion weighed the legitimate state interests of Indiana in passing the regulation against the burden that the law’s requirements placed on those wishing to vote. Justice Stevens concluded that the plaintiffs had not provided evidence of widespread impediments to voting under the law sufficient to outweigh the state’s interest.

The plurality opinion identified Indiana’s interests in passing the law as being the deterrence and detection of voting fraud, the prevention of voter fraud, and the safeguarding of voter confidence in the integrity of the electoral process. Justice Stevens accepted the validity of these state interests as unquestionably legitimate. The plurality did not require Indiana to provide evidence of past voter fraud, nor did it demand evidence of the greater potential for fraud associated with in-person voting as opposed to absentee voting, nor did it ask Indiana to provide evidence of the asserted connection between voter ID legislation and increased voter confidence. In fact, the plurality expressly noted the absence of any evidence in the record to support the existence of these three state interests. Yet it found these state interests to be legitimate nonetheless.

Against these interests, the plurality weighed the burdens imposed by a photo ID requirement imposed on voters. Justice Stevens noted that IDs can be lost or stolen, but considered the denial of the right to vote under these circumstances to be infrequent. The plurality found that the fact that Indiana provided free IDs meant that the most common burden faced by those who did not already own a photo ID would be limited to traveling to the department of motor vehicles, gathering the required underlying documentation, and posing for a photograph. While certain individuals might find these actions burdensome, for most of the population they would be nothing more than an inconvenience.

For those limited number of persons who did find compliance with the law to be more difficult than the average voter, the plurality opinion stated that the Indiana statute’s grant of a right to cast a provisional ballot without obtaining a photo ID would mitigate the severity of the burden caused by an ID requirement. The lack of a serious burden on a widespread basis, and the fact that the law’s burdens were imposed on all voters on an even-handed basis, led Justice Stevens to conclude that the plaintiffs had failed to meet the heavy burden of persuasion necessary to overcome Indiana’s interests. Therefore, the plaintiffs failed in their facial challenge to the Indiana Voter ID law.

A facial challenge to a statute asserts that the law may rarely if ever be constitutionally applied. To succeed, a plaintiff must demonstrate that there are no possible circumstances under which the law is valid. In contrast, an “as applied” challenge is a claim that a statute is unconstitutional in a particular case. The plurality opinion left open the possibility that a challenge to the Indiana Voter ID law might be possible on an “as applied” basis if a particular voter or group of voters could demonstrate that the law imposed an unjustified burden specifically on them.

In a concurrence, Justice Scalia argued that the plurality opinion should have applied the Anderson/Burdick test in a manner that is even more deferential to the state. He argued that only laws that “severely” burden voting rights should be subjected to heightened judicial review. Because he viewed any generally applicable, non-discriminatory voting regulation as incapable of placing a severe burden on the exercise of voting rights, Justice Scalia argued that the Court should defer to the state legislature’s judgment that the regulation is justified. He concluded that neither a facial challenge to the Indiana law nor an “as applied” challenge should be permitted.

In the absence of facts demonstrating a severe burden, Justice Scalia would hold that the Constitution requires nothing more than that the Indiana law not significantly increase the typical burdens associated with the voting process, and that Indiana identify an interest in the law sufficient to justify any minimal burden imposed. Only when state laws impose severe and unjustified burdens on the right to vote, according to Justice Scalia, should the Court proceed to apply heightened scrutiny to the state law.

However, only two Justices joined Justice Scalia’s concurrence. Instead, the three Justices in the plurality and the three dissenting Justices applied the Anderson/Burdick test in a way that required the Court to balance state interests against the burden placed on the right to vote in all cases, however slight the burden, and not just in cases where the particular burden might be characterized as “severe.” In addition, these six Justices also appeared to agree with the proposition that, even if the plaintiffs in the Crawford case had failed to meet the high burden required to prevail on a facial challenge to the law, it remained an open issue whether the Indiana law might be unconstitutional on an “as applied” basis.

Two dissents were filed in the case. The dissenting opinion authored by Justice Souter (joined by Justice Ginsburg) argued that the proper application of the Anderson/Burdick test requires the state to provide factual evidence in support of its proffered interests before the Court will allow the state interest to overcome a demonstrated burden on the right to vote. The dissenting opinion authored by Justice Breyer argued that Indiana had failed to explain why it could not satisfy its purported interests in a photo ID and still permit the use of a broader array of IDs, such as student IDs or employer-issued badges.

The Crawford decision has been criticized for misapplying the Anderson/Burdick test. Critics have argued that the plurality opinion in Crawford applies the balancing test in an overly deferential way that approximates mere rational review of the Indiana statute. However, the Court’s original explication of the Anderson/Burdick test indicates that, while something less than strict scrutiny should be applied to laws uniformly burdening voting rights, the Court intended to preserve some form of heightened scrutiny in order to ensure that the state can document that the voting regulation at issue is justified. These critics believe that the dissenting Justices in Crawford applied the Anderson/Burdick test correctly.

Admittedly, the original language the Court quotes setting forth the Anderson/Burdick test is vague and confusing, leading other critics to focus not on the Crawford decision but instead cast blame on the Anderson/Burdick test itself. These critics argue that, by adopting a balancing test for challenges to non-severe and even-handed restrictions on the ability to vote, the Supreme Court’s rulings in Anderson and Burdick essentially overturned prior precedent recognizing that the right to vote was a fundamental right. In addition, the Anderson/Burdick test itself can be criticized for allowing a judge’s subjective opinion of what is and is not a “severe” restriction on the right to vote to determine the standard of judicial review.

C. The Implications of the Crawford Decision for Future Litigation

In the wake of the Crawford decision, it is clear that four significant hurdles stand in the way of any future litigation challenging a state voter ID law. First, the Court has imposed a heavy burden on plaintiffs who wish to bring a legal challenge to a state voter ID law. To succeed, plaintiffs would have to provide factual evidence of widespread and significant burdens that a photo ID requirement actually imposes on individuals who wish to vote. In addition, should a plaintiff in such a case actually acquire a photo ID at any time after filing suit, they would no longer be injured by the law and their claims would become moot. In other words, in order to succeed in a challenge to the law the plaintiffs must provide both factual evidence of widespread barriers to the possession of a photo ID and, concurrently, the plaintiffs’ ongoing inability to successfully obtain an ID. Gathering this empirical data and identifying the appropriate plaintiff(s) will not be easy.

Second, the Crawford plurality rejected the plaintiff’s argument that all laws burdening the ability to cast a ballot should be subjected to strict scrutiny. Instead, the plurality applied a balancing test whereby the court must weigh the burden imposed by a voter identification law against the relevant and legitimate interests of the state. A balancing test is inherently subjective, and gives individual judges leeway to apply pre-existing biases, opinions and/or political philosophies to the weighing process.

Third, the Crawford plurality explicitly found that the state’s interest in preventing potential fraud, and in maintaining public confidence in the integrity of the voting process, was sufficient to outweigh the burdens imposed by the Indiana law. The state of Indiana was not required to produce any evidence of actual voting fraud in prior elections.

Finally, none of the typical burdens associated with voter ID laws was found to be sufficient to outweigh the state’s interest. The Crawford plurality recognized that voter identification laws may require persons to travel significant distances to motor vehicle licensing centers, and that many people would find it difficult to reach these centers using public transportation, and that the elderly and the indigent might find it difficult to obtain identifying documents such as birth certificates. None of these typical burdens associated with a photo ID requirement were found to be sufficient enough to outweigh the interests of the state of Indiana.

D. Possible Legal Theories Still Viable to Under the U.S. Constitution

Despite the barriers to future litigation erected by the Crawford decision, there remain at least two viable legal theories by which to challenge a state voter ID law under the U.S. Constitution.

1. Proof of a “Disguised” Poll Tax

In Harper v. Virginia Board of Elections, the U.S. Supreme Court found that a state law conditioning the right to vote on the payment of a poll tax was an invidious restriction on the right to vote, because the ability to pay the poll tax is unrelated to any legitimate voter qualification. The Crawford plurality opinion did not purport to modify or overrule this precedent, and, in fact, suggested that the failure to provide free photo IDs would have been fatal to the Indiana Voter ID law.

2. Possible “As Applied” Challenges to a Voter ID Law

A successful “as applied” challenge to a Voter ID law would require empirical data on the number of registered voters who do not already possess an acceptable photo ID and, in addition, either cannot obtain an acceptable ID under the law or else would face a significant burden in obtaining an acceptable ID.

On the one hand, it might be possible to provide empirical evidence that under the Wisconsin Voter ID law a distinct population of Wisconsin residents is absolutely denied the right to vote. For example, individuals who are homeless and who live on the street may find it impossible to satisfy the requirement to demonstrate residency in order to obtain a photo ID. However, specific data on the number of homeless persons who live on the street in Wisconsin, and who cannot provide acceptable evidence of residency under the law, would be difficult to collect.

More likely, it might be possible to gather empirical evidence demonstrating that distinct populations within the state face a more significant burden under the law than the typical voter. Post-Crawford, an “as applied” challenge might be possible on behalf of those who 1) find it prohibitively difficult to travel long distances to nearest available department of motor vehicle office; 2) lack access to mass transit or other forms of transportation (especially in in rural areas); 3) or are unlikely to possess the underlying documentation necessary to obtain a photo ID (passport, birth certificate, etc.) due to the passage of time or due to geographic distance from their place of birth.

Distinct populations that might share one or more of these characteristics include the elderly, the disabled, the indigent, students who are residents but who are from out of state, and voters whose current name differs from the name on their birth certificate. A successful “as applied” challenge might be brought on behalf of one or more of these groups if there were empirical evidence that 1) large numbers of persons in these groups did not already possess an acceptable photo ID and 2) complying with the law would impose a significant burden on these individuals.

E. The Voter ID Law and the Wisconsin Constitution

In general, state laws which set forth the time, place and manner in which elections are conducted will be upheld provided that they do not impermissibly infringe upon a fundamental right, do not apply unequally to state residents, and do not contravene express provisions in the state constitution that limit the legislature’s ability to place restrictions on the exercise of the franchise.

1. Equal Protection

An argument can be made that state laws requiring voters to present a photo ID when voting in person violate the equal protection clause of the state constitution because not all voters are equally burdened. In particular, absentee voters are not required to possess or present a photo ID in order to vote. In addition, some state supreme courts have interpreted the equal protection clause of the state constitution to provide a broader scope of protection than the equal protection clause of the United States Constitution.

For example, in Weinschenk v. Missouri, the Missouri Supreme Court struck down the Missouri Voter ID law, relying in part on the fact that the Missouri Constitution has been interpreted to provide greater equal protection against unequal rights than the federal Constitution. The Weinschenk opinion also noted that the equal protection clause of the Missouri Constitution required the court to apply strict scrutiny to state laws that impinge on fundamental rights, and that Missouri precedent provided a strong basis for concluding that the right to vote is a fundamental right protected under the Missouri Constitution.

Wisconsin courts often have used language suggesting that the right to vote is a fundamental right protected by the Wisconsin Constitution. Where a state law touches upon important individual rights, the Wisconsin Supreme Court would normally apply a heightened form of judicial scrutiny in order to assure a close fit between the law’s means and the law’s ends. This analysis would suggest that the Voter ID law should receive heightened scrutiny under the equal protection clause of the Wisconsin Constitution.

However, precedent interpreting the Wisconsin equal protection clause does not typically grant that clause a more expansive scope than the 14th Amendment of the United States Constitution. Instead, Wisconsin precedent generally emphasizes that Wisconsin’s own equal protection provision is to be interpreted as co-extensive with the equal protection provision of the federal Constitution. In the absence of strong precedent indicating that the state constitutional provision has a broader scope than the 14th Amendment of the U.S. Constitution, it appears unlikely that a Wisconsin court would apply strict scrutiny to the Wisconsin voter ID law. Instead, were it to reach the issue, the Wisconsin Supreme Court might be expected to follow the approach used in the Crawford decision and to evaluate any state law regulating the right to vote under a more deferential balancing test.

2. Article III Right to Vote

A second, although related, argument in favor of expanded protection of voting rights under a state constitution is that constitutional provisions listing the qualifications of voters are the exclusive permissible qualifications on the right to vote. Therefore, the state legislature may not make substantial changes to these qualifications, or add additional qualifications, in the absence of an amendment to the constitution. This argument stresses that the legislature lacks the power under the state constitution to amend the list of voter qualifications contained in the constitutional text merely by passing a statute. In order to prevail under this argument, however, the plaintiff must convince the court to interpret the state constitution’s listing of specific voter qualifications as if the specified qualifications were the exclusive qualifications permitted.

In addition, the explicit voter qualification provisions located within state constitutions also support the argument that the right to vote is more of a fundamental right under a state constitution than it is under the federal Constitution. After all, the federal Constitution lacks any provision listing the explicit qualifications for casting a ballot, and instead largely leaves the regulation of elections to the states. Therefore, the argument goes, state constitutions should be interpreted to provide greater protection for voting rights than the federal Constitution. This argument was stressed by the Missouri Supreme Court in the Weinschenk case.

Article III of the Wisconsin Constitution contains the following provisions:

Electors. Section One. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.

Implementation. Section Two. Laws may be enacted:

1. Defining residency.

2. Providing for registration of electors.

3. Providing for absentee voting.

4. Excluding from the right of suffrage persons:

a. convicted of a felony, unless restored to civil rights.

b. adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.

5. Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.

It is possible to argue that Article III should be interpreted to create an absolute right to vote on the part of the electorate so long as the qualifications of Section One are met. Under this interpretation, age, citizenship and residence are the exclusive qualifications for casting a ballot in Wisconsin, and the Wisconsin legislature may not add additional requirements to the list contained in Section One. In contrast, Section Two, which is titled “Implementation,” allows the legislature to define residency and to provide procedures for registration, but it does not allow the legislature to add additional substantive qualifications to the list in Section One. The possession of a state-issued photo ID might be viewed as a substantive qualification limiting the pool of eligible voters, and therefore beyond the constitutional authority of the legislature.

However, arguing against this interpretation is the fact that the right to vote in an election is not explicitly guaranteed by the language of Section One of the Wisconsin Constitution. In addition, nowhere does the text of the Wisconsin Constitution explicitly state that the qualifications listed in Section One should be read to comprise the exclusive list of permitted qualifications in the absence of a constitutional amendment.

It is relevant to note that, while the Missouri Supreme Court interpreted the Missouri Constitution to contain an exclusive list of voter qualifications in Weinschenk, a case that pre-dated the Crawford decision, subsequent to Crawford the highest state courts in Indiana, Georgia and Michigan have all declined to interpret their state constitutions in such a fashion. Instead, these later cases read the photo identification requirement as akin to a “time, place and manner” regulation that occasionally operates to prevent votes from being cast, such as a provisions dictating when polling places open or close, and not as an attempt to add an additional qualification for voting rights.

F. Conclusion

Litigation challenging the constitutionality of state laws imposing a voter ID requirement faces an uphill battle under existing judicial precedent. Individuals and advocacy groups concerned about the possibility that voter ID laws may act to disenfranchise certain populations should not look to litigation as a “magic bullet” to overturn such laws. Instead, critics of voter ID laws should consider working to elect representatives who will amend or repeal such legislation. Alternatively, critics should consider forming or supporting non-profit entities that work at the grassroots level to identify and assist anyone who needs help in obtaining a photo ID.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school.

Immediately she filed a charge of discrimination and retaliation with the EEOC, which eventually initiated a federal district court action against the school. Though the school prevailed at the district court level, it then lost before the Sixth Circuit Court of Appeals.

Underlying the district court’s ruling, and rejected by the Court of Appeals, is a doctrine called the “ministerial exception.” Her case—and indeed the fate of the ministerial exception—are now before the U.S. Supreme Court, which granted review of the Sixth Circuit’s decision last spring and is scheduled to hear oral arguments on October 5.

What, then, is this “ministerial exception” and why is her case potentially of great significance? In essence the ministerial exception is a judge-made exemption from several federal civil rights statutes, such as Title VII and the Americans with Disabilities Act, that the courts believe is compelled by the Constitution’s religion clauses. The exemption extends to religious organizations’ employment decisions where the employee, regardless of his or her title, serves functions comparable to those of traditional clergy. Importantly, it is a categorical exemption, potentially barring suits alleging discrimination on any statutorily protected basis, including race and gender.

From the petitioner’s initial standpoint, as evidenced in its principal brief on the merits, the issue was simply the Sixth Circuit’s application (or, in its view, misapplication) of the exception. The respondent, however, has effectively challenged the validity of the exception itself, capitalizing on two critical realities: first, that the Supreme Court itself has never adopted the exception, even though every federal circuit court (beginning in the 1970s) has done so, and second, that the exception is seemingly at odds with the Supreme Court’s free exercise doctrine, which it substantially reworked in 1990. It thus comes as no surprise that the bulk of the petitioner’s reply brief only cursorily dwells on Cheryl Perich’s actual circumstances and instead spends most of its pages vigorously defending the exception itself.

Thus, all of a sudden, though not entirely unpredictably, the case has now become a vehicle for potentially abrogating over thirty years of lower court rulings. Will the Court view the exception as a misapplication of the Free Exercise Clause, which in 1990 it held does not ordinarily shield religious conduct from the application of neutral and generally applicable laws? Or will the Court view the exception as a viable component of the Establishment Clause insofar as the government is unduly entangling itself in the internal affairs of religious bodies? The fact that the lower courts have unanimously adopted the exception in one form or another is, to be frank, not necessarily the Court’s problem or concern, and the fact that the lower courts have grounded and conceptualized the doctrine in several ways only works against the supposed significance of their unanimity.

The October 5th oral arguments will ideally shed light on the Court’s inclinations, but given the stakes and the multi-tiered nature of the case, not to mention the very able counsel on both sides and a literal deluge of amicus briefs, the likelihood of such illumination is not great. The only definite aspect of the case, it seems, is that Cheryl Perich and her disability-related claims—the very genesis of the litigation—have become merely a secondary story in what is now a major contest over the First Amendment.

Here are the facts of Omega v. Costco.  Omega maintains a tight grip on its authorized distribution channels.  Omega attempted to gain control of its watches’ distribution by engraving a design on the back of its watches (pictured below) and registering this design at the U.S. Copyright Office. Omega sold watches with these designs to their authorized distributors.  Somewhere along the distribution line, however, the watches ended up in the hands of distributors outside of Omega’s authorized channels abroad.  As the Ninth Circuit recognized, this is a paradigm gray market importation scheme, in which products meant to be sold in one territory are imported into another, usually for cheaper prices. One of Costco’s suppliers based in New York imported watches from these unauthorized distributors and eventually transferred the watches to Costco, which then sold these watches to its customers in California. One of those purchasing customers turned out to be a plant employed by Omega.

Omega then sued Costco for violating their exclusive right to distribute  its copyrighted works and for importing them without Omega’s authorization.  Costco asserted the first-sale defense, arguing that Omega’s right to control the distribution of its watches under both the distribution and importation statutes ends with its first transfer to its authorized distributors.  Costco v. Omega’s ending at the Supreme Court was a bit anticlimactic, with the U.S. Supreme Court evenly divided 4-4 (Justice Kagan didn’t take part in the non-decision).  This led to a summary affirmance of the Ninth Circuit’s decision below and no rule from the Supreme Court resolving the statutory tension in the Copyright Act.

In the midst of the statutory construction issues dominating the Supreme Court briefs, Costco suggested that Omega’s distribution controls might pose antitrust problems.  This issue popped up very briefly; in one sentence and in one footnote, Costco’s first merits brief surmised that Omega’s distribution controls might qualify as a vertical restraint of trade sanctionable under the antitrust laws.  The issue was mentioned only in passing, but how briefly it appeared should not downplay the importance of the issue.  As noted above, to the extent that gray market importation is still a subject of debate, other litigants may very well challenge practices meant to stamp out gray markets under the antitrust laws.

Following Costco’s argument, Omega’s authorized distributor agreements could be characterized as vertical territorial restraints.  These distributor agreements might also involve vertical pricing fixing or vertical refusals to deal, but for the sake of brevity, this post will consider Omega’s practice as a vertical territorial restraint.  Vertical territorial restraints occur when companies up and down a distribution chain enter into agreements that limit the geographic areas into which they will sell their products.

These restraints used to be treated as per se illegal under the antitrust laws, but they are categorically unlawful no longer.  Taking the per se position on vertical territorial restraints was United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967).   Justice Fortas, writing for the majority, believed that limiting to whom distributors may transfer a manufacturer’s products is “so obviously destructive of competition that their mere existence is enough.”  Drawing upon other vertical restraint cases, the Supreme Court in Schwinn expressed concern that allowing manufacturers to dictate how their products move down the distribution chain “would violate the ancient rule against restraints on alienation and open the door to exclusivity of outlets and limitation of territory further than prudence permits.”  The Supreme Court in Schwinn skirted a number of lingering questions.  One question was explicitly left off the table: how the principle of protecting the free alienation of property would apply to patents.  Other matters left out were robust analyses of the economic efficiencies hampered or harnessed by vertical territorial restraints.  A majority of the Supreme Court concluded as much ten years after Schwinn in Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 54 (1977).  GTE Sylvania overruled Schwinn, noting how untethered the nature of a manufacture-to-distributor transaction is to the economic efficiencies and effects on different markets. The GTE Sylvania Court also flagged and examined the economic literature regarding how vertical restraints reduce intrabrand competition among retailers but allows manufacturers to enjoy new efficiencies in their interbrand competition with other manufacturers.  In other words, while there is a possibility that harm to intrabrand competition might be serious enough to warrant antitrust scrutiny, not all vertical territorial restraints are per se illegal.

The Supreme Court’s decision in GTE Sylvania to step away from per se illegality is not limited to vertical territorial restraints.  In like sense, the U.S. Supreme Court once treated resale price maintenance — whereby a manufacturer commands that distributors not set retail prices at, above, or below set figures — as per se illegal.  Albrecht v. Herald Co., 390 U.S. 145 (1968) (maximum resale price maintenance); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911) (minimum resale price maintenance).  Both of these cases have since been overruled.  State Oil v. Khan, 522 U.S. 3 (1997); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007).  As GTE Sylvania, Khan, and Leegin indicate, there are pro-competitive reasons for manufacturers to agree with distributors to limit the scope of distribution, whether through prices or geographic regions. And these reasons carry enough weight that the Supreme Court believes it imprudent to penalize every single one of these agreements.  Moreover, these cases signal that hostility toward vertical restraints as potential antitrust problems is subsiding.  In fact, the IP and Antitrust treatise authors argue that “the rule of reason for purely vertical nonprice restraints has resulted in something approaching automatic legality for such arrangements.”  Herbert Hovenkamp et al., IP and Antitrust, § 24.3b1.

The antitrust analysis does not end with the Supreme Court’s treatment of vertical restraints in themselves. Adding another wrinkle is that the territorial restraint here was enforced using a copyrighted design, calling forth the ongoing confusion around how intellectual property and antitrust law should coexist.  For decades, courts and academics have been confounded by the tense intersection between intellectual property and antitrust law.  In fact, they cannot even agree on how to name it: In a lecture before the Antitrust Committee of the New York City Bar Association, Professor Mark Lemley listed several of these names: the relationship, conflict, tension, interaction, interface, or collision between intellectual property and antitrust policy.

That the antitrust laws and intellectual property rights are hopelessly mired in irreconcilable doctrinal conflict is far from being a necessary or inevitable conclusion.  Hovenkamp et al., supra, § 1.3.  In fact, Ward Bowman, Jr. argued that both intellectual property and antitrust promote wealth maximization and prevent restrictions on output.  Ward Bowman, Jr., Patent and Antitrust Law: A Legal and Economic Appraisal (1973), reprinted in part in Hovenkamp et al., supra, § 1.3; Mark A. Lemley, Milton Handler Lecture: The Intersection Between Antitrust and Intellectual Property Part 1-3.  They both have their own roles in accomplishing these ends: antitrust law protects the overall free market environment while intellectual property rights create incentives to innovate.  Hovenkamp et al., supra, § 1.3; Lemley, supra.  Without intellectual property, the argument goes, the market will stagnate.  Hovenkamp et al., supra, § 1.3; Lawrence A. Sullivan & Warren S. Grimes, The Law of Antitrust: An Integrated Handbook § 15.1 (2d ed. 2000); Lemley, supra.

That being said, intellectual property’s economic justifications do not give intellectual property owners carte blanche to enforce their intellectual property rights abusively nor in bad faith.  To be sure, some courts treat certain intellectual property enforcement practices, such as tying agreements and possibly others, as pernicious enough to the competitive process that they should not be tolerated under the antitrust laws, even if the intellectual property laws alone would allow them.  Image Technical Servs. v. Eastman Kodak Co., 125 F.3d 1195, 1216, 1218 (9th Cir. 1996); Data General v. Grumman Systems Support, 36 F.3d 1147, 1182 (1st Cir. 1994); but see In Re Independent Service Organization Antitrust Litigation, 203 F.3d 1322, 1327, 1327-28 (Fed. Cir. 2000) (“[A] patent owner may not take the property right granted by a patent and use it to extend his power in the marketplace improperly, i.e. beyond the limits of what Congress intended to give in the patent laws.” (quoting Atari Games Corp. v. Nintendo of America, Inc., ); SCM Corp. v. Xerox Corp., 645 F.2d 1195, 1206 (2d Cir. 1981) (“[C]onduct permissible under the patent laws cannot trigger any liability under the antitrust laws.”).  After all, the point of intellectual property in the United States is the economic quid pro quo of granting a property right in exchange for enriching society with new artistic and utilitarian creations; intellectual property does not, however, exist only to shower creators and innovators with pecuniary benefits or to further the Lockean notion that labor makes property.  Feist Publications v. Rural Telephone Services, 499 U.S. 340, 352-60 (1991); Mazer v. Stein, 347 U.S. 201, 219 (1954).  In the final analysis, innovation and antitrust policy coexist best when they are balanced: bad faith and baldly anticompetitive intellectual property enforcement should be sanctioned, while the antitrust laws simultaneously allow intellectual property owners to reap the fruits of their patents, copyrights, and trademarks, among other rights.  Herbert Hovenkamp, Federal Antitrust Policy § 5.5a (3d ed. 2005).

Applying this complicated and sometimes conflicting set of legal rules, one can plausibly find pro-competitive reasons for allowing Omega to control its distribution channels this tightly.  In terms of interbrand competition — such as may be the case with other luxury watch designers, like Tag Heuer, Breitling, Movado, and Rolex — constraining distribution channels can protect a company’s brand reputation.  In economic terms, limited distribution to authorized sellers prevents free riding by low-end discount stores that can sell goods for cheaper prices while shirking the customer service and presentation of higher end shops.  Cf. Leegin, 127 S. Ct. at 2715.  This is especially true for a luxury designer like Omega.  With the risk of free-riding by discount stores, a niche market for luxurious goods and the luxe shopping experience could become endangered.  Cf. id. at 2715-16.  If Omega’s fine watches can be had at lower prices than Omega would prefer at stores like Costco, then its brand may very well lose some of its exclusivity and cachet, a key asset to Omega’s ability to compete with other luxury designers.

Furthermore, the circuit decisions cited above demonstrate that the courts have been reluctant to extend antitrust liability to intellectual property enforcement when the underlying intellectual property right is legitimately and duly granted. For its part, the Federal Circuit has limited antitrust liability for patent infringement to the serious cases of fraud before the USPTO, objectively baseless sham litigation, and other situations in which a patent is extended beyond its statutorily granted property right, such as tying agreements. In Re Independent Serv. Org. Antitrust Litigation, 203 F.3d 1322, 1326-28 (Fed. Cir. 2000).  The Federal Circuit thus imposed a high burden on patent infringement defendants to show that intellectual property is being used in such an unduly exclusionary fashion as to warrant antitrust liability.  Id. at 1327.  In the copyright arena, the U.S. Supreme Court has demonstrated support for copyright owners realizing the value of their intellectual property.  Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1, 19 (1979) (“Although the copyright laws confer no rights on copyright owners to fix prices among themselves or otherwise to violate the antitrust laws, we would not expect that any market arrangements reasonably necessary to effectuate the rights that are granted would be deemed a per se violation of the Sherman Act.”).  In the First and Ninth Circuits, there is still a doctrinal presumption that intellectual property rights are being used legitimately.  Furthermore, there is close to explicit authorization in the Copyright Act for copyright owners to control their protected products’ distribution.  Hovenkamp et al., supra,  § 24.3b1.  Each of these doctrines heavily weigh against the already hard antitrust case to win.

Challenging Omega’s use of its copyrights as an antitrust violation thus would likely prove to be a daunting uphill battle.

For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings.  The first case, Martinez v. Ryan (see my post here), concerns a potential constitutional right to counsel in a collateral proceeding in state court.  The new case, Martel v. Clair (No. 10-1265), deals with a potential statutory right to counsel in a federal habeas case.

Here’s what happened.  Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition.  After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender.  It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim.  The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition.  On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender.  The Supreme Court granted the state’s petition for certiorari yesterday.

At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.

After all, the Ninth Circuit has not spoken to the merits of the habeas petition or even found that Clair’s request for new counsel should have been granted.  In a sense, its ruling could be seen as purely and narrowly procedural: a district court must conduct some kind of inquiry into a claim that habeas counsel is failing to pursue potentially significant new leads, rather than summarily rejecting such claims.

But the state sees much more at stake in Martel than simply a procedural requirement that habeas courts look into complaints about counsel, and I suspect the cert. grant is an indication that some of the justices share the state’s concerns.

As the state sees it, the Ninth Circuit’s ruling is necessarily bottomed on a statutory right to “meaningful assistance” under 18 U.S.C. § 3006A(c) (providing for appointment of counsel for indigents) and/or 18 U.S.C. § 3599(a) (providing for appointment of counsel for capital petitioners in habeas cases).  The state is concerned that such a right would routinely spawn fresh rounds of post-conviction litigation, especially in capital cases, where defendants have a strong incentive to delay execution of their sentences.  The concerns are exacerbated by the fact that the Ninth Circuit made no finding that Clair was prejudiced by the failure to grant his request for new counsel.  The state sees in this a possibility that the statutory right to “meaningful assistance” is more generous than the constitutional right to “effective assistance” (which normally requires a demonstration of prejudice before relief is granted).  Finally, the state is concerned that “failure-to-inquire” remands, as in Martel, create an opportunity for petitioners to add new claims in circumvention of the stringent limitations that normally apply to second or successive habeas petitions.

It seems to me that the statutory authorization for appointment of counsel must necessarily contemplate some minimal level of competence, and that the court appointing counsel has a duty to look into facially credible assertions that counsel is failing to perform at the required level.  Still, it does strike me as odd that the Ninth Circuit would grant relief without regard to prejudice.

Cross posted at Life Sentence Blog.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

Justice Scalia’s opinion emphasizes that we have no tradition in this country of sheltering children from violent depictions, and he catalogues many gory examples from books that children routinely read: Grimm’s Fairy Tales, The Odyssey, The Inferno, and The Lord of the Flies are a few of his examples.  His point is well-taken:  the image of poor, fat Piggy being killed by other children in The Lord of the Flies remains vivid in my mind forty years after I read the book.  Another of Scalia’s points is well-taken as well: such an account is not “just” fiction; it carries various social messages.  As a child, I had neither the size nor the personality to be a bully, but reading about Piggy’s plight, far from turning me into a violent attacker, made me empathize even more with those kids who were further down the social food chain than I was.

To me, the most interesting and thought-provoking thing about the opinion in this case, and the thing most likely to generate lots of commentary, is that the free speech right being protected here is not primarily that of the video game producers – it is instead the right of minors to have access to protected speech, unless their parents have made a prior objection to their receipt of that information.  The majority cites a 1975 case, Erznoznik v. Jacksonville (which struck down an ordinance forbidding owners of drive-in movies to show films containing nudity), for the proposition that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” (564 U.S. at 7)   Justice Scalia distinguishes between the government enforcing or supporting a parental ban (which would be permissible) and, as in the case of the California statute, the government imposing its own ban on what materials minors can access (which is unconstitutional).

There will likely be much discussion in the future of where and how to draw the line between governmental support of parents’ restrictions on their own children, and governmental  interference with a child’s right to access protected speech.  This will be very interesting, and will include, no doubt, some violent differences of opinion to which minors, presumably, will have access.

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

In an important gloss on its 2009 decision in Melendez-Diaz v. Massachusetts, http://www.supremecourt.gov/opinions/08pdf/07-591.pdf the Court held that this process violated Bullcoming’s right of confrontation. The lab report was testimonial hearsay because it was specifically prepared for use at trial. Under the Crawford rule, as construed in Melendez-Diaz, the State had to produce Caylor (who performed the test) as a witness, or show he was “unavailable” to testify (paid or unpaid) and that Bullcoming had a prior opportunity to cross-examine him at an earlier proceeding. The State failed on both counts. The reliability of the report or the likely futility of cross-examining an analyst who likely had no recollection of this test among the hundreds of those routinely performed mattered not all. (The dissent laments Crawford’s “wooden formalism” and its unnecessary “disruption” of the trial system.)  

Earlier this year Michigan v. Bryant http://www.supremecourt.gov/opinions/10pdf/09-150.pdf triggered handwringing that the Court was retreating from its “pathmarking” – an intriguing word choice – 2004 opinion in Crawford. Bullcoming should allay such anxiety somewhat, especially since our newest Justices, Sotomayor and Kagan, jumped aboard Justice Ginsburg’s majority opinion (at least most of it).

First, the Court clarified that testimonial hearsay clearly included documents such as these “created solely for an ‘evidentiary purpose.’ . . . made in aid of a police investigation[.]” The absence of “notarization,” which characterized the sworn lab reports in Melendez-Diaz, did not place these documents outside the scope of the confrontation right. Yet while Bullcoming highlights some additional features of testimonial hearsay, the opinion does not put this crucial issue to rest. In her concurring opinion, Justice Sotomayor pointed to the problem of hearsay created for multiple purposes (e.g., a 911 call to secure help and to alert the police), stressing that under Bryant testimonial hearsay’s “primary purpose” must be its use at trial.

Second, cross-examination of the surrogate witness – Caylor’s substitute – was plainly inadequate. The surrogate could not talk about what Caylor knew or observed during the testing process. Nor had the surrogate retested Bullcoming’s blood sample, in which case he could have offered his own opinion irrespective of Caylor’s. In dicta the Court adverted to a troubling limitation of the Crawford rule: so long as the declarant testifies as a witness, the quality of his or her testimony seems to be of no constitutional moment. Thus a forgetful witness who asserts, sincerely or deceitfully, to have no recollection of underlying events satisfies the confrontation right, thereby permitting the State to introduce her hearsay statements for their truth under any one of more than three-dozen hearsay exceptions.

Finally, the Court may be hedging somewhat on the notice-and-demand statutes that it had extolled in Melendez-Diaz. Such statutes permits prosecutors to provide pre-trial notice of an intent to rely on lab reports, for example, thereby compelling the defense to “demand” that the analyst testify at trial or waive the right. Justices Thomas, Sotomayor, and Kagan refused to joint Part IV of the Bullcoming opinion, which addresses retesting as well as notice-and-demand statutes.  (This left just three justices in support of Part IV.)

Crawford may have been a “pathmarking” opinion, but so far the Court has been an unreliable pathfinder. Those of us still wandering in the woods could use more assistance in finding the correct path among the cryptic trail markings and side routes.

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective.

Turner’s situation is sadly familiar.  He is a person with apparently few financial resources who is also, according to his own account before the family court, a recovering drug addict.  He was ordered to pay $51.73 per week in child support beginning in June 2003, and over the next 3 years he was held in contempt five times for failure to pay.  He was sentenced to a 90-day jail term each of the first four times he was held in contempt, but on each occasion he came up with the money either before he had to serve any time, or after a couple of days in custody.  The fifth time, he actually served an entire six-month term in jail.  He remained in arrears, was ordered to “show cause,” failed to show up for his hearing, and ultimately was held in contempt and sentenced to 12 months in the proceeding being contested in the instant SCOTUS case.

What is a judge to do with such a guy?  On the one hand, it seems like a no-brainer that a drug addict presumably without steady employment is not able to pay his child support, and incarcerating someone for being unable to pay his bills seems like a throwback to the debtors’ prisons of Charles Dickens’ England.  On the other hand, notice that Turner – like countless others in his situation – magically came up with the money owed for support the first four times he was sentenced to jail time.  This phenomenon is commonplace.  Not every person who is in arrears is dishonest, but the truth of each situation is not easy to ascertain.  After all, the parents usually seem to be supporting themselves at least to some degree, even while they claim destitution with respect to their children’s needs.  As Justice Thomas discusses in his dissent, child support orders are notoriously difficult to enforce, and parents who owe (nearly always fathers at this point in history) may engage in all sorts of subterfuge to avoid payment, for example, working “off the books” for cash, or working in illegal occupations.  This is a huge social problem in this country.

According to the Office of Child Support Enforcement, there have been more than 11,000,000 child support cases with arrears due for each of the past five consecutive fiscal years.  Each of those cases represents a custodial parent forced to shoulder the support of a child – or children – without sufficient financial help from the other parent.  Part of the problem is that many a non-custodial parent may view support payments as excessive, or as going to an ex, rather than to the children, and a father may rationalize that the mother will squander the money on herself.  Other reluctant payers don’t think through the math – does any sane person really think that a child can be adequately supported on $51.73 per week, or that even a dishonest mother could somehow live in luxury on that amount?  I can certainly understand the impatience of a family court judge who, tired of the same old excuses, tosses a non-payer in jail without further ado.

Ultimately, I do not think that Turner v. Rogers will change family court civil contempt proceedings all that much.  The non-payers will not have court-appointed lawyers, but they will be specifically asked whether they can pay.  After hearing the usual excuses, and perhaps requiring some sort of proof, the judge will doubtless often still find that the defendant can pay and is in contempt for not doing so.   The forms will be filled out completely.  The deadbeats will go to jail, and then many of them will find, beg or borrow the money to pay, and they will be released from incarceration, only – in many cases – to repeat the cycle.

If only the Supreme Court – or anybody – could change the cycle.  That would really be something.

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections.  As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.”  Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute.  Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.