The Eighth Amendment and Life Without Parole for Adults

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

Continue ReadingThe Eighth Amendment and Life Without Parole for Adults

Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

Continue ReadingLife in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

Milwaukee: The Most Dangerous Size

http://commons.wikimedia.org/wiki/File:P14-45_handgun_.jpgLast week, the U.S. Bureau of Justice Statistics issued a new report compiling nearly two decades of data on gun crime, Firearm Violence, 1993-2011.  No doubt, many readers will pore over the report’s abundant tables and graphs looking for support for their views on gun control.  However, I was most struck by a breakdown of firearm violence based on population size (table 5).  Among the six size-based categories, the most dangerous places were cities of 500,000-999,999 — the category containing Milwaukee (pop. 597,867).  These mid-large cities not only have rates of gun crime that are about four times higher than cities of less than 100,000, but they are also forty-four percent higher than cities of one million or more.

More specifically, according to the National Crime Victimization Survey, there were 4.6 nonfatal firearm victimizations per 1,000 persons age twelve or older in the mid-large cities in 2010 and 2011.  (Nationally, homicides constitute only two percent of all gun-related crimes, so the NCVS numbers would not change much if fatalities were included, too.)  The second-highest rate was 3.9, for cities with 250,000-499,999.

The numbers look very different today than they did in 1996-1997, when the Milwaukee-sized cities were tied for second place with 7.3 victimizations per 1,000, and the medium-sized cities (250,000-499,999) led with 10.3.

I have two reactions to the data.  First, the relationship of community size to gun violence is in some respects predictable, and in others quite puzzling. 

Continue ReadingMilwaukee: The Most Dangerous Size