Limits to Life: SCOTUS Issues Decision in Graham

The Supreme Court finally issued its long-awaited decision in Graham v. Florida this morning.  And it turns out that the Eighth Amendment may not be so toothless after all: the Court held that sentencing a juvenile to life without parole for a nonhomicide crime violates the Cruel and Unusual Punishment Clause.  Graham received an LWOP sentence for a botched robbery at age sixteen.  The Court overturned Graham’s sentence, holding that states must at least “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (24).  Thus, the Court did not preclude life sentences per se for juveniles, but rather focused on the availability of parole:

The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. (24)

Graham breaks a string of defeats in the Court for Eighth Amendment challenges to prison terms.  Although the Court has been quite active in recent years in using the Eighth Amendment to regulate the death penalty, the Court had seemed uninterested in imposing limitations on the use of lesser sentences.  Of course, LWOP for a juvenile robbery is pretty extreme, so it would be premature to infer from Graham that the Court is going to get more involved in regulating long prison terms.

Not suprisingly, Justice Kennedy authored the majority opinion.  He has been the swing Justice in the Court’s recent Eighth Amendment cases, and there was little doubt that he was going to be part of the majority in Graham whichever way it came out.  Slightly more surprising is that Chief Justice Roberts concurred in the judgment, making the final vote 6-3 (instead of the more typical 5-4 in Eighth Amendment cases).  Based on this and a few other recent cases (for instance, with respect to jury-trial rights), it seems to me that Roberts is not as much an automatic vote against  defendants as his predecessor, Chief Justice Rehnquist.  It is also interesting to see the Justice Sotomayor voted with the majority, suggesting that she may adhere to the position of her predecessor (Justice Souter) in supporting robust Eighth Amendment rights.  Would a Justice Kagan do the same?  Justice Stevens was part of several tenuous majorities in this area, meaning that his replacement has the potential to bring about some major changes in the Court’s Eighth Amendment jurisprudence.

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The Constitutionality of Health Reform’s “Individual Mandate”

 

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear. 

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Arizona’s Big Mistake

Arizona recently passed into law provisions that make a person’s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.  The Arizona law also provides for the arrest of persons where the police have a “reasonable suspicion” that the individual is unlawfully present and where the individual cannot produce the proper documentation.  Last minute changes  were made to the law this past Friday in order to prohibit the use of racial or ethnic profiling by police in determining who to stop and question, and to clarify that questions about an individual’s immigration status should only be asked as part of an investigation of non-immigration related violations.  These changes to the original language were made to try and stave off several threatened lawsuits intended to challenge the constitutionality of the Arizona law.  

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

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