Do Criminals Count?

Do criminals count?  Are they really “one of us”?  That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population.  Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment?  Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.

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SCOWIS Approves LWOP for 14-Year-Old Killers

Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide.  The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes.  Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.

Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds.  As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.

As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:

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Greenhouse Gases, and Other Hot Air

In American Electric Power Co. v. Connecticut, the Supreme Court is faced with the next, inevitable step in a line of climate change litigation including, most notably, Massachusetts v. EPA in 2007.  The case includes, as did Massachusetts, a jurisdictional question of whether the plaintiff states and land trusts have standing, either under Article III or under the “prudential” principles of standing.  Perhaps of broader interest, however, is the substantive question facing the Court, which is whether, in light of the powers vested in the Environmental Protection Agency under the Clean Air Act, a federal common law public nuisance claim is the proper course by which to seek redress for the rise in global temperatures to which the defendants are alleged to be substantial contributors.

The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds. 

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