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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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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Does Geography Affect Appointments to the Supreme Court?

It certainly used to.

Perhaps the most obvious examples are those from the early 19th century.  Appointments of new justices were once tied to the creation of new circuit courts.  And that was for good reason:  Circuit courts were not the intermediate courts of appeals of today (with few exceptions, the most notable of which were the “Midnight Judges” that served from 1801 until 1802); they were largely nisi prius courts, functioning alongside district courts, with only limited appellate review.  But they did not have their own judges.  Various combinations of justices from the Supreme Court and judges from the district courts sat to form the circuit courts.

When Congress created the Seventh Circuit in 1807, therefore, which consisted of the new states of Kentucky, Tennessee, and Ohio, it required that the new justice assigned to that seat hail from there.  The result was Jefferson’s appointment of Thomas Todd of Kentucky. 

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