Marquette University Law School Faculty Blog

New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

Post author:Michael M. O'Hear
Post published:September 5, 2017
Post category:Constitutional Interpretation Constitutional Law Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Federalism Public U.S. Supreme Court

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.

Should the Senate Give Advice and Consent on Special Envoys?

Post author:Ryan Scoville
Post published:September 4, 2017
Post category:Congress & Congressional Power Constitutional Interpretation Constitutional Law International Law & Diplomacy President & Executive Branch Public

Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers.

On Overstating the Case for Confederate Monuments

Post author:Atiba Ellis
Post published:September 4, 2017
Post category:Civil Rights First Amendment Political Processes & Rhetoric Public Race & Law Uncategorized

Statue of Confederate Army General Robert E. Lee sitting astride a horse. — *The Robert Edward Lee statue in Emancipation Park*

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two.