Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.  

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Inherently Subversive Pedagogy

In 2010 the Arizona legislature created a law designed to deter the teaching of a Mexican American Studies course in Tucson schools by cutting State funding to districts with courses that, among other things, “promote resentment toward a race or class of people.”  After a finding by the state court in 2011 and under the threat of a $15 million fine, the Tucson district was forced to stop utilizing a course that was available to all students, was effectively closing the achievement gap, and was successful in helping Latino students attend college.  One aspect of enforcement that the district decided on was banning the use of many books that were a part of the Mexican American Studies program from schools.

I was introduced to the Tucson curriculum issue in Professor Mazzie’s first semester Legal Analysis, Research, and Writing 1 class last fall.  Our assignment was to write a brief memo on whether the Tucson course was in violation of A.R.S. § 15-112.  The constitutionality of the Arizona law itself has since been called into question under the purview of a federally appointed special master who is overseeing the Tucson School District’s mandated desegregation.  It was satisfying to see, earlier this month, the U.S. Court of Appeals for the Ninth Circuit agree with my position in Professor Mazzie’s class that the curriculum was not necessarily a per se violation of A.R.S. § 15-112 anyway.

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My First (Meta) Blog Post

About a year ago, a colleague invited me to write a post for a blog in one of my research areas. The invitation was casually made, as I expressed some half-baked views on a controversial subject we were discussing. I said I would be happy to submit something, but only after writing a full-length law review article on the issue.

Blogs are, of course, an indispensable part of the legal academic discourse. And in the past ten years or so, I have become a voracious consumer of blogs (including, but not limited to, serious academic ones). Yet I have never felt the urge to become an active member of the blogging community. In part, this is because I am afraid to publicly take positions that won’t hold up under closer scrutiny. But while fear is a useful emotion, it is often an inadequate reason to refrain from jumping in. Readers understand the nature of blogging. Besides, if given enough time, I may well come to find some of the positions I defend in law review articles misguided, and this doesn’t stop me from writing them. I also suspect that blogging can be used in aid of longer-term academic projects. Forcing yourself to articulate thoughts is never a bad thing. Marathon training schedules, after all, are filled with many short runs. As a bonus, a post may spark reactions that are as enlightening to the blogger as they are to the readers. In any case, the opposite danger looms larger: to write posts that are utterly inoffensive and boring. That would be safe, but also a waste of everybody’s time.

All this is to say that my time of free-riding on other people’s blawgosphere efforts has come to an end. As one of the Editors of the Faculty Blog, becoming involved in blogging is now part of my job description. And when I looked at the Faculty Blog earlier today, I didn’t fail to notice that I am the only Editor who has yet to contribute a single post. I realize that this post doesn’t go far toward fixing my delinquency. I am in the process of finalizing that full-length law review article I mentioned earlier, so I will have a thing or two to blog about in the near future. I also expect to throw in some not well-developed thoughts from time to time. Please don’t hold these against me. But more importantly, don’t hold back!

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