When is enough enough?

Sure, we put up with a lot for the benefit of being American citizens: all kinds of taxes, promulgation of statutes with excessive punishments, bureaucratic forms, and who knows what else. And for the most part, its worth it. But, should we put up with the fact that we can't clean up our own neighborhood- and no one else can either?

http://annandaleva.blogspot.com/2013/01/citizen-activists-frustrated-by-lack-of.html

I'm not certain, but living in filth doesn't seem like something we should have to put up with. Another good example of when enough is enough. (Oh, and keep an eye out for when VDOT makes a promise to come to a neighborhood meeting, and then doesn't bother to show up; shows a lack of respect for the very people who employ them.)

Habeas Corpus and Competence: There's no Relation

When declared unfit to stand trial, a person is given an indefinite (or sometimes a definite) stay on his or her trial. That person is deemed a crucial part of the process, and that when convicted he or she needs to have a clear understanding of what is happening to them. Two cases posed to the Supreme Court of the United States asked whether the same stood true for habeas petitioners, deemed mentally unfit for trial: Ryan v. Gonzales, 10-930 (from Arizona) and Tibbals v. Carter, 11-218 (from Ohio).

Habeas corpus is (primarily) a post-conviction proceeding, authorized under most state constitutions and under the federal constitution. It is initiated by a petition and followed by a hearing in front of an appellate judge or judicial panel. These proceedings are intended to reverse illegal detentions, and can do anything for a person from reversing the sentence and remanding for trial, to absolutely nothing, and everything in between.

In Rees v. Peyton, 384 US 312 (1966) and 386 US 989 (1967), the Supreme Court of the United States gave an indefinite stay to a death row prisoner This ruling went largely over-looked and unused by practitioners, not only because it was unclear why the court was giving the stay, but it also went overlooked because the action the court took was truly a non-action. Rees died in prison about 28 years later, his stay still lifted, and his case clarified.

January 8, 2013, Justice Clarence Thomas wrote a clarification which states, broadly, that a state prisoner has no right to a stay on his or her habeas proceedings when adjudicated incompetent:

“We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.”

The ruling was unanimous. Justice Thomas explained that applying the same theory of requiring competence to a trial as to a post-conviction legal action is over simplifying the matter. A habeas petition, he explained, is at least 2 steps removed from the trial, (1) the factual record has been built for the collateral review, and (2) this is a federal habeas petition for state prisoners, and the state court must be given great deference except where coming to legal conclusions in matters of federal law. Additionally, there simply is no right to an attorney for federal habeas review of a state conviction, and the consequences of that are that there is no right to have a case put on hold if the defendant is unable to utilize his lawyer due to competency problems.

Although we’ve already heard this called “a big win for the cause of justice,”[1] and the concern for Clarence Thomas is that an indefinite stay frustrates the purposes of the AEDPA’s objective of encouraging finality, its not all bad news for criminal defense. Justice Thomas relents and does admit that there are cases wherein the facts are the basis of the habeas claim. In that instance a defendant could be called upon to testify, or the attorney could need that first-hand knowledge. In that instance, a federal judge may consider a stay. Trying to leave the choice of how long that stay should be up to the judges, Justice Thomas writes: “We do not presume that district courts need unsolicited advice from us on how to manage their dockets.” He can’t help but add that the federal judge should consider whether there is a reasonable hope of future competence before declaring the stay.

The rule is now clear: you can expect that if you have an incompetent client at federal habeas, you’re going to go forward with your legal arguments. That client has no right to an attorney, and as such faces a court not willing to wait for him or her to become competent before going through with a hearing. But, at least the purposes of the AEDPA won’t be frustrated!

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[1] Scheidegger, Kent. “Not Too Crazy for Habeas” Crime and Consequences (blog accessed January 9, 2012) <http://www.crimeandconsequences.com/crimblog/2013/01/not-too-crazy-for-habeas.html>. 

Miller v. Alabama: Constitutionality of Mandatory Life Sentences Without Parole for Minors

In a combined case, the Supreme Court looks at the constitutionality of mandatory sentences of life without parole for a convicted person who is under 18. The citation is: 132 S. Ct. 2455

Background:

In one case a 14 year old boy from Arkansas was convicted of a felony murder when his friend brought a shotgun to a store, they robbed the store, and the co-conspirator killed the store clerk. In the second case originating from Alabama, another 14 year old and his friend were convicted of murder in the course of arson. In both situations the law declared that the convicted person be handed a mandatory life sentence without parole; there was no post-conviction discretion for the court before handing down a sentence.

The challenges in these cases were based not in the conviction of the youths, but in the validity of mandatory life without parole sentences for minors. The attorneys argued whether the mandatory sentences were excessive under the Eighth Amendment, which prohibits, among other things, excessive punishment. The question the court looked at, in lay-terms, was whether the Eighth Amendment, conveyed to the States by the Fourteenth Amendment, could bar the mandatory sentencing of a child to life without parole given that a child stands under a different set of culpability rules than an adult does.

Legal Precedent:

The watershed case to discuss the culpability and sentencing repercussions for children is Roper v. Simmons, 543 US 551, backed almost immediately by Graham v. Florida. This case, Miller, represents both an advance on this line of cases, and a divergence.

1. A.      In Roper, the Supreme Court examined whether a minor who commits murder, even first degree murder, can be sentenced to death. First, the court discussed that the death penalty is an extreme punishment, requiring careful and restrained usage. Second, the court examined the manners in which juveniles are different from adult, citing three factors. One, children lack maturity and often rush into impetuous and “ill-considered actions.” Two, children are especially vulnerable to peer pressures and negative influences- creating a situation where they can be pushed towards decisions they may not otherwise make. Finally, the court pointed out that a child is not fully formed, in character or in mental capacity. Therefore, where an adult may disregard some action because it goes against their nature, a child may not have a full concept of what their nature is, and may not have the ability to disregard that same action. Thus, the court determined that in a moral world, a juvenile, being subject to these three characteristics, cannot have the same level of culpability of an adult. When culpability is lessened, then the justifications for the death penalty also are lessened, and become blurred when applied to minors. Looking to the deterrence factor and the punishment factor of the death penalty as applied to minors, the Court found the death penalty disproportionate to any crime a minor could commits, and found that it would be excessive punishment under the Eighth Amendment; the death penalty for minors became unconstitutional.

1. B.      Graham is a more narrow holding, originating from a parole violation for a juvenile offender who had committed multiple home invasions and been caught while fleeing arrest. The defendant was sentenced to life in prison without possibility of parole. Using Atkins v. Virginia, its progeny, and Roper, the Court looked to what the national consensus on the morality of allowing a sentence of life without parole for juvenile offenders. After doing an in-depth review of statistics regarding sentencing structures for juveniles in non-homicide cases, and extrapolating the three factors lessening the culpability of children discussed in Roper, the Court draws a line. “Life without parole is an especially harsh punishment for a juvenile,” the court proclaims, and determines that the reality of the situation, wherein a 16 year old receives the same so-called sentence as a 75 year old, is a reality that is unacceptable. The Court created a categorical rule, finding that a sentence of life in prison without possibility of parole for a juvenile non-homicide offender was a violation of the Eighth Amendment.

Legal Analysis:

Miller is, in itself, a narrow holding. I do not believe that it will do much for the world of juvenile sentencing except force a small (albeit important) change in the sentencing procedure when faced with a mandatory sentencing structure. The court is very specific in its holding. This case advances this line of holdings through protection of children, but diverges in that it looks only at a mandatory sentence- not at discretionary sentencing like the previous cases did.

The first step in this decision was to note the penological problems with treating certain sentences as the same for adults and children. Part of this examination addressed the problems of punishment vs retribution vs rehabilitation, but the majority of this examination was focused on those three factors Roper identified. Recognizing that precedent has established that children are “constitutionally different from adults for the purposes of sentencing,” the Court continued its trek in growing movement away from harsh punishment for juvenile offenders.

The second step (obviously) followed from that route; where Roper had laid the groundwork for justification of different punishment scales for minors, Graham showed that life without parole is a significantly different sentence for minors than t is for adults, and that the states were beginning to realize this fact. Nothing in Graham required this reasoning to be crime specific; the reasoning was broadly applicable, the holding was narrow in focus. The Supreme Court took that broad reasoning to the level of mandatory sentences- relying especially upon the fact that life without parole sentences were likened to death sentences.

But in the end this case only narrowly protects children from a sentence. The Supreme Court holds only that a minor cannot face a statutorily mandated life sentence without parole. Theoretically then, a minor may still face a mandatory life sentence (with parole possible) or a life sentence without parole if it is within the judge’s discretion to give this sentence. This is very like the Court; categorical rules are difficult to obtain, and when given, are narrow.

Predictions:

I expect that if a non-mandatory life sentence for a juvenile were to make its way to the Supreme Court, without change in the make-up of the Court, a life sentence for a juvenile could be found unconstitutional. The same concepts which have made mandatory life sentences wholly unconstitutional for minors, can make discretionary life sentences unconstitutional for minors.

Minors lack the same culpability as adults, and have been declared constitutionally different for the purposes of sentencing. Additionally, Graham painstakingly lays out that a life sentence is starkly different for a minor than it is for an adult- especially when the minor is particularly young. When combined, the lessened culpability for minors and the extreme nature of a life sentence create the ideal situation for a life sentence to be excessive in the face of modern mores and cruel and unusual under the Eight Amendment. Additionally, Graham allows further extrapolation to non-mandatory life sentences because it rejects that life sentences should be looked at as falling under the term of years analysis, meaning that the Court is looking at the evolving social feelings on the matter and not at constitutional excess of the sentence. I think this will further the allowance of a finding that any life without parole sentence for a juvenile offender is unconstitutional. 

Folks, I have a confession to make (is it still a confession if its obvious to all?). I've ignored this blog to some degree. And by that I mean, I let the law firm get the better end of the deal. Well, that and my long standing disappointment in the country for not making Ron Paul the president. But that's a whole other story.

It all changes today, I promise. I will be blogging here as regularly as possible, so stay tuned!

Student Speech: Part I

In light of recent appeals to the United States Supreme Court (J.S. v. Bethlehem Area School District, 807 A.2d 803, which the Court declined to address) now seems like a good time to discuss school speech. School speech provides an interesting contrast between constitutional freedoms and administrative reactions- especially interesting given the youth of the individuals involved and the idea that schools are somehow preparing students for the adult world.

To begin this post series on schools, let’s start with a basic history of the court’s reasoning(s) for abrogating school children’s rights.  The federal courts have held that a right is based on a legitimate expectation of protection.[1] The Supreme Court has consistently held that children have lesser expectations of protection and therefore hold lesser rights.[2] There are three doctrines generally offered by the Court to justify the diminishment of rights in schools: the in loco parentis doctrine, the minimally intrusive standard, and the educational mission doctrine.[3] The importance accorded to educational mission doctrine generally make is the most important justification for the court when analyzing student rights cases.

A.         The In Loco Parentis Doctrine

The in loco parentis doctrine is most often used to justify actions that would be appropriate had a parent taken them, like punishment for lewd speech, seizure of belongings, detainment of a student, or action taken to protect other students.[4] The idea is that a parent would not have to justify similar disciplinary actions to a court, and so the school is not required to either because it stands in the place of the parent.[5] In New Jersey v. TLO, the Court specifically rejected the in loco parentis doctrine as justification for abrogation of student rights.[6] However, while the courts’ stance is that the doctrine no longer applies, the doctrine is still implied in the educational mission and so still remains important to courts’ decisions.[7]

B.         The Minimally Intrusive Standard

The minimally intrusive standard began with Vernonia School District v. Acton and applies mainly to school searches.[8] The courts have said so long as the school administrators ensure the measures taken to search the child are minimally intrusive and the school has an important pedagogical concern for the invasion, it is sufficient to protect the interests of students.[9] Recent cases have called into question exactly what constitutes a minimally intrusive search.[10] This justification is not important for this topic, so it will not be analyzed in depth.

C.        The “Educational Mission” Doctrine

The Supreme Court has determined that schools must be able to carry out their educational mission in a safe and disruption-free environment.[11] Furthermore, the Court has indicated that the nature of schools is such that administrators must be able to act quickly and decisively prior to allowing a situation to reach a crisis level.[12] The educational mission diminishes rights of school children because it places the school in the position of determining what policies and rules are necessary to successfully educate the child.[13] This justification is mentioned in almost every case of school children’s constitutional rights and appears to be the most important justification for diminishing student rights from the Court’s view.[14] Although the educational mission certainly affects due process and the issue of probable cause, in this analysis I would like to focus on free speech.

1.         The Educational Mission Doctrine and Free Speech

The educational mission doctrine extends to curtailing free speech in schools as well.[15] The First Amendment has generally requires a strict scrutiny review by courts to ensure a narrow tailoring of laws restricting free speech.[16] Narrow tailoring requires that the law in question be closely restricted to the underlying compelling government interest.[17] But schools have been permitted by courts to lapse into various versions of the reasonableness test and the intermediate scrutiny test.[18] Under intermediate scrutiny, a court upholds the regulation in question if it advances some important government interest and is logically tailored to that interest.[19]

Tinker v. Des Moines determined that school children held comprehensive First Amendment rights even when considering the “special characteristics of the school environment.”[20] The comprehensive strict scrutiny protection recognized in Tinker has not been applied by federal courts since the decision was made.[21] However, recent cases have distinguished various types of speech from that protected in Tinker.[22] Instead, the test for First Amendment protection regarding the rights of students—in or out of school—has slipped to the lower intermediate scrutiny standard.[23]

Next Monday the post will begin an analysis of how these doctrines have affected the past court decisions. Again, I will focus generally on federal rulings.

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[1] Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633, 2641 (2009); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); New Jersey v. TLO, 469 U.S. 325, 338 (1985); Phanuef v. Fraikin, 448 F.3d 591, 595–96 (2d Cir. 2006);  Wofford v. Evans, 390 F.3d 318, 327 (4th Cir. 2004)  390 F.3d at 327.

[2] See Vernonia, 515 U.S. at 654; TLO, 469 U.S. at 338.

[3] Redding, 129 S. Ct. at 2641 (holding that a school must be minimally intrusive when searching a child); Vernonia, 515 U.S. at 654 (determining that schools sometimes must act as a parent would); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (finding that a school stands in the special position of teaching young people what is and is not appropriate, as well as educating them, and this must be accounted for).

[4] Redding, 129 S. Ct. at 2656; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327; Jacob Tabor, Student’s First Amendment Rights in the Age of the Internet: Off Campus Cyber-Speech and School Regulation, 50 B.C. L. REV. 561, 573 (2009).

[5] Redding, 129 S. Ct. at 2639; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327.

[6] 469 U.S. 325, 33–37 (1985); see also Vernonia, 515 U.S. at 655.

[7] See Morse v. Fredrick, 551 U.S. 393, 406 (2007) (finding that schools had a duty to prevent advocation of illegal drug use); TLO, 469 U.S. at  341–42 (1985) (holding that school officials, when they search students, act in as state officials and not as surrogates for the parents); Ingraham v. Wright, 430 U.S. 651, 672, 682 (1977) (finding that the concept of “parental delegation” is not “entirely consonant” with modern education); Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that although the power of schools to make and enforce rules is very broad, the school must still develop fundamentally fair procedures to determine guilt before meting out punishment); Doninger v. Niehoff, 514 F. Supp. 2d 199, 217 (D. Conn. 2007) (finding that a school has a duty to prohibit the use of vulgar terms and to encourage values of civility); Poling v. Murphy, 872 F.2d 757, 763 (6th Cir. 1989) (finding that a school may punish speech when it is insulting or derogatory towards school officials).

[8] See 515 U.S. 646, 658 (1995); e.g. Redding, 129 S. Ct. at 2641 (holding that a student may be searched upon reasonable suspicion of illegal activity so long as it is done in the minimally intrusive manner).

[9] See Vernonia, 515 U.S. at 655; Phanuef v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006); Sara Young, PIAC (Pee in a Cup)—The New Standardized Testing for Student Athletes, 10 BYU EDUC. & L.J. 163, 174 (2010).

[10] Redding, 129 S. Ct. at 2641 (stating that a “rule of reasonableness” must be used in searching students). See generally Miller v. Mitchell, 598 F.3d 139 (3rd Cir. 2010) (discussing the role of prosecutors in search of cellular phones confiscated from minor students while in school).

[11] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment); Goss, 419 U.S. at 582–83, 595 (finding that maintaining security and order requires allowing flexibility for school administrators that would not be permissible in adult society).

[12] Amanda L. Dixon, Random Drug Testing in Secondary Schools—Where Does Georgia Stand?, 3 J. MARSHALL L. REV. 357, 374–75 (2010).

[13] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment).

[14] Vernonia, 515 U. S. at 656; TLO, 469 U.S. at 338–39; Goss, 419 U.S. at 582–83, 595 (1975). See Tinker v. Independent Community Sch. Dist., 393 U.S. 503, 508 (1969); Phanuef, 448 F.3d at 595–96; Wofford, 390 F.3d at 327.

[15] See Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.

[16] Cent. Hudson Gas & Electric Corp. v. Pub. Servs. Comm. of N.Y., 447 U.S. 557, 565–66 (1980).

[17] Jeffery M. Shaman, Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny, 45 OHIO ST. L.J. 161, 162 (1984).

[18] See Morse, 551 U.S. at 408; Fraser, 478 U.S. at 683.

[19] See  James Ianelli, Punishment and Student Speech: Straining the Reach of the First Amendment, 33 HARV. J. L. & PUB. POL’Y 885, 893 (2010); Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 792 (2007).

[20] Tinker, 393 U.S. at 506.

[21] See M.A.L. ex rel M.L. v. Kinsland, 543 F.3d 841, 849 (6th Cir. 2008) (finding that “contrary to [plaintiff's] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 429 n.24 (2008) (noting “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases ”); Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001) (describing Tinker as a higher standard).

[22] See Kinsland, 543 F.3d at 849  (finding that “contrary to [plaintiff’s] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs, 526 F.3d at 429 n.24 (noting that “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases”); Ianelli, supra note 19, at 890–93 (determining that a much used form of scrutiny regarding student speech is intermediate scrutiny); Geoffrey A. Starks, Tinker’s Tenure in the School Setting: A Case for Applying O’Brien to Content Neutral Regulations, 120 YALE L. J. ONLINE 65, 67 (2010).

[23] Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.

An Analysis of U.S.v. Jones

Here's an interesting, and very well thought-out analysis of the much publicized Jones case, regarding GPS tracking on vehicles, and whether that is a search.

http://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro-privacy-decision-than-most-thought/

Interesting Comments on Agency Law

This blog post by Amanda Frost over at SCOTUS blog coincides nicely with yesterday's blog post.

http://www.scotusblog.com/2012/01/academic-round-up-83/