That's it

There it is. I have finnished reading the opinions for the last term, just as I begin law school. A couple thoughts. First, it seems more and more apparent that Justice Stevens' internal consistency baraometer is tweaked. He seems to be less concerned about following a consistent method of jurisprudence thanis to be expected. The conservative side of the Court (and lets see if I can do this in order, Thomas, Scalia, Alito, and Roberts) seem to be very interested to chip away at the exclusionary rule, and Kennedy is no real barrier, though there are indications that he will only go along with so much of that sort of thing. Kennedy certainly has taken O'Connor's swing vote position and is pretty unconcerned about the Court presnting one clear opinion. Of course, that was my big gripe about O'Connor, and her *$#& "balancing" tests, so I guess it's a wash. Oh, and I guess Roberts was being totally straightforward when he testified that he believed in a right to privacy. Of everything that can be said for his theories of the law, that doesn't seem to be a place where the left will have much copmlaining to do.

So long as I am on the soapbox, check out this article.

The Legal Status of the Guantanamo Bay Tribunals

Hamdan v. Rumsfeld

Hamdan is in U.S custody at Guantanamo Bay. After two years of detention, and after having been deemed eligible for trial by military commission, Hamdan was charged with conspiracy “to commit … offenses triable by military commission.” Hamdan filed for a writ of habeas corpus and conceded that a trial under the Uniform Code of Military Justice (UCMJ) would have been legitimate. He argues that the military commission at issue lacks the authority to try the case because (1) neither congressional Act nor the common law of war supports such trial by commission for the crime of conspiracy, which Hamdan argues is not a violation of the laws of war; and (2) because the procedures that the President adopted “violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear evidence against him.”

Justice Stevens

The President directed that anyone found to have engaged in terrorist activities harmful to the United States “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law.” After Hamdan was declared eligible for the military tribunals he was appointed counsel, who filed demands for charges and for a speedy trial under Article 10 of the UCMJ (10 U.S.C. §810). The legal advisor to the tribunals ruled that Hamdan was not entitled to any of the protections of the UCMJ. On appeal the Government did produce charges, alleging only that Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed” to commit a list of charges, including terrorism. The document also specifically alleges that Hamdan (1) acted as Osama Bin Laden’s bodyguard and personal driver; (2) arranged transportation of and actually transported weapons for al Qaeda; (3) drove or accompanied Bin Laden to training events promoting terrorism; and (4) received weapons training at an al Qaeda camp.

The District court decided that the President’s authority to establish military tribunals only extends to “offenders or offenses triable by military [commission] under the law of war,” which includes the Geneva Convention, unless Hamdan is adjudged, in compliance with that treaty, not to be a prisoner of war. Under the Geneva Convention Hamdan is entitled to see the charges against him; therefore the commissions are wanting of authority. The Court of Appeals reversed, holding that the Geneva Conventions are not judicially enforceable.

The Government argues that the Detainee Treatment Act (DTA) expressly limited jurisdiction over detainee matters to the D.C. District court; detainee appeal matters to the D.C Circuit Court of Appeals; and generally denied jurisdiction over habeas applications. Hamdan suggests that if the Government is correct then Congress has unconstitutionally suspended the writ of habeas corpus (notice, Congress may do so when time of rebellion or public safety may demand). The Government first argues that the lack of an express provision excepting pending appeals from the denial of jurisdiction over granted and denied appeals implies a presumption, supported in case law, against jurisdiction. The Court reads the case law to imply no application of the ordinary presumption that the Act is retroactive. This is especially the case since most jurisdiction granting/stripping statutes simply change jurisdiction, so do not impair rights, and therefore do not raise a retroactivity problem. The Court also points to evidence of deliberate omission. Meanwhile the Government argues for negative inference based on the fact that the case in precedent (Lindh) grants jurisdiction while this statute strips it, which the Court rejects as unfounded. Secondly, the Government argues that this produces absurd results, granting dual jurisdiction while discussing “exclusive jurisdiction,” but the court points out that one is an appellate jurisdiction and one is not. Finally, the majority calls the dissent’s argument that this result runs contrary to the plain meaning counterfactual (citing legislative history) and a misreading of precedent.

Next, the reasons of comity that the Court accepted the idea of a courts-martial (respecting the division drawn by Congress and the benefit to military preparedness) were based on the idea, inapplicable here, that these courts-martial will vindicate constitutional rights, especially because Hamdan cannot appeal to civilian judges. This leaves the Court with Quirin as precedent, where the Court entertained habeas applications, in time of war, from German saboteurs.

Citing Ex parte Milligan the Court notes that without a basis elsewhere in the Constitution “no part of the judicial power of the country was conferred on [military commissions].” Following a discussion of the separation of powers, the Court assumes that the Authorization to Use Military Force activated the President’s wartime powers, but did not alter the status quo in the UCMJ. Military commissions have been used (1) in the context of martial law; (2) on foreign soil; and (3) in the context of the necessity to punish violations of the laws of war. From this and precedent the Court decides that for Hamdan’s charge to be legitimate the offense must have been committed during the theater of ware and “during,” not before” the conflict. Worse yet, the charge is not triable by law-of-war military commissions. The military may not define “Laws of Nations” as that would give it the power to define its own jurisdiction, and the crime of “conspiracy” is not included in that definition since intent is insufficient. First, in Quirin the Court “declined to address” whether conspiracy was triable by commission, and actually considered the completion of the act. Second, the citations for the inclusion of conspiracy in Howland do not support its inclusion. Third, where the Court ostensibly accepted the idea, it was in the context of martial law, not the laws of war. Finally, the charge of conspiracy proper was not accepted at Nuremburg. Here ends this opinions claim on majority status.

The opinion notes a divergence from the UCMJ in the admissibility of unsworn hearsay and the fact that defendant and his counsel may be barred from proceedings presenting evidence against him if that evidence is classifiable. The imposition of any penalty less than death requires only a two thirds majority. The Government objects that case law (Councilman) precluded pre-enforcement review of procedural rules; (2) Hamdan may raise any such challenge following a “final decision”; and (3) there is no basis to presume that the trial will be conducted unfairly. The Court reminds that whereas Hamdan is not subject to the death penalty he does not necessarily have the right to appeal. Second, Hamdan argues that he already has been excluded from his own trial.

Article 36 of the UCMJ requires that (a) the rules of (among others) military commissions “may not be contrary or inconsistent with this chapter”; and (b) that all rules and regulations made under it “shall be uniform insofar as practicable.” The Court reads this to require some tailoring of any departure from the UCMJ. The UCMJ requires that “all proceedings shall be made a part of the record and shall be in the presence of the accused.” Subsection (a) (above) allows deviations from the UCMJ where the President considers it practicable. Subsection (b), however does not defer to the President in the same way and thus requires an objective evaluation of practicality. This is premised on the logical move, based on the burden of objectivity, from requiring practicality to allowing deviation only for impracticality. The only reason that the President has offered is the danger of terrorism. Underlying this decision is the jettisoning of the basic right to be present at trial “whether or not that departure technically is ‘contrary or inconsistent with’ the terms of the UCMJ.”

Here begins, again, the opinion’s claim to majority status. The Court of Appeals dismissed the argument that the tribunals violate the Geneva Convention because (a) the Geneva Convention is not judicially enforceable; (b) even if it were, Hamdan would not be entitled to its protections; and (c) even if it were enforceable, and Hamdan were entitled to its protections, Councilman councils judicial abstention. As to the first argument, Johnson v. Eistrager denied Geneva protections to German nationals during WWII in China because they had failed to identify any prejudicial disparity between the Commission that tried them and that afforded American soldiers and because they could claim no protection for acts committed before their P.O.W status. Additionally, the Court (in a footnote) suggested that enforcement of the Conventions was the province of the political and military branch of government. Here, the Court overrules the Appeals Court’s decision that that footnote makes the Geneva Conventions unenforceable by the judiciary because those Conventions constitute the statutorily enforceable law of war. The Executive argued that the war with al Qaeda was distinct from the war with Afghanistan, and not covered by the Conventions as a “declared war [or] any other armed conflict which may arise between two or more of the High Contracting Parties.” In any case, the Court notes, in conflicts of an “international character,” persons taking no active role in combat (including those who have laid down their arms, or placed under detention) are provided the protections of Article Three. Here, “international in character” is used in contradistinction to conflicts between nations. Therefore, under Article Three, Hamdan is entitled to a trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” “Regularly constituted” courts include military tribunals. Here again ends this opinion’s claim on majority status.

My note: “guarantees which are recognized as indispensable by civilized peoples” is almost precisely the test for incorporation of a protection in the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The opinion states that the Government does have a compelling interest in denying Hamdan access to certain sensitive information, but that it has not offered a valid reason for deviating from the UCMJ, making the military tribunals illegal, and that in any case “information used to convict a person of a crime must be disclosed to him.”

Again commences the opinion’s claim to majority status. “The commission that the President has convened to try Hamdan does not meet [the requirements of Article 3].” Note: Chief Justice Roberts had to abstain because he had previously ruled on this case.

Justice Breyer

Justices Breyer, Kennedy, Souter, and Ginsburg state that “where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger.”

Justice Kennedy

Justices Kennedy, Souter, Ginsburg and Breyer point out that military tribunals are a matter in which Congress has historically been engaged. The opinion points first to three requirements for military tribunals that Congress has set out: (1) Tribunals must conform to district-court rules insofar as the President “considers practicable”; (2) those rules may not be contrary or inconsistent with the UCMJ; and (3) those rule must be uniform “insofar as practicable.” The opinion also agrees with the majority about objective vs. presidential concepts of practicability and the fact that Article Three of the Geneva Conventions apply. The opinion replies to the dissent’s argument that the Convention’s protections are not judicially enforceable by reiterating that even if that is the case under Johnson v. Eisentrager the Conventions do make up the law of war that Congress has directed the President to follow. Meanwhile, the regularly constituted military courts are courts-martials. Military tribunals must look to the courts-martial as a benchmark and can only be regularly constituted if some practical need explains derivations from that process. The opinion then surveys the differences between a courts martial and the military tribunals, noting that power is concentrated in a single executive official who appoints judges and oversees appeals, that only three judges are required and only one must have legal training, and the creation of a review process outside that provided by Congress. Without a justification for these deviations the tribunals are not considered “regularly constituted.” The further deviation in allowing admission of all evidence that is reasonably probative and allowing the judges to see all evidence whatsoever.

Justice Scalia

Justices Scalia, Thomas, and Alito argue that the statute unambiguously revokes jurisdiction over all habeas petitions from Guantanamo Bay detainees, and that an unbroken line of cases have held that jurisdiction stripping statutes apply to pending cases. While the majority would not read the rule as “an inflexible trump,” Justice Scalia strongly believes that it was set out as a rule. The majority actually relied on this general rule that jurisdiction stripping statutes apply to pending cases in Langraf where it held that as one section of the AEDPA explicitly applied to pending cases, and another did not, since Congress had no reason to believe such a provision was necessary, a negative inference was appropriate. Scalia argues otherwise; that Congress did have reason to doubt the implied application to pending cases. The difference upon which this opinion distinguishes the case is that the Court has generally treated jurisdiction conferring statutes differently than jurisdiction stripping statutes. In any case, the Lindh reasoning should not be employed to completely circumvent the purpose of the law, which was to grant “exclusive” jurisdiction in the D.C. court.

Turning to the appeal to legislative intent, the fact that statements roundly denying the Court’s interpretation were made after the law was passed is of no consequence because such statements are not made in the context of riveting debate, but are “delivered … alone into a vast emptiness.” Scalia also points out that “floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation” and reminding that Justice Stevens once looked to the legislative history for “general agreement,” which is undoubtedly missing here. Scalia argues that there is no reason to believe that the removal of the wording applying the law to pending cases was what motivated the rejection of an earlier bill, considering some other more fundamental differences.

Justice Scalia must then address the argument that the denial of habeas corpus violates the Suspension Clause of the Constitution (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). He cites Johnson v. Eisntrager for the conclusion that and enemy alien outside of the sovereign territorial jurisdiction of the United States is protected under the clause. Even if they were protected “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus” and Hamdan has not shown that the D.C. Circuit is inadequate or ineffective. A particularly striking footnote suggests that Hamdan would not be harmed by being subject to indefinite detention since he is already, under Hamdi v. Rumsfeld.

Scalia argues that Councilman’s reasoning, that the efficient operation of the Armed Forces and structural insulation from the Executive is benefited by abstaining from habeas review is furthered here. The D.C. Circuit now reviews the decisions at issue, and the fact that the review is discretionary goes to the effectiveness, not the structural insulation, of the process. To this he adds that considerations of “interbranch comity” council the Court to exercise its “equitable jurisdiction” so as to avoid direct conflict with the Executive in an area where the Executive’s competence is “maximal.”

Justice Thomas

Justice Thomas agrees with the majority that military commissions are executed in one of three ways, and that the relevant considerations are the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. For Justice Thomas the theatre of war, as defined by the President and under the Prize Cases, extends from 1996 and to all places where al Qaeda has established training camps rather than the date of the Authorization to Use Military Force. This conclusion addresses (1) and (2). As to (3), organized forces of a belligerent are not within the protection of the laws of war. Finally, the “clear-statement” rule is contrary to the historically flexible common law of war, which defined what was not to be done, but does not define what may be done. Hamdan was charged with an offense triable by a commission because the war crime was joining such a group. In the opinion of the Attorney General, “the atrocities committed by such a band do not constitute the offense, but make the reasons … why such [groups] are denounced by the laws of war.” There is then a lengthy review of such charges in history suggesting that conspiracy is an overt act.

Justice Thomas argues that the Court reads too much into the requirement that the UCMJ be “uniform insofar as practicable,” and diverges too far from the common law and text of the statute. Meanwhile, according to precedent, the Court should not set aside Hamdan’s commission “without the clear conviction” that it is in conflict with the laws of Congress. History and the text of the UCMJ have recognized differences between tribunals and the courts-martial procedures. Thre requirement for objective uniformity should be understood as a requirement that the rules of Army tribunals be uniform with the rules of Navy tribunals, as the UCMJ is generally set up to create uniformity within the branches of the armed services.

Justice Thomas finds the Presidential justification for diverging from standard procedures in speeches made by the President. He also argues that the text of the UCMJ’s requirement that the accused be present plainly only applies to courts-martial, which for my money completely misses the point of the majority’s argument, whether it is right or wrong. Thomas takes issue with the idea that Article 21 of the UCMJ sets out the laws of war, and includes the Geneva Conventions under that heading, because “Article 21 authorizes the use of military commissions; it does not purport to render judicially enforceable aspects of the law of war that are not so enforceable of their own accord.” Also, that section of the UCMJ refers to the laws of war only in the context of jurisdiction, whereas Article Three of the Geneva Conventions deals with particular procedures. Especially where the provisions of a treaty are ambiguous “the meaning attributed to treaty provisions by the Government agencies charged with their negation and enforcement is entitled to great weight.” Even granting all other points, Justice Thomas argues that the issue is not “ripe” in that the only acts that the Convention prohibits are the ‘passing of sentences…,’ ‘carrying out of executions…,’ etc. There has been no conclusion to Hamdan’s trial, and therefore no violation of the Convetion.

Granting everything else, Justice Thomas argues, the commission does “afford all judicial guarantees which are recognized as indispensable by civilized peoples,” which include right to representation, presumption of innocence, proof beyond a reasonable doubt, right to remain silent, confront witnesses, subpoena his own witnesses, generally be present at trial, and to review of conviction (by Secretary of Defense. (Some of this is incomplete, considering that I heard an interview with Hamdan’s lawyer where he said his client was entirely unaware that he had a lawyer, or that this case even existed). Justice Thomas calls these “nebulous standards,” (but consider an equally nebulous standard, the legal standard for the inclusion of rights into the Due Process Clause, incorporating rights which are “in their nature, fundamental; which belong of right to citizens of all free governments.”) Justice Thomas then implies a compelling-interest-test exception to this provision.

Justice Alito

Justice Alito agrees with a large part of the majority, up to the question of what is a “regularly constituted” court. He says this must depend on U.S. law. Justice Alito believes that this language does not, in itself, bar special tribunals, distinguishing the law by pointing out that it is meant to govern an occupying power’s trials of civilians. Nor does he believe that noncompliance with the uniformity requirement means that the tribunals are not regularly constituted, but simply invalidates that particular deviation. He also generally agrees with Justice Thomas’ evaluation of the Geneva criteria, particularly with Justice Thomas’ argument about the ripeness of Hamdan’s claim.

Revisit: If the case turns on the extent of congressional approval, and if that approval is to be measured in the AUMF, UCMJ, and various treaties, then the case turns on whether the specific and explicit limitations in the UCMJ override the (extremely) broad and ambiguous grants of authority in the AUMF, read in conjunction with the background law of treaties. Then the case is actually about whether Congress more sincerely delegated/recognized authority in meticulously calculated provisions of the UCMJ, or the blank-check of the AUMF.

How Much Latitude do States Retain in Defining the Insanity Defense?

Clark v. Arizona

Eric Clark shot an officer when he was pulled over for suspicious activity and fled on foot. He was found mentally incompetent to stand trial, but after two years in a state hospital he was deemed competent. Clark relied on his undisputed paranoid schizophrenia to deny that he had specific intent to shoot a law enforcement officer, or knowledge that he was doing so, as the statue requires. The prosecution pointed out that in pulling over Clark had recognized the symbol of police authority and that he had made statements in the weeks prior that he wanted to kill police officers. This case considers whether due process prohibits Arizona from using an inanity test solely based on the capacity to tell right from wrong (leaving out mental disease or defect) or by prohibiting defense evidence of mental disease, short of insanity, bearing on the defendant’s mens rea.

Clark argues that the elimination of the reference to the nature and quality of the act from the M’Nauthten test (generally, ‘if by reason of a diseased condition of the mind the defendant is unable to (a) understand the nature and quality of his act (cognitive incapacity); or (b) lacked the capacity to distinguish right from wrong(moral incapacity)) “offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (test for incorporating protection into the Due Process Clause). A third test, volitional incapacity (“irresistible-impule”), comes from English common law and a fourth (“product-of-mental-illness”) is employed in one form or another in fourteen jurisdictions along with moral incpacity (following the ALI Model Penal Code). Seventeen States and the Federal Government use a “recognizable version” of the M’Naughen test (both cognitive and moral incapacity); one state uses only the cognitive capacity portion, ten have adopted moral incapacity alone, and three combing the full M’Naughen test with the volitional capacity test. Only New Hampsire uses the product-of-metal-illness alone. Additionally, some states use the Not Guilty by Reason of Mental Insanity verdict or Guilty but Mentally Ill, and four States have no insanity defense, but allow considerations of mental illness to bear on the ability to form the requisite mens rea. These observations, along with the Court’s argument that it is generally accepted that cognitive incapacity is sufficient (but not necessary) to show moral incapacity bring the Court to the conclusion that the abridgment of the M’Naughten rule was constitutional.

The second issue derives from the Arizona court’s rule, at the time on the issue of battered women’s syndrome, that evidence of mental incapacity owing to mental disease or defect is admissible, but cannot be considered on the element of mens rea. As a background the Court overviews types of evidence. “Observational evidence” might come from those who were familiar with Clark, or professionals who observed him. “Mental-disease evidence” is generally opinion evidence from experts. Then there is “capacity evidence,” from experts regarding the specific nature of Clark’s mental state. These classifications are very broad and general. The Court reads the Arizona rule, from Mott, to pertain only to the second two types of evidence. The majority does not believe that Clark objected to the application of Mott, or at least did not frame such an objection to the Arizona court, and thus only considers the objections to the law based on its exclusion of professional evidence.

All defendants are presumed innocent until the government proves otherwise beyond a reasonable doubt. Similarly, all defendants are presumed mentally competent until the defendant proves otherwise, though the standard of proof is flexible. Where a State allows mental disease to be considered on par with other evidence when deciding whether the prosecution has proven mens rea “the strength of the presumption of sanity is no greater than the strength of the evidence of abnormal mental state required to raise reasonable doubt.” This would effectively do away with the requirement that the defense prove insanity (by whatever standard), by granting a victory to the defense if it could make a showing that need only be reasonable.

A problem arises. “If the same evidence that affirmatively shows that he was not guilty by reason of insanity (or “guilty-but-mentally-insane” under Arizona law …) also shows it was at least doubtful that he could form mens rea, then he should not have been found guilty in the first place. There must be a reason for limiting such evidence to the insanity issue. The Court cites the evolving nature of scientific knowledge and understanding, the potential of such evidence to mislead juries, and the effect that theoretical disagreement between experts can have on juries.

The dissent attacks the Court’s division of evidence into three categories. As an example of the way this formula is unworkable the dissent considers the fact that the defendant was charged with luring the police officer to the scene by playing the radio very loud and driving in circles. The dissent points out that paranoid schizophrenics often have auditory hallucinations, and play music very loud in order to drown them out. If this is the case, and if it were entered with only the observational evidence, excluding the expert evidence portion, the evidence would be quite distorted. Ultimately, the dissent argues, “knowledge requires cognition, and cognition can be affected by schizophrenia.” The three categories substantially overlap.

Additionally, the dissent argues that the ambiguities in the defense’s argument should not be construed to deny review of the fundamental question, and the ambiguities cited by the majority are illusory. Clark’s counsel had no reason to believe that greater specificity was needed since the tripartite formula was devised in the Court itself. Also since Clark raised the claim in a broad sense he is entitled to support it with whatever arguments he pleases. “A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” The dissent mainly objects to what it perceives as an arbitrary or disproportionate limitation on the defense’s ability to counter a necessary component of the charge. As far as the jury is concerned, “the difficulty of resolving a factual issue, [does] not present a sufficient reason to take evidence away from the jury even when it is crucial for the defense.” Additionally, the shift in burden may be appropriate in terms of an insanity defense, but not in terms of a defense to an element of the charge.

The rule, the dissent says, is also irrational. If Clark had testified that he lacked the requisite mens rea because he believed the officer to be an alien the State could not disallow the defense, and if it were allowed the rule would deny Clark the ability to support the assertion.

The Constitutionality of Denying Certain Prisoners Access to Newspapers, Magazines, and Photographs

Beard v. Banks

The Pennsylvania Long Term Segregation Unit, the third of a three tiered disciplinary system over and above that of normal prison administration, houses about 40 prisoners who have committed at least one of a number of serious violations. In all three units inmates are typically held in their cells for 23 hours a day, have their visitations limited, and may not watch television or listen to radio. These conditions have a lighter and a stricter version within each level. There is a program in place to graduate from a more restrictive level to a less restrictive level within the housing unit, but most do not. This case concerns only the most restricted level (level 2) of the highest tier (LTSU). This case considers whether the denial of access to newspapers, magazines, and photographs to a special group of inmates violates the First Amendment. Legal and personal correspondence, legal and religious materials, two library books, and writing paper are still allowed.

Ronald Banks, an LTSU level 2 inmate, argues that the restrictions bear no reasonable relation to a legitimate penological objective. Turner v. Safley held that “restrictive prison regulations are permissible if they are ‘reasonably related’ to legitimate penological interests” and recognized that inmates are not necessarily deprived of important constitutional protections, including their First Amendment rights. Under Turner, the four relevant factors are (1) valid rational connection; (2) alternative means of exercising the right that are still open to inmates; (3) the impact that accommodation of that right will have on guards, inmates, and allocation of prison resources; and (4) are “ready alternatives” to fulfill governmental purpose available? Under Overton v. Bazzetta Banks bears the burden of proof, and the facts are as stipulated and set forth by Pennsylvania, with all justifiable inferences drawn in Banks’ favor (Anderson v. Liberty Lobby, Inc.).

The purposes proposed include the need to motivate better behavior, to provide an incentive to move to level 1 or out of the LTSU, and to discourage backsliding on the part of level 1 inmates. That the privileges provide a significant incentive to improve behavior is logical, therefore the “reasonableness” requirement is met. The fact that there is no alternative ways for the inmates to exercise those rights is “limited” by the ability to graduate to level 1 status, but not eliminated provides “some evidence that the regulations [a]re unreasonable” but is not conclusive under Overton. The evidence at hand indicates that the attempt to accommodate the right at issue would have a negative impact. Finally, no alternative scheme is suggested with a lesser impact on individual rights. However, since the last three factors are logically related, the fact that two of them militate in favor of the State is not sufficient, there needs to be a “reasonable,” not just logical connection.

Banks argues, and points to evidence in previous cases that suggest, that inmates at the level of the LTSU level 2 will not be influenced by such measures, and will actually benefit from contact with the outside world. This does not, in the Court’s opinion, fulfill the “specific facts” requirement under the burden of proof rules for summary judgment.

Justices Thomas and Scalia join, citing Johnson v. California (one of the cases I cut my Equal Protection teeth on), noting that “California subsequently experienced severeral instances of severe race-based prison violence … between newly arrived inmates.” Justice Scalia believes that since the Constitution contains no implicit definition of incarceration the States are free to redefine it with only the Eighth Amendment as a restriction. (Apparently prisons only became standard in 1780-1865). Policies that pass the first test, Scalia argues, necessarily fail the second, for such policies cannot provide an alternative means for inmates to exercise the rights at issue. Also, “when the ‘valid penological objective[e]’ of a prison policy is encouraging compliance with prison rules, it makes little sense to inquire into the third and fourth tests.

Justices Stevens and Ginsburg, dissenting, argue that the Fourteenth Amendment requires that even the “worst of the worst” retain their constitutional protections. This policy, without question, infringes upon the core of the First Amendment. (Because I have just waded through one of Stevens’ drawn out opinions I will spare the digestion of issues outside those discussed by the majority.) I will, however, mention that Justice Stevens takes issue with the “deprivation theory of rehabilitation,” by which any deprivation provides an incentive to rehabilitate, and without a limiting principle would provide a “rational basis” to deprive the prisoner of anything.” Additionally, since prisoners do not regain access to photographs, this cannot, according to the opinion, justify the practice in terms of LTSU-1 and LTSU-2. Stevens concludes that the record is incomplete to rule, as a matter of law, that the practice is constitutional.

Justice Ginsburg, dissenting, argues that unless the State can prove that it is entitled to summary judgment, that judgment must be withheld.

Per Curium Roundup:

Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc.

Diamond v. Diehr prohibits patents on “laws of nature, natural phenomena, and abstract ideas,” a rule which “reflects a basic judgment that protection in such cases, despite its potentially positive incentive effects, would too often severely interfere with, or discourage, development and the further spread of useful knowledge itself.” In this case the patent holding company brought suit when a licensee switched to a “far superior” method for measuring certain amino acids, arguing its patent on any method of testing those amino acids was enforceable. The Court had granted certiorari to address whether a patent on a scientific relationship was valid. This Per Curium dismisses the writ as improvidently granted since the argument was not raised in the lower court. Justices Breyer, Stevens, and Souter dissent from that dismissal, arguing that no matter how narrowly you construe the ‘laws-of-nature’ rule, this patent is unenforceable even as a process (which the patent holder argues is what the patent covers). Even if it were a patentable process, that process is a natural one and therefore excepted

Youngblood v. West Virginia

Youngblood was found guilty of abducting three women and forcing oral sex with one at gunpoint. He later moved to have his conviction set aside because one of the investigators had found a note supporting his argument that the sex was consensual. The note, written by the other two women, said he had been played for a fool, mockingly thanked him for the oral sex, and mentioned vandalizing the house where he had taken them. A trooper told the investigator to forget it and destroy the note. Youngblood contends that the note was exculpatory and that the state did not live up to its constitutional obligation to provide him with evidence favorable to the defense. The state argues that since the note was never in the possession of the prosecution it cannot be faulted for that failure. The trial court found the note a basis for impeachment but not exculpatory. The dissenting opinion of the Appeals court called the trooper’s instruction a Brady violation (where the state fails to disclose evidence favorable to the defense) and argued that it was material.

In United States v. Bagely the Court held that Brady extended to impeachment evidence as well as exculpatory evidence. According to Kyles, Brady applies even where police, but not the prosecutor, are aware of the evidence. Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.”

Justices Scalia and Thomas dissent from the Per Curium, arguing that the Court should not be remanding the case as it does without finding clear error, or without an intervening circumstance. Scalia argues that the Court remands on the basis that it would benefit from the input of the lower court, though without presenting the Court with anything new to consider in a decision it has already rendered. Justice Kennedy agrees.

Whitman v. Department of Transportation

Lower courts held that because the Civil Service Reform Act does not grant “federal jurisdiction over employment-related claims by the negotiated grievance procedures of federal employees” that jurisdiction was lacking. The Court here notes that 28 U.S.C §1331 grants federal jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” and argues that federal courts would only lack that jurisdiction if an act expressly divested it.

Redistricting under §§2 and 5 of the Voting Rights Act, and the First and Fourteenth Amendments

League of United Latin American Citizens v. Perry

This case addresses appellant’s arguments that the Texas redistricting statute engages in unconstitutional gerrymandering in Districts 23 and 24; specifically that its basis in race and politics violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment, as well as §2 of the Voting Rights Act.

First, the majority (take that with a grain of salt, the opinions are jumbled) surveys the history, recounting the Democratic attempt to stave off a Republican majority in 1990 by employing newly emerging computer technology to create districts favorable to Democrats. Legal attacks failed. When Republicans took the Governorship and the State House judicial redistricting became necessary to circumvent a legislative impasse. Two of the three judges involved later sat on the three judge panel that heard this case, providing direct insight. The judicial plan set out guidelines but left great leeway to the legislature and completely failed to reflect the 59% majority which Republicans held by awarding 17 districts to Democrats and 13 to Republicans. Republicans addressed this disparity with a special redistricting in 2003, just before the 2004 elections, and won a 21:11 district margin for their 58% majority.

The Court does not revisit, but assumes an affirmative answer to, the question, barely settled in Vieth v. Jubelirer, as to whether an Equal Protection challenge to a political gerrymander is within the Court’s jurisdiction. The Constitution leaves the “Times, Places and Manner” of apportionment to the states (though Congress may override it), and has no explicit provisions for changing districts outside of a decennial census.

Appellants argue that a politically motivated mid-decennial redistricting per se violates the Equal Protection clause (because it serves no legitimate purpose), and the First Amendment (by burdening one group because of its political opinions and affiliations). The Court is unwilling to make presumptions about the motives behind a redistricting plan, but even if it was, it is unwilling to invalidate a redistricting plan without a showing of actual burden. Asymmetry is not a reliable test, and the Court does not want to furnish a disgruntled minority with a free shot at achieving in the courts what it could not in the legislature. In an argument that the Court reads as redundant with the previous one, appellants also argue that a voluntary redistricting plan violates the one-person-one-vote constitutional rule in that it unnecessarily creates population variance. Furthermore, appellants fail to establish an equal-population requirement violation. The per se challenge thus fails.

In 2003 Republicans changed district lines around District 23 in order to reduce the Latino population and increase the Anglo/Republican population to protect Henry Bonilla’s incumbency amidst floundering Latino support. To accomplish this a 300 mile snaking district was created that wound from the Mexican Boarder to Austin.

States violate §2 of the Voting Rights Act if, “based on the totality of the circumstances, it is shown that … [a racial group’s] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Under Gingles, three threshold conditions exist: (1) the racial group is sufficiently large and compact to constitute a majority in a single-member district; (2) the racial group is “politically cohesive;’ and (3) the majority usually votes as a block sufficient to defeat the minority’s preferred candidate. Where these conditions exist the court must consider the totality of the circumstances. The Court accepts the lower court’s affirmative findings as to (2) and (3). The Court discusses an “opportunity district” (the first condition), and the parties concede that District 23 fits all three criteria, though the State argues that the new District constitutes an “offsetting opportunity district.” Precedent only allows an offsetting district to fulfill §2 requirements where the racial group in each area had a §2 right and the State could not accommodate both. Also, since a §2 right entitles a compact minority group to be districted together (from what I can tell) it is no answer to create a non-compact majority-minority group somewhere else.

The opinion chides the District court for failing to consider compactness in addition to bare minority voting strength. The District court only evaluated the compactness of the districts for Equal Protection purposes, where the only issue is whether race is the predominant factor in drawing those lines. Under §2 the issue is vote dilution, including factors like traditional boundaries. When, taking all the issues into account, “the only common index is race and the result will be to cause internal friction. The State cannot make this a remedy for a §2 violation elsewhere.” The “enormous geographical distance” between Austin and the Mexican-boarder communities, along with their “disparate needs,” together render District 25 noncompact under §2. District 23, however, is closer geographically and was split up precisely because it had become so cohesive. Therefore, the Gingles conditions are met in District 23, and District 25 does not remedy the problem.

Next, the Court comes to the totality of the circumstances test. First among those circumstances is the “always relevant but never dispositive” question of the proportion of “Latino opportunity districts” to the Latino share of the voting-age population. The first question here (see why this opinion is 132 pages long?) is whether to consider proportionality statewide or at the District or County level as the previous Supreme Court case did. The Court decides to look statewide because the right belongs not to the minority group but to its individual members and because a smaller area would be arbitrarily singled out. What the Court finds to be most egregious is the attempt to divide a politically cohesive minority community at the moment that its political will might become a majority, furthering the “well documented” history of official discrimination;” something which could raise an equal protection issue. “The State not only made fruitless the Latino’s mobilization efforts but also acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Loredo.” The State argues it was motivated by politics, not race. Incumbency protection can be a legitimate purpose, but not to its own end and must be balanced against the effect on voters. The plan violates §2. The opinion does not reach the First Amendment or Equal Protection issues. The Court also has no interest in ruling on other Districts that must now be changed, especially District 25.

Apellants also argue that African Americans, as 64% of the Democratic party, had effective control of District 24, though they made up 25.7% of the voting population of a “racially diverse district.” The Court assumes that a 50% majority is not a prerequisite, but agreed with the District court (in lieu of clear error) that the most rational conclusion is that Anglo Americans controlled the district. “The opportunity ‘to elect representatives of their choice’ requires more than the ability to influence the outcome.”

There was no statewide unconstitutional gerrymander, or a violation of §2 in Dallas, but Districts 23 and 25 violate §2.

Justice Stevens, concurring, argues that a mid term redistricting must further a legitimate government purpose, which purely partisan or racial reasons do not, since the status quo benefits voters and incumbents. Since political motivation to reduce Democratic strength was the sole motivation for the redistricting, it fails judicial scrutiny. After a history of gerrymandering by Democrats, the 2001 census redistrict the protracted argument over redistricting which fell to the judiciary was, in Justice Stevens’ opinion decidedly and fundamentally fair as a status quo. (The story is actually very interesting, the Democratic contingent left Texas so as to deprive the Republicans of a quorum, when a single Democrat returned the Lieutenant Governor called the third special session. That one senator was king for a day. There is also a real truth-to-power quote from the Balderas Court: “we see gerrymandering [as] an abuse of power that, at its core, evinces a fundamental distrust o f voters, serving the self interest of the political parties at the expense of the public good.”) Stevens addresses whether it is legitimate for Texas to redistrict in the middle of a decade for purely partisan purpose.”

Stevens suggests that courts can, and in readily may, conclude that partisan purposes were the sole motivating factor in a decision to redistrict without the legal obligation to do so. He also argues that Upham only held that “a state legislature is authorized to redraw a court-drawn congressional districting when a district court has exceeded its remedial authority,” and not, as the majority believes, at its own whim. The Equal Protection Clause requires a legitimate interest and bars actions motivated by a bare desire to harm a politically disfavored group. The First Amendment protects citizens from being penalized for the expression (in any form) of their political views. Therefore, the decision to redistrict itself was unconstitutional. Justice Stevens also rejects Justice Kennedy’s requirement of a showing of actual burden, and argues that even if that is a constitutional requirement it has been met in this case. Meanwhile, the proportional effect is irrelevant to the underlying unconstitutional motivations.

These same considerations inform the constitutionality of dividing District 24. Under the “intent prong” of the Equal Protection clause, a plaintiff must prove that she is a voter or candidate to have standing, and prove that an impermissible factors subordinated appropriate factors. If they have, strict scrutiny applies. Under the “effects prong” she must prove (1) her candidate won under the old plan (test harm); (2) she is now in a safe district for the opposing party (test harm); and (3) her district is now less compact (test shape of gerrymander).

Justice Souter and Ginsburg, concurring in part, decide that it is time to answer whether “a statutory dilution claim can prevail without the possibility of 50%+ minority voter population.” The opinion adopts a pragmatic rule that the minority constitution of a majority of voters in the primary elections of the dominant party is sufficient because “unless minority voters posses the potential to elect representatives in the absence of the challenged [system] they cannot claim to have been injured by [that system].” It also (finally) notes that, as opposed to some of the plurality’s reasoning, what matters is a given candidate’s status as favored, not the candidate’s race, an observation that undermines the conclusion that white voters controlled District 24. Rather, Justices Souter and Ginsburg would remand for the lower court to consider the question, free of the 50% requirement imposed by the Fifth Circuit.

Justice Breyer, concurring in part and dissenting in part, concludes that partisan advantage was the sole motivating factor, and that this cannot be justified by trying to right the wrong done by Democratic gerrymandering. Justice Breyer believes that the plan as a whole violates the Equal Protection Clause.

Chief Justice Roberts and Justice Alito, concurring in part, in judgment, and dissenting in part, argues that the new District 25 satisfies §2 because, while it might not be compact, it consists of 55% majority Latinos, and that compactness should be subordinated to the District Court’s findings that by the totality of the circumstances District 25 is a Latino opportunity district. The opinion also accuses the majority of ignoring the requirement that plaintiffs show that a better solution exists, in favor of attacking the district on new grounds, compactness, even though that issue was essentially conceded by plaintiffs. ‘Geographical compactness has, until now, been only an element of the plaintiff’s case.’ The opinion also takes issue with the majority’s accusation that the District Court simply aggregated minority voters to measure effectiveness and points out that Latino communities in old District 23 were twice as distant as those in new District 25, giving Latinos a better opportunity statewide than they had in the old plan.

“Even if plaintiffs satisfy the Gingles factors, a finding of vote dilution under §2 does not automatically follow,” but there must be some proportionality consideration. The opinion argues that the proportionality exists, and that the majority sidesteps the issue by looking at proportionality statewide instead, and counts all Latino voters for the purposes of evaluating a single district.

Finally, Justices Scalia and Thomas, concurring in judgment in part and dissenting in part, first argue that claims of unconstitutional gerrymandering do not present a justiciable case or controversy. Similarly, Justice Scalia would dismiss the claims under §2 for failure to state a claim for the reasons in another case and those given by the Chief Justice. Scalia then considers the Equal Protection issue. Whether the plaintiffs must show that race was the predominant factor, or just a factor at all, is irrelevant because the District Court found that it was not. According to the opinion, race, as a correlation to political affiliation, does not constitute a contributing factor.

In the case of District 25 the State had to use race as the predominant factor in order to fulfill its compelling interest (as the opinion would hold) in complying with §5, the dependence on a suspect class must then be narrowly tailored. The State must then show that compliance was its “actual purpose” and that it had a “strong basis in evidence” for the belief that this was required by a constitutional reading of the law. Additionally, it may not go beyond what is required. The opinion takes a concession on the appellants part that the effort was necessary to be conclusive.

Does a Violation of a Right Provided by the Vienna Conventions Implicate the Exclusionary Rule?

Sanchez-Llamas v. Oregon

The Vienna Conventions require that if someone is detained in a foreign country, upon their request, the consulate of their own country will be informed without delay, and the detainee will be informed (without delay) of his rights under the Convention. The Convention also provides that the rights contained within it shall be exercised “in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said law and regulations must enable full effect to be given to the purposes for which the rights accorded under [the] Article are intended.” On March 7, 2005 the United States withdrew from the Optional Protocol, giving the ICJ authority over disputes of interpretation of the Convention. Sanchez-Llamas, who was arrested after a shootout with the police, moved to suppress his incriminating statements made during interrogation because, though he was read his Miranda rights, he claims that his statements were made involuntarily and because the authorities failed to comply with the Convention. The Oregon Supreme Court concluded that the Convention does not grant rights to consular access or notification that are enforceable by detained individuals in a judicial proceeding.” Meanwhile, Bustillo argues that his right to consular notification was violated, but does so by writ of habeas corpus. Under Sanchez-Llamas the Court considers (1) whether the Convention creates judicially enforceable rights; and (2) whether suppression of evidence is the proper remedy for the violation of those rights. As to Bustillo, the Court considers whether a claim under Article 36 of the Convention may be deemed procedurally barred for failure to raise it at trial.

The United States argues that “there is a presumption that a treaty will be enforced through political and diplomatic channels, rather than through the courts.” The Court assumes an affirmative answer to the first question, because the second two fail.

The Vienna Convention does not set out specific remedies, and it would be implausible to assume that its signatories endorsed the exclusionary rule as a remedy since the rule is entirely unique to American jurisprudence. The Court rejects the idea that it maintains supervisory authority over state courts, and looks for authority in the Treaty itself. “Where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States.” Sanchez-Llamas argues that the words “full effect” imply a judicial remedy. The Court reads the provision that Article 36 rights “shall be exercised in conformity with the laws and regulations of the receiving state” to mean that the domestic law governs the remedy, and …wait for it… “Under our domestic law, the exclusionary rule is not a remedy we apply lightly.” The only statutory violations that implicate the exclusionary rule do so by implicating important constitutional protections. The justification for some applications of the exclusionary rule are given: coerced confessions tend to be unreliable, excluding the fruits of unreasonable searches provides a strong deterrent. In the majority’s opinion the interests protected by the rights under the Convention are simultaneously protected by the Bill of Rights.

Regarding Bustillo; claims not raised on direct appeal are barred from collateral appeal unless the defendant can show “cause” and “prejudice.” Bustillo argues that the procedural default violates the “full effect” requirement of the Convention. Precedent dictates that, absent a clear and express statement to the contrary, procedural rules govern the implementation of the treaty. The Court dismisses Bustillo’s attempt to distinguish precedents on the basis that the ruling was unnecessary to the result, because “it is no answer to argue … that the holding in Breard was ‘unnecessary’ simply because the petitioner in that case had several ways to loose.”

Bustillo also claims that since Breard the ICJ has interpreted the Convention to bar the procedural default rule under the theory that such a rule violates the “full effect” requirement. The Court holds that those decisions are not binding because it is the supreme judicial body. Besides, the ICJ decisions have “no binding force except between the parties and in respect of that particular case,” meaning that the decisions are not even binding precedent as to the ICJ. The ICJ’s reasoning also fails to recognize that an adversarial system relies on the parties to advance facts and arguments, and to encourage parties to raise their claims promptly, as well as bring finality to judgments. The Court also rejects the idea that the failure to disclose Article 36 rights is tantamount to a Brady violation (failure to disclose exculpatory evidence) because in a Brady violation the defendant cannot know, as a factual matter that a violation has occurred, whereas in an Article 36 violation, what escapes the defendant is the legal significance.

Justice Ginsburg, concurring, distinguishes Miranda warnings and the rights at issue here. She also argues that a defendant could gain the full effect of Article 36 by using it to argue against the voluntariness of his statements to the police, and warns against the a ruling recognizing that the Convention’s bar on the procedural default rule only applies to the states because a later federal statute overrode that command.

Justice Breyer, dissenting, cites an ICJ decision noting that “as a matter of international law, breach of a treaty ordinarily ‘involves an obligation to make reparations in an adequate form” which should consist in an obligation to permit review and reconsideration by the United States courts in order to ascertain whether the violation “caused actual predjudice.” The means by which the United States my provide this remedy, which the ICJ believe to be implied in the treaty, were left to the United States. The ICJ also decided that the Convention only barred a procedural default rule in cases where “the authorities’ failure to inform the foreign national of his rights prevented him from timely raising his claim.”

Under Article VI cl. 2 “all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby.” When a treaty is self executing it bears the force of a congressional act, and under the Head Money Cases, the question becomes whether the treaty obligations provide rights to individuals which are “of a nature to be enforced in a court of justice” (eg: not a matter for the military). The dissent is of the opinion that the rights set forth in the Convention do not differ in kind from those enforced by the judiciary on a regular basis, and that the rights are clearly those of individuals as opposed to those of the “member nations,” consular officers, contracting parties, etc. This conclusion, Justice Breyer argues, is consistent with the case law and the way that the United States treats other provisions in the Convention. The United States argues that Article 36 is concerned with the rights of states, based on a presumption that international treaties do not create judicially enforceable rights (a presumption the dissent does not find in the case law) and that the Executive interpretation of the treaty is entitled to great weight (which the dissent acknowledges, but finds insufficient).

Justice Breyer agrees with the ICJ as to the prohibition on the procedural default rule when the fault rests with the United States, and bolsters his reading with the observation that previous drafts only prohibited noncompliance (“not nullify”), rather than requiring that the treaty be given its “full effect.” The change was made, in part, on the basis of the observation that “rights could become seriously impaired without becoming inoperative.” Justice Breyer also articulates the reasons for respecting the ICJ’s decision in this case, and in general, despite the recognition that its decisions are not binding precedent.

The dissent also notes that the procedural default rule, as a federal statute, may have overridden incompatible rules in the Convention, but what is at issue here is a state practice. Justice Breyer also rejects the idea that Breard requires a clear statement rule.

As for suppression, where suppression would prove to be the only effective remedy Justice Breyer is willing to accept that it is required by the Convention. He takes issue with the suggestion that suppression is an entirely American creature, and points to the fundamental differences in legal systems to explain why suppression would be necessary here but not somewhere else.

Does the Term “Attorneys’ Fees as Part of the Costs” Include Experts’ Fees?

Arlington Central School Dist. Bd. of Ed. v. Murphy

The Individuals with Disabilities Education Act provides that a court “may award reasonable attorneys’ fees as part of the costs” to prevailing parents. The question here is whether that extends to compensation of experts. The Court argues that since the Act was passed under Congress’ spending power, it must be construed much like a contract (Pennhurst State School and Hospital v. Halderman). Therefore, there can be no binding provision within it unless the States were on clear notice that it existed in the terms of the legislation. The Court reads the word “costs” as a term of art, more narrowly than “expenses,” and points out that the law does not allow a court to award “costs,” but rather allows a court to award reasonable attorney’s fees “as part of the costs,” adding attorney’s fees to a list of otherwise recoverable costs. The Court states that this is “obviously the list set out in 28 U.S.C. §1920, the general statute governing the taxation of costs in federal court, and which is itself limited by another statute (28 U.S.C. §1821). However obvious that may be to the Court, it suffices that the Court concludes that the law fails to provide the clear notice required by the Spending Clause.

The Court also finds the costs/expenses distinction in the paragraph of a GAO study that respondents use to argue that their reading was intended by Congress. The Court then moves on to the case law basis for its decision.

In Crawford Fitting the Court ruled that the term “costs” in 28 U.S.C. §1821 was defined by the list set out in 28 U.S.C. §1920 because to decide otherwise would be to decide that a portion of the law had been overruled. It also warned that it would not “lightly infer that Congress has repealed §§1920 and 1821.” In Casey the Court ruled that the term “reasonable attorney’s fees as part of the costs” in 42 U.S.C. §1988 did not include expert fees. Deciding that the same language has two different meanings goes against the idea that the states must be put on notice of the requirements of the law. The lower court noted a conference committee report that said “the conferees inted[ed] that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the … case.” While this may be a genuine expression of a legislative intent to coin a term of art, the Court rejects the argument because (a) it does not make the requirements of the law on the states unequivocal, and (b) it implicitly recognizes that the ordinary meaning of the terms does not include expert fees.

Respondents argue that their interpretation comports with the overarching goals of the law, but the Court finds these goals to be too general to clearly convey a legal obligation on the states. “In a spending clause case, the key is not what a majority of Members of both houses intended but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.”

Justice Ginsburg objects to the extraction of a ‘clear notice’ requirement from Pennhurst because this case does not concern the Spending Clause framework, but remedies available against a noncomplying district.

Justices Breyer, Stevens, and Souter emphasize the Conference Committee report as an expression of legislative intent and argue that this interpretation furthers the IDEA’s statutorily defined purposes. When passing the IDEA several senators introduced a bill that would have put a cap on the fees, but would have explicitly authorized the award of witness fees and other reasonable expenses, in addition to attorney fees. Its replacement also allowed a parent to recover attorney’s fees “in addition to the costs,” language which was described as “enable[ing] courts to compensate parents for whatever reasonable costs they had to incur to fully sercure what was guaranteed to them by the EHA.” Meanwhile, the House version provided for “attorneys’ fees, expenses and costs.” These phrases were changed to what they are today, according to the conference report, in order to “ incorporate the Supreme Court[‘s] Marek v. Chesny decision. The conferees intended… (see above).”

The dissent warns that today’s ruling will restrict the primary purpose of the Act by reinstituting obstacles to the vindication that the Act provides. IDEA has been interpreted in the past without any reference to clear-statement rules or to the Spending Clause. Also, “neither Pennhurst nor any other case suggests that every spending detail of a Spending Clause statute must be spelled out with unusual clarity.” Besides, judicial filling-in is to be expected, and the States would have accepted the funds anyway. The states could have anticipated some requirement, and the dissent believes that its interpretation is not so far out of line that it would pose an unfair burden on the states. The dissent suggests that the law should be read as implying a general power to award costs, while specifying reasonable attorneys’ fees among them.

Additionally, the cost list that the majority uses applies only in federal court, which makes no sense here as the actions must begin in state court. Addressing the argument that the traditional scope of the term of art “costs” does not include expert fees, the dissent believes that the congressional intent is sufficient to demonstrate that the term was not meant as a term of art.

How Much can a State Limit Campaign Fundraising?

Randall v. Sorrell

Here the Court considers the constitutionality of a Vermont statute limiting expenditures and contributions to political campaigns. The terms expenditure and contribution are defined broadly. Contributions from family, and volunteer work are not counted, but assistance from outside affiliated groups is. The District court found the expenditure limits and the limits on donations from a political party to be unconstitutional, but found the rest of the Act to be constitutional. The Circuit court found all of the contribution limits to be constitutional, and suggested that some of the expenditure limits might be constitutional, based on certain compelling interests (preventing corruption and limiting the time state officials spend raising money) on the part of the legislature and remanded the case for the District court to determine whether the Act was narrowly tailored to those interests.

Buckley v. Valeo held that a similar federal statute implicated “fundamental First Amendment issues.” The interest in preventing corruption or the appearance of corruption justified, for the Court, the limits on contributions but not on expenditures. The Court argued that expenditure limits, unlike contribution limits, necessarily reduce “the quantity of expression by restricting the number of issue discussed, the depth of their exploration, and the size of the audience reached.” Buckley has been a sound precedent that expenditure limitations are unconstitutional.

Respondents argue that experience has disproved assumptions made in Buckley, namely that contribution limits are a sufficient protection against corruption. They also suggest that Buckley did not consider the interest in limiting time spent on fund raising, though the Court finds sections of the Buckley opinion, and those of the lower courts, that do. Neither history nor case law has made Buckley a legal anomaly and stare decisis compels the rejection of respondents’ arguments to distinguish or overrule it. Nor have respondents shown that expenditure limits are the only way to prevent corruption (narrow tailoring).

The Court then considers the contribution limits in light of Buckley’s general support for such limits. The Buckley Court found that since the contribution limits before it were “closely drawn” and in support of a “sufficiently important” government interest, they were constitutional. The Court must consider here whether such limits “prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy,’” or significantly disadvantage incumbent challengers, and protect those interests by requiring that the statute be “closely drawn.” The Court begins by noting that the limits are essentially one twentieth of those in Buckley for the same sized district and constitute the lowest in the Nation (though it is pretty close in some areas). The limits are also (arguably) substantially lower than those upheld in Nixon v. Shink.

There are five reasons cited in support of the conclusion that the contribution limits are too restrictive. First, the limits would reduce the money available to incumbent challengers by between 18% to 53%. The limits would negatively impact the ability to target funding to competitive races. Petitioners focus on the average funding, which neglects the true force of the objection. This raises a reasonable inference that the limits are so low as to “pose a significant obstacle to candidates in competitive elections.”

Second, the application of these rules to political parties as well as individuals threatens the First Amendment freedom of association and thwarts the aims of those who donate money to a political party by prohibiting that party from donating more than $200 to a given candidate. Limits in Colorado that were similar in structure (but not in substance) reflected an effort to “balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties to ‘circumvent contribution limits that apply to individuals.’” The limits here give the “former consideration no weight at all.” (Emphasis in original). Third, the act counts volunteer expenses (travel, etc) in those limits, which discourages volunteers, thereby impeding free association. Fourth, the failure to adjust the limits for inflation only exacerbates the problems. Fifth, there is no evidence that corruption is any more serious in Vermont than anywhere else, and no special justification in this particular case. The Court is unwilling to sever provisions to make the statue constitutional because of the belief that more than a simple severance would be necessary.

Justice Alito writes separately to argue that the Court need not reach the question of reexamining Buckley because the respondents do not make any such suggestion.

Justice Kennedy writes separately to indicate his distaste for this aspect of developing law in general, and to point out that the problem at issue is as much a creature of law as it is a creature of social circumstances.

Justices Thomas and Scalia believe that Buckley provides insufficient protection to political speech. They believe that the erratic application of the Buckley framework justifies its replacement. They reject the distinction between expenditure limits and contribution limits, arguing that the two equally infringe on the First Amendment. Justice Thomas would employ strict scrutiny, which the law fails. “Buckley’s limited scrutiny of contribution limits is ‘insusceptible of principled application’ and accordingly is not entitled to stare decisis effect.” The opinion reads the plurality to set out a two step test: (1) look for “danger signs” and (2) use “independent judicial judgment” to “review the record independently and carefully with a view to the statute’s ‘tailoring,’ that is, toward assessing the proportionality of the restrictions.”

The “danger signs” here are (1) the limits are set per cycle, not per election; (2) the limits apply to contributions from parties as well as individuals; (3) the limits are the lowest in the Nation; and (4) the limits are below those previously upheld. The first advantages incumbents, and the second bears no relation to the compelling interests at stake. The issue of inflation and the inclusion of volunteer expenditures merely exacerbate whatever constitutional violation there may be. So, the basis on which the Act moves from suspicious to unconstitutional is that the restrictions affect a substantial portion of the money given to challengers, and because the limits are lower than anywhere else in the country. As to the first issue, Justice Thomas argues that there is a violation whether speech is infringed 5% or 95%, and as for the second, Justice Thomas simply rejects this as an appropriate way to evaluate the First Amendment. Therefore, since this is an unworkable rule and because it provides too little protection for the First Amendment, Justice Thomas would overrule Buckley and prohibit all such limitations.

Justice Stevens would overrule Buckley. First of all, Buckley upset the previous concept that such laws were limitations on actions, not on speech. Second, Buckley has not created the kind of reliance that stare decisis aims to protect. Stevens explains that he has been convinced by Justice White’s argument that you cannot equate money and speech. While Stevens accepts that some money is required he believes that these restrictions are more of the time, place and manner variety, and would require only a rational basis. He then explains how speech can be had without money, and endorses the importance of “freeing candidates from the fundraising straightjacket.” “Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection.”

Stevens continues, citing Georgia v. Randolph (one of my favorites), “the historical context is ‘usually relevant but not necessarily dispositive’” he argues that the Frames would be appalled by the impact of funding practices on legislative efficiency.

Justices Souter and Gisburg are of the opinion that the Buckley Court did not squarely consider the argument regarding the interest in freeing legislators of massive amounts of fundraising and that Vermont does not ask that Buckley be overruled, but rather that its rule be applied. Justice Souter also points out that the limits set out in the law are the product of public sentiment for the point at which funding becomes suspiciously large and that Vermont ranks 49^th in funding, largely because of low cost methods of campaigning.

The volunteer issue, Souter argues, will be a colossal nuisance, but it need not substantially limit volunteering. The fact that the law does not take account of inflation is rejected as an attack on the law, not as it is, but as it might some day be. As far as contributions from political parties are concerned, Souter argues that this cannot rationally invalidate the law, and that whether this is a matter for the courts is questionable. Finally, the unconstitutionality of the presumption that funds spent to the same end are coordinated is rejected because it requires only a minimal showing to rebut, and places no onerous burden on the party.

Is Failure to Submit a Sentencing Factor to the Jury a Structural Error?

Washington v. Recuenco

Recuneco fought with and assaulted his wife and then threatened her with a gun. The jury found him guilty on the charge of assault “with a deadly weapon.” The State did not seek the standard 1 year enhancement for the use of a deadly weapon, but rather sought a 3 year enhancement for the use of a gun specifically. A gun is a deadly weapon under Washington law. The trial judge granted the firearm enhancement, contrary to Apprendi which requires any fact that increases the punishment for a crime beyond the statutory maximum must be submitted to a jury and Blakeley which defined that “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis in original). The Supreme Court of Washington declared Blakeley errors to be structural errors and not subject to harmless-error analysis. The question is the propriety of that decision.

First, respondent argues that the Court may not overturn the Washington Supreme Court’s decision because it rested on independent state grounds. No procedure existed, nor was the Washington Supreme Court willing to create (according to him) one, for a jury to decide that he used a firearm, as opposed to a deadly weapon. Therefore, harmless-error analysis is impossible. The Court accepts that this might be an argument for why the violation in this particular case was harmless, but points out that this does not necessarily imply that Blakely error can never be harmless.

Then comes that line I pointed out a few weeks ago: “We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal.” Quoting Needer v. United States Justice Thomas implies that the rule is based on “fundamental fairness” and that the only errors that are structural are those that violate that protection. Citing the lack of a distinction between sentencing factors and elements of a crime at the time of the founding, Thomas notes that the Court has treated sentencing factors as elements by requiring that they be tried to the jury and proved beyond a reasonable doubt.

Respondent argues that because the jury delivered a guilty verdict on assault in the second degree, and an affirmative answer to the sentencing question, to combine the two would be tantamount to a directed verdict for assault in the second degree while armed with a firearm, and would “hypothesize a guilty verdict that [was] never in fact rendered.” The Court, arguing that Needer rejected the lower court’s idea that the jury had rendered a complete verdict, but still allowed harmless-error analysis, does not accept the distinction.

Justice Kennedy, again, hedges his support for the majority by stating Apprendi and Blakeley “were accompanied by dissents. The Court does not revisit those cases today, and it describes their holdings accurately. On these premises, the Court’s analysis is correct.” I think this is evidence for Kennedy’s (the new swing voter) lukewarm support for this area of the Court’s development.

Justice Stevens suggests that the Supreme Court of Washington can reinstate its prior ruling on the basis of state law, and that this case did not address the question of whether “Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend against.” He even mentions Brigham City and Marsh.

Justice Ginsburg argues that the Jury ruled, without error, and completely, and that the harmless-error rule was not created to dislodge proper (though ill conceived) convictions. As opposed to Needer, where the trial judge made a determination to fill a gap in the jury’s determination, the verdict here, according to Justice Ginsburg, “contained no omissions; they set out completely all ingredients of the crime of second degree assault with a deadly weapon.” She calls this a “greater excluded offense notion.”

The Constitutionality of Mandating the Death Sentence with Mitigating Evidence in Equipoise

Kansas v. Marsh

Michael Lee Marsh laid in wait, brutally murdered Mary Ane Pusch, and burned her house down with her child inside. He was found guilty of murder, aggravated arson, and aggravated burglary. This case addresses the constitutionality of a law requiring the death penalty when the jury finds at least one aggravating circumstance and when aggravating and mitigating circumstances are in equipoise. Prior to this question, however, the Court addresses whether it has jurisdiction, and whether the lower court’s decision is supported on independent state grounds.

28 U.S.C. §1257 grants the Court jurisdiction over the final judgment of the highest court in a state where the federal claim, on which the state law is challenged, is “finally decided, with further proceedings on the merits in the state courts to come,” but where the federal issue cannot be readdressed. The Court decides that what avenues remain theoretically available to the defendant are effectively closed, and that the lower court overruled a portion of a previous Kansas Supreme Court ruling which was itself based on the Eighth and Fourteenth Amendments. It is therefore not supported on independent state grounds.

In Walton v. Arizona the Court held that so long as a law does not diminish the State’s burden of proving every aspect of a charge a defendant’s constitutional rights are not violated by placing the burden of proving mitigating factors on him. In Walton the defendant was required to prove mitigating circumstances in response to the prosecution’s showing of aggravating circumstances, whereas the statute at issue here requires the State to prove that its aggravating factors are not outweighed by whatever mitigating factors may exist, a greater burden on the State. Therefore, since Walton controls this case, the Court is compelled to find the statute constitutional.

Alternatively, Furman v. Georgia and Gregg v. Georgia require a state capital punishment system to “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” The Court has also held that a state is effectively precluded from limiting the range of mitigating factors. That mitigating factors must be considered is part of the individuality requirement from Furman and has not been held to necessarily imply any given method of balancing.

The Court then considers the Kansas statute in light of the Furman requirements. The statute rationally limits death sentence eligibility to those found guilty of capital murder; allows jurors to consider any mitigating evidence relevant to moral culpability or blame; and does not create a general presumption in favor of death (the defendant bears the burden of production while the State bears the burden of proving that aggravating factors outweigh mitigating factors). Marsh argues that a jury determination that aggravating and mitigating factors are in equipoise cannot result in a valid sentence of death because jurors that determination either shows juror confusion or allows a jury to shrink its constitutional duty to render a moral decision. The Court rejects the first argument, and argues that the balancing is a means, not an end. Therefore, the duty to render a moral decision can be found in the determination of the sentence itself. The majority accuses the dissent of raising an incendiary debate over DNA evidence that is entirely outside the scope of the question at hand.

Justice Scalia, concurring, presents responses to Justice Stevens’ arguments about why the Court should not have granted certiorari. Scalia also accuses Stevens of endorsing a misguided view of federalism where the Supreme Court cannot interfere with state court determinations of federal law. According to Scalia, when a state Supreme court mistakenly reads federal law the people of the State are stripped of any power to overturn the decision. Therefore, the Supreme Court returns power to the people of the State by correcting the mistake. He also points out that the capital punishment system of those countries bemoaning the one in the US were abolished in spite of public sentiment and attacks the dissent’s decision to address the broader question of the death penalty per se. Scalia sees the exoneration of death row inmates as the badge of a functioning legal system, since it is that very system that let them go, and emphasizes the number of “exonerations” that have come on the basis of technical matters of law, rather than pure evidence.

Justice Stevens argues that Justice Blackmun, dissenting in Walton, denied that the plurality in that case addressed the issue of the death sentence with evidence in equipoise. Stevens therefore does not believe that stare decisis binds the Court in this case. Stevens points out that in this case it was Kansas, not Marsh, that applied for certiorari, and accuses Scalia of overlooking the absence of an interest in protecting against unconstitutional conviction when the petitioner is a State.

Justice Souter states that the constitutional duty to make a reasoned moral response requires that a jury’s sentence be informed by the actual circumstances and uniqueness of the crime and the defendant, as well as requiring that the death penalty be reserved for the worst of the worst. The Kansas statute fails on both counts: the dispositive factor is nothing unique or individual about the circumstances and it does not single out the worst of the worst. Souter calls this rule “morally absurd” and accuses the majority of defying “decades of precedent aimed at eliminating freakish capital sentencing.” He then presents the contested evidence regarding exonerations in order to illustrate the “reality that must be addressed.”