Final Version of Eighth Amendment Article Now Available

The Missouri Law Review has now published the final version of my article, “Not Just Kid Stuff? Extending Graham and Miller to Adults.”  Here is the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The citation is 78 Mo. L. Rev. 1087 (2013).

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SCOTUS End-of-Term Roundup: The Constitutional Cases

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

(more…)

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SCOTUS End-of-Term Roundup: Fourth Amendment Cases

On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases.  In the latter category, the Fourth Amendment decisions were probably the most significant.  They were:

  • Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
  • Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
  • Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).

In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley.  The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants. (more…)

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SCOTUS End-of-Term Roundup: Should the Court Care How Effective a Statute Is?

In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term.  In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.

Abramski, the firearms purchase case, provides a good illustration.   (more…)

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SCOTUS End-of-Term Roundup: Causation Cases

Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.

The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   (more…)

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SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act.  Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes.  The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.”  (12)  This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond.  The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   (more…)

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SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify.  Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower.  Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests.  “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”  (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.   (more…)

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“Mass Incarceration in Three Midwestern States”–Final Version

The Valparaiso University Law Review has now posted the final version of my article “Mass Incarceration in Three Midwestern States: Origins and Trends.”  Here’s the abstract:

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.

This paper was part of an interesting symposium issue on mass incarceration and the drug war.

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Which States Have Reduced Their Prison Populations in the Past Decade?

By 2002, in the wake of a recession that caused major fiscal challenges in many states, there was an increasingly widespread recognition that the American imprisonment boom of the 1980s and 1990s was not economically sustainable.  Dozens of states adopted new sentencing and corrections policies that were intended to restrain further growth in imprisonment.  These reforms seem to have had some success, as imprisonment rates finally stabilized after so many years of explosive growth.  However, very little progress has been made toward bringing U.S. imprisonment rates back down to our historical norms.  The “if you build it, they will come” principle seems in evidence — after so much prison capacity was built in the boom years, we’ve found ways to keep using it even as crime rates have tumbled down.

A few states have had success, however, in downsizing their prison populations.  Here are the ten states whose prison populations dropped between December 2002 and December 2012:

New York             -19%
New Jersey           -17%
California             -16%
Connecticut          -15%
Michigan              -14%
Maryland              -9%
South Carolina     -5%
Wisconsin             -5%
Rhode Island        -2%
Hawaii                  -1%

Even the largest decreases on the list are rather small compared with the size of the pre-2002 increases.  Nonetheless, some might wonder whether reduced imprisonment has resulted in more crime.  With that concern in mind, I gathered data on violent crime in the five states that experienced double-digit drops in imprisonment.   (more…)

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