Jeffrey Toobin's Smack Down of the SCOTUS Qs

During my trip to Asia, I read a lot (because it is what I do, as my father-in-law pointed out to me).  I used the time to catch up on my New Yorkers, and I absolutely must highlight Jeffrey Toobin's smack down of the justices' questions concerning the health care act.  In the April 9, 2012, edition, Toobin wrote:

"The key issue in the case is whether congress, in passing the [Affordable Care Act], exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce.  Consider, then, this question, posed to [Solicitor General Donald] Verrilli by Justice Anthony M. Kennedy: 'Assume for the moment that this' -- the mandate -- 'is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.  If that is so, do you not have a heavy burden of justification?'  Every premise of that question was a misperception." (Emphasis added.)

Ha!  Toobin then goes on to explain that the national government has been involved with the health care market since the 60's since Medicaid and Medicare and that the heavy burden is actually on the other party (the challengers to the law) according to case law.  Toobin then remarks on how previous cases have set up a deference to Congress on such matters but that these justices were taking it upon themselves to become legislators along with justices.  He really seals his article with the zinger, "The awesome, and final, powers of the Justices are best exercised sparingly and with restraint.  Their normal burdens of interpreting laws are heavy enough.  No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either."  ZAP!  Way to go, Toobin!

I'm so glad that such a well-respected SCOTUS writer and critic has really taken the justices to the woodshed for trying to overstep their powers.  Unfortunately, as is so often pointed out, the justices live in a very secluded life and often do not interact with true American humanity or culture.  I hope that for this issue that will greatly save the country's long-term fiscal policies and sustainably provide for the people very much unlike themselves, the justices will step outside their ivory towers when issuing their decision.

The Secret Life of William Rehnquist

Last year, I received the March 2010 ABA Journal, and I carefully set it aside to read the Herman Obermayer's article on William Rehnquist. Over a year later, I have now read the seven page article. The article was taken from Obermayer's book on Rehnquist, and so it reads a little choppily, but it conveys good things to know about our former Chief Justice.

The most interesting, from a legal scholar standpoint, is that Rehnquist "respected tradition and order --- intellectual and social, as well as political and economic. He believed that the proven and established should not be rejected until there are substantial reasons to believe that the new is superior." Knowing this about him, it would be interesting to review his opinions to see where he favored the status quo rather than adopting the suggested new interpretation or application.

Other tidbits included his punctual nature, his intentional addiction to cigarettes, his frugality and insistence on living within his means, and his concern for the Supreme Court, as a revered institution. If you get a chance, I'd recommend reading Obermayer's article for a quick read of Rehnquist anecdotes . . . it transforms Rehnquist from a well-respected jurist to a thoughtful guy who got his jollies by betting on political races.

Exciting Run-In with U.S. Supreme Court Justice Stephen Breyer

Well, I haven't been posting recently because I started a new job at the end of August 2010. I left private practice, and I joined a professor at Vanderbilt to help create a massive health care archive and case study. We have been giving presentations and trying to find funding for our project (I hope some comes soon!). So far, the response has been extremely positive, but we just need some real commitment in the form of money.

While in a meeting in the faculty lounge at Vanderbilt's Law School today, none other than U.S. Supreme Court Justice Stephen Breyer walked in! Of course, I had to leave the room so he could take a picture with a student, but I was within 10-12 feet of him. Amazing! He actually taught a class and gave a lecture, but seats to the lecture were by ticket only, and I certainly did not merit a ticket.

Graham v. Florida -- A Look at the Projects to Prison Pipeline through Sentencing and the Eighth Amendment

Graham v. Florida – decided May 17, 2010

In Mid-May, the US Supreme Court issued yet another criminal case. Graham v. Florida focuses on the issue of whether a defendant who is sentenced for a crime committed while a minor but sentenced as an adult can be sentenced to life without the possibility of parole for certain crimes.

The facts of the case at hand are a tragedy. Graham was 16 years old when he committed armed burglary in Florida. He had a plea agreement, and while he was on probation and still a minor, Graham committed a home invasion robbery, and he had possession of a firearm and was associating with people involved in criminal activity. Graham had grown up with parents addicted to crack cocaine, and Graham himself became involved with drugs and alcohol at the age of 9. When Graham was brought before the court on his probation violations, he admitted violating his probation. The trial court sentenced Graham to life in prison without the possibility of parole. The trial court, reviewing the circumstances, stated, “ . . . I don’t understand why you would be given such a great opportunity to do something with your life and why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and that there is nothing that we can do this.” The court then referenced the State’s argument that the Defendant showed “an escalating pattern of criminal conduct.” The trial court then said, “[W]e can’t help you any further. We can’t do anything to deter you.” With that statement, the trial court then explained that since it cannot reform the Defendant, it must act to protect the community by removing him for the rest of his life. Given that Florida has abolished its parole system, the Defendant has no chance of release except for executive clemency.

Graham brought this case up to the Supreme Court under the Eighth Amendment, which guarantees that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The courts have interpreted cruel and unusual based on the “evolving standards of decency that mark the progress of a maturing society.” Estell v. Gamble, 429 U.S. 97, 102 (1976). This, of course, makes sense. Looking to our past, we see that American colonists came from England, where drawing and quartering, holding someone’s feet to flames, imprisoning someone for an indeterminate period of time, and hanging were the usual. In fact, such actions were often deemed entertainment for a town. When America was settled, recall that the country went through a period of setting women ablaze to determine their guilt about deals with the devil. America has grown out of the gas chamber, mostly out of the electric chair, out of the death penalty all together, and back into the death penalty. The only measuring stick of whether a practice is cruel and unusual is the current measuring stick of society. As society evolves, so will its methods of dealing with those who break laws.

Legally speaking, when a defendant challenges a punishment on Eighth Amendment grounds, the defendant must try to prove that the sentence is not proportional to the crime. This is done by proving either that the length of the sentence (think of a lifetime sentence for a seventh conviction for passing bad checks – see Solem v. Helm, 463 U.S. 277 (1983)) or that there is a categorical violation (think of restrictions on what types of crimes may be eligible for the death penalty). This second avenue for relief generally requires a showing of a grossly disproportionate sentence when compared to the crime, and it is what Graham chose to appeal. He is claiming that defendants who committed non-homicidal crimes as a minor should not be eligible for sentences of life without parole.

To understand what society considers acceptable, the Court looked at the statutes of the states to determine how many states permitted life without parole sentences for juveniles. Seven jurisdictions allowed such a sentence for minors only convicted of homicide cases. Thirty-seven states and the District of Columbia permit such a sentence for minors convicted of non-homicide cases. Given the lack of a clear direction of society’s view on this issue, the Court then analyzed how courts actually sentence minors. The Court recognized that while laws may permit certain sentences, what matters is whether the leniency of those laws is actually relied upon and used by judges across the country. The Court noticed that there are 129 juvenile offenders serving life without parole sentences for nonhomicidal crimes, and 77 of those are in Florida.

Reaching its conclusion, the Court came to four conclusions: (1) the rules of governing juvenile offenders rely on a discretionary, subjective treatment by a judge or jury that a defendant is “irredeemably depraved” and eliminate the chance that the offender will receive a life without parole sentence “despite a lack of moral culpability;” (2) a case-by-case approach would not provide the necessary accuracy to determine whether a juvenile offender has “sufficiency psychological maturity and dep[r]avity to merit a life without parole sentence” versus those who have the capacity to change; (3) such sentences do not allow for the scientifically-known facts that adolescents are impulsive, have difficulty in thinking long-term; and are reluctant to trust adults; and (4) the United States is the only nation that imposes this type of sentence on this type of defendant.

Reviewing this opinion, I find it to be extremely well-reasoned and to take into account what society has come to understand about adolescents. With all of the current research about development and the impact of physiology on behavior, I think it would be remiss for the Court to have ignored such findings. Adolescents are by nature impulsive and have trouble analyzing the consequences of certain actions. To imprison a young person for the rest of his life for crimes done while a juvenile seems barbaric to me, especially when those crimes do not include homicide. For me, I would even ban life without parole for juveniles who commit homicide, but I know many others would not agree with me. Taking the limitations of adolescent analytical powers at face value and believing wholly in the power to change, I have difficulty locking someone up for the rest of his life based on young, foolish actions.

In addition, I think this opinion serves also to provide a lens on the pipeline from the projects to prison. Here in Nashville, there are several organizations that work to break that pipeline. Defendant Graham is essentially poster-child for the failures of a society to care for its young and ensure they are raised to become valuable, contributing members. Graham’s parents were drug-addicted, absent parents. How was he supposed to know what was good or bad? I am not absolving Graham of all his culpability, but I am asking how he was supposed to know right from wrong. He was not brought into the world with responsible caretakers and leaders. It can be a parent, it can be a minister, it can be a teacher. At some point, we need people to step up and say, “I will lead this child and introduce him to the world.” Knowing that adolescents are impulsive and prone to mischief, it is only a matter of time before a teenager essentially raised with backwards morals and living in a sea of crime becomes an actor in it himself. These actions do not necessarily mean that the juvenile offender is locked into a loop of crime for the rest of his life, but it does mean that there is plenty of room for improvement. I think the Court’s opinion really opens up a dialogue about the projects to prison pipeline and allows for a close examination of how much we, as a society, can expect (whether it be good behavior before prison or bad behavior during prison or after any release) from someone who is traveling along that pipeline. This opinion serves as a wake-up call to making sure our science, our community-action, our service to others, and our justice system are all in line. Let us use this call to action to help break the pipeline for someone. Get involved today.



For two great organizations in Nashville that address the projects to prison pipeline, please see Preston Taylor Ministries at http://www.ptmweb.ik.org/ and the Martha O'Bryan Center at http://www.marthaobryan.org/aboutus.