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September 19, 2013

Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudence

Winds-of-changeLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:

Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine.  The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record.  The police found the drugs when they stopped him for running a red light.  Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.

In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.

In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented.  Those three justices were all relatively new to the court at the time, he wrote.  The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence.  It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”

That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more.  He said he still thought about the case “a lot.”  He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court.  Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”

I’ve been thinking a lot myself about the Harmelin decision in light of recent events.  First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses.  That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use.  Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....

Something is clearly in the wind.  I’ve also been thinking about the New York City mayoral primary.  It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.

Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction.  Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign.  An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development.  People so often separated by race and class, seemed to unite around the conclusion that enough was enough.

The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular.  The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....

In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.”  Can that prediction apply not only to individual members of the court, but also to the court as a whole?  As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.

The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.

September 19, 2013 at 09:36 AM | Permalink

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Comments

It says nearly all of what needs saying that Linda Greenhouse divines national "winds of change" principally from two sources: Interviews with Justice Stevens, the Court's most liberal member during the last part of his tenure; and the results of -- get this -- the New York City Democratic primary. Is there a more thoroughly left wing hothouse in the country, outside the Bay Area?

It reminds me of the famous quotation from Pauline Kael, the Manhattan-based NYT film critic, who was shocked that Nixon won the Presidency, because "I don't know anyone who voted for him."

Yup, I'll bet she didn't.

Two other thoughts struck me as well. First, Harmelin v. Michigan was decided 22 years ago, when crime was at its peak. Now that it's half of what it was then -- in part because of tough measures Ms. Greenhouse and the NYT opposed tooth-and-nail -- she gets all giddy that times are changin'.

What a nimwit. Even if she were right, it's very odd, not to mention shortsighted and juvenile, to celebrate complacency. This is especially true where the people doing the celebrating did nothing, and indeed opposed, the measures that have made us safer and thus that make their complacency possible.

Second, Justice Kennedy, the principal author in Harmelin, has had ample opportunity to reject the views he announced there, and has never even hinted that he would do so. Indeed, if you look at the composition of the Court now vs. its composition then, you'll see that the vote today would be exactly the same, 5-4.

This is the "winds of change"? No, it's just the NYT trying to pump of the illusion that its uniformly pro-criminal agenda is about to break through.

Posted by: Bill Otis | Sep 19, 2013 10:03:55 AM

|Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.”|

More liberal, less constitutional.
How about the "tantalizing idea" that
with age has come dementia?

Considering Stevens:
"”I have relied on my own experience in reaching the conclusion
that the imposition of the death penalty” is unconstitutional."~~J.P. Stevens, 217 S. W. 3d 207

Posted by: Adamakis | Sep 19, 2013 11:32:14 AM

Given that even if federal drug prohibition were ruled generally outside the bounds of constitutional lawmaking that state level drug prohibition would still be entirely permissible I have a hard time seeing that the sentence in Harmelin being outside the range of possible choices a state legislature could make. It might be a stupid choice but that's entirely different from whether it is permissible.

Posted by: Soronel Haetir | Sep 19, 2013 2:19:33 PM

Adamakis touches on one of the three great mistakes in the constitution, the continuation of slavery, the term for patents, and the lifetime appointments of the Supreme Court. In the defense of the Founding Fathers, it would be another 100 years before Alzheimer described dementia. At this time the lifetime appointment should be eliminated, and a suitably long term should replace it, such as 15 years. Non-lawyers should be nominated. The number of Justices should be an even number, to end decisions with a single vote margin, and making the Court more conservative of precedent.

As to the civilizing effect of time on the bench, I know exactly to what that refers. I spent 3 years in Washington, in low level federal employ. One begins to feel one is at the center of national enterprise, never mind New York, Los Angeles, etc. One begins to sympathize with rent seeking. One fits into the culture of the city. I have therefore proposed moving the Court to the middle of the nation, such as to Kansas, for a middle of the road acculturation, or to Oklahoma for a more conservative acculturation.

Posted by: Supremacy Claus | Sep 19, 2013 2:47:48 PM

Bill, I have been at this forty years and I also sense that judges are getting frustrated at having to impose lengthy sentences for minor nonviolent offenses due to mandatory minimum, three strike laws. The change is not limited to judges, legislators, like Rand Paul and Newt Gingrich are making statements that would have been political suicide five years ago.

bruce

Posted by: bruce cunningham | Sep 19, 2013 3:31:12 PM

bruce --

Chapel Hill isn't the Bay Area or Manhattan, but, like most college towns, it's distinctly more liberal than the country as a whole. Not that I don't envy your being there, mind you.

There are specific reasons Gingrich and Paul take the stands they do. With Gingrich, it's that he's ALREADY committed political suicide, but still wants to think of himself as an idea man. With Paul, it's an effort to make hay with his libertarian base in preparation for his Presidential run. Libertarians severely mistrust almost anything the government does, good, bad and indifferent, so Paul benefits from going on the warpath about this.

If he gets the nomination (he won't), I guarantee you he's going to steer his ship much more toward the middle, and you won't hear a peep out of him about wanting to reduce criminal sentences.

P.S. Would you mind representing PJ Hairston? I have this bad feeling that, sooner or later, he's going to need someone with a lot of talent.

Posted by: Bill Otis | Sep 19, 2013 4:10:24 PM

"Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record."


Punishment should be proportional to the crime and the circumstances of the criminal. An excessive sentence, like too lenient a sentence, promotes disrespect for the law. With all due respect to my learned colleagues, that a life-without-parole sentence should have been imposed on Harmelin for possessing coaine is obscene. He did not rape 30 children; he did not commit 15 armed robberies. He did not kidnap and torture anyone. That the sentence should have been affirmed by the U.S. Supreme Court is equally obscene.


Posted by: Michael R. Levine | Sep 19, 2013 6:58:35 PM

Gut check. However talented, would Bill Cunningham ever go on the counterattack against the prosecutor seeking the destruction of his client? Never, because he owes his job to the prosecutor and not to the client. The judge is completely off limits, even though the judge is a biased, pro-government traitor to this country.

Posted by: Supremacy Claus | Sep 19, 2013 11:30:54 PM

Mr. Levine:
Your above post is my reason why the MM need to go away, both 841 and 851.
In general the amt of time done in federal prison is 3-5 times longer than state.
Why? Cause its the feds, we want to look tough on crime and its our image.
Well, the image that Congress has for the avg citizen is pretty low. So trying to appear
tough on crime, and spending all of the $$ that they do in the various ways, doesn't cut it.

Mark my word, they will be taping into 401K, and other retirement accts soon...They need the
money or we going to go broke..Those that have it are going to pay for the debt and support
those that have never worked...Much of which is in place right now..

Posted by: MidWest Guy | Sep 20, 2013 10:14:26 AM

Mr. Otis: In light of Mr. Levine's argument, do you think Mr. Harmelin's sentence of life without parole is an example of American justice or American injustice?

Posted by: Amy from Iowa | Sep 20, 2013 1:43:32 PM

Amy,

Not speaking for Bill, but I believe Harmelin got off light.

Posted by: Soronel Haetir | Sep 20, 2013 3:17:52 PM

Mr. Haetir, you say you believe Harmelin got off light. Please elaborate.

Posted by: 99648459 | Sep 20, 2013 3:56:06 PM

Amy from Iowa --

"In light of Mr. Levine's argument, do you think Mr. Harmelin's sentence of life without parole is an example of American justice or American injustice?"

I don't think it "exemplifies" anything, because a single outlier case makes a lousy "example" no matter what you're talking about.

Were it otherwise, I could ask you whether you think Casey Anthony's astounding acquittal for killing her two year-old daughter "is an example of American justice or American injustice?"

The question is so much silliness. Every system on earth will feature cases at the margin, where the trade-off's that, over the long term, produce justice, show up, in an individual instance, to be problematic or worse. Such outlier cases say next to nothing about the system as a whole, and thus are not put forward by mature people as "examples."

Posted by: Bill Otis | Sep 20, 2013 4:41:22 PM

Mr. Otis, do you share Mr. Haeter's view that Harmelin "got off light"?

Posted by: Amy from Iowa | Sep 20, 2013 6:03:11 PM

Amy from Iowa --

"Mr. Otis, do you share Mr. Haeter's view that Harmelin 'got off light'?"

I have a good deal of respect for Soronel, but I do not agree with him in this instance. I think Harmelin got the book thrown at him.

Now let me ask you some questions.

Do you agree that all drugs should be legalized?

Do you agree that no jury should be given the chance to consider the death penalty no matter what the facts of the murder or murders?

Do you agree that the United States is a hotbed of racism, unfairness and indecency?

Do you agree that Congress should have no role in setting minimum sentences, and that judges alone should have 100% say-so over sentencing?

Do you agree that captured terrorists should be given Miranda warnings, thus effectively inviting them to clam up and withhold potentially life-saving information from the authorities?

Do you agree that defense lawyers are routinely honest, fully forthcoming and candid, and work only to preserve constitutional guarantees rather than to put sometimes dangerous and malevolent clients back on the street?

Do you agree that cops are often thugs?

Do you agree that our prisons are crammed with innocent people?

I hope you'll answer. I do not view questions as a one-way street, and I'm not aware of any reason I should. So I look forward to hearing your views.

Posted by: Bill Otis | Sep 20, 2013 6:52:26 PM

99648459 ,

I believe that the vast majority of felons (upwards of 90%) and a goodly number of misdemeanor offenders (I don't have a percentage in mind here but could give an example cutoff of a $200 theft as being indicative of my thinking)should be executed. Beyond that I also believe that upon conviction it should be up to the offender to prove that they should be spared rather than the government's burden to demonstrate the opposite.

Posted by: Soronel Haetir | Sep 20, 2013 7:01:21 PM

Bill,

1) Yes, except for antibiotics (which I believe should be controlled far more tightly than is currently practiced)

2) I believe that every felony offender should have to prove they are undeserving of execution.

3) I see these items as being enough to be concerning but not all consuming.

4) Except for mminor items that aren't ccurrently even contemplated (think of things like drawing and quarting and the like) I see judges having no role that Congress does not give them.


5) Depends on the circumstances. Someone captured on an actual battlefield there's no need for Miranda. Likewise for someone who is simply arrested if there is sufficient evidence to convict without any sstatements of the accused. I would, however, rather see more dead Americans than see a repeat of what happened with Jose Padilla.

6) I believe that the vast majority of lawyers on both sides of the criminal courtroom stay withen ethical bounds. So long as a defense attorney does not cross that line I really don't care whether a mass murdering psychopath is put back on the street.

7) Yes, cops are very often thugs.

8) Like #3, I believe the number is high enough to be of concern but not so high that it should be anyone's crusade.

Posted by: Soronel Haetir | Sep 20, 2013 7:16:16 PM

Soronel --

Thank you for your answers. I was actually directing the questions to "Amy from Iowa," however, who had directed a couple my way.

Cheers.

Posted by: Bill Otis | Sep 20, 2013 11:54:02 PM

Justice Roberts and the Roberts Court. The worst ever in American history. Curley from the Three Stooges said it succinctly: Hotsie, tot sie, I smell a Nazi.

Posted by: Liberty1st | Sep 22, 2013 1:01:16 PM

Liberty1st --

"Hotsie, tot sie, I smell a Nazi."

Thank you! The liberals here had been doing a pretty good job recently of cleaning up their act, finding words other than "Nazi" to describe those who don't subscribe to The Received Wisdom. I'm glad to see you're still willing to pull back the curtain on what you guys actually think.

Of course normal people would doubtless choose a word other than "Nazi" to describe the Justice who cast the deciding vote in favor of Obamacare, but I don't want you to worry yo' head about stuff like that.

Go for it!

Posted by: Bill Otis | Sep 23, 2013 12:11:35 PM

Mr. Otis, I answer your questions as follows:

Do you agree that all drugs should be legalized? Answer: No.

Do you agree that no jury should be given the chance to consider the death penalty no matter what the facts of the murder or murders? Answer: No.

Do you agree that the United States is a hotbed of racism, unfairness and indecency? Answer: No. Not a "hotbed." But I do believe there are instances of racism, and unfairness in the criminal justice system.

Do you agree that Congress should have no role in setting minimum sentences, and that judges alone should have 100% say-so over sentencing? Answer: No, but there should also be narrow and appropriate escape provisions--.

Do you agree that captured terrorists should be given Miranda warnings, thus effectively inviting them to clam up and withhold potentially life-saving information from the authorities? Answer: I do not believe that a true "terrorist" should be given Miranda warnings.

Do you agree that defense lawyers are routinely honest, fully forthcoming and candid, and work only to preserve constitutional guarantees rather than to put sometimes dangerous and malevolent clients back on the street?

Answer: I believe that the great majority of defense lawyers, like the great majority of prosecutors, are honorable and ethical. I also believe that just as there are a few corrupt and dishonorable prosecutors, there are a few corrupt and dishonest defense attorneys.

Do you agree that cops are often thugs? Answer. No, not "often," but sometimes.

Do you agree that our prisons are crammed with innocent people? Answer: No, not "crammed." But I have no doubt that there are innocent persons in prison. Even if only one one-tenth of one percent are innocent, that's a lot of injustice.


Now, may I pose another question to you?

You wrote that you generally respect Soronel's views. In the post above he writes that he believes "that every felony offender should have to prove they are undeserving of execution." Do you share that view? Do you still have respect for his views in general?

Posted by: Amy from Iowa | Sep 23, 2013 12:34:47 PM

Soronel:

You write "I believe that every felony offender should have to prove they are undeserving of execution." If this truly represents your view, how is your view different from that of Stalin, Hitler, Mao, Pol Pot, and Saddam Hussein?

Posted by: Amy from Iowa | Sep 23, 2013 12:37:42 PM

Amy: Bad rhetorical form to bring up despots. It is equivalent to knocking over you king in a hopeless position in a chess game, foregoing the time and effort of the relentless march to checkmate.

Posted by: Supremacy Claus | Sep 24, 2013 4:30:35 AM

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