« "Can Architecture Cure Crime?" | Main | "The Retribution Heuristic" »
October 13, 2015
Lots of talk about all the talk about jurisdiction during SCOTUS oral argument in Montgomery
Given that the Supreme Court added on its own question about its jurisdiction to review a state habeas application of Teague when granting cert in Montgomery v. Louisiana, I was not all that surprised that a number of Justice were quite eager to debate the issue with the advocates during oral argument on Tuesday. And, there are now helpful reviews of the Montgomery oral argument and the jurisdiction issue from Lyle Denniston here at SCOTUSblog and from Kent Scheidegger here at Crime & Consequences and from Chris Geidner here at BuzzFeed.
In addition, my terrific research assintant this afternoon sent me his summary take concerning the argument for sharing here:
In today’s oral argument for Montgomery v. Louisiana, a majority of the time was spent discussing whether or not the Court had jurisdiction to address the merits. While the merits were discussed, neither the Justices nor the advocates addressed them at length or with much vigor.
Justices Scalia and Alito led the charge against the Court’s jurisdiction. They were deeply concerned by the Louisiana Supreme Court’s deliberate voluntariness in adopting Teague’s retroactivity standards. In their view, if the Court ruled that it had jurisdiction and then decided the merits in a way the Louisiana Supreme Court found unfavorable, the Louisiana Supreme Court could simply elect to abandon Teague effectively overruling the Court’s decision in this case. I think it is safe to say, based on the oral arguments, that Justices Scalia and Alito are voting that the Court lacks jurisdiction to address the merits here. Given that, I would say Justice Thomas will also vote that the Court lacks jurisdiction.
Nonetheless, Justices Kagan, Breyer, and Sotomayor made it quite clear that they will be voting in favor of the Court’s jurisdiction. Justices Kennedy and Ginsburg made similar manifestations.
On the merits, Justices Kagan, Breyer, and Sotomayor suggested that they would find Miller’s rule retroactive. Justices Kennedy and Ginsburg were markedly silent on this point. Justices Scalia and Alito were the only vocal opponents of petitioner’s arguments on the merits, but assuming both they and Justice Thomas vote against the Court’s having jurisdiction, such manifestations are moot.
The most perplexing figure in today’s arguments was the Chief Justice. He spoke infrequently and did not tip his hand in any overt way. However, he did make one pretty incredible point regarding the merits. He suggested that simply “provid[ing] parole” to individuals given mandatory LWOP sentences for homicides they committed as juveniles would be a remedy to this problem. To be fair, he made this suggestion, but did not necessarily endorse it as the right move or the proper disposition of the case. Still, it is a bold proposition coming from the Chief Justice.
October 13, 2015 at 11:51 PM | Permalink
Comments
The issue, it seems to me, is a simple one. A state is under no obligation to open up its courts to collateral attacks on its criminal judgments--therefore, to the extent it does, how it does and under what conditions it will rip open its criminal judgments seems a matter of state law, no matter what the label (Teague) is.
What I think will win the day for the criminal--I think the decision will be 6-3 in favor of Montgomery--is that if the Court holds that there is no jurisdiction--then federal habeas relief becomes tricky. The current judgment of the Louisiana Supreme Court doesn't unreasonably interpret federal law as decided by the Supreme Court. Thus, a habeas petition should not issue.
Personally, I don't see why Louisiana couldn't enforce a waiver--it's highly unlikely that Montgomery made a Miller argument. And the error, of course, was not plain.
Make no mistake--there is nothing that mandates the Court to rip open these judgments--nothing. And if they choose to, they will inflict pain on people who didn't ask to be in the position they are in (i.e., survivors of juvenile killers)---why Doug wants to inflict that pain for the benefit of murderers is beyond me. People in here love to make moral judgments about people because we support capital punishment or, quell horreur, we don't wet ourselves over the predicament Weldon Angelos finds himself in, but Doug and the rest of you think that people who have suffered the loss of parents, the loss of a child etc. should have to have their lives turned upside down. In his brief, Doug said not a word about the victims. Not a solitary word. And then, in another forum, he lamely suggests that a victory for Montgomery would be in victims' interests. No. All this support for Montgomery is nothing but moral preening or utter naivete.
If the Supreme Court gives a victory to Montgomery--in the face of Teague (it's plain the logic of Teague means no relief for Montgomery), the Justices voting for that victory will have betrayed the Constitution and these unfortunate people who had no say in their situation.
Posted by: federalist | Oct 14, 2015 8:32:01 AM
The question is a simple one, but that's not the question. The question is whether Louisiana was applying Federal law. If the Louisiana Supreme Court applies state law that's exactly the same as federal law, that makes it "intertwined" and, therefore, applying Federal law. That allows the Supreme Court to give clarity on what the federal law is without it being an advisory opinion.
Had the Louisiana court said "we don't apply Teague, we're applying our own rule" than the Supreme Court has no jurisdiction. No one can force those courts to follow Teague for their own proceedings, the question is, if they choose to do so, does the Supreme Court have final say on whether they're interpreting Federal law correctly.
Posted by: Erik M | Oct 14, 2015 2:28:29 PM
Erik, that doesn't make a ton of sense from a logic standpoint--borrowing Teague as a framework doesn't make the decision a federal law decision (see the oral argument transcript about Evidence Rule 403). Moreover, let's not forget that Louisiana's proceedings aren't the same as federal habeas, so how in the world is "borrowing" Teague for analogous, but not the same, proceedings a creator of federal jurisdiction? Does federal jurisdiction turn on labels? And it kind of creates the possibility of a paradox--what if the Supreme Court holds that Teague should be modified to allow retroactivity (no one thinks this is a straightforward application of Teague)--then the Louisiana Supreme Court would have followed Teague, but reversed anyway? How would that work logically?
Seems to me that the state can import Teague and call it state law. Because that's what it is.
Posted by: federalist | Oct 14, 2015 4:14:00 PM
Just curious, federalist, what you think should be said about the victims in Mongomery or similar cases when we are sorting through retroactivity rules decades later? Would you support a formalized retroactivity rule with a true "victim veto": e.g., all new constitutional rules are presumptively retroactive to old cases unless a majority of the victims of the specific offender objects? Or all new rules are presumptively not retroactive unless a majority of victims endorse?
I am genuinely interested, federalist, as to how you would formalize a concern for victims in a generally-appplicable legal rule for retroactivity of new constitutional rules.
Posted by: Doug B. | Oct 14, 2015 5:44:42 PM
"Justices Kagan, Breyer, and Sotomayor made it quite clear that they will be voting in favor of the Court’s jurisdiction. Justices Kennedy and Ginsburg made similar manifestations."
The first sentence of this is sort of correct; the second sentence is 75% inaccurate. This is how I read the transcript:
http://narrowestgrounds.blogspot.com/2015/10/montgomery-v-louisiana-jurisdiction.html
Posted by: Asher Steinberg | Oct 14, 2015 10:17:23 PM
I am seeing a potential for a very split set of opinions.
Opinion A (Scalia, Thomas, and Alito, maybe Roberts) -- Court has jurisdiction to decide if Teague is constitutionally required. Teague is not constitutionally required and is a rule for federal courts under federal habeas statute. State adoption of Teague test for use in state habeas does not make the state application of the state version of Teague into a federal issue. Even if it did, Miller is procedural decision, but not watershed decision, therefore, not retroactive.
Opinion B (maybe Roberts, and maybe Kennedy) -- Postpone whether Teague is constitutionally required. State courts failed to clearly state decision is based on state law ground; so Supreme Court can decide if the decision below correctly stated federal law. Miller is a procedural decision, but not watershed decision, therefore, not retroactive.
Opinion C (probably Sotomayor, Ginsburg, Breyer, and Kagan, maybe Kennedy) -- State courts failed to clearly state decision is based on state law ground; so Supreme Court can decide if the decision below correctly stated federal law. Miller is a substantive decision and therefore retroactive. (Do not know whether this opinion will address whether Teague is constitutionally required. Some would probably hold that the substantive decision part of Teague is constitutionally required which may lead to an opinion D as well).
Posted by: tmm | Oct 15, 2015 10:04:18 AM
Doug, your question is incredibly contentious. At bottom, the Supreme Court's determination here will be discretionary--there's nothing that approaches "law" that dictates retroactivity---it's what they feel like doing. That, in my mind, puts the victims' suffering on them from a moral standpoint. What law there is counsels against non-retroactivity--we have a federal system, and the states have a strong interest in finality--to say nothing of victims' families who, after having certainty that these horrible criminals would be locked away for good now have to deal with parole hearings, sentencing hearings and many times a busy prosecutor willing to deal with the defendant.
And the criminals' interest? Basically, the ability to undo a settled judgment. There is no infirmity with respect to the convictions--which would be important--but otherwise, we're looking at settled sentences for a bunch of murderers. Why in the world do we think that those who caused the pain have interests that outweigh the others? Doug, of course, gives away the game when he tried to argue that victims' interests are aided by Montgomery getting his shot at parole in a new sentencing hearing.
While I am at it--the whole "accuracy in sentencing" argument has a great deal of unreality about it. Whether some juvenile murderer gets LWOP or LWP isn't a matter of accuracy. Really, what is going on here is that the Supreme Court has said that the has to be more than a legislative determination for LWOP to engage. Is this right really so weighty that we are going to upset the settled interests of thousands? What Doug of that family in Michigan--massacred by a "friend" of one of the kids? Doug, should they have to go through the pain of a new sentencing hearing? Yes or no? The answer from you is yes---but for what? Because of some BS 5-4 decision that says "oh gee, a judge has to sign off on LWOP"--really? We're going to inflict the awful pain of people who, at times, found their kids dead because years later 5 make it up as you go along Justices decides that legislatures couldn't hand out automatic LWOP? To state the proposition is to refute it.
The states' interest here are weighty.
Posted by: federalist | Oct 15, 2015 8:03:30 PM
As an amicus brief filed in Montgomery shows, federalist, in this setting some victims favor retroactivity. I do not want to cause pain to victims, but I do want to hear and respect their diverse perspectives. In contrast, federalist, you overly simplify victim interests to serve your persistent anti-defendant perspective.
In essence, I read your comments here and elsewhere about Miller as an assertion that jive killers, because their crimes are so bad, should always lose in disputes over constitution rights and their application. That is not my view, nor has it ever been how the Eighth Amendment or retroactivity doctrines have been understood or applied. If you file your own briefs at SCOTUS, federalist, you can try to push doctrine in your preferred direction. In the meantime, I trust you are not surprised lots of advocates have different friendly advice for the Justices.
Posted by: Doug B. | Oct 16, 2015 3:43:45 AM
"In contrast, federalist, you overly simplify victim interests to serve your persistent anti-defendant perspective."
Really? First of all, there aren't just the victims' interests at stake here. There is the state's interest in the integrity of its criminal judgment. But putting that one side, and getting at your riposte--the Montgomery case and victims' interest are simple--one has to take them as a whole since the retroactivity decision is binary. Yes, there are certain victims who, for whatever reason, want their family member's killer out. (They, of course, are free to lobby for clemency.) But others are going to be put through the wringer again if they want their loved one's killers to remain behind bars. And when you're taking the victims' interest as a whole (which the Court should be doing), then there's really only one way to come down. Ergo, oversimplification isn't a valid criticism of my position re: victims' interests. QED.
"In essence, I read your comments here and elsewhere about Miller as an assertion that jive killers, because their crimes are so bad, should always lose in disputes over constitution rights and their application. That is not my view, nor has it ever been how the Eighth Amendment or retroactivity doctrines have been understood or applied."
This is just sophistry. I don't say that because their crimes are so bad, they should lose--I say that their interests are far outweighed by the other interests at stake here, and one of the reasons militating against them is the enormity of the crimes. What is at stake here for them is a chance to get parole hearings--that's it. And your view is that five Justices' view that legislatures can't make blanket judgments about punishment for juveniles (a view that is by no means dictated by the Constitution, but rather their own view about what is right) is now to be applied to ancient cases, notwithstanding the fact that thousands of people have moved on as best as they could? When it comes to the reliability of a conviction, that's the price a free society has to pay, and unfortunately it must be visited on certain innocent people. But this has nothing to do with that--it has to do with giving them a chance at a chance. We're going to upset the states' and victims' legitimate conclusion that the case was over and done with? For what? To give a murderer a chance at a chance? Haven't these criminals done enough to hurt the survivors? Is the Supreme Court really going to hand them another tool to hurt these unfortunate people?
Of course, you never ever come out and say that the interest of victims militates in favor of Montgomery. You won't say it because it's laughable--instead you insinuate that because some victims may want the result, well, victims' interests as a whole aren't that big a deal.
I note that you don't respout that nonsense about criminals having incentives to make amends. "Slender reed" doesn't even begin to describe that sort of argument.
And once again, I have to laugh at the silly "accuracy" nonsense. But let's assume that that ridiculousness has some real validity, rather than a makeweight argument that has to be made due to the precedent--are we really going to say that some interest in "accuracy" (whatever that means) in sentencing is so strong for those who created the situation in the first place by their monstrous acts? Generally those with unclean hands don't get to upset settled reliance interests--and these guys have much more than unclean hands--they have blood on them.
Once again, the legalistic fetish strikes again--the fact that some people convicted and sentenced long ago under then unquestionably constitutional regimes languish in prison is somehow this horrible injustice that justifies the infliction of additional pain on those harmed by the convicts. It's bad enough that Miller is "make it up as you go along" lawlessness---but the legal establishment is so arrogant that they are going to cram that lawlessness down the throats of those who have suffered so much.
And I am the bad guy--look in the mirror.
Posted by: federalist | Oct 16, 2015 9:49:57 AM
I have never said, federalist, that you are a bad guy, just a very wrong guy. For starters, you love to call lawless only the law you disagree with. Do Heller and Citizens United and Apprendi and even both parts of Booker all merit the label "lawless" in your view because they were all decided 5-4. And are you troubled that all these rulings have upset lots of settled state interests?
The only theme and principle I can identify in so many of your comments (whether about Miller or Plata) is that criminals should always lose in the constitutional balance of interests when the state or some victims also have an interest. Your comments here reflect, yet again, these realities. For Montgomery himself (and for Toca before him) and all other serving LWOP sentences for decades, a chance of a chance at freedom is a HUGE interest. You are eager, yet again, to devalue this interest because of the crimes they committed. But that is not how current law works, and so you are really they one seeking a lawless result in order to serve those interest you personally think are more important.
Similarly, you lampoon accuracy in sentencing because you apparently think those who killed long ago ought not have a right to demand an accurate sentence in light of new That may be how federalist wants the law to work, but that is not what Teague says.
Posted by: Doug B. | Oct 17, 2015 3:40:41 PM
I have never said, federalist, that you are a bad guy, just a legally wrong guy. For starters, it seems use the label "lawless" only to describe the constitutional law you disagree with. Do Heller and Citizens United and Apprendi and even both parts of Booker all merit the label "lawless" because they were all decided 5-4 (and hardly seem obviously "dictated" by the Constituton)? And are you troubled that all these rulings have upset lots of seemingly settled state interests?
The only consistent theme or principle I can identify in so many of your comments (whether about Miller or Plata) is that criminals should lose in any balance of interests whenever the state or (some) victims also have a competing interest. Your comments here reflect, yet again, these realities. For Montgomery himself (and for Toca before him) and for all other serving LWOP sentences for decades based on crimes committed when a teenager, a chance of a chance at freedom is a HUGE interest. You are eager to devalue this interest (and those of victims who want to provide offenders with that chance) fundamentally because, it seems, of the "enormity of " the "monstrous" crimes they committed. But that is not how current law works, and so you are really they one seeking, essentially, a lawless result in order to serve those interest you personally think are more important.
Similarly, you lampoon "accuracy" in sentencing because, it seems, you think those who kill out not have a right to demand an accurate sentence because they "created" the situation requiring them to be sentenced. But this is foolishness on stilts because EVERY criminal making an Eighth Amendment claim has created the situation.
I think one can reasonably believe/contend (serious?) criminals should always lose all retroativity claims because of some victims' interests, but that is not the law. Again, you were/are free to urge SCOTUS to adopt that law (and I suspect Justice Alito would readily agee), but I have advocated a different view for a variety of reasons (and I do not think any sincere advocacy in this arena makes anyone a bad guy).
Posted by: Doug B. | Oct 17, 2015 4:06:56 PM
In a “perfect anarchy” , these issues would not exist , because every person would be trying to be kinder to others than others could manifest kindness to them •
Nor would the issues exist if the victim had been able to stop the
Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Oct 17, 2015 5:14:20 PM
“Nor would the issues exist if the victim had been able to stop the attack by any lawful means available , including the successful use of deadly force if necessary•
Re: “There is the state's interest in the integrity of its criminal judgment.”
▼ S I G H ▼
Too often states do not really care about “integrity” •
For decades Homer Jack Dean (Columbus, OH - convicted of murder in 1950) attempted to overturn his conviction •
Reportedly , the police had a grudge and fingered Dean •
Dean admittedly wrote bad checks •
Ohio habeas corpus was useless •
Judge Joseph P. Kinneary USDC SD ED, Columbus , released Dean on a Federal writ of habeas corpus •
It was necessary for my brother to obtain habeas relief in Federal Court (through Judge Joseph P. Kinneary) on an Ohio traffic violation !‼!
Mr. Cason (Columbus, OHIO) needed Federal intervention in the USSC do avoid punishment for a facially unconstitutional ordinance forbidding “improper language” , when the 10th District could have easily reversed the conviction on state grounds •
Just this year , three of seven Ohio justices (French, J. writing, O'Donnell, Kennedy, JJ., concurring) opined that a juvenile had NO U.S. Constitutional right to counsel unless a jail sentence was actually IMPOSED • State v. Bode,
Slip Opinion No. 2015-Ohio-1519 •
The USSC needed to summarily reverse Ohio on a state habeas* to confirm that , Yes, Virginia, Gideon is alive and well in Ohio and Betts v. Brady has been overruled •
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
*DOUGHTY v. SACKS 173 Ohio St. 407 (1962) Supreme Court of Ohio. Decided June 20, 1962.
Petitioner remanded to custody.
WEYGANDT, C. J., ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
DOUGHTY v. MAXWELL, 372 U.S. 781 (1963)
DOUGHTY v. MAXWELL, WARDEN. No. 516, Misc. Supreme Court of United States.
Decided April 22, 1963.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO.
Petitioner pro se.
Mark McElroy, Attorney General of Ohio, and James E. Rattan, Assistant Attorney General, for respondent.
PER CURIAM.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Gideon v. Wainwright,372 U.S. 335.
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
DOUGHTY v. SACKS, 175 Ohio St. 46 (1963)
DOUGHTY v. SACKS, WARDEN. No. 37036. Supreme Court of Ohio.
Decided June 19, 1963.
Former judgment adhered to.
TAFT, C. J., ZIMMERMAN, MATTHIAS, GRIFFITH, HERBERT and GIBSON, JJ., concur.
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
DOUGHTY v. MAXWELL, 376 U.S. 202 (1964)
DOUGHTY v. MAXWELL, WARDEN., No. 422, Misc. Supreme Court of United States.
Decided February 24, 1964.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO.
PER CURIAM.
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed. Carnley v. Cochran,369 U.S. 506, Gideon v. Wainwright,372 U.S. 335.
▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
Quoth the Queen of ♥s, “Off with their heads! – Evermore”
Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Oct 17, 2015 11:35:29 PM
Doug, this is tedious because you generally misconstrue what I have to say and fail to acknowledge when you've lost a point, like the foolish "oversimplification" criticism.
With respect to the murderers' interest here--it's their interest in a do-over. I get that the chance at a chance is meaningful to them--but the "interest" is in having a long-settled judgment opened up so that maybe a sentence gets changed and maybe it doesn't. When compared to the interests of victims' generally and the states' interests, this just isn't very weighty. We're not talking innocence here.
As for Citizens United, the case was about criminal penalties for making a movie about Hillary Clinton. Are you really comparing the protection of the First Amendment rights of law-abiding citizens to the ripping open of decades old judgments because, quelle horreur, a court handed out an LWOP sentence to a murderer? Really? As for Apprendi, yes, settled interests were at stake, but is Apprendi retroactive? And Apprendi, though a sentencing decision, really is about what crime the defendant was actually convicted for. And, Doug, neither CU nor Apprendi are make-it-up-as-you-go-along nonsense (remember, the 8th Amendment, as construed by the Court substitutes their judgment for that of society). You pick out one stick in my argument (and by the way, there is TONS of caselaw discussing why the ripping open of state criminal judgments is bad) and fail to acknowledge the other pieces of it.
As for Heller--it's pathetic that of all the rights enshrined in the Constitution (and the expansive interpretation thereof), the one that supports the most basic one (self-defense) is the one that gets the stink-eye from the courts. Judge Kozinski had something to say about that. Comparing Heller to a retroactive decision in Montgomery is just plain dumb.
"Similarly, you lampoon "accuracy" in sentencing because, it seems, you think those who kill out not have a right to demand an accurate sentence because they "created" the situation requiring them to be sentenced. But this is foolishness on stilts because EVERY criminal making an Eighth Amendment claim has created the situation."
I couldn't leave this one--I lampoon "accuracy" because it's silly to think that a process that necessarily involves judgment can ever really be "accurate", but whatever. My point about "creating the situation" is talking about upsetting settled rights and legal outcomes. Those who created the situation have a big strike against them when seeking to upset settled rights. This is a self-evident proposition. And one, by the by, that's completely supported by the case law. Now that Miller has been decreed, there are no settled rights for new cases, and victims will be sentenced to years of opposing parole (where the polity had decided otherwise),
Lawlessness is, of course, a fair description of the Court's "cruel and unusual "jurisprudence"---they openly say that their "judgment" (i.e., what they personally believe is right) is what counts. What makes all this work, and what makes retroactivity of Miller, so disgusting, is that lawlessness would be used to pull the rug out from innocent people. All for what--so a bunch of murderers get a chance at a chance for grace? (Parole is a matter of grace.)
That you have to contort what I say to attack it shows how weak your stuff is.
"But that is not how current law works, and so you are really they one seeking, essentially, a lawless result in order to serve those interest you personally think are more important."
This is just silly--the case law is full of descriptions about why finality serves important interests. I'm just putting some flesh on the bones here.
"I think one can reasonably believe/contend (serious?) criminals should always lose all retroativity claims because of some victims' interests, but that is not the law."
I never said that--note that I actually agree with retroactivity where the issue is the reliability of a conviction, and you'll note my post made that distinction. Please acknowledge your inaccurate characterization.
As for the morality of all this--i'll just note that you think that the Michigan family I mentioned should suffer because five guys who have no better handle on making a judgment about mandatory LWOP than five guys off the street said we can't do mandatory LWOP. This isn't Apprendi, which is dictated by the Constitution (remarkable how little academic criticism there is of the logic of Apprendi), and as for CU, really? Hmmm lessee, corporates have the right of the press but not the right to make movies? How does that work?
Posted by: federalist | Oct 18, 2015 10:12:59 AM
The more you try to explain and justify your view, federalist, the more obvious it is to me that your chief constitutional belief is that decisions you like based on contestable interpretations of the First or Second or Sixth Amendments are somehow "dictated by the Constitution" whereas decisions you dislike based on the Eighth Amednment are "lawless." And you demonstrate your extreme ignorance in this space when you say there has been "little academic criticism" of the logic of Apprendi. The ultimate SCOTUS academic (Breyer) has been against Apprendi from the get-go, and every significant application of Apprendi (e.g., Harris, Ring, Blakely, Booker, Rita, Ice, Southern Union and Alleyne) has deeply split the Court and prompted an array of criticisms from the academy (read some commentary by Stephanos Bibas or Kevin Reitz or Frank Bowman just for a taste of some of that criticism). If the Sixth Amendment "logic" in Apprendi is so obviously dictated by the Constitution, why all the SCOTUS and lower-court and academic sturm und drang?
I am never seeking to misconstrue what you say federalist; just trying to understand your position to see if it has substance other than your conceptions of morality. In this context, it seems your position is that when a new constitutional sentencing rule (rather than a trial rule) is at issue, you believe that the interests of victims and the state should always outweigh the interests of those sentenced prior to the announcement of the new rule. Such a view, however, runs counter to the the consistent retroactive application of decisions like Atkins and Roper and Graham under the substantive prong of Teague. (Notably, lots of folks, including me and the SG, contend that that substantive prong of Teague justifies retroactive application of Miller.)
And while you assert that victims and the state have "settled rights" with respect to past sentences, I do not believe SCOTUS has ever said (nor am I sure there is a basis in the text of the Constitution) that victims and the state have a "right" to a past (now constitutionally problematic) criminal judgment. If they did, I would think at least some states/victims could/would have made a claim that they still have a constitutional right to execute the mentally challenged or juve murderers even after Roper and Atkins. I am not aware of any cases in which states or victims made such a claim.
Especially comical throughout this thread is your claimed concern about SCOTUS lawlessness followed by assertions of your views of morality. For that reason, I am inclined to think of you as the Kim Davis of the Eighth Amendment: it seems, federalist, that if your moral sensibilities are offended by a SCOTUS ruling or jurisprudence, you want your moral view to trump application of the existing law. Of course, you are fully entitled to advocate for the law to be changed or refined to reflect your morality --- but you tend to go further by seeking to label as immoral anyone who does not share your views/approach even if they are trying to be faithful to the law as articulated by SCOTUS. Indeed, what I truly find tedious, federalist, is your eagerness to make personal/moralistic your disagreement with me and/or SCOTUS on cases like Plata or Miller.
Posted by: Doug B. | Oct 18, 2015 11:29:56 AM
Wow.
"And you demonstrate your extreme ignorance in this space when you say there has been "little academic criticism" of the logic of Apprendi. The ultimate SCOTUS academic (Breyer) has been against Apprendi from the get-go, and every significant application of Apprendi (e.g., Harris, Ring, Blakely, Booker, Rita, Ice, Southern Union and Alleyne) has deeply split the Court and prompted an array of criticisms from the academy (read some commentary by Stephanos Bibas or Kevin Reitz or Frank Bowman just for a taste of some of that criticism)."
First of all, Breyer is a judge. Second of all, that a few academics have criticized Apprendi doesn't mean that its logic hasn't been widely accepted in academia. You mention Stephan's Bibas--well, it's hard to consider him that much of an academic--he got clown suited in here by yours truly. In any event, that's not really much of an issue.
As for the moral issues here--well gee, we are talking about criminal law aren't we?
This is just silly:
"And while you assert that victims and the state have "settled rights" with respect to past sentences, I do not believe SCOTUS has ever said (nor am I sure there is a basis in the text of the Constitution) that victims and the state have a "right" to a past (now constitutionally problematic) criminal judgment. If they did, I would think at least some states/victims could/would have made a claim that they still have a constitutional right to execute the mentally challenged or juve murderers even after Roper and Atkins. I am not aware of any cases in which states or victims made such a claim."
This is exactly backwards. The issue is not whether states have a substantive right to withhold parole hearings, but rather whether the criminals can undo ancient final judgments. These interests should be respected.
As for the 8th Amendment being different, once again, you miss the point--read the caselaw--the Supreme Court has arrogated the power to use its own personal views to determine what the 8th Amendment does. Yes, this is lawless.
Posted by: federalist | Oct 18, 2015 5:27:51 PM
Ah, got it now, federalist: SCOTUS jurisprudence you do not like is lawless and academics you do not like are not really academics. Now that I am figuing out your critical lingo, federalist, I better understand how you so boldly say so much that is just not accurate. It is no wonder you struggle with accuracy concepts.
Criticisms aside, federalist, I always appreciate your engagement with this issues, and I am certain there are at least a few Justices who agree with your view that state/victim interests here should trump offenders' rights.
Posted by: Doug B. | Oct 19, 2015 9:05:38 AM
I'll have more to say later:
Here's a passage from Thomas' dissent in Graham:
But the Court is not content to rely on snapshots of community consensus in any event. Ante, at 16 (“Community consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting Kennedy, supra, at __ (slip op., at 24)). Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judgment” points in a different direction. Ante, at 16. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “‘“necessarily . . . a moral judgment”’” regarding the propriety of a given punishment in today’s society. Ante, at 7 (quoting Kennedy, supra, at ___ (slip op., at 8)).
Doug, how you don't understand that this is what I was getting at when I said "lawless" is beyond me. Note how this parenthetical: "(remember, the 8th Amendment, as construed by the Court substitutes their judgment for that of society)" nicely dovetails with what Thomas wrote--the Court has arrogated to itself the power to make moral judgments about crime and punishment--that is "lawless".
Posted by: federalist | Oct 19, 2015 12:35:53 PM
I understand what you are getting at, federalist, but I do not understand how this is any more "lawless" than the moral judgments about crime and punishment that gets made when the Justices have decided, e.g., (1) via the First Amendment, that a state can make criminal and subject to severe punishment a naked picture of a 17-year-old, but cannot make criminal a naked picture of an 18-year-old, (2) via the Second Amendment, that a state can make criminal and subject to severe punishment Martha Stewart's possession of a gun, but cannot make criminal Jon Stewart's possession of a gun, (3) via the Fifth Amendment, that only one part of ACCA is unconstitutionally vague but other parts are not, (4) via the Sixth Amendment that presumptive statutes/guidelines applied by a judge are unconstitutional, but advisory statutes/guidelines are fine, and/or (5) via the Eighth Amendment, that one clause applies fully to the states while others many not or due not.
I am more than ready to agree with you that SCOTUS makes up Eighth Amendment doctrines as it goes along based on its current (moral?) judgments of what makes for sound constitutional law, but they do the same thing with all the other Amendments, too, that impact criminal laws (and all other laws, for that matter). Unless/until you explain in a way I can understand why Eighth Amendment rulings are more or less "lawless" than First, Second, Fourth, Fifth and Sixth Amendment rulings, I will continue to view your use of "lawless" as just a normative label, not a factual description.
Posted by: Doug B. | Oct 19, 2015 3:52:00 PM
Doug, with respect to the other Amendments, the Court professes that it is bound by what the law is--with respect to the 8th, the Court states that when it comes to what is "cruel and unusual", the Court gets to enshrine its own policy preferences. From a practical standpoint, you may be right--but I am pointing out that with the 8th Amendment, the Court is basically saying that it gets to do what it wants. That's clearly different from other Amendments and other areas of Con Law (other than abortions, see Casey). Thus, where you criticize me for treating the 8th Amendment "jurisprudence" differently, there's a very powerful doctrinal distinction. To make it short and sweet--Doug, while the Court may be making it up as we go along with other stuff, they admit to doing it with the 8th Amendment. They make no bones about it. So you posit that my singling out is dumb, but there's a very good reason for it. QED.
Posted by: federalist | Oct 19, 2015 6:42:56 PM
Your doctrinal point is not unreasonable, federalist, but should we really assail SCOTUS for being more honest in the context of the Eighth Amendment, especially when the text of the Amendment seems to nearly demand that judges make up on their own a judgment concerning what qualifies as "cruel and unusual"? I tend to praise candor, and in fact that candor makes it easier to have an honest and forthright debate about what is really going on. In so many other contexts, Justices seek to hide their policy preferences behind claims of originalism (Heller) or stare decisis (Casey) or some other "make it up as you go along" doctrine that really just make it that much harder to have an honest debate over what the Court is actually doing.
Moreover, and to help me understand how you think the Eighth Amendment shoudl be applied, can you give me a single example of a sentence/punishment authorized by a legislature that you think should be declared a violation of the Eighth Amendment? I do not think any Amendment was supposed to be judicially unenforcable (one reason I like Heller) --- and I am eager know how you would construct/imagine an Eighth Amendment jurisprudence (and also a companion retroactivity doctrine) with some real meaning/content that would not be subject to a general criticism of lawlessness.
Posted by: Doug B. | Oct 20, 2015 10:40:07 AM
