Chief Justice John G. Roberts

U.S. Supreme Court Extends Parole Rights for Juveniles Convicted of Murder

On January 25, 2016, the U.S. Supreme Court decided, 6-3, that its 2012 decision in Miller v. Alabama banning life-without-parole sentences for juvenile killers must be applied retroactively.[1]

Important for the Court was its conclusion that the earlier decision had been grounded on the diminished culpability of all juvenile offenders, who are, the Court said, immature, susceptible to peer pressure and capable of change. Very few, the opinion said, are incorrigible. But as a general matter the punishment was out of bounds. As a result, a court, upon petition by such a prisoner, must hold a re-sentencing hearing in order to give the petitioner “the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Alternatively the state could make them eligible for parole without a hearing

Henry Montgomery, the petitioner in the instant case, was 17 when he committed the murder and now is 69 in a Louisiana prison. The Court’s opinion said there was evidence that he deserved to be released, describing “his evolution from a troubled, misguided youth to a model member of the prison community” and noting that he was a coach on the prison boxing team, had worked in the prison’s silk-screen program and had offered advice to younger inmates.

The opinion for the Court was written by Mr. Justice Anthony Kennedy and was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan. Dissenting were Justices Scalia, Thomas and Alito.

Bryan Stevenson was the successful attorney for the petitioner in the 2012 case, Miller v. Alabama, which is discussed in Chapter Fourteen of his book, Just Mercy.[2] Although he was not the attorney for the petitioner, Montgomery, in the case decided today, Stevenson did submit an amicus curiae brief supporting Montgomery on behalf of the Equal Justice Initiative on Behalf of Dozens Sentenced to Die in Prison When They Were Children.

A New York Times editorial applauded the latest decision with these words: “The Supreme Court has ruled repeatedly over the last decade that it is morally and constitutionally wrong to equate offenses committed by emotionally undeveloped adolescents with crimes carried out by adults. It made this point again [in the Montgomery case]when it ruled that people who were sentenced to mandatory life in prison without the possibility of parole as juveniles have the right to seek parole.” The Times concluded by recommending that the Court “should take the final step. That means outlawing life sentences without parole for children altogether, whether mandatory or not.”

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[1] Opinions, Montgomery v. Louisiana, No. 14-280 (U.S. Sup. Ct. Jan. 25, 2016); U.S. Sup. Ct. Docket, Montgomery v. Louisiana (No. 14-280); Liptak, Justices Expand Parole Rights for Juveniles Sentenced to Life for Murder, N.Y. Times (Jan. 25, 2016)

[2] Docket, Miller v. Alabama, No. 10-9646 (U.S. Sup. Ct.); Opinions, Miller v. Alabama, No. 10-9646 (June 25, 2012), A prior post reviewed the amazing advocacy for justice by Bryan Stevenson and his organization, the Equal Justice Initiative.

Former U.S. Supreme Court Justice Criticizes Its Decision on the Voting Rights Act of 2006

John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.

Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]

As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]

First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)

Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,

“The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”

Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,

“This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”

[1] The Stevens book review is also discussed in The Atlantic and Politico.

[2] Earlier posts provided important background for the Supreme Court’s decision.

[3] The DOMA case is United States v. Windsor, No. 12-307 (June 26, 2013).

U.S. Supreme Court Hints That It Will Decide That Corporations Are Not Liable Under the Torture Victims Protection Act

On February 28th the U.S. Supreme Court heard arguments in Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88) on the issue of whether corporations are liable under the Torture Victims Protection Act (TVPA). The transcript of that hearing is available online.

Before that hearing, a prior post discussed this case and expressed my opinion that the Court would decide that corporations were not so liable. In summary, the TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong, and the ordinary meaning of the word “individual” as used in federal statutes encompasses only natural persons and not corporations or other organizations.

Although one needs to be cautious in evaluating oral arguments before the Supreme Court, the argument on February 28th in this case did not provide any reason to change my opinion on the likely outcome. Indeed, my review of the transcript of the argument confirms my previously expressed view of this case. To illustrate, I make the following four points.

First, Chief Justice John G. Roberts Jr. summarized what he thought was the plaintiffs position: “You are saying, ‘Well, we want a term that is going to include individual persons and organizations but not state organizations. And the only term that fits perfectly is ‘individual.’ ”

“Exactly,” the plaintiffs lawyer responded. “That’s our argument.”

Chief Justice Roberts was incredulous. “Really?” he asked, to laughter in the courtroom, which the Chief Justice joined.

Second, Justice Samuel Alito had a humorous exchange with the U.S. Justice Department lawyer who argued that corporations could not be liable under the TVPA, but earlier that same morning in another case (Kiobel) argued that corporations could be liable under the Alien Tort Statute. Justice Alito observed that the government’s position meant an alien could recover while a U.S. citizen could not. “Too bad, then, that Mr. Rahim [the plaintiff in Mohamad] became a U.S. citizen,” Justice Alito said. “I guess that was a mistake [on his part].”

Third, even Justice Steven Breyer, who is seen as more sympathetic to plaintiffs’ arguments, told the plaintiffs lawyer, “I think I have to say that you are on a weak wicket.”

Four, three other liberal Justices (Justices Ginsburg, Sotomayor and Kagan) also asked questions indicating skepticism of the plaintiffs’ arguments.

A Supreme Court decision in this case is expected by the end of June. I also reiterate that this is a case of statutory interpretation, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability explicitly.