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.

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.

U.S. Supreme Court Hears Case That May Decide If Corporations Are Liable Under the Alien Tort Statute

On February 28th the U.S. Supreme Court heard arguments in Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491). The transcript of that hearing is available online.

This case involved claims by a putative class of Nigerians against a corporation (Royal Dutch Petroleum Co. (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-95. Prior posts reviewed the procedural background of this case and the Second Circuit decision rejecting such liability.

The claims in this case were asserted under the U.S. Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)

 Merits Issue: Are Corporations Liable Under the ATS?

A review of the transcript of the hearing reveals that the entire hour was devoted to only one of the two issues previously identified by the Court as being raised by this case:

  • Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.

All of the Justices (except Justice Thomas) actively participated in this argument with comments and questions that make it difficult to make any prediction of the ultimate decision in the case, except that it probably will be a decision by a divided Court. Here are samples of some of the comments and questions.

Justice Samuel Alito asked,  “What business does a case like [this alleging human rights violations in Nigeria] have in the courts of the United States? There’s no connection to the United States whatsoever.”

Justice Ruth Bader Ginsburg tried to focus the discussion on the precise issue raised by the case, whether it is only individual defendants [who are liable under ATS] or are corporate defendants also liable?”

Justice Stephen Breyer apparently had difficulty with the Second Circuit’s categorical rule in this case that corporations could never be liable under the ATS. He said he could think of instances where that should not be the case. One he cited was “Pirates Incorporated.”

Justice Elena Kagan also expressed skepticism about an assertion by the attorney for the defendant-respondent that international human rights treaties excluded corporations from liability. Justice Kagan said she thought “the international sources are simply silent as to this question [of corporate liability].” She also observed that such treaties were silent on this issue “mostly because all of these are written to prohibit certain acts,” rather than focusing on who commits such acts.

Justice Anthony Kennedy, who often is seen as the swing vote when the Court is divided, asked the first question almost before the attorney for the plaintiffs-petitioners could open his mouth. Justice Kennedy said, “For me, the case turns in large part on this,” (quoting from the defendant-respondent’s brief), ‘International law does not recognize corporate responsibility for the alleged offenses here.’ Justice Kennedy immediately followed with this quotation from an amicus brief by Chevron Corporation, which is a defendant in another ATS case, “No other nation in the world permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”

Justice Anthony Kennedy also noted that international criminal law made a distinction between individuals and corporations with only the former being subject to criminal sanctions. Yet later he mentioned the legal principle of respondeat superior (that a corporation or other principal is legally responsible for the wrongs of its employee or agent under certain conditions) and said that it was a very simple proposition of U.S. law and perhaps implicitly suggested it was applicable in this case.

Subject Matter Jurisdiction Issue

The second issue raised by this case was not discussed at the February 28th hearing. It was the following: Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

The Second Circuit in an opinion by Judge Cabranes held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts that was not met in this case.

In my opinion, the Second Circuit was clearly wrong on this conclusion on subject-matter jurisdiction. The ATS states that federal courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, to establish subject-matter jurisdiction, (i) the plaintiff must be an “alien” (a non-citizen of the U.S.); (ii) the lawsuit must be for a tort; and (iii) the tort must allegedly be set forth in “the law of nations” (customary international law) or a treaty of the U.S. All of these requirements are met in this case. It then becomes an issue on the merits as to whether the alleged conduct in fact violates the “law of nations” or a treaty of the U.S.

Moreover, the ATS does not specify as to whom the defendant must be, unlike the Torture Victims Protection Act (TVPA) which states the defendant has to be an “individual.” If the ATS did specify in some fashion what kind of defendant was permissible, then that would make the nature of the defendant an issue for subject-matter jurisdiction. (Whether the word “individual” in the TVPA includes corporations was the issue presented in the other case heard by the Supreme Court on February 28th.)

The procedural posture of this case makes my opinion, if it is correct, an important one for The Supreme Court’s disposition of this case. Federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This basic principle enabled Judge Cabranes in the Second Circuit to raise, discuss and decide the issue of corporate liability under the ATS in this case even though that issue had not been briefed or argued by the parties themselves.

The failure of the defendant Shell to raise the merits issue of corporate liability at the trial court and at the Second Circuit should mean that it is deemed to have waived the issue.

Under this analysis the Supreme Court should reverse the Second Circuit on procedural grounds and not reach the substantive issue of corporate liability.

Conclusion

A Supreme Court decision in this case is expected by the end of June. I reiterate that this is a case of statutory interpretation and the Court’s development of federal common law, 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.

Under the infamous Citizens United decision the Court treats corporations as individual human beings for purposes of the Free Speech clause of the First Amendment to the U.S. Constitution and the right to make unlimited political contributions. If the Court were to decide that corporations, unlike individual human beings, are not liable under the ATS, this would and should present the Court with at least a public relations problem.