Category: General Law


Graham, Kennedy, and Offenses Against the State

One simple way to understand Graham is that it is a corollary to Kennedy v. Louisiana (no death penalty for nonhomicide crimes) and Roper v. Simmons (no death penalty for juveniles) combined.  There is a curious disclaimer in the Kennedy case, however, that does not make an appearance in Graham, and that is this language:

Our concern here is limited to crimes against individual persons.  We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

In other words, even if no life is taken, the death penalty may be appropriate for this category of offenses.  So where does that leave children who commit these crimes?  The point here is not to advocate harsh sentences for young terrorists, but only to highlight an interesting, rarely discussed portion of the Kennedy opinion.


Wonky Scholarship Question

Here’s a problem that I’d like some help on from my fellow scholars.  I noted in a prior post that as part of my research for the John Bingham biography, I was looking for his correspondence with Titus Basfield, an African-American college classmate who was a lifelong friend.

So I’ve determined that:  (1) these letters did exist; and (2) that they were probably destroyed about 15 years ago.  (I’m not totally convinced that they were destroyed, but it looks like that story that your Dad tells you about how he could have retired on his baseball card collection if your grandmother hadn’t thrown them away while cleaning the basement one day.  Sigh.)

The issue is that these letters were quoted in articles and in a book written during the 1980s.  How should I treat these quotations?  I see a few options:

1.  Use them and cite to the secondary source.  The fact that I can’t check the original letters is irrelevant.

2.  Don’t use them.  If you can’t check the original sources, then the quotes are unreliable.

3.   Explain the situation in the Introduction or in the first endnote and state that I’m going to use the quotes but they they should be viewed with a grain of salt.

4.   Only use the quotes if they are consistent with other things that Bingham said.  If they seem novel or inconsistent, then don’t use them.



Minnesota Law Review Headnotes 94:2 (May 2010)


The Minnesota Law Review is proud to announce the spring edition of our new online companion journal, Minnesota Law Review Headnotes. In addition to serving as the online archive of the Law Review‘s print articles, available in PDF format, Headnotes also features original, online-only Response articles in which prominent academics respond to the articles the Law Review publishes. Comment fields are available at the end of each Response, and readers are encouraged to provide feedback.

In this issue of Headnotes:

Ralph Hall (University of Minnesota Law School) responds to Richard Epstein’s article, Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs. In Right Question, Wrong Answer, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an advisory/information role after Phase I testing—devalues the mission of the FDA and has already been rejected by the body politic.   Instead, Professor Epstein contends that the solution to problems with the FDA drug approval process is to work to improve and optimize the system, not to eliminate it.

Aaron Perzanowski (Wayne State University Law School) responds to David Fagundes’s article, Property Rhetoric and the Public Domain. In In Defense of Intellectual Property Anxiety, Professor Perzanowski expresses skepticism about two assumptions underlying the argument for embracing property rhetoric to promote the public domain. This argument assumes, first, public recognition of social discourse theory as an account of property and, second, rhetorical advantages of social discourse theory that are comparable to those of more familiar notions of private property. Perzanowski concludes that the simple intuitive appeal of Blackstonian property cautions against styling the struggle for balanced copyright and patent policy as a debate over competing property interests.

Ted Sampsell-Jones (William Mitchell College of Law) replies to Professors Cribari and Judges’s article, Speaking of Silence: A Reply to “Making Defendants Speak. In On Silence, Professor Sampsell-Jones argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical utility. As a result, he concludes that their defense of Griffin v. California is unconvincing.


Graham v. Florida: What Justice Thomas Gets Right, Part II

Part I is here.

Another correct observation by Justice Thomas is the following:

“Ultimately, . . . the Court’s ‘independent judgment’ and the proportionality rule itself center on retribution– the notion that a criminal sentence should be proportioned to the personal culpability of the criminal offender.”

Justice Kennedy’s opinion states that “[t]he penological justifications for the sentencing practice are also relevant to the analysis.”  As I have noted previously, sentences like this contain a crucial ambiguity.  It could reflect the idea that the punishment in question is not permitted unless it advances some objective, or it could reflect the idea that as long as a punishment advances some objective, it is constitutionally permitted.  The former states only a necessary condition for constitutionality, the latter a sufficient condition.  It has not always been clear whether the Court understands the difference between these two, given that in cases like Roper and Atkins, it has consistently and magically found that neither deterrence nor retribution goal is advanced by the punishment in question — thereby avoiding the need to confront the ambiguity.  (The Court’s determination of the deterrence question is pure armchair empiricism, but that is another issue.)  However, earlier, when the purposes of punishment talk first showed up, the Court had a very clear understanding of the difference between the first and the second statements.  (See Coker v. Georgia, fn. 4 “Because the death sentence is a disproportionate punishment for rape, it is cruel and unusual punishment . . . even though it may measurably serve the legitimate ends of punishment . . . .”)

Under Ewing v. California, it appeared as if the Court was endorsing the second statement, but in Graham, the Court is starting to take small steps away from it.  On page 21 of the slip opinion, after its discussion of the deterrence issue, the Court says, surprisingly: “Even if the punishment has some connection to a valid penological goal, it must be shown that the justification is not grossly disproportionate in light of the justification offered.  Here, in light of juvenile nonhomicide offenders’ diminished moral responsibility, any limited deterrent effect provided by life without parole is not enough to justify the sentence.”  The Court then discusses incapacitation and concludes, “Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.”

Perhaps Justice Thomas’s reading of these sentences as endorsing retribution as the core theory of the case is not quite yet warranted; Justice Kennedy’s writing is muddled enough to invite different interpretations.  But there are some indications here that the Court is taking some awkward, wobbly, uncertain steps towards retribution as its theory of excessiveness.


Graham v. Florida: What Justice Thomas Gets Right, Part I

Justice Stevens points out that Justice Thomas “would apparently not rule out a death sentence for a $50 theft by a 7-year-old.”  That may be a valid criticism, but I want to focus on two correct and important observations by Justice Thomas about the majority opinion.  In this post, I write about the first observation; in the next, about the second observation.  Here is the first:

“For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone.”

As I noted earlier today, this may be the most consequential aspect of the case.  The Court has treated excessiveness challenges against sentences differently in capital and noncapital contexts, something that I have complained about in the past, and this divide had been quite difficult to bridge until today.

I happen to think that, as I have argued before, a categorical approach (that is, draw a few well-placed bright lines instead of trying to correct every constitutionally problematic punishment) is one way of mitigating the vagueness problem of the proportionality standard, but whether Justice Kennedy has explained the Court’s abrupt change satisfactorily is another question.  His statement, “This present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence” (slip. op. 10), is a strange argument for the change.  As J. Thomas again correctly points out, “a petitioner seeking to exempt an entire category of offenders from a sentencing practice carries a much heavier burden than one seeking case-specific relief under Solem,” and it is not immediately clear why a more defendant-friendly doctrine (which is what these death penalty cases using the categorical approach are, compared to cases like Ewing and Harmelin) is called for when a broader ruling is being requested.

It should also be pointed out that the categorical v. case-by-case debate is not some new thing that just occurred to people in 2009.  In Coker v. Georgia, for instance, Justice Powell did not join Justice White’s opinion (a categorical ruling about the crime of rape and the death penalty) and criticized it for “rang[ing] well beyond what is necessary” and argued that the death penalty may be appropriate in certain instances of aggravated rape.  And Roper v. Simmons, written by Justice Kennedy himself just a few years ago, considered and rejected the argument that a case-by-case approach was desirable in the juvenile death penalty context.  In other words, the Court always has had the choice of implementing the principle of proportionality either categorically or on a case-by-case basis, and the capital-noncapital distinction for excessiveness challenges never was about case-by-case v. categorical approaches; it was about the idea that “death is different.”  “Death is different” is an argument that has encouraged much sloppy thinking, so it is good to see the Court no longer mindlessly reaching for it, but I remain dissatisfied by Justice Kennedy’s own non-explanation of the Court’s new position.


Another Opinion: US v. Comstock

The Supreme Court has held that Congress can empower district courts to order the civil commitment of mentally ill, sexually dangerous offenders beyond their criminal sentences.  The Court held that the Necessary and Proper Clause validates the statutory provision, which the Court links to various federal regulatory interests, including the mental health of inmates and the safety of communities where inmates are released.  The ruling does not consider claims that the law could violate the Due Process Clause.

Predictably, the liberal justices joined Breyer’s majority opinion, but Chief Justice Roberts did also. Justice Alito joined Kennedy’s concurrence.  Only Scalia and Thomas dissented; the dissent offers quite a narrow vision of federal power (one that even Alito and Roberts could not accept).


Graham v. Florida – Collapse of Capital-Noncapital Distinction?

With Dan’s kind permission, overstaying my welcome here, so I can say a few things about this case.  Quickly reading through it now.  Potentially the most consequential paragraph is on page 10:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence.  The approach in cases such as Harmelin and Ewing is suited for considering a gross disproportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question.  This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. . . . Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Translation: Everyone knows that Ewing is a non-starter for excessiveness challenges.  You may now start using Atkins, Roper, and Kennedy framework (all death penalty cases) not only in capital but also in noncapital cases; just be sure to craft your challenge as a categorical one.  Potentially revolutionary if (and it’s a big if) the Court sticks to these words in the future.


Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.


An Alternative Story about the Success of Digital Music

Many consider digital music a success. But, looking back at the history of an older music technology – the CD – should make us pause. The CD was invented in 1982 and made its market debut the same year with Billy Joel’s album 52nd Street. It was adopted quickly and in 1987 surpassed the sales of vinyl records. Digital music, on the hand, suffered a different fate

Digital music technology was invented in the early 1980s.  Several advances enhanced its marketability. The latest steps occurred in 1998 when Napster added the distribution advantage through file sharing and a fully functional MP3 player allowing portability was released. But, surprisingly, a decade later, the latest available music sales statistics show that in 2008 CD sales still compromised 77.8% of music sales, while digital music sales comprised only 12.8%.

This delayed adoption of digital music is perplexing given the overwhelming advantages of digital music over CDs. One factor that doubtless affected the sales of digital music is downloading from file sharing networks. But, I would like to offer another explanation. I believe that copyright enforcement particularly through technological measures — use of digital rights management systems (DRM) – played a role in delaying the adoption of digital music.  DRM limit interoperability between digital music devices and music tracks. For example, Apple, the owner of the leading digital music device iPod, refused to license its Fairplay DRM system to competitors. The result was that music purchased from iTunes and protected by Fairplay could only be played on iPods and other Apple devices. Surveys showed that DRM’s effect on interoperability frustrated consumers digital music experience and that consumers were more likely to purchase digital music if DRMs will be removed.

This story about the delayed adoption of digital music is not commonly told. But, it is an important story to tell for two reasons. First, those objecting to copyright enforcement argue that lawsuits against file sharing systems, such as Napster or Grokster, inhibit innovation in dissemination technologies.  But, they fail to address the policy argument of the dissemination failure of digital music technology itself.

Secondly, and even more importantly, by focusing on the adoption failure the parties to the digital music copyright disputes could find common ground. Both could benefit from accelerated adoption of digital music. Clearly, individuals who do not use digital music fail to benefit from the immediacy of downloading, the ability to choose individual songs and general convenience of digital music. But, the music industry could also benefit from a rise in the sales of digital music. Digital music allows direct selling resulting in savings on storage and mobilization of physical products.  It does not involve physical copies so music providers do not end up with redundant copies of CDs. Music providers can also benefit from the flexibility of providing consumers with the option to buy specific songs — this lets them cater to a broader range of tastes and expand their sales. And finally. digital music allows instant delivery – again allowing expansion of sales through profiting from impulse buys.

There are good reasons then to consider the delayed adoption of digital music. For a more complete description of this alternative story, see here.