Update: the death penalty for the mentally disabled

In Books, Crooks & Counselors, I wrote about the Supreme Court’s 2002 decision, Atkins v. Virginia, holding that execution of the mentally disabled violates the Eighth Amendment’s ban on cruel and unusual punishment, as 18 states had already decided. Atkins did not establish standards for sentencing judges to apply in determining mental disability, leaving that to the states.

The Supreme Court has now accepted for review Hall v. Florida. Florida defines mental disability as an IQ of 70 or less; the defendant, Freddie Lee Hall, scored just above that threshold. More from the SCOTUS blog.

Sandra Day O’Connor & civics

I’m a big fan of former Supreme Court Justice Sandra Day O’Connor. Big fan. 

And since the mission of Books, Crooks & Counselors and this blog is to help writers and readers understand the legal system a little better, I suggest you take a quick look at this Washington Post article and interview with the Justice, titled Former Supreme Court Justice Sandra Day O’Connor on the importance of civics education.  The Post describes a period of “civics lethargy,” and links to a national study demonstrating what I think is pretty obvious: as a whole, citizens just don’t know a lot about how our country works. To help change that, Justice O’Connor founded iCivics in 2009, an online program that provides free lesson plans and games for learning civics, which the Post reports is used in all 50 states and 55,000 classrooms.

I took a look at iCivics, and it’s kinda fun! Please pass the word to teachers and parents.




Inside the Supreme Court

Like most lawyers, and many other Americans, I find the U.S. Supreme Court both fascinating and mysterious. Books, Crooks & Counselors discusses the high court’s operations in the “Trial & Error” chapter, and explores the more personal side of judging in the chapter “Thinking Like a Judge.” The newest justice, Elena Kagan, touched on both topics, and how the judges go about making a decision, in a recent speech at Marquette University, reported by Alan Borsuk on the Marquette University Law School blog. Definitely worth a look. 

Of particular interest is the care and time given to what are admittedly lesser cases–and the reasons why they sometimes require more debate than the more significant decisions. I also appreciated her comments on the role of oral argument, and on passion.

Justice Scalia may think he’s the first judge with an antelope head in his chambers. He’s not. In the mid 1980s, I was in the offices of a Pierce County, Washington Superior Court judge in Tacoma. A beautiful pronghorn mount hung above the judge’s desk, sporting a pair of Groucho Marx glasses. Nice touch, don’t you think?

Life without parole for young killers?

In real life and in fiction, young people commit serious crimes. In late March, the Supreme Court heard arguments about whether juveniles–14 year-olds, in these two cases–can be sentenced to life without parole for murder. The SCOTUS blog–always a great source–provides a roundup of coverage and a detailed report on the arguments.

The cases ask whether a state should be able to impose a mandatory sentence of life without parole on juveniles, e.g., those under 18 at the time of their crime. Should it be optional? Barred entirely? Or barred only for very young offenders, e.g., 14 and under?

The cases, Miller v. Alabama and Jackson v. Hobbs, are the third in recent years asking what limits should be put on sentences for juveniles.

As I discussed in Books, Crooks & Counselors, in Roper v. Simmons (2005), the Court struck down the death penalty for crimes committed before 18. It held that the death penalty for juveniles violates the Eighth Amendment ban on cruel and unusual punishment and is “disproportionate” in light of the general immaturity of youth. It acknowledged that some juveniles commit brutal crimes, but wrote that their

“susceptibility … to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. … From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

The majority also concluded that juvenile executions do not serve the goals of retribution or deterrence.

And in Graham v. Florida (2010), the Court that juveniles could not be sentenced to life without parole for crimes not involving murder, and that inmates already under such a sentence must be given an opportunity to show grounds for early release. 

Something for your fictional prosecutors, defense lawyers, and other characters to consider.

I’m in Oregon this week for Don Maass’s Breakout Novel workshop. Wow. My characters may never recover–and that’s a good thing!  

Does police use of a GPS tracker require a warrant?

Writers often ask about searches, and this week, the U.S. Supreme Court answered a big question: Are police required to obtain a warrant before placing a GPS tracking device on a vehicle? Yes, the Court said, agreeing unanimously on the outcome, but splitting 5-4 on the reasoning. Justice Antonin Scalia wrote the majority opinion, holding that the government’s actions, through law enforcement, in attaching the device and using it for surveillance constitute a search under the Fourth Amendment.

Read a Washington Post article on U.S. v. Jones or the full Supreme court opinion.

The Fourth Amendment provides in part that”[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A vehicle is an “effect.”

Police and FBI obtained a warrant allowing them to place a GPS unit on a Jeep registered to the wife of suspected drug trafficker Antoine Jones within ten days, while it was still in Washington, D.C. They placed the device eleven days later, in Maryland, and tracked Jones’s movements for 28 days. The government acknowledged it had violated the warrant, but asserted that a warrant wasn’t necessary. The GPS evidence was critical in obtaining his conviction in the U.S. District Court for the District of Columbia. The appeals court reversed, and the Supreme Court upheld the reversal. According to the Washington Post, the U.S Attorney for the District of Columbia has not yet decided whether to retry Jones. No doubt the decision will turn on the strength of other evidence.

The Jeep was registered to Jones’s wife, but he was the exclusive user. The government did not challenge his right to challenge the warrant and move to suppress the evidence.

Writers, keep in mind that some state courts have long held that a warrant is required under state constitutions.

Note that following and physically observing a suspect are different than using a GPS device. Visual observations of movements on a public street are not searches.

The Jones decision is relatively narrow, focusing on the facts presented by this specific case. It does not answer other questions raised by changing technology: Does electronic surveillance that doesn’t require physical trespass, like cell phone tracking, constitute a search? Will society’s changing expectations of privacy–think of all the once-private information we now disclose online and elsewhere, wittingly and not–change how courts analyze the right to privacy?

Of course, a warrant won’t always be necessary. Consent by a owner-of-record, e.g., a spouse who’s on the title, may suffice–and writers can easily conjure situations where consent might be given. (Consent wasn’t an issue in Jones, and the Court didn’t discuss it.) Could an estranged spouse who’s still got an ownership interest but no longer exercises any control over the vehicle give valid consent? Maybe, maybe not. But I do think a lender lienholder could not give valid consent. And state constitutions may require protection in areas that the federal constitution does not.

Remember, the Constitution applies only to acts by the government, not private persons. This decision doesn’t apply to your fictional PI who gets his client’s consent to put a GPS unit in a vehicle the client jointly owns with her spouse to track the cheating SOB.

Writers, you may want your fictional law enforcement officers to follow the law, or flout it. You may want GPS evidence excluded so your fictional prosecutors have to look elsewhere. Or you may have a PI working a civil case and not affected by the ruling in Jones. That’s the beauty of fiction: you get to make up your own facts.

 Now, get back to your keyboards.

 (Photos from Supreme Court website.)