Spring 2005

Supreme Court Update:
Juvenile Death Penalty, Federal Sentencing Guidelines, and Privacy Cases Highlight Winter Docket

On March 1, in a 5-4 decision, the U.S. Supreme Court ruled that the Constitution of the United States forbids the execution of killers who were under 18 when they committed their crimes. The decision in Roper v. Simmons (No. 03-633) throws out the death sentences of nearly 70 juvenile murderers under the Constitution’s Eighth Amendment ban on cruel and unusual punishment. Justice Kennedy, in writing for the majority, noted that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. This was the Court’s second major decision on the death penalty in three years. In 2002, the Court banned the execution of the mentally retarded, also citing the Eighth Amendment.

On February 23, the Court ruled in Johnson v. California (No. 03-636), that the California Department of Corrections’ policy of racially segregating prisoners when they enter new facilities is subject to “strict scrutiny.” The state of California invoked the 1987 U.S. Supreme Court precedent set in Turner v. Safely (No. 85-1384), which gives prison officials substantial leeway to limit inmates’ rights when “penological interests” are implicated, in an attempt to defend its unwritten policy of segregating new prisoners in reception centers for a period of 60 days. The U.S. Circuit Court of Appeals for the Ninth Circuit previously ruled in favor of the state based on Turner, however, the U.S. Supreme Court affirmed the use of strict scrutiny when evaluating government policies or laws that make racial distinctions and are challenged on equal protection grounds. “We rejected the notion that separate can ever be equal – or ‘neutral’ – 50 years ago…and we refuse to resurrect it today,” Justice O’Connor wrote in her majority opinion. The 5-3 ruling remands the policy back to the lower courts, where California will have the opportunity to demonstrate that its policy is “narrowly tailored” to advance a “compelling interest in prison safety.” Justice Stevens dissented, stating that the Court should have struck down the policy outright because California “utterly failed” to justify the policy under any standard. In his dissent, Justice Thomas wrote, “The Constitution has always demanded less within the prison walls…The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives.”

In Illinois v. Caballes (No. 03-923) the Court held that a drug-sniffing dog could be used to check a vehicle following a legal traffic stop, even where police had no reason to suspect drug activity. In a 6-2 decision (Chief Justice Rehnquist did not participate in the decision), handed down on January 24, the Court vacated the decision of the Illinois Supreme Court and remanded the case for further proceedings. When Respondent Caballes was stopped for speeding, a member of the Illinois State Police Drug Interdiction Team overheard the call to the police dispatcher and immediately headed for the scene with his narcotics-detection dog. When the dog alerted at the trunk of the car, officers searched the trunk, found marijuana, and arrested Caballes. At trial, the Judge refused to suppress the seized evidence and Caballes was convicted of a narcotics offense, sentenced to 12 years imprisonment and fined $251,136. The Illinois Supreme Court reversed, concluding that the use of the dog converted the encounter from a lawful traffic stop into an unlawful drug investigation, which was not supported by any reasonable suspicion. The U.S. Supreme Court reversed, reasoning that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy. Official conduct that does not compromise a legitimate privacy interest is not subject to the Fourteenth Amendment. Possessing contraband is never considered “legitimate,” therefore, government conduct that reveals the possession of contraband compromises no legitimate privacy interest.

On Jan. 12, the Court handed down decisions in both United States v. Booker (No. 04-104) and United States v. Fanfan (No. 04-105). The question presented in each of these cases is whether the application of the Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited the severity of the sentence that the judge could lawfully impose on the defendant based on the facts found by the jury at trial. In both cases the lower courts rejected the Government's recommended application of the Sentencing Guidelines because the proposed sentences were based on additional facts that the sentencing judge found by a preponderance of the evidence. The Court held that the imposition of a sentence under the Sentencing Guidelines based on facts not found by a jury or admitted by the defendant violates the Sixth Amendment. In its findings, the Court reaffirmed its holding in Apprendi v. New Jersey, (No. 99-478), which stated that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court also held that the provision of the Sentencing Reform Act that makes the guidelines mandatory, along with the appellate review provisions must be severed and excised. This modification to the Sentence Reform Act makes the guidelines advisory. Modification of the appellate review provisions means that an appellate court will determine only whether a sentence was unreasonable with regard to factors listed. Sentences will no longer be reviewed de novo.

On February 22, The Court granted certiorari in Gonzalez v. Oregon , a case questioning Oregon’s 1994 “Death With Dignity” law, which permits doctors to prescribe drugs to accelerate the death of mentally competent terminally ill patients who are within six months of dying. Since its adoption in 1998, 171 citizens of Oregon have chosen to die under the law. Despite the fact that the people of Oregon have twice voted in favor of the Act, and that the lower courts have twice upheld the law, then U.S. Attorney General John Ashcroft filed an appeal with the U.S. Supreme Court in November 2004, stating that Oregon’s practice violated the federal Controlled Substances Act because it lacked a “legitimate medical purpose.” Kathryn Tucker, an attorney who represents the Oregon patients states, “The federal act was designed to prevent the diversion of controlled substances into the black market or into the hands of those who would use them to abuse substances. It has nothing to do with the Death With Dignity Act.” If the Court determines that the prescribing of drugs to assist in death falls within the scope of the Controlled Substances Act, Oregon’s law will be invalidated.

The Court declined to hear several notable cases this term.

In Williams v. Alabama (No. 04-849), the Court declined to review the constitutionality of a state law banning the sale of sex toys, rejecting an appeal that said consumers have a right to sexual privacy. Without comment, Justices let stand a lower court ruling that said Alabama had a right to police the sale of devices that can be sexually stimulating. Petitioners argue that the Court's 2003 ruling in Lawrence v. Texas, which decriminalized gay sex on privacy grounds, protects sex toy users from unwarranted state intrusion into their homes. A divided three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit disagreed and ruled last July that siding with the sex toy merchants could open the door to the legalization of undesirable sexual behavior such as prostitution. The state law bans only the sale of sex toys, not their possession, and it doesn't regulate other items including condoms or virility drugs. Residents also may lawfully purchase sex toys out of state for use in Alabama, or use them if the devices have other recognized medical or therapeutic uses.

In Rose v. Planned Parenthood of South Carolina (No. 04-429), the Court refused to consider whether states may offer license plates with anti-abortion messages, leaving lower courts divided over whether programs in twelve states unconstitutionally restrict dissenting views. Planned Parenthood, which filed the lawsuit, argued that the program amounts to “viewpoint discrimination” by state officials since they allow expression of only one side of the abortion debate. South Carolina countered that the plates are “government speech” that entitles them to allow a particular viewpoint without an obligation to include dissenting views. In accordance with the lower court ruling, South Carolina will now either have to eliminate its “Choose Life” plates or begin offering plates with abortion-rights views as well.

On February 22, the Court rejected a challenge to its landmark 1973 ruling in Roe v. Wade (No. 70-18), legalizing abortion. Without comment, Justices declined to hear the appeal from Norma McCorvey, “Roe,” who says she now regrets her role in the decision. McCorvey argued in Court filings that the case should be heard again in light of evidence that abortion harms women. A decision to reopen a case based on “changed circumstances” is rare, and two lower courts had already refused to reconsider the ruling. In its September ruling throwing out McCorvey's lawsuit, a three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit said that her claims were moot because Texas' abortion ban had long been repealed.

On January 24, the Court refused to reinstate a Florida law passed to keep a severely brain-damaged woman on a feeding tube, clearing the way for the tube to be removed. Last fall, the Florida Supreme Court unanimously struck down “Terri’s Law,” the 2003 legislation which ordered Terri Schiavo’s feeding tube reinserted six days after her husband had it removed. In Jeb Bush v. Michael Schiavo (No. 04-757), Gov. Bush appealed that ruling, arguing that the state of Florida had the authority to pass the legislation. The Court did not comment in rejecting Gov. Bush’s appeal.

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