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July 01, 2011

A Punishing Court Docket

by Stephen J. Wermiel

Issues of punishment in one form or another typically occupy a significant portion of the U.S. Supreme Court’s docket, from reviewing death penalty appeals to arguing over the process of sentencing. But two cases in the Court’s current term will get the justices into some different punishment issues. One case involves life sentences for young juvenile offenders who commit murder, and the other involves liability for employees at privately run federal prisons.

The issue of how to sentence juvenile offenders who commit crimes before they reach the age of eighteen has been a challenging one for society and no less so for the Supreme Court. From a public policy standpoint, the vexing question is one of balancing the various traditional goals of punishment—retribution, public safety, and potential for rehabilitation—against the young age of offenders who are still developing mentally and physically when they commit crimes. In constitutional terms, the question is whether different forms of punishment for juvenile offenders violate the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

The Court will decide two appeals, one from Alabama and the other from Arkansas, in which fourteen-year-old boys were convicted of murder and sentenced to life in prison without any possibility of parole. The lawyer for both boys, Bryan Stevenson, who is the Human Rights Hero in this issue of Human Rights, argues that “none of the purposes of punishment adequately supports a sentence of life without parole for a fourteen-year-old child” and describes the sentence as “severe and hopeless.”

The cases are the third round for Supreme Court consideration of juvenile punishment. In 2005, in Roper v. Simmons, the Court ruled that juveniles who commit crimes when they are younger than eighteen may not be sentenced to death. In 2010, the Court ruled in Graham v. Florida that juveniles who commit crimes that do not involve murder may not be sentenced to life without parole.

Now the question is whether younger offenders, those fourteen and younger, may be sentenced to life without parole for murder. There are seventy-three young offenders serving life without parole, according to the appeals, but a Supreme Court decision expected by June, 2012 will further define the constitutional standards for treatment of juveniles in the criminal justice system.

The other case the Court decided on January 10 involves the application to private prison contractors of a forty-year-old ruling that allowed individuals to sue federal officials for damages for violating their constitutional rights. In Bivens v. Six Unknown Agents in 1971, the Court said individuals should be able to recover damages for constitutional wrongs in the narrow circumstance when there is no other remedy under federal law. The Bivens case allowed a lawsuit against federal drug agents for a warrantless search of a New York family and their apartment. In 1979, in Davis v. Passman, the Court allowed a similar damages lawsuit for sexual harassment against a member of Congress by an employee. In yet another use of the same type of lawsuit, the Court in Carlson v. Green in 1980 allowed a lawsuit for damages against federal prison officials for the death of an inmate who allegedly did not receive adequate medical care. However, despite the Supreme Court’s three decisions allowing damages claims against federal officials, federal courts have generally taken a narrow view of when such lawsuits can be filed.

The current Supreme Court appeal is by Richard Lee Pollard, an inmate at Taft Correctional Institution, a federal prison about forty miles from Bakersfield, California. The prison was run by the GEO Group, a private corrections company once known as Wackenhut Corrections Corp. Pollard claims that about a decade ago he slipped on a cart in a prison doorway, injured his arms, but didn’t receive the proper medical treatment. Pollard sued the prison guards who are private employees, not government workers. The U.S. Court of Appeals for the Ninth Circuit ruled that Pollard should be allowed to sue the guards and the company for damages. Pollard argues that the Bivens-type lawsuit should be available even against private employees if they are performing a public role like running a federal prison. The company and the U.S. Justice Department argue that the lawsuit should be dismissed because there are adequate personal injury remedies under California law. The Supreme Court, by a vote of 8–1, decided that the state law remedies should be sufficient.

Stephen J. Wermiel

Stephen J.Wermiel teaches constitutional law at American University Washington College of Law and is chair-elect of the Section of Individual Rights and Responsibilities.