Supreme Court of the United States
Case Law Summary Chart
Cases Relevant to Domestic and Sexual Violence Litigation
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Abbott v. Abbott
Abdul-Kabir v. Quarterman
Ankenbrandt v. Richards
Arizona v. Mauro
Ashcroft v. Free Speech Coalition
Atkins v. Virginia
Ayotte v. Planned Parenthood of Northern New England
Bailey v. Noot
Baltimore Social Services v. Bouknight
Begay v. United States
Bell v. Wolfish
Blakely v. Washington
Bobby v. Van Hook
Boddie v. Connecticut
Booth v. Churner
Bradshaw v. Richey
Brady v. Maryland
Brewer v. Quarterman
Brigham City, Utah v. Stuart
Briscoe v. LaHue
Burger v. Zant
Burlington Industries, Inc. v. Ellerth
Burroughs v. Domestic Violence Project
Caban v. Mohammed
Califano v. Goldfarb
California v. LaRue
Camreta v. Greene
Carey v. Population Services, Intern.
Carr v. United States
Cavazos v. Smith
Chamber of Commerce of U.S. v. Whiting
Chambers v. United States
Chaplinsky v. State of New Hampshire
Civil Rights Cases
Clark County v. Breeden
Cleveland Bd. of Educ. v. LaFleur
Clewis v. State of Tex.
Coker v. Georgia
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Johnson v. United States
Jones v. United States
Judulang v. Holder
Kansas v. Hendricks
Kennedy v. Louisiana
Kentucky v. Stincer
Lambert v. Wickland
Lassiter v. Department of Social Servs. of Durham Cty.
Lehman v. Lycoming County Children's Services Agency
Lehr v. Robertson
Lewis v. Jeffers
Lewis v. United States
Liles v. Oregon
Logan v. U.S.
Los Angeles County v. Humphries
Madsen v. Women's Health Center, Inc.
Marx v. Texas
Maryland v. Craig
Maryland v. Shatzer
Massachusetts v. Oakes
Maynard v. Cartwright
McCune v. Lile
McDaniel v. Brown
Meritor Savings Bank v. Vinson
Michael M. v. Superior Court of Sonoma County
Michaels v. McGrath
Michigan v. Bryant
Michigan v. Jeremy Fisher
Middleton v. McNeil
Mincey v. Arizona
MLB v. SLJ
Moore v. Sims
Moran v. Ohio
Mott v. Arizona
Neelley v. Alabama
New York v. Ferber
Newport News Shipbuilding & Dry Dock Co. v. EEOC
North Haven Bd. of Ed. v. Bell
Access to Courts
Animal Abuse
Battered Women’s Syndrome
Child Abuse
Civil Protection Orders
Confidentiality
Confrontation Clause
Contraception
Court Fees
Definition of Crime
Duty to Protect
Entry
Evidence
Gender-Based Classifications
Immigration
Individual Rights
Parental Rights
Pornographic Material
Right to Abortion
Right to Counsel
Sentencing
Sex Offender Regulation
Tort Damages
Verbal Abuse
Weapons
Workplace Violence
Collins v. Youngblood
Connecticut Department of Public Safety v. Doe
Coy v. Iowa
Crawford v. Washington
Cunningham v. California
Danner v. Kentucky
Davis v. Washington
Dean v. United States
DeShaney v. Winnebago County Social Services
Dickerson v. New Banner Institute, Inc.
District Attorney's Office for Third Judicial Dist. v. Osborne
Dixon v. United States
Dobbert v. Florida
Dobbert v. Wainwright
Doe v. Delaware
Estelle v. Gamble
Estelle v. McGuire
Faragher v. Boca Raton
Farmer v. Brennan
Film Follies, Inc. v. Haas
Fitzgerald v. Barnstable School Committee
Franklin v. Gwinnett County Public Schools
Furman v. Georgia
Gebser v. Lago Vista Independent School Dist.
Georgia v. Randolph
Gideon v. Wainwright
Giles v. California
Ginsberg v. State of N.Y.
Globe Newspaper Co. v. Superior Court for Norfolk
County
Godfrey v. Gerogia
Gooding v. Wilson
Gonzales v. Carhart
Gormley v. Director, Connecticut State Department of
Adult Probation
Griffin v. Illinois
H. L. v. Matheson
Harris v. Forklift Systems, Inc.
Harris v. McRae
Heckler v. Mathews
Hodgson v. Minnesota
Hoffman v. Harris
Hope v. Pelzer
House v. Bell
Idaho v. Wright
International Amusements v. Utah
Irizarry v. United States
J.E.B. v. Alabama ex rel. T.B.
Jaffee v. Redmond
Ohio v. Akron Center for Reproductive Health
Ohio v. Reiner
Oncale v. Sundowner Offshore Services
Oregon v. Ice
Ortiz v. Jordan
Osborne v. Ohio
Parham v. J. R.
Paris Adult Theatre I v. Slaton
Pennhurst State School & Hosp. v. Halderman
Pennsylvania v. Ritchie
Penry v. Lynaugh
Planned Parenthood v. Casey
Plummer v. City of Columbus, Ohio
Porter v. McCollum
Powell v. Nevada
Printz v. U.S.
Quilloin v. Walcott
Randall Book Corporation v. Maryland
Robertson v. California
Robertson v. United States ex rel Watson
Roe v. Wade
Rompilla v. Beard
Roper v. Simmons
Rosenfeld v. New Jersey
Santosky v. Kramer
Shell v. Mississippi
Simmons v. South Carolina
Sims v. Georgia
Smith v. Doe
Smith v. Wade
Snyder v. Phelps
Solorio v. U.S.
Stanley v. Georgia
Stanley v. Illinois
Stenberg v. Carhart
Stickler v. Greene
Stogner v. California
Suter v. Artist M.
Swidler & Berlin v. U.S.
Tarver v. Smith
Taylor v. United States
Tennessee v. Lane
Thompson v. Branches-Domestic Violence Shelter of
Huntington, West Virginia, Inc.
Thompson v. Oklahoma
Thompson v. Thompson
Tome v. United States
Town of Castle Rock, Colorado v. Gonzales
Tuan Anh Nguyen v. I.N.S.
Tuan Anh Nguyen v. I.N.S.
Tuilaepa v. California
Turner v. Rogers
Turner v. Safley
United States v. Comstock
United States v. Dixon
United States v. Hayes
United States v. Juvenile Male
United States v. Kozminski
United States v. Lanier
United States v. Lopez
United States v. Morrison
United States v. Stevens
United States v. Williams
United States v. X-Citement Video
Virginia v. American Booksellers Ass’n Inc
Wainwright v. Goode
Walton v. Arizona
Washington v. Recuenco
Webster v. Reproductive Health Services
Whalen v. Roe
Wharton v. Bockting
Wiggins v. Smith
Williams v. Hobbs
Williams v. Taylor
Wong v. Belmontes
Woodford v. Visciotti
Wyman v. James
Youngberg v. Romeo
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Title II constitutes a valid exercise of Congress' authority under §5 of the
Fourteenth Amendment to enforce that Amendment's substantive guarantees, as it applies to the
class of cases implicating the fundamental right of access to the courts.
Tennessee v.
Lane
541 U.S. 509
(2004)
Access to
Courts:
Persons With
Disabilities
Respondent paraplegics filed this action for damages and
equitable relief, alleging that Tennessee and a number of its
counties had denied them physical access to that State's
courts in violation of Title II of the Americans with Disabilities
Act of 1990, which provides: “No qualified individual with a
disability shall, by reason of such disability, be excluded from
participation or denied the benefits of the services, programs
or activities of a public entity.” After the District Court denied
the State's motion to dismiss on Eleventh Amendment
immunity grounds, the Sixth Circuit held the appeal in
abeyance pending Board of Trustees of Univ. of Ala. v.
Garrett. This Court later ruled in Garrett that the Eleventh
Amendment bars private money damages actions for state
violations of ADA Title I, which prohibits employment
discrimination against the disabled. The en banc Sixth Circuit
then issued its Popovich decision, in which it interpreted
Garrett to bar private ADA suits against States based on equal
protection principles, but not those relying on due process,
and therefore permitted a Title II damages action to proceed
despite the State's immunity claim. Thereafter, a Sixth Circuit
panel affirmed the dismissal denial in this case, explaining that
respondents' claims were not barred because they were
based on due process principles. In response to a rehearing
petition arguing that Popovich did not control because
respondents' complaint did not allege due process violations,
the panel filed an amended opinion, explaining that due
process protects the right of access to the courts, and that the
evidence before Congress when it enacted Title II established,
inter alia, that physical barriers in courthouses and courtrooms
have had the effect of denying disabled people the opportunity
for such access.
Held: Yes. Affirmed.
(a) Determining whether Congress has constitutionally abrogated a State's Eleventh Amendment
immunity requires resolution of two predicate questions: (1) whether Congress unequivocally
expressed its intent to abrogate; and (2), if so, whether it acted pursuant to a valid grant of
constitutional authority. The first question is easily answered here, since the ADA specifically
provides for abrogation. With regard to the second question, Congress can abrogate state
sovereign immunity pursuant to a valid exercise of its power under §5 of the Fourteenth
Amendment. That power is not, however, unlimited. While Congress must have a wide berth in
devising appropriate remedial and preventative measures for unconstitutional actions, those
measures may not work a “substantive change in the governing law.” In Boerne, the Court set forth
the test for distinguishing between permissible remedial legislation and unconstitutional
substantive redefinition: Section 5 legislation is valid if it exhibits “a congruence and proportionality”
between an injury and the means adopted to prevent or remedy it. Applying the Boerne test in
Garrett, the Court concluded that ADA Title I was not a valid exercise of Congress' §5 power
because the historical record and the statute's broad sweep suggested that Title I's true aim was
not so much enforcement, but an attempt to “rewrite” this Court's Fourteenth Amendment
jurisprudence. In view of significant differences between Titles I and II, however, Garrett left open
the question whether Title II is a valid exercise of Congress' §5 power.
(b) Title II is a valid exercise of Congress' §5 enforcement power. (1) The Boerne inquiry's first
step requires identification of the constitutional rights Congress sought to enforce when it enacted
Title II. Like Title I, Title II seeks to enforce the Fourteenth Amendment's prohibition on irrational
disability discrimination. But it also seeks to enforce a variety of other basic constitutional
guarantees, including some, like the right of access to the courts here at issue, infringements of
which are subject to heightened judicial scrutiny. Whether Title II validly enforces such
constitutional rights is a question that “must be judged with reference to the historical experience
which it reflects.” Congress enacted Title II against a backdrop of pervasive unequal treatment of
persons with disabilities in the administration of state services and programs, including systematic
deprivations of fundamental rights. The historical experience that Title II reflects is also
documented in the decisions of this and other courts, which have identified unconstitutional
treatment of disabled persons by state agencies in a variety of public programs and services. With
respect to the particular services at issue, Congress learned that many individuals, in many States,
were being excluded from courthouses and court proceedings by reason of their disabilities. A Civil
Rights Commission report before Congress showed that some 76% of public services and
programs housed in state-owned buildings were inaccessible to and unusable by such persons.
Congress also heard testimony from those persons describing the physical inaccessibility of local
courthouses. And its appointed task force heard numerous examples of their exclusion from state
judicial services and programs, including failure to make courtrooms accessible to witnesses with
physical disabilities. The sheer volume of such evidence far exceeds the record in last Term's
Nevada Dept. of Human Resources v. Hibbs, in which the Court approved the family-care leave
provision of the Family and Medical Leave Act of 1993 as valid §5 legislation. Congress' finding in
the ADA that “discrimination against individuals with disabilities persists in such critical areas as
access to public services,” together with the extensive record of disability discrimination that
underlies it, makes clear that inadequate provision of public services and access to public facilities
was an appropriate subject for prophylactic legislation. (2) Title II is an appropriate response to this
history and pattern of unequal treatment. Unquestionably, it is valid §5 legislation as it applies to
the class of cases implicating the accessibility of judicial services. Congress' chosen remedy for
the pattern of exclusion and discrimination at issue, Title II's requirement of program accessibility,
is congruent and proportional to its object of enforcing the right of access to the courts. The long
history of unequal treatment of disabled persons in the administration of judicial services has
persisted despite several state and federal legislative efforts to remedy the problem. Faced with
considerable evidence of the shortcomings of these previous efforts, Congress was justified in
concluding that the difficult and intractable problem of disability discrimination warranted added
prophylactic measures. The remedy Congress chose is nevertheless a limited one. Congress
required the States to take reasonable measures to remove architectural and other barriers to
accessibility. But Title II does not require States to employ any and all means to make judicial
services accessible or to compromise essential eligibility criteria for public programs. It requires
only “reasonable modifications” that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible for the service.
Ibid. Title II's implementing regulations make clear that the reasonable modification requirement
can be satisfied in various ways, including less costly measures than structural changes. This duty
to accommodate is perfectly consistent with the well-established due process principle that, within
the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard
in its courts. A number of affirmative obligations flow from this principle. Cases such as Boddie,
Griffin, and Gideon make clear that ordinary considerations of cost and convenience alone cannot
justify a State's failure to provide individuals with a meaningful right of access to the courts. Judged
against this backdrop, Title II's affirmative obligation to accommodate is a reasonable prophylactic
measure, reasonably targeted to a legitimate end.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Alaska offenses were service connected
within the meaning of O'Callahan and Relford
Solorio v. U.S.
483 U.S. 435
(1987)
Access to
Courts:
Military
Jurisdiction
A general court-martial was convened under the Uniform
Code of Military Justice (Code) in New York, where petitioner
was serving in the Coast Guard, to try him for the sexual
abuse of fellow coastguardsmen's minor daughters in his
privately owned home in Alaska during a prior tour of duty.
The Code empowers courts-martial to try servicemen for such
crimes. However, the court granted petitioner's motion to
dismiss on the ground that it lacked jurisdiction under
O'Callahan v. Parker, which held that a military tribunal may
not try a serviceman charged with a crime that has no “service
connection,” and Relford v. Commandant, which enumerated
numerous factors to be weighed in determining whether an
offense is service connected. The Coast Guard Court of
Military Review reversed the dismissal and reinstated the
charges, and the Court of Military Appeals affirmed,
concluding that the Alaska offenses were service connected
within the meaning of O'Callahan and Relford.
Held: Yes. Affirmed.
The jurisdiction of a court-martial depends solely on the
accused's status as a member of the Armed Forces, and not on
the “service connection” of the offense charged. Thus,
O'Callahan is overruled. The plain meaning of Art. I, §8, cl. 14,
of the Constitution-which grants Congress plenary power “to
make Rules for the Government and Regulation of the land and
naval Forces”-supports the military status test, as was held in
numerous decisions of this Court prior to O'Callahan.
O'Callahan's service connection test is predicated on the
Court's less-than-accurate reading of the history of court-martial
jurisdiction in England and in this country during the 17th and
18th centuries, which history is far too ambiguous to justify the
restriction on Clause 14's plain language which the Court
imported to it. Clause 14 answers concerns about the general
use of military courts for the trial of ordinary crimes by vesting in
Congress, rather than the Executive, authority to make rules for
military governance. The Clause grants Congress primary
responsibility for balancing the rights of servicemen against the
needs of the military, and Congress' implementation of that
responsibility is entitled to judicial deference. That civil courts
are “ill equipped” to establish policies regarding matters of
military concern is substantiated by the confusion evidenced in
military court decisions attempting to apply the service
connection approach, even after Relford.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §48 is substantially overbroad, and therefore invalid under the First Amendment.
United States v.
Stevens
Animal Abuse
559 U.S. ___
(2010)
Congress enacted 18 U.S.C. §48 to criminalize the
commercial creation, sale, or possession of certain depictions
of animal cruelty. The statute addresses only portrayals of
harmful acts, not the underlying conduct. It applies to any
visual or auditory depiction “in which a living animal is
intentionally maimed, mutilated, tortured, wounded, or killed,”
if that conduct violates federal or state law where “the
creation, sale, or possession takes place.” Another clause
exempts depictions with “serious religious, political, scientific,
educational, journalistic, historical, or artistic value.” The
legislative background of §48 focused primarily on “crush
videos,” which feature the torture and killing of helpless
animals and are said to appeal to persons with a specific
sexual fetish. Respondent Stevens was indicted under §48 for
selling videos depicting dogfighting. He moved to dismiss,
arguing that §48 is facially invalid under the First Amendment.
The District Court denied his motion, and Stevens was
convicted. The Third Circuit vacated the conviction and
declared §48 facially unconstitutional as a content-based
regulation of protected speech.
Held: Yes. Affirmed.
(a) Depictions of animal cruelty are not, as a class, categorically unprotected by the First
Amendment. Because §48 explicitly regulates expression based on content, it is “presumptively
invalid, and the Government bears the burden to rebut that presumption.” Since its enactment, the
First Amendment has permitted restrictions on a few historic categories of speech-including
obscenity, defamation, fraud, incitement, and speech integral to criminal conduct-that “have never
been thought to raise any Constitutional problem.” Depictions of animal cruelty should not be
added to that list. While the prohibition of animal cruelty has a long history in American law, there
is no evidence of a similar tradition prohibiting depictions of such cruelty. The Government's
proposed test would broadly balance the value of the speech against its societal costs to
determine whether the First Amendment even applies. But the First Amendment's free speech
guarantee does not extend only to categories of speech that survive an ad hoc balancing of
relative social costs and benefits. The Amendment itself reflects a judgment by the American
people that the benefits of its restrictions on the Government outweigh the costs.
(b) Stevens's facial challenge succeeds under existing doctrine. (1) In the First Amendment
context, a law may be invalidated as overbroad if “a substantial number of its applications are
unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Stevens claims that
common depictions of ordinary and lawful activities constitute the vast majority of materials subject
to §48. The Government does not defend such applications, but contends that the statute is
narrowly limited to specific types of extreme material. Section 48's constitutionality thus turns on
how broadly it is construed. (2) Section 48 creates a criminal prohibition of alarming breadth. The
statute's definition of a “depiction of animal cruelty” does not even require that the depicted
conduct be cruel. While the words “maimed, mutilated, and tortured” convey cruelty, “wounded”
and “killed” do not. Those words have little ambiguity and should be read according to their
ordinary meaning. Section 48 does require that the depicted conduct be “illegal,” but many federal
and state laws concerning the proper treatment of animals are not designed to guard against
animal cruelty. For example, endangered species protections restrict even the humane wounding
or killing of animals. The statute draws no distinction based on the reason the conduct is made
illegal. Moreover, §48 applies to any depiction of conduct that is illegal in the State in which the
depiction is created, sold, or possessed, “regardless of whether the wounding or killing took place”
there. Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find
their way into States where the same conduct is unlawful. This greatly expands §48's scope,
because views about animal cruelty and regulations having no connection to cruelty vary widely
from place to place. Hunting is unlawful in the District of Columbia, for example, but there is an
enormous national market for hunting-related depictions, greatly exceeding the demand for crush
videos or animal fighting depictions. Because the statute allows each jurisdiction to export its laws
to the rest of the country, § 48(a) applies to any magazine or video depicting lawful hunting that is
sold in the Nation's Capital. Those seeking to comply with the law face a bewildering maze of
regulations from at least 56 separate jurisdictions. (3) Limiting §48's reach to crush videos and
depictions of animal fighting or other extreme cruelty, as the Government suggests, requires an
unrealistically broad reading of the statute's exceptions clause. The statute only exempts material
with “serious” value, and “serious” must be taken seriously. The excepted speech must also fall
within one of §48(b)'s enumerated categories. Much speech does not. For example, most hunting
depictions are not obviously instructional in nature. The exceptions clause simply has no adequate
reading that results in the statute's banning only the depictions the Government would like to ban.
Although the language of §48(b) is drawn from the Court's decision in Miller v. California, the
exceptions clause does not answer every First Amendment objection. Under Miller, “serious” value
shields depictions of sex from regulation as obscenity. But Miller did not determine that serious
value could be used as a general precondition to protecting other types of speech in the first place.
Even “wholly neutral futilities come under the protection of free speech.” The First Amendment
presumptively extends to many forms of speech that do not qualify for §48(b)'s serious-value
exception, but nonetheless fall within §48(c)'s broad reach. (4) Despite the Government's
assurance that it will apply §48 to reach only “extreme” cruelty, this Court will not uphold an
unconstitutional statute merely because the Government promises to use it responsibly. Nor can
the Court construe this statutory language to avoid constitutional doubt. A limiting construction can
be imposed only if the statute “is ‘readily susceptible’ to such a construction.” To read §48 as the
Government desires requires rewriting, not just reinterpretation. (5) This construction of §48
decides the constitutional question. The Government makes no effort to defend §48 as applied
beyond crush videos and depictions of animal fighting. It argues that those particular depictions are
intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene),
and that the ban on such speech would satisfy the proper level of scrutiny. But the Government
nowhere extends these arguments to other depictions, such as hunting magazines and videos,
that are presumptively protected by the First Amendment but that remain subject to §48. Nor does
the Government seriously contest that these presumptively impermissible applications of §48 far
outnumber any permissible ones. The Court therefore does not decide whether a statute limited to
crush videos or other depictions of extreme animal cruelty would be constitutional. Section 48 is
not so limited but is instead substantially overbroad, and therefore invalid under the First
Amendment.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Respondent make seek federal habeas relief.
Middleton v.
McNeil
541 U.S. 433
(2004)
Battered
Women’s
Syndrome:
Jury Instruction
Respondent Sally Marie McNeil killed her husband after an
argument over his infidelity and spending habits. The State of
California charged her with murder. Respondent's theory at
trial was that her husband had tried to strangle her during the
argument, but that she had escaped, fetched a shotgun from
the bedroom, and killed him out of fear for her life. Fingernail
marks were indeed found on her neck after the shooting. She
testified that her husband had been abusive, and a defense
expert opined that she suffered from Battered Women's
Syndrome. The State countered with forensic evidence
showing that the fingernail marks were not her husband's and
may have been self-inflicted, and with the testimony of a 911
operator who overheard respondent tell her husband she had
shot him because she would no longer tolerate his behavior.
Respondent was convicted of second-degree murder and
appealed on the basis of the erroneous jury instruction. The
California Court of Appeal acknowledged the error but upheld
her conviction. Respondent then sought federal habeas relief.
The District Court denied her petition, but the Ninth Circuit
reversed.
Held: Yes. Reversed.
A federal court may grant habeas relief to a state prisoner if a state court's
adjudication of his constitutional claim was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States. Where, as here, the state court's
application of governing federal law is challenged, it must be shown to be not
only erroneous, but objectively unreasonable. In a criminal trial, the State must
prove every element of the offense, and a jury instruction violates due process if
it fails to give effect to that requirement. Nonetheless, not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due
process violation. The question is “‘whether the ailing instruction so infected the
entire trial that the resulting conviction violates due process.” A single instruction
to a jury may not be judged in artificial isolation, but must be viewed in the
context of the overall charge. If the charge as a whole is ambiguous, the
question is whether there is a “reasonable likelihood that the jury has applied
the challenged instruction in a way’ that violates the Constitution.”
The Ninth Circuit held that the erroneous imminent-peril instruction
“eliminated” respondent's imperfect self-defense claim, and that the state court
unreasonably applied federal law by “completely ignoring unchallenged and
uncorrected instructions to the jury.” It acknowledged that it was bound to
consider the jury charge as a whole, but held that the other instructions were
irrelevant because “the only time that the trial judge actually defined imminent
peril for the jury was in the erroneous instruction on imperfect self-defense.” This
conclusion failed to give appropriate deference to the state court's decision.
Contrary to the Ninth Circuit's description, the state court did not “ignore” the
faulty instruction. It merely held that the instruction was not reasonably likely to
have misled the jury given the multiple other instances where the charge
correctly stated that respondent's belief could be unreasonable. Given three
correct instructions and one contrary one, the state court did not unreasonably
apply federal law when it found that there was no reasonable likelihood the jury
was misled. The Ninth Circuit thought that the other references to
unreasonableness were irrelevant because they were not part of the definition of
“imminent peril.” That alone does not make them irrelevant; whether one defines
imminent peril in terms of an unreasonable belief or instead describes imperfect
self-defense as allowing an unreasonable belief in imminent peril, the import of
the instruction is the same. Perhaps the Ninth Circuit reasoned that the
erroneous definition of “imminent peril” caused the jury to believe that the
earlier, correct instructions (“actual but unreasonable belief in the necessity to
defend against imminent peril”) meant that, although the belief in the necessity
to defend may be unreasonable, the belief in the existence of the “imminent
peril” may not. This interpretation would require such a rare combination of
extremely refined lawyerly parsing of an instruction, and extremely gullible
acceptance of a result that makes no conceivable sense, that the state court's
implicit rejection of the possibility was surely not an unreasonable application of
federal law.
The Ninth Circuit also faulted the state court for relying on the prosecutor's
argument, noting that instructions from a judge are presumed to have more
influence than arguments of counsel. But this is not a case where the jury
charge clearly says one thing and the prosecutor says the opposite; the
instructions were at worst ambiguous because they were internally inconsistent.
Nothing in Boyde precludes a state court from assuming that counsel's
arguments clarified an ambiguous jury charge. This assumption is particularly
apt when it is the prosecutor's argument that resolves an ambiguity in favor of
the defendant.
Case
Moran v. Ohio
469 U.S. 948
(1984)
Subject
Facts
Battered
Women’s
Syndrome:
Jury Instruction
Petitioner was convicted by an Ohio jury of the murder of her
husband Willie Moran. She asserted at trial that she had acted in
self-defense, as a result of the repeated and brutal beatings she had
suffered at her husband's hands. There was substantial testimony at
petitioner's trial that her husband-a man of violent temperament who
virtually always carried firearms and owned a collection of pistols,
rifles, and shotguns-had repeatedly beaten and brutalized her. For
example, in one incident, Willie Moran “had her by the neck, by the
throat, and he was hitting” her with a gun. In another incident, Willie
Moran “hit her and knocked her off the chair and, then, kicked her.”
Petitioner's mother testified that earlier in the very week in which the
murder occurred she saw Willie Moran “hit petitioner and knocked
her on the floor, and I seen him take his feet and was kicking her.”
On May 15, 1981, petitioner and Willie Moran had their last fight.
According to petitioner's testimony, Willie Moran had told her that he
wanted some money that he thought she had saved. He threatened
that if petitioner did not have the money for him by the time he woke
up from a nap, he would “blow [her] damn brains out.” Petitioner, who
did not have the money, unsuccessfully called a friend for help. Then,
realizing that she had no way of raising the necessary funds, she
entered the camper where Willie Moran was sleeping, picked up his
gun, and fatally shot him.
At trial, petitioner pleaded not guilty, asserting that the killing was
done in self-defense. Petitioner's theory at trial was that she was a
victim of battered woman's syndrome. Descriptions of this syndrome
emphasize the husband's repeated and violent beatings and the
wife's dependency-economic and emotional-that make it practically
impossible for her to leave. When faced with an immediate threat,
victims may be driven to take the lives of their mates as the only
possible method of escaping the threat. Although traditional selfdefense theory may seem to fit the situation only imperfectly, the
battered woman's syndrome as a self-defense theory has gained
increasing support over recent years. The jury at petitioner's trial was
instructed: “The burden of proving the defense of self-defense is
upon the defendant. She must establish such defense by a
preponderance of the evidence.” Petitioner made a timely objection
to the instructions on the ground that they unconstitutionally placed
the burden of proof on her, rather than on the State. The trial court
overruled the objection and the jury returned a verdict of guilty of
aggravated murder. The Court of Appeals of the County of Cuyahoga
affirmed the conviction and the Ohio Supreme Court dismissed the
appeal “for the reason that no substantial constitutional question
exists.” Petitioner seeks a writ of certiorari to vindicate her Fourteenth
Amendment right to have the State bear the burden of proof in a
criminal prosecution. She seeks certiorari to review the state
appellate court's holding that the jury properly was instructed that she
had the burden of proving self-defense by a preponderance of the
evidence. According to petitioner, the Due Process Clause forbids
the State to punish her for murder when the jury that convicted her
may well have thought it as likely as not that she acted in selfdefense.
Issue Presented and Holding
Issue: Whether the jury properly was instructed that Petitioner
had the burden of proving self-defense by a preponderance of
the evidence.
Held: Petition for writ of certiorari denied.
Case
Mott v. Arizona
520 U.S. 1234
(1983)
Subject
Battered
Women’s
Syndrome:
Admission of
Evidence
Facts
Mott went to the home of a friend, Erin Scott, leaving her two
children with her boyfriend, Vincent Bert Near. Mott returned and
found Near fanning her two-year-old child, Sheena, who was lying
in bed. Near told Mott that Sheena had fallen off the toilet and
struck her head. A mutual friend, Hank Gnatowsky, visited Near
and Mott at their home and made three offers to take Sheena to
the hospital. Near refused each time, and when Gnatowsky
attempted to talk to Mott about it, Near shouted, “I told you twice,
‘no.’ Do I have to come out and tell you again?” Mott made no
response. The child died a week later. An autopsy established the
cause of death as multiple blows to the head. Tucson police
obtained three statements from Mott after Sheena was taken to
the hospital. He testified that Mott was softspoken, she made little
eye contact, and her head was down. Mott told police that Near
had begun abusing Sheena in May 1990 when they moved to
Tucson. Although Mott said she had only seen Near hit Sheena
on the bottom, she admitted seeing bruises and slap marks on
her body, dressing her to hide the bruises from others, and asking
Near about the marks on five or six occasions. When asked why
she did not report Near, Mott stated that she did not know who to
tell and that she did not want Near to be taken away. Mott and
Near were arrested for child abuse.
Prior to trial, Mott notified the state of her intent to raise the
battered woman syndrome, disclosing Dr. Cheryl Karp as the
expert who would testify about it. Mott conceded that she could
not raise the syndrome as a defense, but claimed that Karp's
testimony about Mott's history of abuse was admissible “to rebut
the State's evidence concerning her state of mind.” Karp testified
about “learned helplessness” or the passive acceptance of abuse,
development of a “traumatic bond” that impedes the woman's
ability to stand up to the batterer, fear of male authority figures,
lying to protect the batterer, and inability to accurately perceive
danger and to protect herself and others from it.
Nevertheless, Mott was convicted by a jury of felony child
abuse and sentenced to three terms of imprisonment, the longest
being a mandatory term of thirty-five years on the murder count.
On appeal, Mott contends that the trial court committed reversible
error by excluding expert testimony that she suffered from
“battered woman syndrome,” refusing to instruct the jury on the
element of “proximate cause” necessary to commit felony murder,
admitting evidence of her alleged other bad acts, and advising the
venire members that the state was not seeking the death penalty
in this case. Mott further argues that her punishment violates both
the United States Constitution and state law because it is cruel
and unusual and excessive. The state supreme court was
persuaded that the preclusion of Mott's proferred battered woman
syndrome evidence constituted a denial of due process, reversed
and remanded for a new trial.
Issue Presented and Holding
Issue: Whether the preclusion of Mott's proferred battered
woman syndrome evidence constituted a denial of due process.
Held: Petition for writ of certiorari denied.
Case
Neelley v.
Alabama
488 U.S. 1020
(1989)
Subject
Battered
Women’s
Syndrome:
Introduction of
Evidence
Facts
Petitioner Judith Ann Neelley was convicted of the capital
offense of murder during a kidnapping. She did not deny that
she had kidnapped and killed the victim. She testified,
however, that she had acted at the direction and under the
control of her husband, Alvin Neelley, who, petitioner
contended, had physically and sexually abused her. Petitioner
claimed that she was willing to do anything to avoid further
abuse. A clinical psychologist who had examined Neelley
testified that she “probably fits the battered women's
syndrome to the most severe extent that she had seen.” The
psychologist noted that “Alvin's mental state was substituted”
for petitioner's so that she had “no intents of her own.”
To substantiate her defense further, petitioner's attorney
sought disclosure of evidence seized by investigators from her
mobile home-in particular, several letters petitioner sent to her
husband. These letters contained references to her husband's
“hypnotizing eyes” and the fact that petitioner had been
hearing her husband's voice by mental telepathy. One letter
also contained the suggestion that petitioner believed her
letters might lead her husband to kill her. The prosecution
denied that it had such letters and the trial court denied
petitioner's request. The jury subsequently imposed a
sentence of life without parole. Although the trial judge found
that petitioner “was substantially influenced by her husband,”
he overruled the jury and sentenced petitioner to death.
After petitioner's conviction and sentence were affirmed on
direct appeal, her attorney learned that the investigator who
had seized the letters did not deliver them to the appropriate
law enforcement officials. Petitioner then filed a motion for
relief from conviction and sentence, contending that the
State's failure to disclose the seized evidence violated her due
process rights. As a preliminary matter, a state court found
that the investigator's failure to disclose the letters could be
imputed to the prosecutor. After reviewing the letters,
however, the court concluded that “there is no reasonable
probability that any of the evidence would have altered either
the guilt or punishment stage of petitioner's trial.”
Issue Presented and Holding
Issue: Whether the nondisclosure of evidence favorable to a
capital defendant at the sentencing phase raises serious due
process, Eighth and Fourteenth Amendments concerns.
Held: The petition for a writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether petitioner’s can make a claim under §1983 or
an implied cause of action for private enforcement.
Suter v. Artist
M.
503 U.S. 347
(1992)
Child Abuse:
Child Protective
Services
The Adoption Assistance and Child Welfare Act of 1980
provides that a State will be reimbursed by the Federal
Government for certain expenses it incurs in administering
foster care and adoption services, if it submits a plan for
approval by the Secretary of Health and Human Services.
Among its requisite features, an approved plan must provide
that it “shall be in effect in all” of a State's political subdivisions
and “be mandatory upon them,” and that “reasonable efforts
will be made” to prevent removal of children from their homes
and to facilitate reunification of families where removal has
occurred. Respondents, child beneficiaries of the Act, sought
declaratory and injunctive relief, alleging that petitioners, the
Director and the Guardianship Administrator of the Illinois
agency responsible for investigating charges of child abuse
and neglect and providing services for abused and neglected
children and their families, had failed to make reasonable
efforts to preserve and reunite families, in contravention of
§671(a)(15). The District Court denied petitioners' motion to
dismiss, holding, inter alia, that the Act contained an implied
cause of action and that suit could also be brought under 42
U.S.C. §1983. The court entered an injunction against
petitioners, and the Court of Appeals affirmed. That court
relied on Wilder v. Virginia Hospital Assn. to hold that the
“reasonable efforts” clause of the Act could be enforced
through a §1983 action, and applied the standard of Cort v.
Ash to find that the Act created an implied right of action
entitling respondents to bring suit directly under the Act.
Held: No. Reversed.
1. Section 671(a)(15) does not confer on its beneficiaries a
private right enforceable in a §1983 action. (a) Section 1983 is
not available to enforce a violation of a federal statute where
Congress has foreclosed enforcement in the enactment itself
and “where the statute did not create enforceable rights,
privileges, or immunities within the meaning of §1983.”
Congress must confer such rights unambiguously when it
intends to impose conditions on the grant of federal moneys.
Thus, statutory provisions must be analyzed in detail, in light of
the entire legislative enactment, to determine whether the
language in question created rights within the meaning of
§1983. (b) Congress did not unambiguously confer upon the
Act's beneficiaries the right to enforce the “reasonable efforts”
requirement. The Act is mandatory only insofar as it requires a
State to have an approved plan containing the listed features;
and it is undisputed that the Illinois plan provides that
reasonable efforts at prevention and reunification will be made.
Respondents err in basing their §1983 argument, in part, on
§671(a)(3)' “in effect” language, which is directed to the
requirement that the plan apply to all of a State's political
subdivisions and is not intended to otherwise modify the word
“plan.” Unlike the Medicaid legislation in Wilder, supra -which
actually required the States to adopt reasonable and adequate
reimbursement rates for health care providers and which, along
with regulations, set forth in some detail the factors to be
considered in determining the methods for calculating rateshere, the statute provides no further guidance as to how
“reasonable efforts” are to be measured, and, within broad
limits, lets the State decide how to comply with the directive.
Since other sections of the Act provide mechanisms for the
Secretary to enforce the “reasonable efforts” clause, the
absence of a §1983 remedy does not make the clause a dead
letter. The regulations also are not specific and provide no
notice that failure to do anything other than submit a plan with
the requisite features is a further condition on the receipt of
federal funds. And the legislative history indicates that the Act
left a great deal of discretion to the States to meet the
“reasonable efforts” requirement.
2. The Act does not create an implied cause of action for
private enforcement. Respondents have failed to demonstrate
that Congress intended to make such a remedy available.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the admission of the challenged evidence nor the
jury instruction as to its use rises to the level of a due process
violation.
Estelle v.
McGuire
502 U.S. 62
(1991)
Child Abuse:
Battered Child
Syndrome
Respondent McGuire was found guilty in a California state
court of the second-degree murder of his infant daughter, Tori.
Among the prosecution's witnesses were two physicians, who
testified that Tori was a battered child who had suffered prior
injuries. The battered child testimony revealed evidence of
rectal tearing, which was at least six weeks old, and evidence
of partially healed rib fractures, which were approximately
seven weeks old. The trial court instructed the jury that the
prior injury evidence could be considered for “the limited
purpose of determining if it tends to show a clear connection
between the other two offenses and the one of which
[McGuire] is accused, so that it may be logically concluded
that if the Defendant committed other offenses, he also
committed the crime charged in this case.” The State Court of
Appeal upheld the conviction, finding that the introduction of
prior injury evidence was proper under state law to prove
“battered child syndrome,” which exists when a child has
sustained repeated and/or serious injuries by nonaccidental
means. Subsequently, the Federal District Court denied
McGuire's petition for habeas corpus. The Court of Appeals
reversed, concluding that the trial was arbitrary and
fundamentally unfair in violation of due process. It ruled that
the prior injury evidence was erroneously admitted to establish
battered child syndrome, because there was no evidence
linking McGuire to the prior injuries and no claim made at trial
that Tori died accidently, and that the jury instruction on the
use of prior act evidence allowed a finding of guilt based
simply on a judgment that he committed the prior acts.
Held: No. Reversed.
(a) The prior injury evidence, although not linked to McGuire
himself, was probative on the question of the intent with which the
person who caused Tori's injuries acted, since it demonstrated that
her death was the result of an intentional act by someone, and not
an accident. The fact that no claim that Tori died accidentally was
made at trial did not relieve the prosecution of its burden to prove
all of the essential elements of second-degree murder beyond a
reasonable doubt. By eliminating the possibility of accident, the
evidence was clearly probative of such an element: that the killing
was intentional. It was also improper for Court of Appeals to base
its holding on its conclusion that the evidence was incorrectly
admitted, since it’s not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.
(b) The Court of Appeals erred in concluding that the instruction
allowed the jury to consider the prior injury evidence for more than
simply proof of battered child syndrome. The instruction's language
forecloses McGuire's claim that the jury was directed to find that he
had committed the prior acts. The trial court's inclusion of the words
“if the Defendant committed other offenses” unquestionably left it to
the jury to determine whether he committed the prior acts and to
use the evidence in deciding his guilt only if it believed that he had
committed those acts. To the extent that the jury may have
believed that he inflicted the prior injuries, there was sufficient
evidence in the record to support that conclusion. Also rejected is
McGuire's argument that, even if the determination of the
perpetrator was left to the jury, the instruction was a propensity
instruction, allowing the jury to base its determination of guilt in part
upon the conclusion that McGuire had committed the prior acts and
therefore had a disposition to commit this type of crime. While the
instruction was ambiguous, there is no “reasonable likelihood” that
the jury would have concluded that it, read in the context of other
instructions, authorized the use of propensity evidence. It seems far
more likely that the jury understood the instruction to mean that if it
found a “clear connection” between the prior and instant injuries,
and if it found that McGuire had committed the prior injuries, then it
could use that fact in determining that he committed the crime
charged. This parallels the use of prior act evidence for the purpose
of showing intent, identity, motive, or plan. More importantly, the
court specifically guarded against possible misuse by advising the
jury that the prior injury evidence, if believed, could not be
considered to prove that McGuire was “a person of bad character
or that he had a disposition to commit crimes.” Neither the belief
that the instruction violated state law nor a belief that the trial judge
incorrectly interpreted the state evidence code is a ground for
federal habeas relief.
Case
Cavazos v.
Smith
___ U.S. ___
(2011)
Subject
Facts
Child Abuse:
Cause of Death
Evidence
This case concerns the death of 7–week–old Etzel Glass. On November 29, 1996, Etzel's
mother, Tomeka, put Etzel to sleep on a sofa before going to sleep herself in another room.
Respondent Shirley Ree Smith—Tomeka's mother—slept on the floor next to Etzel. Several
hours later, Smith ran into Tomeka's room, holding Etzel, who was limp, and told her that
“something was wrong with Etzel.” By the time emergency officials arrived, Etzel was not
breathing and had no heartbeat. Smith reported that she thought Etzel had fallen off the sofa.
The officials' efforts to resuscitate Etzel failed. Doctors initially attributed Etzel's death to sudden
infant death syndrome (SIDS), the customary diagnosis when an infant shows no outward signs
of trauma. But after an autopsy, the coroner concluded that the cause of death was instead
shaken baby syndrome (SBS). When a social worker informed Smith of that finding, Smith told
her that Etzel had not responded to her touch while sleeping, so she had picked him up and
given him “a little shake, a jostle” to wake him. According to the social worker, Smith then said
something to the effect of, “Oh, my God. Did I do it? Did I do it? Oh, my God.” In an interview
with the police a few days later, Smith said that she had shaken Etzel, but then she corrected
herself and said that she had twisted him to try to elicit a reaction. Smith was arrested and
charged with assault on a child resulting in death. At trial, the jury heard seven days of expert
medical testimony on the cause of Etzel's death. The prosecution offered three experts, each of
whom attested that Etzel's death was the result of SBS—not SIDS, as the defense contended.
The first expert, Dr. Eugene Carpenter, was the medical examiner for the Los Angeles County
Coroner who had supervised Etzel's autopsy. Dr. Carpenter is board certified in forensic,
anatomic, and clinical pathology. He testified that Etzel's autopsy revealed recent hemorrhages
in the brain, and he opined that the bleeding and other features of Etzel's pathology, including a
bruise and abrasion on the lower back of the baby's head, were consistent with violent shaking.
Dr. Carpenter identified two means by which shaking can result in a baby's death: The first is
that the shaking causes blood vessels in the brain to tear, creating a pool of blood that pushes
the brain downward into the spinal canal, resulting in death but little direct damage to the brain.
The second is that the shaking itself is sufficiently severe that the brain directly tears in vital
areas, causing death with very little bleeding. Dr. Carpenter testified that Etzel's injuries were
consistent with the latter pathology. He also explained that the injuries could not be attributed to
either a fall from the sofa or the administration of cardiopulmonary resuscitation. Nor, according
to Dr. Carpenter, was it possible that Etzel perished from SIDS, given the signs of internal
trauma. Dr. Carpenter did testify, however, that while SBS victims often suffer retinal
hemorrhaging, Etzel's autopsy revealed no such injury. The prosecution's second expert, Dr.
Stephanie Erlich, was the associate deputy medical examiner who actually performed Etzel's
autopsy. She is board certified in anatomic pathology and neuropathology. She corroborated Dr.
Carpenter's testimony about the autopsy findings, and added that a followup neuropathological
examination of Etzel's brain confirmed the existence of recent hemorrhaging. Noting only a
minimal amount of new blood in Etzel's brain, she testified that the cause of death was direct
trauma to the brainstem. On cross-examination, she agreed with defense counsel that retinal
hemorrhaging (absent in Etzel's case) is present in 75 to 80 percent of SBS cases. The third
prosecution expert, Dr. David Chadwick, is board certified in pediatrics and the author of articles
on childhood death by abusive trauma. He testified that Etzel's injuries were consistent with
SBS and that old trauma could not have been the cause of the child's death. The defense called
two experts to dispute these conclusions. The first, pathologist Dr. Richard Siegler, testified that
Etzel died from brain trauma, but that it was not the result of SBS, given the lack of retinal
hemorrhaging. He admitted on cross-examination, however, that an absence of retinal
hemorrhaging does not exclude a finding of SBS. He also acknowledged that he did not believe
the cause of Etzel's death was SIDS. According to Dr. Siegler, Etzel died from old trauma, an
opinion he reached on the basis of studying photographs of the neuropathological examination.
The other defense expert, pediatric neurologist Dr. William Goldie, testified that Etzel's death
was due to SIDS. He noted that Etzel was born with jaundice, a heart murmur, and low birth
weight—making him more susceptible to SIDS. Dr. Goldie testified that pathologists had not
been able to determine the cause of Etzel's death and that the bleeding could be attributed to
the resuscitation efforts.
The jury found Smith guilty. Concluding that the jury “carefully weighed” the “tremendous
amount of evidence” supporting the verdict, the trial judge denied Smith's motion for a new trial
and sentenced her to an indeterminate term of 15 years to life in prison. On direct review, Smith
contended that the evidence was not sufficient to establish that Etzel died from SBS. After
thoroughly reviewing the competing medical testimony, the California Court of Appeal rejected
this claim, concluding: “The expert opinion evidence we have summarized was conflicting. It
was for the jury to resolve the conflicts. The credited evidence was substantial and sufficient to
support the jury's conclusions that Etzel died from shaken baby syndrome. The conviction is
supported by substantial evidence.” The California Supreme Court denied review. On appeal,
the Ninth Circuit reversed with instructions to grant the writ. Despite the plentitude of expert
testimony in the trial record concluding that sudden shearing or tearing of the brainstem was the
cause of Etzel's death, the Ninth Circuit determined that there was “no evidence to permit an
expert conclusion one way or the other” on that question because there was “no physical
evidence of tearing or shearing, and no other evidence supporting death by violent shaking.”
The court said that the State's experts “reached their conclusion because there was no
evidence in the brain itself of the cause of death.” The court concluded that because “absence
of evidence cannot constitute proof beyond a reasonable doubt,” the California Court of Appeal
had “unreasonably applied” this Court's opinion in Jackson v. Virginia in upholding Smith's
conviction.
Issue Presented and Holding
Issue: Whether the prosecution's or the defense's expert witnesses more
persuasively explained the cause of a death.
Held: No. Reversed.
The opinion of the Court in Jackson v. Virginia makes clear that it is the
responsibility of the jury—not the court—to decide what conclusions should
be drawn from evidence admitted at trial. A reviewing court may set aside
the jury's verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury. What is more, a federal court
may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the
state court. The federal court instead may do so only if the state court
decision was “objectively unreasonable.” Because rational people can
sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.
The jury was presented with competing views of how Etzel died. It was
made aware of the various experts' qualifications and their familiarity with
both the subject of SBS and the physical condition of Etzel's body. It
observed the attorneys for each party cross-examine the experts and elicit
concessions from them. The State's experts, whom the jury was entitled to
believe, opined that the physical evidence was consistent with, and best
explained by, death from sudden tearing of the brainstem caused by
shaking. The Ninth Circuit's assertion that these experts “reached [their]
conclusion because there was no evidence in the brain itself of the cause of
death” is simply false. There was “evidence in the brain itself.” The autopsy
revealed indications of recent trauma to Etzel's brain, such as subdural and
subarachnoid hemorrhaging, hemorrhaging around the optic nerves, and
the presence of a blood clot between the brain's hemispheres. The autopsy
also revealed a bruise and abrasion on the lower back of Etzel's head.
These affirmative indications of trauma formed the basis of the experts'
opinion that Etzel died from shaking so severe that his brainstem tore.
Defense counsel made certain that the jury understood that the
prosecution's experts were unable to identify the precise point of tearing
itself. But as Judge Bea noted in his dissent from the Ninth Circuit's denial
of rehearing en banc, the experts explained why the location of the tear
was undetectable: “Etzel's death happened so quickly that the effects of the
trauma did not have time to develop.” According to the prosecutions'
experts, there was simply no opportunity for swelling to occur around the
brainstem before Etzel died. In light of the evidence presented at trial, the
Ninth Circuit plainly erred in concluding that the jury's verdict was irrational,
let alone that it was unreasonable for the California Court of Appeal to think
otherwise. Doubts about whether Smith is in fact guilty are understandable.
But it is not the job of this Court, and was not that of the Ninth Circuit, to
decide whether the State's theory was correct. The jury decided that
question, and its decision is supported by the record. The dissent's review
of the evidence presented to the jury over seven days is precisely the sort
of reweighing of facts that is precluded by Jackson v. Virginia, and precisely
the sort of second-guessing of a state court decision applying Jackson that
is precluded by AEDPA, §2254(d). The dissent's views on how “adamantly”
experts would testify today as opposed to at the time of trial are of course
pure speculation, as would be any views on how a jury would react to less
adamant testimony.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Monell's “policy or custom” requirement applies
in §1983 cases irrespective of whether the relief sought is
monetary or prospective.
Los Angeles
County v.
Humphries
505 U.S. 833
(1992)
Child Abuse:
Child Abuse
Index
The Humphries (hereinafter respondents) were accused of
child abuse in California, but were later exonerated. However,
under California law, their names were added to a Child
Abuse Central Index (Index), where they would remain
available to various state agencies for at least 10 years. The
statute has no procedures for allowing individuals to challenge
their inclusion in the Index, and neither California nor Los
Angeles County has created such procedures. Respondents
filed suit under §1983, seeking damages, an injunction, and a
declaration that public officials and petitioner Los Angeles
County had deprived them of their constitutional rights by
failing to create a mechanism through which they could
contest inclusion in the Index. The District Court granted the
defendants summary judgment, but the Ninth Circuit
disagreed, holding that the Fourteenth Amendment required
the State to provide those on the list with notice and a hearing,
and thus respondents were entitled to declaratory relief. The
court also held that respondents were prevailing parties
entitled to attorney's fees, including $60,000 from the county.
The county objected, claiming that as a municipal entity, it was
liable only if its “policy or custom” caused the deprivation of a
plaintiff's federal right; but a state policy caused any
deprivation here. The Ninth Circuit, inter alia, found that
respondents did prevail against the county on their claim for
declaratory relief because Monell did not apply to prospective
relief claims.
Held: Yes. Reversed and remanded.
(a) In Monroe v. Pape, this Court based its holding that
municipal entities were not “persons” under §1983 on the
provision's legislative history, particularly Congress' rejection of
the so-called Sherman amendment, which would have made
municipalities liable for damages done by private persons
“riotously and tumultuously assembled.” Reexamining this
legislative history in Monell, the Court overruled Monroe. It
concluded that Congress had rejected the Sherman
amendment, not because it would have imposed liability on
municipalities, but because it would have imposed such liability
solely based on the acts of others. The Court, on the basis of
the statutory text and the legislative history, went on to explain
what acts are the municipality's own for purposes of liability. The
Court held that “a municipality cannot be held liable” solely for
the acts of others, e.g., “solely because it employs a tortfeasor,”
but it may be held liable “when execution of a government's
policy or custom inflicts the injury.”
(b) Section 1983, read in light of Monell's understanding of the
legislative history, explains why claims for prospective relief, like
claims for money damages, fall within the scope of the “policy or
custom” requirement. Nothing in §1983 suggests that the
causation requirement should change with the form of relief
sought. In fact, the text suggests the opposite when it provides
that a person who meets §1983's elements “shall be liable in an
action at law, suit in equity, or other proper proceeding for
redress.” Thus, as Monell explicitly stated, “local governing
bodies can be sued directly under §1983 for monetary,
declaratory, or injunctive relief where, as here, the action that is
alleged to be unconstitutional implements or executes” a policy
or custom. To find the “policy or custom” requirement
inapplicable in prospective relief cases would also undermine
Monell's logic. For whether an action or omission is a
municipality's own has to do with the nature of the action or
omission, not with the nature of the relief later sought in court.
Case
Moore v. Sims
442 U.S. 415
(1979)
Subject
Child Abuse:
Child Protective
Services
Facts
When school authorities reported suspected abuse of one of
adult appellees' children to the Texas Department of Human
Resources (Department), the Department took temporary
custody of all three of appellees' minor children and instituted
suit in the Harris County, Tex., Juvenile Court for their
emergency protection under Title 2 of the Texas Family Code.
The Juvenile Court entered an emergency ex parte order
giving temporary custody to the Department. Appellees then
filed a motion to modify the ex parte order, but when they
were unable to obtain an immediate hearing, they filed a
habeas corpus petition in Harris County rather than renewing
the motion or appealing the ex parte order. The Harris County
court ultimately entered an order transferring venue to the
Montgomery County Juvenile Court, and at the Harris County
judge's direction the Department filed another suit, which was
also transferred to Montgomery County, while temporary
custody of the children was continued in the Department.
Rather than attempting to expedite a hearing in the
Montgomery County court, appellees filed an action in Federal
District Court, broadly challenging the constitutionality of the
interrelated parts of Title 2's statutory scheme defining the
contours of the parent-child relationship and the permissible
areas and modes of state intervention. The District Court
denied appellees a temporary restraining order, but later held
that the state court's temporary orders had expired and that
the children had to be returned to their parents. The
Department then filed a new suit in the Montgomery County
court, which issued a show-cause order and writ of
attachment ordering that the child suspected of being abused
be delivered to the temporary custody of his grandparents.
Appellees countered by filing in the Federal District Court a
second application for a temporary restraining order
addressed to the Montgomery County Juvenile Court and this
was granted. A three-judge District Court thereafter
preliminarily enjoined the Department and other defendants
from filing or prosecuting any state suit under the challenged
state statutes until a final determination by the three-judge
court. Subsequently, this determination was made, the court
concluding that abstention under the doctrine of Younger v.
Harris, was unwarranted because the litigation was
“multifaceted, involved custody of children, and was the
product of procedural confusion in the state courts, and
thereafter addressing the merits of the constitutional
challenges.
Issue Presented and Holding
Issue: Whether the Federal District Court should have abstained under the doctrine
of Younger v. Harris, which reflects a strong policy against federal intervention in
state judicial processes in the absence of great and immediate irreparable injury to
the federal plaintiff.
Held: Yes. Reversed and Remanded
In light of the pending state proceedings, the Federal District Court should not have
exercised its jurisdiction but should have abstained under the doctrine of Younger v.
Harris, supra, which, in counseling federal-court abstention when there is a pending
state proceeding, reflects a strong policy against federal intervention in state judicial
processes in the absence of great and immediate irreparable injury to the federal
plaintiff.
(a) The basic concern-the threat to our federal system posed by displacement of
state courts by those of the National Government-is applicable not only to state
criminal proceedings but also to civil proceedings in which important state interests
are involved. As was the case in Huffman, the State here was a party to the state
proceedings, and the temporary removal of a child in the child-abuse context is, like
the public nuisance statute involved in Huffman, “in aid of and closely related to
criminal statutes.”
(b) While the District Court's reference to the litigation as being “multifaceted” as a
reason for refusing abstention is unclear, it appears that this reference meant either
that the appellees' constitutional challenge could not have been raised in the pending
state proceedings, or that, in view of the breadth of such challenge, abstention was
inappropriate. However, with respect to the pertinent inquiry whether the state
proceedings afford an adequate opportunity to raise the constitutional claims, Texas
law appears to raise no procedural barriers. And the breadth of a challenge to a
complex state statutory scheme has traditionally militated in favor of abstention, not
against it.
(c) There are three distinct considerations that counsel abstention when broadbased challenges are made to state statutes. First is the concern of Railroad Comm'n
v. Pullman Co., that a federal court will be forced to interpret state law without the
benefit of state-court consideration and therefore under circumstances where a
constitutional determination is predicated on a reading of the statute that is not
binding on state courts and may be discredited at any time, such dangers increasing
with the breadth of the challenge. Second is the need for a concrete case or
controversy, a concern also enhanced by the scope of the challenge and one that is
demonstrated by the instant case. The third concern is the threat to our federal
system of government posed by “the needless obstruction to the domestic policy of
the states by forestalling state action in construing and applying its own statutes.”
Almost every constitutional challenge-and particularly one as far ranging as that
involved here-offers the opportunity for narrowing constructions that might obviate the
constitutional problem and intelligently mediate federal constitutional concerns and
state interests.
(d) With respect to appellees' argument that delay in affording them a hearing in
state court made Younger abstention inappropriate, the federal injunction did in fact
address the state proceeding and it was unnecessary to obtain release of the
children, as they had already been placed in appellees' custody pursuant to federalcourt order. Furthermore, such argument cannot be distinguished from conventional
claims of bad faith and other sources of irreparable harm; in this case the state
authorities' conduct evinced no bad faith and, while there was confusion, confusion is
not bad faith.
(e) In the absence of bad faith, there remain only limited grounds for not applying
Younger. Here, no claim could be properly made that the state proceedings were
motivated by a desire to harass or that the challenged statute is “flagrantly and
patently violative of express constitutional prohibitions in every clause, sentence and
paragraph.” Nor were there present in this case other “extraordinary circumstances in
which the necessary irreparable injury can be shown even in the absence of the usual
prerequisites of bad faith and harassment.” Unless it were held that every attachment
issued to protect a child creates great, immediate, and irreparable harm warranting
federal-court intervention, it cannot be properly concluded that with the state
proceedings here in the posture they were at the time of the federal action, federal
intervention was warranted.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the trial court order violated both the Confrontation and the
Compulsory Process Clauses of the Sixth Amendment.
Pennsylvania v.
Ritchie
480 U.S. 39
(1987)
Child Abuse:
Child Protective
Services
Respondent was charged with various sexual offenses against
his minor daughter. The matter was referred to the Children
and Youth Services (CYS), a protective service agency
established by Pennsylvania to investigate cases of suspected
child mistreatment and neglect. During pretrial discovery,
respondent served CYS with a subpoena, seeking access to
the records related to the immediate charges, as well as
certain earlier records compiled when CYS investigated a
separate report that respondent's children were being abused.
CYS refused to comply with the subpoena, claiming that the
records were privileged under a Pennsylvania statute which
provides that all CYS records must be kept confidential,
subject to specified exceptions. One of the exceptions is that
CYS may disclose reports to a “court of competent jurisdiction
pursuant to a court order.” At an in-chambers hearing in the
trial court, respondent argued that he was entitled to the
information because the CYS file might contain the names of
favorable witnesses, as well as other, unspecified exculpatory
evidence. Although the trial judge did not examine the entire
CYS file, he refused to order disclosure. At the trial, which
resulted in respondent's conviction by a jury, the main witness
against him was his daughter, who was cross-examined at
length by defense counsel. On appeal, the Pennsylvania
Superior Court held that the failure to disclose the daughter's
statements contained in the CYS file violated the
Confrontation Clause of the Sixth Amendment. The court
vacated the conviction and remanded for further proceedings
to determine whether a new trial should be granted. On the
State's appeal, the Pennsylvania Supreme Court held that, by
denying access to the CYS file, the trial court order had
violated both the Confrontation and the Compulsory Process
Clauses of the Sixth Amendment, and that the conviction must
be vacated and the case remanded to determine if a new trial
was necessary. The court concluded that defense counsel
was entitled to review the entire file for any useful evidence.
Held: Affirmed in part, Reversed in part, Remanded.
1. This Court does not lack jurisdiction on the ground that the decision
below is not a “final judgment or decree,” as required by 28 U.S.C.
§1257(3). Although this Court has no jurisdiction to review an interlocutory
judgment, jurisdiction is proper where a federal claim has been finally
decided, with further proceedings on the merits in the state courts to come,
but in which later review of the federal issue cannot be had whatever the
ultimate outcome of the case. Here, the Sixth Amendment issue will not
survive for this Court to review regardless of the outcome of the
proceedings on remand. The Sixth Amendment issue has been finally
decided by the highest court of Pennsylvania, and unless this Court reviews
that decision, the harm that the State seeks to avoid-the disclosure of the
confidential file-will occur regardless of the result on remand.
2. Criminal defendants have the right under the Compulsory Process
Clause to the government's assistance in compelling the attendance of
favorable witnesses at trial and the right to put before a jury evidence that
might influence the determination of guilt. However, this Court has never
held that the Clause guarantees the right to discover the identity of
witnesses, or to require the government to produce exculpatory evidence.
Instead, claims such as respondent's traditionally have been evaluated
under the broader protections of the Due Process Clause of the Fourteenth
Amendment. Compulsory process provides no greater protections in this
area than those afforded by due process, and thus respondent's claims
more properly are considered by reference to due process.
3. Under due process principles, the government has the obligation to
turn over evidence in its possession that is both favorable to the accused
and material to guilt or punishment. Evidence is material only if there is a
reasonable probability that, had the evidence been disclosed, the result of
the proceeding would have been different. Although the public interest in
protecting sensitive information such as that in CYS records is strong, this
interest does not necessarily prevent disclosure in all circumstances.
Because the Pennsylvania Legislature contemplated some use of CYS
records in judicial proceedings, there is no reason to believe that relevant
information would not be disclosed when a court of competent jurisdiction
determined that the information was “material” to the accused's defense.
The Pennsylvania Supreme Court thus properly ordered a remand for
further proceedings. Respondent is entitled to have the CYS file reviewed
by the trial court to determine whether it contains information that probably
would have changed the outcome of his trial. If it does, he must be given a
new trial. If the CYS file contains no such information, or if the
nondisclosure is harmless beyond a reasonable doubt, the trial court will be
free to reinstate the prior conviction.
4. The Pennsylvania Supreme Court erred in holding that defense
counsel must be allowed to examine the confidential information. A
defendant's right to discover exculpatory evidence does not include the
unsupervised authority to search the State's files and make the
determination as to the materiality of the information. Both respondent's
and the State's interests in ensuring a fair trial can be protected fully by
requiring that the CYS files be submitted only to the trial court for in camera
review. To allow full disclosure to defense counsel in this type of case
would sacrifice unnecessarily the State's compelling interest in protecting
its child abuse information.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a damages remedy is available for an action brought to enforce Title
IX.
Franklin v.
Gwinnett
County Public
Schools
503 U.S. 60
(1992)
Child Abuse:
Damages
Petitioner Franklin, a student in a high school operated by
respondent school district, filed an action for damages in
Federal District Court under Title IX of the Education
Amendments of 1972, alleging, inter alia, that she had been
subjected to continual sexual harassment and abuse by a
teacher, Andrew Hill. After the complaint was filed, Hill
resigned on the condition that all matters pending against him
be dropped, and the school thereupon closed its investigation.
The District Court subsequently dismissed the complaint on
the ground that Title IX does not authorize an award of
damages, and the Court of Appeals affirmed.
Held: Yes. Reversed and Remanded.
(a) Title IX is enforceable through an implied right of action.
(b) The longstanding general rule is that absent clear direction to the contrary by
Congress, the federal courts have the power to award any appropriate relief in a
cognizable cause of action brought pursuant to a federal statute.
(c) This Court's adherence to the general rule has not eroded since Bell. In
declaring that “the question of who may enforce a statutory right is fundamentally
different from the question of who may enforce a constitutionally protected right,” was
not limiting the traditional presumption in favor of all appropriate relief to actions
claiming constitutional violations. Rather it was merely attempting to decide whether a
litigant had a “cause of action,” a question that is analytically distinct from, and prior
to, the one at issue: what relief, if any a litigant is entitled to receive, erode the
traditional presumption. In fact, those cases support it, since a clear majority in
Guardians expressed the view that damages were available in an action seeking
remedies for an intentional violation of a statute closely analogous to Title IX, while
the Court in Darrone held that another such statute authorized the award of backpay.
(d) Congress did not intend to limit the remedies available in a Title IX suit. Because
the Cannon Court inferred a cause of action upon concluding that Title IX supported
no express right of action, the silence of the pre- Cannon statutory text and legislative
history on the issue of available remedies is neither surprising nor enlightening.
Rather, the appropriate inquiry for the pre- Cannon period is the state of the law when
Congress passed Title IX. Since, at that time, the traditional presumption in favor of
all available remedies was firmly established, and this Court had recently found
implied rights of action in six cases and approved a damages remedy in three of
them, the lack of any legislative intent to abandon the traditional presumption is amply
demonstrated. For the post- Cannon period, when Congress was legislating with full
cognizance of that decision, analysis of the text and history of the two statutes
enacted to amend Title IX-the Civil Rights Remedies Equalization Amendment of
1986 and the Civil Rights Restoration Act of 1987-establishes that Congress
validated Cannon's holding and made no effort to alter the traditional presumption.
(e) The argument that a damages award would unduly expand the federal courts'
power into a sphere properly reserved to the Executive and Legislative Branches in
violation of separation of powers principles misconceives the difference between a
cause of action and a remedy. Unlike the finding of a cause of action, which
authorizes a court to hear a case or controversy, the discretion to award appropriate
relief involves no such increase in judicial power and, in fact, historically has been
thought necessary to provide an important safeguard against legislative and
executive abuses and to insure an independent Judiciary. Moreover, selective
adjudication of the sort advocated here would harm separation of powers by giving
judges the power to render inutile causes of action authorized by Congress through a
decision that no remedy is available.
(f) Also rejected is the contention that the normal presumption in favor of all
appropriate remedies should not apply because Title IX was enacted pursuant to
Congress' Spending Clause power. The Court's observation in Pennhurst State
School and Hospital v. Halderman, that remedies are limited under Spending Clause
statutes when the alleged violation is unintentional is based on the theory that an
entity receiving federal funds lacks notice that it will be liable for damages for such a
violation. This notice problem does not arise in a case such as the present, where
intentional discrimination is alleged and is proscribed by the statute in question.
Moreover, the notion that Spending Clause statutes do not authorize monetary
awards for intentional violations is belied by the unanimous holding in Darrone.
(g) The assertion that Title IX remedies should nevertheless be limited to backpay
and prospective relief diverges from this Court's traditional approach to deciding what
remedies are available for violation of a federal right. Both suggested remedies are
equitable in nature, and it is axiomatic that a court should determine the adequacy of
damages at law before resorting to equitable relief. Moreover, both suggested
remedies are clearly inadequate in that they would provide Franklin no relief: backpay
because she was a student when the alleged discrimination occurred, and
prospective relief because she no longer attends school in respondent system and
Hill no longer teaches there.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, because Shatzer experienced a break in
Miranda custody lasting more than two weeks between the first
and second attempts at interrogation, Edwards does not
mandate suppression of his 2006 statements.
Maryland v.
Shatzer
___ U.S. ___
(2010)
Child Abuse:
Miranda
In 2003, a police detective tried to question respondent
Shatzer, who was incarcerated at a Maryland prison pursuant
to a prior conviction, about allegations that he had sexually
abused his son. Shatzer invoked his Miranda right to have
counsel present during interrogation, so the detective
terminated the interview. Shatzer was released back into the
general prison population, and the investigation was closed.
Another detective reopened the investigation in 2006 and
attempted to interrogate Shatzer, who was still incarcerated.
Shatzer waived his Miranda rights and made inculpatory
statements. The trial court refused to suppress those
statements, reasoning that Edwards v. Arizona did not apply
because Shatzer had experienced a break in Miranda custody
prior to the 2006 interrogation. Shatzer was convicted of
sexual child abuse. The Court of Appeals of Maryland
reversed, holding that the mere passage of time does not end
the Edwards protections, and that, assuming, arguendo, a
break-in-custody exception to Edwards existed, Shatzer's
release back into the general prison population did not
constitute such a break.
Held: Yes. Reversed and Remanded.
(a) Edwards created a presumption that once a suspect
invokes the Miranda right to the presence of counsel, any
waiver of that right in response to a subsequent police attempt
at custodial interrogation is involuntary. Edwards ' fundamental
purpose is to “preserve the integrity of an accused's choice to
communicate with police only through counsel,” by “preventing
police from badgering him into waiving his previously asserted
Miranda rights.” It is easy to believe that a suspect's later waiver
was coerced or badgered when he has been held in
uninterrupted Miranda custody since his first refusal to waive.
He remains cut off from his normal life and isolated in a “policedominated atmosphere,” where his captors “appear to control
his fate.” But where a suspect has been released from custody
and returned to his normal life for some time before the later
attempted interrogation, there is little reason to think that his
change of heart has been coerced. Because the Edwards
presumption has been established by opinion of this Court, it is
appropriate for this Court to specify the period of release from
custody that will terminate its application. The Court concludes
that the appropriate period is 14 days, which provides ample
time for the suspect to get reacclimated to his normal life,
consult with friends and counsel, and shake off any residual
coercive effects of prior custody.
(b) Shatzer's release back into the general prison population
constitutes a break in Miranda custody. Lawful imprisonment
imposed upon conviction does not create the coercive
pressures produced by investigative custody that justify
Edwards. When previously incarcerated suspects are released
back into the general prison population, they return to their
accustomed surroundings and daily routine—they regain the
degree of control they had over their lives before the attempted
interrogation. Their continued detention is relatively
disconnected from their prior unwillingness to cooperate in an
investigation. The “inherently compelling pressures” of custodial
interrogation ended when Shatzer returned to his normal life.
Case
Ohio v. Reiner
532 U.S. 17
(2001)
Subject
Child Abuse:
Privilege
Against SelfIncrimination
Facts
Respondent was charged with involuntary manslaughter in
connection with the death of his 2-month-old son Alex. The coroner
testified at trial that Alex died from “shaken baby syndrome,” the
result of child abuse. He estimated that Alex's injury most likely
occurred minutes before the child stopped breathing. Alex died two
days later when he was removed from life support. Evidence
produced at trial revealed that Alex had a broken rib and a broken leg
at the time of his death. His twin brother Derek, who was also
examined, had several broken ribs. Respondent had been alone with
Alex for half an hour immediately before Alex stopped breathing.
Respondent's experts testified that Alex could have been injured
several hours before his respiratory arrest. Alex was in the care of
the family's babysitter, Susan Batt, at that time. Batt had cared for the
children during the day for about two weeks prior to Alex's death. The
defense theory was that Batt, not respondent, was the culpable party.
Batt informed the court in advance of testifying that she intended to
assert her Fifth Amendment privilege. At the State's request, the trial
court granted her transactional immunity from prosecution pursuant
to Ohio Rev. Code Ann. §2945.44 (1999). She then testified to the
jury that she had refused to testify without a grant of immunity on the
advice of counsel, although she had done nothing wrong. Batt denied
any involvement in Alex's death. She testified that she had never
shaken Alex or his brother at any time, specifically on the day Alex
suffered respiratory arrest. She said she was unaware of and had
nothing to do with the other injuries to both children. The jury found
respondent guilty of involuntary manslaughter, and he appealed. The
Court of Appeals of Ohio, Sixth District, reversed respondent's
conviction on grounds not relevant to our decision here. The
Supreme Court of Ohio affirmed the reversal, on the alternative
ground that Batt had no valid Fifth Amendment privilege and that the
trial court's grant of immunity under §2945.44 was therefore unlawful.
The court found that the wrongful grant of immunity prejudiced
respondent, because it effectively told the jury that Batt did not cause
Alex's injuries. The court recognized that the privilege against selfincrimination applies where a witness' answers “could reasonably
‘furnish a link in the chain of evidence’ ” against him. Hoffman, it
noted, requires the trial court to determine whether the witness has
correctly asserted the privilege, and to order the witness to answer
questions if the witness is mistaken about the danger of incrimination.
The court faulted the trial judge for failing to question sufficiently
Batt's assertion of the privilege. It noted that the Court of Appeals, in
finding a valid privilege, failed to consider the prosecutor's suggestion
that Batt's testimony would not incriminate her, and Batt's denial of
involvement in Alex's abuse when questioned by the Children's
Services Board. The court held that “Batt's trial testimony did not
incriminate her, because she denied any involvement in the abuse.
Thus, she did not have a valid Fifth Amendment privilege.” The court
emphasized that the defense's theory of Batt's guilt was not grounds
for a grant of immunity, “when the witness continues to deny any selfincriminating conduct.”
Issue Presented and Holding
Issue: Whether Batts' assertion of innocence deprived her of her Fifth
Amendment privilege against self-incrimination.
Held: Yes. Reversed and Remanded.
The Supreme Court of Ohio's decision that Batt was wrongly granted
immunity under §2945.44 (and consequently, that reversal of
respondent's conviction was required) rested on the court's
determination that Batt did not have a valid Fifth Amendment privilege.
In discussing the contours of that privilege, the court relied on our
precedents. We have observed that “this Court retains a role when a
state court's interpretation of state law has been influenced by an
accompanying interpretation of federal law.” The decision at issue
“fairly appears to be interwoven with the federal law,” and no adequate
and independent state ground is clear from the face of the opinion. We
have jurisdiction over a state-court judgment that rests, as a threshold
matter, on a determination of federal law. The Fifth Amendment
provides that “no person shall be compelled in any criminal case to be
a witness against himself.” As the Supreme Court of Ohio
acknowledged, this privilege not only extends “to answers that would in
themselves support a conviction but likewise embraces those which
would furnish a link in the chain of evidence needed to prosecute the
claimant.” “It need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result. We have held that
the privilege's protection extends only to witnesses who have
“reasonable cause to apprehend danger from a direct answer.” That
inquiry is for the court; the witness' assertion does not by itself
establish the risk of incrimination. A danger of “imaginary and
unsubstantial character” will not suffice. But we have never held, as the
Supreme Court of Ohio did, that the privilege is unavailable to those
who claim innocence. To the contrary, we have emphasized that one of
the Fifth Amendment's “basic functions is to protect innocent men ‘who
otherwise might be ensnared by ambiguous circumstances.’” In
Grunewald, we recognized that truthful responses of an innocent
witness, as well as those of a wrongdoer, may provide the government
with incriminating evidence from the speaker's own mouth. The
Supreme Court of Ohio's determination that Batt did not have a valid
Fifth Amendment privilege because she denied any involvement in the
abuse of the children clearly conflicts with Hoffman and Grunewald.
Batt had “reasonable cause” to apprehend danger from her answers if
questioned at respondent's trial. Batt spent extended periods of time
alone with Alex and his brother in the weeks immediately preceding
discovery of their injuries. She was with Alex within the potential
timeframe of the fatal trauma. The defense's theory of the case was
that Batt was responsible for Alex's death and his brother's injuries. In
this setting, it was reasonable for Batt to fear that answers to possible
questions might tend to incriminate her.
Case
Powell v.
Nevada
511 U.S. 79
(1994)
Subject
Facts
Child Abuse:
Probable Cause
Determination
Petitioner Powell was arrested on November 3, 1989, for
felony child abuse. Not until November 7, however, did a
Magistrate find probable cause to hold him for a preliminary
hearing. The child in question subsequently died of her
injuries, and Powell was charged additionally with her murder.
At the trial, the state prosecutor presented prejudicial
statements Powell had made to the police on November 7.
The jury found him guilty and sentenced him to death. On
appeal, the Nevada Supreme Court, sua sponte, raised the
question whether the 4-day delay in judicial confirmation of
probable cause violated the Fourth Amendment, in view of
County of Riverside v. McLaughlin, which held that a judicial
probable-cause determination must generally be made within
48 hours of a warrantless arrest, and that, absent
extraordinary circumstances, a longer delay is
unconstitutional. The state court decided that McLaughlin was
inapplicable to Powell's case, because his prosecution
commenced prior to the rendition of that decision.
Issue Presented and Holding
Issue: Whether a judicial probable-cause determination must be
made within 48 hours of a warrantless arrest, absent
extraordinary circumstances.
Held: Yes. Vacated and Remanded.
The Nevada Supreme Court erred in failing to recognize that
McLaughlin's 48-hour rule must be applied retroactively, for
under Griffith v. Kentucky, “a rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
federal, not yet final” when the rule is announced. Although the
4-day delay here was presumptively unreasonable under
McLaughlin, it does not necessarily follow that Powell must be
set free or gain other relief. Several questions remain open for
decision on remand, including the appropriate remedy for a
delay in determining probable cause (an issue not resolved by
McLaughlin), the consequence of Powell's failure to raise the
federal question, and whether introduction at trial of what Powell
said on November 7 was “harmless” in view of a similar, albeit
shorter, statement he made prior to his arrest.
Case
Dobbert v.
Wainwright
468 U.S. 1231
(1984)
Subject
Child Abuse:
Recanting
Witness
Facts
Dobbert was convicted in 1974 of the first-degree murder of
his 9-year-old daughter Kelly. Dobbert's 13-year-old son, John
III, testified at trial that he saw Dobbert kick Kelly in the
stomach several times on the night before her death and that,
on the subsequent evening, he saw Dobbert choke the girl
until she stopped breathing. John III was “the State's key
witness” at trial. There was abundant evidence that Dobbert
had committed unspeakably brutal acts toward his children,
but John III's testimony was the sole evidence that Dobbert
had actually and deliberately strangled Kelly to death. “While
the evidence presented without his testimony was adequate to
convict of second-degree murder, young Dobbert's testimony
supplied the sole basis for finding premeditation. There is no
doubt that Dobbert inflicted injuries that caused the death of
his daughter, but only through the trial testimony of young
Dobbert is there evidence of his intent to cause that death.”
Although the jury recommended a life sentence by a vote of
10–2, the presiding judge imposed the death sentence.
In 1982, eight years after his father had been convicted and
sentenced to death, John III recanted his trial testimony. His
affidavit, set forth in full as an appendix to this opinion, is
direct and to the point: “I did not testify truthfully about the
cause of my sister Kelly's death at the trial. My father did not
kill Kelly.” John III stated that, in fact, the “kicking incident” had
occurred two weeks before Kelly's death. With respect to the
fatal night, John III now states that he remembers Kelly “sitting
in bed eating some soup. She started vomiting, and then
choking on her own vomit and food. My father tried to give her
mouth to mouth resuscitation, but it didn't work. Kelly was not
killed by my father; she died accidentally, choking on food or
vomit.” John III stated that at the time of the trial “I was still
deathly afraid of my father after all I'd been through and seen,
and wanted to be sure he'd be locked up where I'd be safe
from him.” Second, in the time leading up to and following the
trial, John III was living at a children's home in Wisconsin
where he was undergoing hypnosis and kept “heavily
medicated” on Thorazine. Finally, “although no one ever said
it directly,” John III “knew” that the staff at the children's home
“wanted me to testify that my father killed my sister. I looked
up to these people and wanted desperately to please them—
they were good to me and concerned about me in a way I
hadn't known for years.”
Dobbert then filed a petition for federal habeas relief in the
United States District Court for the Middle District of Florida.
The petition was denied because Judge Olliff had found that
there was “no evidence or proof to support petitioner's
allegation of perjury.” The Eleventh Circuit affirmed.
Issue Presented and Holding
Issue: Whether Dobbert’s capital conviction and sentence are
unconstitutional in light of John III's perjured testimony.
Held: The petition for a writ of certiorari is denied
Case
Arizona v.
Mauro
481 U.S. 520
(1987)
Subject
Child Abuse:
Spousal
Statements
Facts
Issue Presented and Holding
After being advised of his Miranda rights while in custody for
killing his son, respondent stated that he did not wish to
answer any questions until a lawyer was present. All
questioning then ceased and respondent was placed in the
police captain's office since there was no secure detention
area. Following her questioning in another room, respondent's
wife insisted that she be allowed to speak with her husband.
Although reluctant at first, the police allowed the meeting in
the office on the condition that an officer be present. Using a
recorder placed in plain sight, the officer taped a brief
conversation, during which the wife expressed despair, and
respondent told her not to answer questions until a lawyer was
present. The prosecution used the tape to rebut respondent's
insanity defense, the trial court having refused to suppress it
upon finding that the police's actions were not a subterfuge to
avoid the dictates of Miranda. Respondent was convicted and
sentenced to death, but the Arizona Supreme Court reversed,
holding that the police had impermissibly interrogated
respondent within the meaning of Miranda. Noting police
admissions that they knew it was “possible” that respondent
might make incriminating statements if he saw his wife, the
court relied on the ruling in Rhode Island v. Innis, that
“interrogation” includes a practice—whether actual
questioning or “its functional equivalent”—that the police know
is reasonably likely to elicit an incriminating response from a
suspect. According to Innis, the likelihood-of-response
question focuses primarily upon the perceptions of the
suspect, rather than the intent of the police.
Issue: Whether the police's actions following respondent's
refusal to be questioned without a lawyer constituted
interrogation or its functional equivalent.
Held: No. Reversed and Remanded.
The police's actions following respondent's refusal to be
questioned without a lawyer did not constitute interrogation or
its functional equivalent. The purpose of Miranda and Innis is to
prevent the government from using the coercive nature of
confinement to extract confessions that would not be given in an
unrestrained environment. This purpose is not implicated here,
since respondent was not subjected to compelling influences,
psychological ploys, or direct questioning. There is no evidence
that the police allowed the wife to meet with respondent in order
to obtain incriminating statements. Moreover, police testimony,
which the trial court found credible, indicated a number of
legitimate reasons for an officer's presence at the meeting,
including the wife's safety and various security considerations.
Furthermore, an examination of the situation from respondent's
perspective demonstrates the improbability that he would have
felt he was being coerced to incriminate himself simply because
he was told his wife would be allowed to speak to him. Although
the police were indeed aware that it was “possible” respondent
would incriminate himself while talking to his wife, police do not
“interrogate” a suspect simply by hoping he will confess. Thus,
respondent's statements to his wife were voluntary, and their
use at his trial was not prohibited by the Fifth and Fourteenth
Amendments.
Case
Michaels v.
McGrath
531 U.S. 1118
(2001)
Subject
Child Abuse:
Statements of
the Child
Facts
Petitioner Margaret Michaels worked as a teacher's aide in a
nursery school in Maplewood, New Jersey. Shortly after
petitioner left the school, one of the children (then four years
old) made a comment that a nurse in his pediatrician's office
interpreted as an allegation of sexual abuse. The physician
examined the child but found no evidence of abuse.
Nonetheless, based solely on the child's statements, a
prosecutor and several investigators, respondents here,
began an extensive investigation. Respondents interviewed
virtually all of the children with whom petitioner could have
had contact. Employing peer pressure, making threats, and
asking leading or suggestive questions, they obtained stories
of sexual abuse that “ranged from relatively minor accounts of
touching to virtually incomprehensible heinous and bizarre
acts.” After a 9-month trial petitioner was convicted of 115
counts and sentenced to 47 years in prison. After petitioner
had served five years of her sentence, a New Jersey appellate
court reversed her conviction on the ground that respondents'
investigative techniques were improper. As the court noted,
even respondents apparently realized that their interrogation
techniques “caused certain children to use their imagination
and stray from reality.” The New Jersey Supreme Court
affirmed, holding that “the interviews of the children were
highly improper and employed coercive and unduly suggestive
methods.” It pointed out that “the interrogations undertaken in
the course of this case utilized most, if not all, of the practices
that are disfavored or condemned by experts, law
enforcement authorities and government agencies.” Petitioner
then brought this action against respondents under 42 U.S.C.
§1983. The District Court granted respondents' motion to
dismiss, and the Third Circuit affirmed. The Third Circuit held
that recovery was barred because the coercion of child
witnesses was a violation only of the witnesses' rights, and not
of any right held by petitioner. And although petitioner's due
process rights were violated when the testimony was used at
trial, the court held that the presentation of testimony fell
squarely within the doctrine of absolute prosecutorial
immunity.
Issue Presented and Holding
Issue: Whether recovery is barred because the coercion of child
witnesses is a violation only of the witnesses' rights, and not of
any right held by petitioner.
Held: Petition for writ of certiorari to the United States Court of
Appeals for the Third Circuit denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether damages may be recovered for teacher-student sexual harassment in an
implied private action under Title IX unless a school district official who at a minimum has
authority to institute corrective measures on the district's behalf has actual notice of, and is
deliberately indifferent to, the teacher's misconduct.
Gebser v. Lago
Vista
Independent
School Dist.
524 U.S. 274
(1998)
Child Abuse:
Damages
Petitioner Gebser, a high school student in respondent Lago
Vista Independent School District, had a sexual relationship
with one of her teachers. She did not report the relationship to
school officials. After the couple was discovered having sex
and the teacher was arrested, Lago Vista terminated his
employment. During this time, the district had not distributed
an official grievance procedure for lodging sexual harassment
complaints or a formal anti-harassment policy, as required by
federal regulations. Gebser and her mother, also a petitioner
here, filed suit raising among other things, a claim for
damages against Lago Vista under Title IX of the Education
Amendments of 1972, which provides in pertinent part that a
person cannot “be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” The Federal District Court granted Lago Vista
summary judgment. In affirming, the Fifth Circuit held that
school districts are not liable under Title IX for teacher-student
sexual harassment unless an employee with supervisory
power over the offending employee actually knew of the
abuse, had the power to end it, and failed to do so, and ruled
that petitioners could not satisfy that standard.
Held: No. Affirmed.
(a) The express statutory means of enforcing Title IX is administrative, as the statute
directs federal agencies who distribute education funding to establish requirements in
furtherance of the nondiscrimination mandate and allows agencies to enforce those
requirements, including ultimately by suspending or terminating federal funding. The Court
held in Cannon v. University of Chicago, that Title IX is also enforceable through an implied
private right of action. In Franklin v. Gwinnett County Public Schools, the Court established
that monetary damages are available in such an action, but made no effort to delimit the
circumstances in which that remedy should lie. Petitioners, relying on standards developed
in the context of Title VII, contend that damages are available in an implied action under
Title IX based on principles of respondeat superior and constructive notice, i.e., without
actual notice to officials of discrimination in school programs. Whether an educational
institution can be said to violate Title IX based on principles of respondeat superior and
constructive notice has not been resolved by the Court's decisions. In this case, moreover,
petitioners seek damages based on theories of respondeat superior and constructive
notice. Unlike Title IX, Title VII contains an express cause of action for a damages remedy.
Title IX's private action is judicially implied, however, and so contains no legislative
expression of the scope of available remedies.
(b) Because the private right of action is judicially implied, this Court must infer how
Congress would have addressed the issue of monetary damages had the action been
expressly included in Title IX. It does not appear that Congress contemplated unlimited
damages against a funding recipient that is unaware of discrimination in its programs. When
Title IX was enacted, the principal civil rights statutes containing an express right of action
did not allow monetary damages, and when Title VII was amended to allow such damages,
Congress limited the amount recoverable in any individual case. Title IX was modeled after
Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in programs
receiving federal funds. Both statutes condition federal funding on a recipient's promise not
to discriminate, in what amounts essentially to a contract between the Government and the
recipient. In contrast, Title VII is framed as an outright prohibition. Title IX's contractual
nature has implications for the construction of the scope of available remedies. When
Congress conditions the award of federal funds under its spending power, the Court closely
examines the propriety of private actions holding recipients liable in damages for violating
the condition. It is sensible to assume that Congress did not envision a recipient's liability in
damages where the recipient was unaware of the discrimination. Title IX contains important
clues that this was Congress' intent. Title IX's express means of enforcement requires
actual notice to officials of the funding recipient and an opportunity for voluntary compliance
before administrative enforcement proceedings can commence. The presumable purpose is
to avoid diverting education funding from beneficial uses where a recipient who is unaware
of discrimination in its programs is willing to institute prompt corrective measures. Allowing
recovery of damages based on principles of respondeat superior or constructive notice in
cases of teacher-student sexual harassment would be at odds with that basic objective, as
liability would attach even though the district had no actual knowledge of the teacher's
conduct and no opportunity to take action to end the harassment. It would be unsound for a
statute's express enforcement system to require notice and an opportunity to comply while
a judicially implied system permits substantial liability—including potentially an award
exceeding a recipient's federal funding level—without regard to either requirement.
(c) Absent further direction from Congress, the implied damages remedy should be
fashioned along the same lines as the express remedial scheme. Thus, a damages remedy
will not lie unless an official who at a minimum has authority to address the alleged
discrimination and to institute corrective measures on the recipient's behalf has actual
knowledge of discrimination and fails adequately to respond. Moreover, the response must
amount to deliberate indifference to discrimination, in line with the premise of the statute's
administrative enforcement scheme of an official decision by the recipient not to remedy the
violation. Applying the framework to this case is fairly straightforward, as petitioners do not
contend they can prevail under an actual notice standard. Lago Vista's alleged failure to
comply with federal regulations requiring it to promulgate and publicize an effective policy
and grievance procedure for sexual harassment claims does not establish the requisite
actual notice and deliberate indifference, and the failure to promulgate a grievance
procedure does not itself constitute discrimination in violation of Title IX.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether respondents' failure to provide petitioner with
adequate protection against his father's violence violated his
rights under the substantive component of the Due Process
Clause
DeShaney v.
Winnebago
County Social
Services
489 U.S. 189
(1989)
Child Abuse:
Child Protective
Services
Petitioner is a child who was subjected to a series of beatings
by his father, with whom he lived. Respondents, a county
department of social services and several of its social
workers, received complaints that petitioner was being abused
by his father and took various steps to protect him; they did
not, however, act to remove petitioner from his father's
custody. Petitioner's father finally beat him so severely that he
suffered permanent brain damage and was rendered
profoundly retarded. Petitioner and his mother sued
respondents under 42 U.S.C. §1983, alleging that
respondents had deprived petitioner of his liberty interest in
bodily integrity, in violation of his rights under the substantive
component of the Fourteenth Amendment's Due Process
Clause, by failing to intervene to protect him against his
father's violence. The District Court granted summary
judgment for respondents, and the Court of Appeals affirmed.
Held: No. Affirmed.
(a) A State's failure to protect an individual against private
violence generally does not constitute a violation of the Due
Process Clause, because the Clause imposes no duty on the
State to provide members of the general public with adequate
protective services. The Clause is phrased as a limitation on the
State's power to act, not as a guarantee of certain minimal
levels of safety and security; while it forbids the State itself to
deprive individuals of life, liberty, and property without due
process of law, its language cannot fairly be read to impose an
affirmative obligation on the State to ensure that those interests
do not come to harm through other means.
(b) There is no merit to petitioner's contention that the State's
knowledge of his danger and expressions of willingness to
protect him against that danger established a “special
relationship” giving rise to an affirmative constitutional duty to
protect. While certain “special relationships” created or assumed
by the State with respect to particular individuals may give rise
to an affirmative duty, enforceable through the Due Process
Clause, to provide adequate protection, the affirmative duty to
protect arises not from the State's knowledge of the individual's
predicament or from its expressions of intent to help him, but
from the limitations which it has imposed on his freedom to act
on his own behalf, through imprisonment, institutionalization, or
other similar restraint of personal liberty. No such duty existed
here, for the harms petitioner suffered occurred not while the
State was holding him in its custody, but while he was in the
custody of his natural father, who was in no sense a state actor.
While the State may have been aware of the dangers that he
faced, it played no part in their creation, nor did it do anything to
render him more vulnerable to them. Under these
circumstances, the Due Process Clause did not impose upon
the State an affirmative duty to provide petitioner with adequate
protection.
(c) It may well be that by voluntarily undertaking to provide
petitioner with protection against a danger it played no part in
creating, the State acquired a duty under state tort law to
provide him with adequate protection against that danger. But
the Due Process Clause does not transform every tort
committed by a state actor into a constitutional violation.
Case
Tarver v. Smith
402 U.S. 1000
(1971)
Subject
Facts
Child Abuse:
Child Protective
Services
Petitioner had three minor children. During a time when she was
receiving public assistance under the statutory category of Aid to
Families with Dependent Children, she was hospitalized. Seattle
police placed her three children in the King County youth center
under the care and protection of the Juvenile Court for King County.
Two days later, the juvenile court transferred the three children to the
Department of Public Assistance for care, maintenance and
protection. Tarver received no public assistance money while she
was hospitalized. According to the findings of fact, a caseworker in
the King County office of the Department of Public Assistance,
drafted a written report setting forth in detail factual allegations and
accusing petitioner of child neglect. The report recommends
petitioner be permanently deprived of the custody of her children.
Custody was temporarily placed in juvenile court because petitioner
was hospitalized. Tarver requested a hearing under RCW 74.08.070
(requiring the social worker to investigate complaints of neglect,
abuse, or abandonment of children by parents, guardians,
custodians, or persons serving in loco parentis, and on the basis of
the findings of such investigation, offer child welfare services in
relation to the problem to such parents, guardians, custodians or
persons serving in loco parentis, and/or bring the situation to the
attention of an appropriate court, or another community agency),
contending that the report forwarded to the court was false,
misleading and prejudicial, and that if a fair hearing were had
concerning it the report would be changed and corrected. At the
hearing, the court read the caseworker's report and heard her
testimony supporting it. Notwithstanding the assertedly derogatory
contents of the caseworker's report and testimony, the juvenile court,
after the hearing, returned the children to Tarver.
Tarver contends that she has a right nevertheless to a fair hearing
on the caseworker's report. The state director contends that the right
to a fair hearing under the statute does not extend to collateral
matters but exists only where an applicant or recipient of public
assistance who is seeking a hearing asserts grievances directly
related to eligibility and entitlement for public assistance and the
amount and manner of providing it. The right to a fair hearing as
provided by this statute, says the department, does not extend to
general grievances against the department nor to matters not directly
related to eligibility for public assistance. Tarver urges in reply that,
even if the statute once was susceptible to the department's
construction of it, an amendment imposing affirmative investigative
duties on the department requires a different interpretation now.
Subsequently a hearing in juvenile court was held and petitioner was
exonerated and retained custody of her children. But the critical
report-which petitioner alleges is false-remains in the files with the
Department of Social and Health Services of the State of
Washington. Tarver would like the allegedly false information
removed from those files. But her efforts to obtain a hearing to
correct the information have failed. The State says that petitioner's
file is ‘confidential and privileged’ and under current state law the file
may only be disclosed ‘for purposes directly connected with the
administration of public assistance and specific investigatory
purposes by legislative committees and properly authorized bodies.’
Issue Presented and Holding
Issue: Whether petitioner’s denial of a hearing to address the
social worker’s neglect findings is constitutional.
Held: The petition for writ of certiorari is denied
Case
Wyman v.
James
400 U.S. 309
(1971)
Subject
Child Abuse:
Child Protective
Services
Facts
New York's Aid to Families with Dependent Children (AFDC)
program, stressing ‘close contact’ with beneficiaries, requires
home visits by caseworkers as a condition for assistance ‘in
order that any treatment or service tending to restore
(beneficiaries) to a condition of self-support and the relieve
their distress may be rendered and that assistance or care
may be given only in such amount and as long as necessary.’
Visitation with a beneficiary, who is the primary source of
information to welfare authorities as to eligibility for
assistance, is not permitted outside working hours, and
forcible entry and snooping are prohibited. Appellee, a
beneficiary under the AFDC program, after receiving several
days' advance notice, refused to permit a caseworker to visit
her home and, following a hearing and advice that assistance
would consequently be terminated, brought this suit for
injunctive and declaratory relief, contending that a home
visitation is a search and, when not consented to or supported
by a warrant based on probable cause, would violate her
Fourth and Fourteenth Amendment rights. The District Court
upheld appellee's constitutional claim.
Issue Presented and Holding
Issue: Whether the home visitation provided for by New York
law in connection with the AFDC program is a reasonable
administrative tool and does not violate any right guaranteed by
the Fourth and Fourteenth Amendments.
Held: Yes. Reversed and Remanded.
(a) Home visitation, which is not forced or compelled, is not a
search in the traditional criminal law context of the Fourth
Amendment.
(b) Even assuming that the home visit has some of the
characteristics of a traditional search, New York's program is
reasonable, as it serves the paramount needs of the dependent
child; enables the State to determine that the intended objects
of its assistance benefit from its aid and that state funds are
being properly used; helps attain parallel federal relief
objectives; stresses privacy by not unnecessarily intruding on
the beneficiary's rights in her home; provides essential
information not obtainable through secondary sources; is
conducted, not by a law enforcement officer, but by a
caseworker; is not a criminal investigation; and (unlike the
warrant procedure, which necessarily implies criminal conduct)
comports with the objectives of welfare administration.
(c) The consequence of refusal to permit home visitation,
which does not involve a search for violations, is not a criminal
prosecution but the termination of relief benefits.
Case
Hoffman v.
Harris
511 U.S 1060
(1994)
Subject
Facts
Child Abuse:
Child Protective
Services
Petitioner Ian Hoffman brought suit under Rev.Stat. §1979, 42
USC §1983, against respondents, Kentucky's Cabinet for
Human Resources (CHR), two CHR social workers, and his
former wife, Melisa Hoffman, alleging that they had deprived
him of a constitutionally protected liberty interest in being
allowed to visit his minor daughter, BH The events giving rise
to the suit began when Melisa told the social workers that she
suspected petitioner of sexually abusing B.H. The social
workers obtained an ex parte order from a state court that
suspended petitioner's visitation rights. The District Court held
that the social workers were absolutely immune from
damages liability under § 1983 for this conduct. Relying on its
decision in Salyer v. Patrick, the Court of Appeals affirmed.
Issue Presented and Holding
Issue: Whether a social worker is immune from damages
liability under §1983 for suspending a parent’s visitation rights.
Held: The petition for a writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue:
1. This Court may review a lower court’s constitutional ruling
at the behest of government officials who have won final
judgment on qualified immunity grounds
2. Whether the case is moot since S.G. no longer needs
protection.
Camreta v.
Greene
563 U.S. ___
(2011)
Child Abuse:
Child Protective
Services
Nearly a decade ago, petitioner Camreta, a state child
protective services worker, and petitioner Alford, a county
deputy sheriff, interviewed then 9-year-old S.G. at her Oregon
elementary school about allegations that her father had
sexually abused her. They did not have a warrant or parental
consent to conduct the interview. S.G. eventually stated that
she had been abused. Her father stood trial for that abuse, but
the jury failed to reach a verdict and the charges were later
dismissed. S.G.’s mother subsequently sued Camreta and
Alford on S.G.’s behalf for damages under 42 U.S.C. §1983,
alleging that the in-school interview breached the Fourth
Amendment’s proscription on unreasonable seizures. The
District Court granted summary judgment to the officials. The
Ninth Circuit affirmed. The Court of Appeals first ruled that
seizing S.G. absent a warrant, court order, parental consent,
orexigent circumstances violated the Constitution. But the
court further held that the officials were entitled to qualified
immunity from damages liability because no clearly
established law had warned them of the illegality of their
conduct. The court explained that it had chosen to rule on the
merits of the constitutional claim so that officials would be on
notice that they could not dispense with traditional Fourth
Amendment protections in this context. Although the judgment
entered was in their favor, Camreta and Alford petitioned this
Court to review the Ninth Circuit’s ruling that their conduct
violated the Fourth Amendment. S.G. declined to crosspetition for review of the decision that the officials have
immunity.
Held:
1. Yes. The relevant statute confers unqualified power on this
Court to grant certiorari “upon the petition of any party.” That
language covers petitions brought by litigants who have
prevailed, as well as those who have lost, in the courts below.
An appeal brought by a prevailing party may satisfy Article III’s
case-or-controversy requirement. This Article III standard often
will be met when immunized officials seek to challenge a
determination that their conduct violated the Constitution
because that ruling may have prospective effect on the parties.
So long as it remains good law, an official who regularly
engages in the challenged conduct as part of his job (as
Camreta does) must either change the way he performs his
duties or risk a meritorious damages action. The official thus
can demonstrate injury, causation, and redressability. And
conversely, if the person who initially brought the suit may again
be subject to the challenged conduct, she has a stake in
preserving the court’s holding so that she will have ongoing
protection from the practice. This Court’s prudential practice of
declining to hear appeals by prevailing parties does not bar
consideration of immunized officials’ petitions.
2. Yes. In a dispute of this kind, both the plaintiff and the
defendant ordinarily retain a stake in the outcome. That is true
of Camreta, who remains employed as a child protective
services worker, and so has an interest in challenging the Ninth
Circuit’s ruling requiring him to obtain a warrant before
conducting an in-school interview. But S.G. can no longer claim
the plaintiff’s usual stake in preserving the court’s holding
because she no longer needs protection from the challenged
practice. She has moved to Florida and is only months away
from her 18th birthday and, presumably, from her high school
graduation. When “subsequent events make it absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur,” there is no live controversy to review.
Case
Burroughs v.
Domestic
Violence
Project
531 U.S. 875
(2000)
Subject
Facts
Civil Protection
Orders:
Custody Cases
David and Linda Burroughs entered into a separation
agreement for inclusion in ongoing, jurisdictionally exclusive
Maryland dissolution and child custody proceedings, which
provided for the joint custody of their children. Within two
months of the agreement, Ms. Burroughs sought the advice of
a Delaware attorney, Lois Dawson. Dawson allegedly
counseled Mrs. Burroughs to obtain a Delaware Protection
from Abuse Order pursuant in order to obtain an ex parte
custody award. Delaware Court issued a Protection from
Abuse Order which granted custody to Ms. Burroughs and
prevented Mr. Burroughs from having any contact with her.
Mr. and Ms. Burroughs finalized their divorce and the Court
ordered the parties to communicate by telephone and mail
regarding the children. Mr. Burroughs was arrested for
violating the Protection from Abuse Order.
Mr. Burroughs filed a Federal Civil Rights action, requesting
a minimum of $1 million in compensatory damages and $4
million in punitive damages from Mrs. Burroughs. He also
sought an injunction prohibiting the disbursement of federal
funds to the Delaware Domestic Violence Project and the
Delaware Court's Domestic Violence Intake Unit, on the basis
that they and their agencies invidiously discriminate against all
members of the male gender who appear before the Delaware
Family Court, including, as a matter of standing to seek such
relief, himself.The allegations included that such system is
heavily stacked in favor of female complainants, and
moreover, that the state and its agencies actively promote the
wrongful, biased presumption in administratively guiding
potential complainants to seek wrongful ex-parte “PFAs”, that
only males are the perpetrators and only females are the
victims of domestic violence. The District Court dismissed all
claims as to all defendants, in what is asserted herein to be an
erroneous and overbroad invocation of the Rooker-Feldman
Doctrine, under jurisdictional, procedural and factual
conditions which, as argued below, do not serve the publicpolicy purposes of the. Rooker-Feldman Doctrine.
Issue Presented and Holding
Issue: Whether dismissal of the case was proper under the
Rooker-Feldman Doctrine.
Held: Petition for writ of certiorari is denied.
Case
Robertson v.
United States
ex rel Watson
560 U.S. ___
(2010)
Subject
Facts
Civil Protection
Orders:
Violation as
Criminal
Contempt
Watson obtained a Civil Protection Order protecting her from
Robertson after an assault in March 1999. The United States
Attorney’s Office (USAO) also initiated criminal charges for the
March 1999 assault. Robertson violated the CPO in June
1999 by assaulting Watson again. In July 1999, Robertson
pled guilty to attempted aggravated assault. As part of the
plea disposition, the USAO agreed to dismiss the remaining
charges and not pursue charges concerning the June 1999
assault. Shortly after, Watson filed a motion to initiate criminal
contempt proceedings against Robertson for violating the
CPO, based on the June 1999 assault. The court found
Robertson guilty on three counts of criminal contempt.
Robertson appealed, arguing that criminal contempt
prosecutions are between the public and the defendant, and
thus could only be brought in the name of the relevant
sovereign (the United States). As such, the plea agreement
barred the government from pursuing any charges arising
from the June 1999 incident. The Court of Appeals rejected
Robertson’s arguments.
Issue Presented and Holding
Issue: Whether an action for criminal contempt in a
congressionally created court may constitutionally be brought in
the name and pursuant to the power of a private person, rather
than in the name and pursuant to the power of the United
States.
Held: The Court orders that the writ of certiorari is dismissed as
improvidently granted.
Case
Thompson v.
BranchesDomestic
Violence
Shelter of
Huntington,
West Virginia,
Inc.
531 U.S. 1186
(2001)
Subject
Confidentiality:
Confidentiality
at DV Shelters
Facts
This case originates from a personal injury which Barbara
Thompson received on October 7, 1994. At that time, both
Barbara Thompson and Julia Good were employees of
Branches. Ms. Thompson was helping Ms. Good jump-start
her car when Ms. Good's foot slipped off the clutch, causing
the car to lurch forward and pin Ms. Thompson's leg between
two cars. Ms. Thompson and her husband, Michael
Thompson, sued Ms. Good's insurer, Nationwide Insurance
Company. Following discovery, the underlying case settled.
Meanwhile, on October 16, 1994, Mr. and Ms. Thompson
became embroiled in a domestic dispute. Ms. Thompson left
home and became a client at Branches. The following day,
Ms. Thompson gave a statement to Deputy Sheriff Robert
Adkins and filed a domestic violence petition against her
husband. A warrant for wanton endangerment was issued
against Mr. Thompson. These charges were subsequently
dropped.
During the pendency of the personal injury litigation,
Nationwide's defense counsel, took depositions of both Mr.
and Ms. Thompson and questioned the Thompsons regarding
their personal lives. They stated that they believed the
personal information could have come from Ms. Thompson's
client file at Branches. Mr. Thompson filed a West Virginia
State Bar disciplinary complaint against Attorney Johnson,
alleging that the attorney unethically acquired information from
Branches, alleging that Branches Domestic Violence Shelter
breached confidentiality. The Thompsons then filed a lawsuit
against Branches alleging release of confidential information
in violation of W. Va. Code §48-2C-15 and slander. The
Circuit Court of Cabell County, West Virginia, granted
summary judgment to Branches. The WV Supreme Court
affirmed.
Issue Presented and Holding
Issue: Whether Branches violated confidentiality in violation of
of W. Va. Code §48-2C-15.
Held: Petition for rehearing denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a balancing test should apply to assessing a posthumous
exception to the privilege for communications whose relative importance to
particular criminal litigation is substantial.
Swidler &
Berlin v. U.S.
524 U.S. 399
(1998)
Confidentiality:
Posthumous
Exception to
Attorney-Client
Privilege
When various investigations of the 1993 dismissal of White
House Travel Office employees were beginning, Deputy White
House Counsel Vincent W. Foster, Jr., met with petitioner
Hamilton, an attorney at petitioner law firm, to seek legal
representation. Hamilton took handwritten notes at their
meeting. Nine days later, Foster committed suicide.
Subsequently, a federal grand jury, at the Independent
Counsel's request, issued subpoenas for, inter alia, the
handwritten notes as part of an investigation into whether
crimes were committed during the prior investigations into the
firings. Petitioners moved to quash, arguing, among other
things, that the notes were protected by the attorney-client
privilege. The District Court agreed and denied enforcement of
the subpoenas. In reversing, the Court of Appeals recognized
that most courts assume the privilege survives death, but
noted that such references usually occur in the context of the
well-recognized testamentary exception to the privilege
allowing disclosure for disputes among the client's heirs. The
court declared that the risk of posthumous revelation, when
confined to the criminal context, would have little to no chilling
effect on client communication, but that the costs of protecting
communications after death were high. Concluding that the
privilege is not absolute in such circumstances, and that
instead, a balancing test should apply, the court held that
there is a posthumous exception to the privilege for
communications whose relative importance to particular
criminal litigation is substantial.
Held: No. Reversed.
Hamilton's notes are protected by the attorney-client privilege. This
Court's inquiry must be guided by “the principles of the common law as
interpreted by the courts in light of reason and experience.” The relevant
case law demonstrates that it has been overwhelmingly, if not universally,
accepted, for well over a century, that the privilege survives the client's
death in a case such as this. While the Independent Counsel's arguments
against the privilege's posthumous survival are not frivolous, he has simply
not satisfied his burden of showing that “reason and experience” require a
departure from the common-law rule. His interpretation-that the
testamentary exception supports the privilege's posthumous termination
because in practice most cases have refused to apply the privilege
posthumously; that the exception reflects a policy judgment that the interest
in settling estates outweighs any posthumous interest in confidentiality; and
that, by analogy, the interest in determining whether a crime has been
committed should trump client confidentiality, particularly since the estate's
financial interests are not at stake-does not square with the case law's
implicit acceptance of the privilege's survival and with its treatment of
testamentary disclosure as an “exception” or an implied “waiver.” And his
analogy's premise is incorrect, since cases have consistently recognized
that the testamentary exception furthers the client's intent, whereas there is
no reason to suppose the same is true with respect to grand jury testimony
about confidential communications. Knowing that communications will
remain confidential even after death serves a weighty interest in
encouraging a client to communicate fully and frankly with counsel;
posthumous disclosure of such communications may be as feared as
disclosure during the client's lifetime. The Independent Counsel's
suggestion that a posthumous disclosure rule will chill only clients intent on
perjury, not truthful clients or those asserting the Fifth Amendment,
incorrectly equates the privilege against self-incrimination with the privilege
here at issue, which serves much broader purposes. Clients consult
attorneys for a wide variety of reasons, many of which involve confidences
that are not admissions of crime, but nonetheless are matters the clients
would not wish divulged. The suggestion that the proposed exception would
have minimal impact if confined to criminal cases, or to information of
substantial importance in particular criminal cases, is unavailing because
there is no case law holding that the privilege applies differently in criminal
and civil cases, and because a client may not know when he discloses
information to his attorney whether it will later be relevant to a civil or
criminal matter, let alone whether it will be of substantial importance.
Balancing ex post the importance of the information against client interests,
even limited to criminal cases, introduces substantial uncertainty into the
privilege's application and therefore must be rejected. The argument that
the existence of, e.g., the crime-fraud and testamentary exceptions to the
privilege makes the impact of one more exception marginal fails because
there is little empirical evidence to support it, and because the established
exceptions, unlike the proposed exception, are consistent with the
privilege's purposes. Indications in United States v. Nixon, and Branzburg
v. Hayes, that privileges must be strictly construed as inconsistent with truth
seeking are inapposite here, since those cases dealt with the creation of
privileges not recognized by the common law, whereas here, the
Independent Counsel seeks to narrow a well-established privilege.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the conversations between Redmond and her
therapist and the notes taken during their counseling sessions
are protected from compelled disclosure under Rule 501.
Jaffee v.
Redmond
518 U.S. 1
(1996)
Confidentiality:
Therapists
Petitioner, the administrator of decedent Allen's estate, filed
this action alleging that Allen's constitutional rights were
violated when he was killed by respondent Redmond, an onduty police officer employed by respondent village. The court
ordered respondents to give petitioner notes made by Karen
Beyer, a licensed clinical social worker, during counseling
sessions with Redmond after the shooting, rejecting their
argument that a psychotherapist-patient privilege protected
the contents of the conversations. Neither Beyer nor
Redmond complied with the order. At trial, the jury awarded
petitioner damages after being instructed that the refusal to
turn over the notes was legally unjustified and the jury could
presume that the notes would have been unfavorable to
respondents. The Court of Appeals reversed and remanded,
finding that “reason and experience,” the touchstones for
acceptance of a privilege under Federal Rule of Evidence 501,
compelled recognition of a psychotherapist-patient privilege.
However, it found that the privilege would not apply if, in the
interests of justice, the evidentiary need for disclosure
outweighed the patient's privacy interests. Balancing those
interests, the court concluded that Beyer's notes should have
been protected.
Held: Yes. Affirmed.
(a) Rule 501 authorizes federal courts to define new privileges
by interpreting “the principles of the common law in the light of
reason and experience.” The Rule thus did not freeze the law
governing privileges at a particular point in history, but rather
directed courts to “continue the evolutionary development of
testimonial privileges.” An exception from the general rule
disfavoring testimonial privileges is justified when the proposed
privilege “promotes sufficiently important interests to outweigh
the need for probative evidence.”
(b) Significant private interests support recognition of a
psychotherapist privilege. Effective psychotherapy depends
upon an atmosphere of confidence and trust, and therefore the
mere possibility of disclosure of confidential communications
may impede development of the relationship necessary for
successful treatment. The privilege also serves the public
interest, since the mental health of the Nation's citizenry, no less
than its physical health, is a public good of transcendent
importance. In contrast, the likely evidentiary benefit that would
result from the denial of the privilege is modest. That it is
appropriate for the federal courts to recognize a psychotherapist
privilege is confirmed by the fact that all 50 States and the
District of Columbia have enacted into law some form of the
privilege, and reinforced by the fact that the privilege was
among the specific privileges recommended in the proposed
privilege rules that were rejected in favor of the more openended language of the present Rule 501.
(c) The federal privilege, which clearly applies to psychiatrists
and psychologists, also extends to confidential communications
made to licensed social workers in the course of psychotherapy.
The reasons for recognizing the privilege for treatment by
psychiatrists and psychologists apply with equal force to clinical
social workers, and the vast majority of States explicitly extend
a testimonial privilege to them. The balancing component
implemented by the Court of Appeals and a few States is
rejected, for it would eviscerate the effectiveness of the privilege
by making it impossible for participants to predict whether their
confidential conversations will be protected. Because this is the
first case in which this Court has recognized a psychotherapist
privilege, it is neither necessary nor feasible to delineate its full
contours in a way that would govern all future questions.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the patient-identification requirement is a
reasonable exercise of the State's broad police powers or
constitutes an invasion of any right or liberty protected by the
Fourteenth Amendment.
Whalen v. Roe
429 U.S. 589
(1977)
Confidentiality:
Patient
Identification
Responding to a concern that drugs were being diverted into
unlawful channels, the New York Legislature in 1972 enacted
a statutory scheme to correct defects in the previous law. The
1972 statute classifies potentially harmful drugs and provides
that prescriptions for the category embracing the most
dangerous legitimate drugs (Schedule II) be prepared on an
official form. One copy of the form, which requires
identification of the prescribing physician, dispensing
pharmacy, drug and dosage, and the patient's name, address,
and age, must be filed with the State Health Department,
where pertinent data are recorded on tapes for computer
processing. All forms are retained for a five-year period under
a system to safeguard their security, and are thereafter
destroyed. Public disclosure of the patient's identity is
prohibited, and access to the files is confined to a limited
number of health department and investigatory personnel.
Appellees, including a group of patients regularly receiving
Schedule II drugs and prescribing doctors, brought this action
challenging the constitutionality of the Schedule II patientidentification requirements. Holding that “the doctor-patient
relationship is one of the zones of privacy accorded
constitutional protection” and that the Act's patientidentification provisions invaded that zone with “a needlessly
broad sweep,” since appellant had been unable to
demonstrate the need for those requirements, a three-judge
District Court enjoined the enforcement of the challenged
provisions.
Held: No. Reversed.
1. The patient-identification requirement is a reasonable
exercise of the State's broad police powers, and the District
Court's finding that the necessity for the requirement had not
been proved is not a sufficient reason for holding the statute
unconstitutional.
2. Neither the immediate nor the threatened impact of the
patient-identification requirement on either the reputation or the
independence of patients for whom Schedule II drugs are
medically indicated suffices to constitute an invasion of any right
or liberty protected by the Fourteenth Amendment. (a) The
possibility that a doctor or pharmacist may voluntarily reveal
information on a prescription form, which existed under prior
law, is unrelated to the computerized data bank. (b) There is no
support in the record or in the experience of the two States that
the New York program emulates for assuming that the statute's
security provisions will be improperly administered. (c) The
remote possibility that judicial supervision of the evidentiary use
of particular items of stored information will not provide
adequate protection against unwarranted disclosure is not a
sufficient reason for invalidating the entire patient identification
program. (d) Though it is argued that concern about disclosure
may induce patients to refuse needed medication, the 1972
statute does not deprive the public of access to Schedule II
drugs, as is clear from the fact that about 100,000 prescriptions
for such drugs were filed each month before the District Court's
injunction was entered.
3. Appellee doctors' contention that the 1972 statute impairs
their right to practice medicine free from unwarranted state
interference is without merit, whether it refers to the statute's
impact on their own procedures, which is no different from the
impact of the prior statute, or refers to the patients' concern
about disclosure that the Court has rejected.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether this Court procedure violated the Confrontation
Clause of the Sixth Amendment.
Coy v. Iowa
487 U.S. 1012
(1988)
Confrontation
Clause:
Child Victims
Appellant was charged with sexually assaulting two 13-yearold girls. At appellant's jury trial, the court granted the State's
motion, pursuant to a 1985 state statute intended to protect
child victims of sexual abuse, to place a screen between
appellant and the girls during their testimony, which blocked
him from their sight but allowed him to see them dimly and to
hear them. The court rejected appellant's argument that this
procedure violated the Confrontation Clause of the Sixth
Amendment, which gives a defendant the right “to be
confronted with the witnesses against him.” Appellant was
convicted of two counts of lascivious acts with a child, and the
Iowa Supreme Court affirmed.
Held: Yes. Reversed and Remanded.
1. The Confrontation Clause by its words provides a criminal
defendant the right to “confront” face-to-face the witnesses
giving evidence against him at trial. That core guarantee serves
the general perception that confrontation is essential to fairness,
and helps to ensure the integrity of the fact-finding process by
making it more difficult for witnesses to lie.
2. Appellant's right to face-to-face confrontation was violated
since the screen at issue enabled the complaining witnesses to
avoid viewing appellant as they gave their testimony. There is
no merit to the State's assertion that its statute creates a
presumption of trauma to victims of sexual abuse that outweighs
appellant's right to confrontation. Even if an exception to this
core right can be made, it would have to be based on something
more than the type of generalized finding asserted here, unless
it were “firmly rooted in our jurisprudence.” An exception created
by a 1985 statute can hardly be viewed as “firmly rooted,” and
there have been no individualized findings that these particular
witnesses needed special protection.
3. Since the State Supreme Court did not address the
question whether the Confrontation Clause error was harmless
beyond a reasonable doubt under Chapman v. California, the
case must be remanded.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the admission of the child's hearsay statements violated Wright's
Confrontation Clause rights.
Idaho v. Wright
497 U.S. 805
(1990)
Confrontation
Clause:
Child Victims
Respondent Wright was charged under Idaho law with two
counts of lewd conduct with a minor, specifically her 5 1/2 and 2 1/2 -year-old daughters. At the trial, it was agreed that
the younger daughter was not “capable of communicating to
the jury.” However, the court admitted, under Idaho's residual
hearsay exception, certain statements she had made to a
pediatrician having extensive experience in child abuse cases.
The doctor testified that she had reluctantly answered
questions about her own abuse, but had spontaneously
volunteered information about her sister's abuse. Wright was
convicted on both counts, but appealed only from the
conviction involving the younger child. The State Supreme
Court reversed, finding that the admission of the doctor's
testimony under the residual hearsay exception violated
Wright's rights under the Confrontation Clause. The court
noted that the child's statements did not fall within a traditional
hearsay exception and lacked “particularized guarantees of
trustworthiness” because the doctor had conducted the
interview without procedural safeguards: He failed to
videotape the interview, asked leading questions, and had a
preconceived idea of what the child should be disclosing. This
error, the court found, was not harmless beyond a reasonable
doubt.
Held: Yes. Affirmed.
(a) Incriminating statements admissible under an exception to the hearsay rule are not
admissible under the Confrontation Clause unless the prosecution produces, or
demonstrates the unavailability of, the declarant whose statement it wishes to use and
unless the statement bears adequate indicia of reliability. The reliability requirement can be
met where the statement either falls within a firmly rooted hearsay exception or is supported
by a showing of “particularized guarantees of trustworthiness.” Although it is presumed here
that the child was unavailable within the meaning of the Clause, the evidence will be barred
unless the reliability requirement is met.
(b) Idaho's residual hearsay exception is not a firmly rooted hearsay exception for
Confrontation Clause purposes. It accommodates ad hoc instances in which statements not
otherwise falling within a recognized hearsay exception might be sufficiently reliable to be
admissible at trial, and thus does not share the same tradition of reliability supporting the
admissibility of statements under a firmly rooted hearsay exception. To rule otherwise would
require that virtually all codified hearsay exceptions be found to assume constitutional
stature, something which this Court has declined to do.
(c) In determining that “particularized guarantees of trustworthiness” were not shown, the
State Supreme Court erred in placing dispositive weight on the lack of procedural
safeguards at the interview, since such safeguards may in many instances be inappropriate
or unnecessary to a determination whether a given statement is sufficiently trustworthy for
Confrontation Clause purposes. Rather, such trustworthiness guarantees must be shown
from the totality of those circumstances that surround the making of the statement and
render the declarant particularly worthy of belief. As is the case with statements admitted
under a firmly rooted hearsay exception, evidence possessing “particularized guarantees of
trustworthiness” must be so trustworthy that adversarial testing would add little to its
reliability. In child abuse cases, factors used to determine trustworthiness guarantees-such
as the declarant's mental state and the use of terminology unexpected of a child of similar
age-must relate to whether the child was particularly likely to be telling the truth when the
statement was made. The State's contention that evidence corroborating a hearsay
statement may properly support a finding that the statement bears such trustworthiness
guarantees is rejected, since this would permit admission of presumptively unreliable
statements, such as those made under duress, by bootstrapping on the trustworthiness of
other evidence at trial. That result is at odds with the requirement that hearsay evidence
admitted under the Clause be so trustworthy that cross-examination of the declarant would
be of marginal utility. Also rejected is Wright's contention that the child's statements are per
se or presumptively unreliable on the ground that the trial court found the child incompetent
to testify at trial. The court found only that she was not capable of communicating to the jury
and implicitly found that at the time she made the statements she was capable of receiving
just impressions of the facts and of relating them truly. Moreover, the Clause does not erect
a per se rule barring the admission of prior statements of a declarant who is unable to
communicate to the jury at the time of trial.
(d) In admitting the evidence, the trial court identified only two factors-whether the child
had a motive to make up her story and whether, given her age, the statements were of the
type that one would expect a child to fabricate-relating to circumstances surrounding the
making of the statements. The State Supreme Court properly focused on the presumptive
unreliability of the out-of-court statements and on the suggestive manner in which the
doctor conducted his interview. Viewing the totality of the circumstances, there is no special
reason for supposing that the incriminating statements about the child's own abuse were
particularly trustworthy. Her statement about her sister presents a closer question. Although
its spontaneity and the change in her demeanor suggest that she may have been telling the
truth, spontaneity may be an inaccurate indicator of trustworthiness where there has been
prior interrogation, prompting, or manipulation by adults. Moreover, the statement was not
made under circumstances of reliability comparable to those required, for example, for the
admission of excited utterances or statements made for purposes of medical diagnosis or
treatment. Because the State does not challenge the State Supreme Court's determination
that the Confrontation Clause error was not harmless beyond a reasonable doubt, this
Court will not revisit the issue.
Case
Danner v.
Kentucky
525 U.S. 1010
(1998)
Subject
Confrontation
Clause:
Child Victims
Facts
Issue Presented and Holding
James Danner was charged with raping and sodomizing his
daughter. The victim, now 15 years of age, vaguely protested
that she could not be near him. While the witness had
expressly disclaimed fear of the defendant, the trial found that
due to factors which it cannot define but yet go much further
than anxiety or nervousness, as referred to the various cases
that have been cited, that compelling need exists for the use
of the electronic equipment. The Court is convinced that due
to the nature of the testimony and the age of the witness that
face-to-face arrangement would inhibit the witness to a degree
that the jury's search for the truth would be clouded.
Issue: Whether the use of electronic testimony violated
Danner’s Sixth Amendment right to confront the witness.
Petitioner objected that this electronic testimony procedure
violated his constitutional right to confront his accuser. The
Kentucky Supreme Court affirmed Danner's conviction.
Held: Petition for a writ of certiorari to the Supreme Court of
Kentucky denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether respondent's exclusion from the competency
hearing violated his right to confront the witnesses against him.
Kentucky v.
Stincer
482 U.S. 730
(1987)
Confrontation
Clause:
Child Victims
After a jury was sworn at respondent's Kentucky trial for
committing sodomy with two minor girls, but before the
presentation of evidence, the court conducted an in-chambers
hearing to determine the girls' competency to testify.
Respondent, but not his counsel, was excluded from this
hearing. Under Kentucky law, when a child's competency to
testify is raised, the judge is required to resolve whether the
child is capable of observing, recollecting, and narrating the
facts, and whether the child has a moral sense of the
obligation to tell the truth. Thus, during the hearing, the judge
and the attorneys limited themselves to questions designed to
determine whether the girls were capable of remembering
basic facts and of distinguishing between truth and falsehood.
The judge ruled that both girls were competent to testify.
Before each girl began her substantive testimony in open
court, the prosecutor repeated some of the background
questions asked at the hearing, while respondent's counsel,
on cross-examination, repeated other such questions,
particularly those regarding the girls' ability to distinguish truth
from lies. After the girls' testimony was complete, respondent's
counsel did not request that the court reconsider its
competency rulings. Respondent was convicted, but the
Kentucky Supreme Court reversed, holding that respondent's
exclusion from the competency hearing violated his right to
confront the witnesses against him.
Held: No. Reversed.
1. Respondent's rights under the Confrontation Clause of the
Sixth Amendment were not violated by his exclusion from the
competency hearing. (a) The Confrontation Clause's functional
purpose is to promote reliability in criminal trials by ensuring a
defendant an opportunity for cross-examination. (b) Rather than
attempting to determine whether a competency hearing is a
“stage of trial” (as opposed to a pretrial proceeding) subject to
the Confrontation Clause's requirements, the more useful
inquiry is whether excluding the defendant from the hearing
interferes with his opportunity for cross-examination. No such
interference occurred here, because the two girls were crossexamined in open court with respondent present and available
to assist his counsel, and because any questions asked during
the hearing could have been repeated during direct and crossexamination. Moreover, the nature of the competency hearing
militates against finding a Confrontation Clause violation,
because questions at such hearings usually are limited to
matters unrelated to basic trial issues. In addition, the judge's
responsibility to determine competency continues throughout
the trial so that a competency determination may be
reconsidered on motion after the substantive examination of the
child.
2. Respondent's rights under the Due Process Clause of the
Fourteenth Amendment were not violated by his exclusion from
the competency hearing. The defendant's due process right to
be present at critical stages of a criminal proceeding if his
presence would contribute to the fairness of the procedure is
not implicated here in light of the particular nature of the
competency hearing, whereby questioning was limited to
competency issues and neither girl was asked about the
substantive testimony she would give at trial. There is no
indication that respondent's presence at the hearing would have
been useful in ensuring a more reliable competency
determination.
Case
Maryland v.
Craig
497 U.S. 836
(1990)
Subject
Confrontation
Clause:
Child Victims
Facts
Respondent Craig was tried in a Maryland court on several
charges related to her alleged sexual abuse of a 6-year-old
child. Before the trial began, the State sought to invoke a state
statutory procedure permitting a judge to receive, by one-way
closed circuit television, the testimony of an alleged child
abuse victim upon determining that the child's courtroom
testimony would result in the child suffering serious emotional
distress, such that he or she could not reasonably
communicate. If the procedure is invoked, the child,
prosecutor, and defense counsel withdraw to another room,
where the child is examined and cross-examined; the judge,
jury, and defendant remain in the courtroom, where the
testimony is displayed. Although the child cannot see the
defendant, the defendant remains in electronic communication
with counsel, and objections may be made and ruled on as if
the witness were in the courtroom. The court rejected Craig's
objection that the procedure's use violates the Confrontation
Clause of the Sixth Amendment, ruling that Craig retained the
essence of the right to confrontation. Based on expert
testimony, the court also found that the alleged victim and
other allegedly abused children who were witnesses would
suffer serious emotional distress if they were required to
testify in the courtroom, such that each would be unable to
communicate. Finding that the children were competent to
testify, the court permitted testimony under the procedure, and
Craig was convicted. The State Court of Special Appeals
affirmed, but the State Court of Appeals reversed. Although it
rejected Craig's argument that the Clause requires in all cases
a face-to-face courtroom encounter between the accused and
accusers, it found that the State's showing was insufficient to
reach the high threshold required by Coy v. Iowa, before the
procedure could be invoked. The court held that the procedure
usually cannot be invoked unless the child initially is
questioned in the defendant's presence and that, before using
the one-way television procedure, the trial court must
determine whether a child would suffer severe emotional
distress if he or she were to testify by two-way television.
Issue Presented and Holding
Issue: Whether the Confrontation Clause guarantees criminal defendants an absolute right
to a face-to-face meeting with the witnesses against them at trial and whether Maryland's
interest in protecting child witnesses from the trauma of testifying in a child abuse case is
sufficiently important to justify the use of its special procedure, provided that the State
makes an adequate showing of necessity in an individual case.
Held: Vacated and remanded.
No, the Confrontation Clause does not guarantee criminal defendants an absolute right to
a face-to-face meeting with the witnesses against them at trial. The Clause's central
purpose, to ensure the reliability of the evidence against a defendant by subjecting it to
rigorous testing in an adversary proceeding before the trier of fact, is served by the
combined effects of the elements of confrontation: physical presence, oath, crossexamination, and observation of demeanor by the trier of fact. Although face-to-face
confrontation forms the core of the Clause's values, it is not an indispensable element of the
confrontation right. If it were, the Clause would abrogate virtually every hearsay exception,
a result long rejected as unintended and too extreme. Accordingly, the Clause must be
interpreted in a manner sensitive to its purpose and to the necessities of trial and the
adversary process. Nonetheless, the right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation at trial only where denial of such
confrontation is necessary to further an important public policy and only where the
testimony's reliability is otherwise assured.
Yes, Maryland's interest in protecting child witnesses from the trauma of testifying in a
child abuse case is sufficiently important to justify the use of its special procedure, provided
that the State makes an adequate showing of necessity in an individual case.
(a) While Maryland's procedure prevents the child from seeing the defendant, it preserves
the other elements of confrontation and, thus, adequately ensures that the testimony is both
reliable and subject to rigorous adversarial testing in a manner functionally equivalent to
that accorded live, in-person testimony. These assurances are far greater than those
required for the admission of hearsay statements. Thus, the use of the one-way closed
circuit television procedure, where it is necessary to further an important state interest, does
not impinge upon the Confrontation Clause's truth-seeking or symbolic purposes.
(b) A State's interest in the physical and psychological well-being of child abuse victims
may be sufficiently important to outweigh, at least in some cases, a defendant's right to face
his or her accusers in court. The fact that most States have enacted similar statutes attests
to widespread belief in such a public policy's importance, and this Court has previously
recognized that States have a compelling interest in protecting minor victims of sex crimes
from further trauma and embarrassment. The Maryland Legislature's considered judgment
regarding the importance of its interest will not be second-guessed, given the State's
traditional and transcendent interest in protecting the welfare of children and the growing
body of academic literature documenting the psychological trauma suffered by child abuse
victims who must testify in court.
(c) The requisite necessity finding must be case specific. The trial court must hear
evidence and determine whether the procedure's use is necessary to protect the particular
child witness' welfare; find that the child would be traumatized, not by the courtroom
generally, but by the defendant's presence; and find that the emotional distress suffered by
the child in the defendant's presence is more than de minimis. Without determining the
minimum showing of emotional trauma required for the use of a special procedure, the
Maryland statute, which requires a determination that the child will suffer serious emotional
distress such that the child cannot reasonably communicate, clearly suffices to meet
constitutional standards.
(d) Since there is no dispute that, here, the children testified under oath, were subject to
full cross-examination, and were able to be observed by the judge, jury, and defendant as
they testified, admitting their testimony is consonant with the Confrontation Clause,
provided that a proper necessity finding has been made. The Court of Appeals erred to the
extent that it may have rested its conclusion that the trial court did not make the requisite
necessity finding on the lower court's failure to observe the children's behavior in the
defendant's presence and its failure to explore less restrictive alternatives to the one-way
television procedure. While such evidentiary requirements could strengthen the grounds for
the use of protective measures, only a case-specific necessity finding is required. This
Court will not establish, as a matter of federal constitutional law, such categorical
evidentiary prerequisites for the use of the one-way procedure.
Case
Marx v. Texas
528 U.S. 1034
(1998)
Subject
Confrontation
Clause:
Child Victims
Facts
Jeffrey Steven Marx was charged in separate indictments with
sexually abusing B.J., a 13-year-old girl, and J.M., a 6-yearold girl. Before the trial concerning Marx's abuse of B.J., the
court held a hearing to determine whether to permit J.M.-who
had witnessed the abuse-to testify via closed-circuit television
as to what she had seen. At the hearing, the prosecutor asked
J.M.'s mother whether J.M. would suffer additional “emotional
and psychological trauma,” were she to testify in Marx's
presence. J.M.'s mother initially answered in the affirmative.
After defense counsel clarified for J.M.'s mother that her
daughter's testimony would deal only with the incidents
between Marx and B.J., however, J.M.'s mother indicated that
her daughter would be “ready for that.” Dr. Calvert
subsequently testified that “if there was going to be any
trauma to J.M.” from testifying in the presence of Marx, the
risk of such trauma would of course be lessened if she were
permitted to testify via closed-circuit television. The trial court,
without any elaboration, granted the prosecution's motion to
allow J.M. to testify outside of Marx's presence. A divided
Court of Criminal Appeals of Texas affirmed.
Issue Presented and Holding
Issue: The case represents an expansion of Craig in 2 ways:
1. First, it extends the holding of that case to a child witness
whose abuse is neither the subject of the prosecution nor will be
the subject of her testimony. The only basis for excusing her
from real confrontation with the defendant is that, according to
the prosecution, she also was the subject of sexual abuse, on
another occasion, by the same defendant.
2. The case also expands Craig with regard to the preliminary
finding. The state statute at issue in Craig permitted
confrontation-via-TV only when the trial court found that real
confrontation would produce “serious emotional distress such
that the child cannot reasonably communicate.” The Craig
opinion left open the question of “the minimum showing of
emotional trauma” constitutionally required.
Held: Petition for writ of certiorari to the Court of Criminal
Appeals of Texas denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Covington’s identification and description of the shooter and the location of the shooting were
testimonial statements and thus their introduction violated the Confrontation Clause.
Michigan v.
Bryant
563 U.S. __
(2011)
Confrontation
Clause:
Victim
Statements
Michigan police dispatched to a gas station parking lot found
Anthony Covington mortally wounded. Covington told them
that he had been shot by respondent Bryant outside Bryant’s
house and had then driven himself to the lot. At trial, which
occurred before Crawford v. Washington, and Davis v.
Washington, were decided, the officers testified about what
Covington said. Bryant was found guilty of second-degree
murder. Ultimately, the Michigan Supreme Court reversed his
conviction, holding that the Sixth Amendment’s Confrontation
Clause, as explained in Crawford and Davis, rendered
Covington’s statements inadmissible testimonial hearsay.
Held: No; they had a “primary purpose to enable police assistance to meet an ongoing emergency.” Vacated and
Remanded.
(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment
“demands unavailability and a prior opportunity for cross-examination.” Crawford did not “spell out a comprehensive
definition of ‘testimonial,’ ” but it noted that testimonial evidence includes, among other things, “police interrogations.”
Thus, Sylvia Crawford’s statements during a station-house interrogation about a stabbing were testimonial, and their
admission when her husband, the accused, had “no opportunity” for cross-examination due to spousal privilege
made out a Sixth Amendment violation. In Davis and Hammon, both domestic violence cases, the Court explained
that “statements are non-testimonial when made in the course of police interrogation under circumstances objectively
indicating that the [interrogation’s] primary purpose is to enable police assistance to meet an ongoing emergency,”
but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and
that the [interrogation’s] primary purpose is to establish or prove past events potentially relevant to later criminal
prosecution.” Thus, a recording of a 911 call describing an ongoing domestic disturbance was non-testimonial in
Davis, where the victim’s “elicited statements were necessary to be able to resolve [the ongoing] emergency,” and
the statements were not formal. But the statements in Hammon were testimonial, where the victim was interviewed
after the event in a room separate from her husband and “deliberately recounted, in response to police questioning”
the past events. Here, the context is a nondomestic dispute, with the “ongoing emergency” extending beyond an
initial victim to a potential threat to the responding police and the public. This context requires additional clarification
of what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.”
(b) To make the “primary purpose” determination, the Court must objectively evaluate the circumstances in which
the encounter between the individual and the police occurs and the parties’ statements and actions. (1) The primary
purpose inquiry is objective. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus
at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the
relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular
parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements
and actions and the circumstances in which the encounter occurred. (2) The existence of an “ongoing emergency”
at the time of the encounter is among the most important circumstances informing the interrogation’s “primary
purpose.” An emergency focuses the participants not on “proving past events potentially relevant to later criminal
prosecution,” but on “ending a threatening situation.” The Michigan Supreme Court failed to appreciate that whether
an emergency exists and is ongoing is a highly context-dependent inquiry. An assessment of whether an emergency
threatening the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been
neutralized because the threat to the first responders and public may continue. The State Supreme Court also did
not appreciate that an emergency’s duration and scope may depend in part on the type of weapon involved; the
court below relied on Davis and Hammon, where the assailants used their fists, as controlling the scope of an
emergency involving a gun. A victim’s medical condition is important to the primary purpose inquiry to the extent that
it sheds light on the victim’s ability to have any purpose at all in responding to police questions and on the likelihood
that any such purpose would be a testimonial one. It also provides important context for first responders to judge the
existence and magnitude of a continuing threat to the victim, themselves, and the public. This does not mean that an
emergency lasts the entire time that a perpetrator is on the loose, but trial courts can determine in the first instance
when an interrogation transitions from non-testimonial to testimonial. Finally, whether an ongoing emergency exists
is simply one factor informing the ultimate inquiry regarding an interrogation’s “primary purpose.” Another is the
encounter’s informality. Formality suggests the absence of an emergency, but informality does not necessarily
indicate the presence of an emergency or the lack of testimonial intent. The facts here— the questioning occurred in
an exposed, public area, before emergency medical services arrived, and in a disorganized fashion— distinguish this
case from Crawford’s formal station-house interrogation.(3) The statements and actions of both the declarant and
interrogators also provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both
the questions and the answers ameliorates problems that could arise from looking solely to one participant, since
both interrogators and declarants may have mixed motives. Police officers’ dual responsibilities as both first
responders and criminal investigators may lead them to act with different motives simultaneously or in quick
succession. And during an ongoing emergency, victims may want the threat to end, but may not envision
prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into
account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and
purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical
state. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of
all participants is also consistent with this Court’s prior holdings.
(c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police
objectively indicate that the interrogation’s “primary purpose” was “to enable police assistance to meet an ongoing
emergency.” The circumstances of the interrogation involved an armed shooter, whose motive for and location after
the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the
location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute’s potential scope
and thus the emergency encompassed a potential threat to the police and the public. And since this case involved a
gun, the physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to
end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining
the “primary purpose of the interrogation” as evidenced by the statements and actions of Covington and the police.
The circumstances of the encounter provide important context for understanding Covington’s statements to the
police. When he responded to their questions, he was lying in a gas station parking lot bleeding from a mortal
gunshot wound, and his answers were punctuated with questions about when emergency medical services would
arrive. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or
prove past events potentially relevant to later criminal prosecution.” Ibid. For their part, the police responded to a call
that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location;
or anything else about the crime. They asked exactly the type of questions necessary to enable them “to meet an
ongoing emergency.” Ibid. Nothing in Covington’s responses indicated to the police that there was no emergency or
that the emergency had ended. Finally, this situation is more similar to the informal, harried 911 call in Davis than to
the structured, station-house interview in Crawford. The officers all arrived at different times; asked, upon arrival,
what had happened; and generally did not conduct a structured interrogation. The informality suggests that their
primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a
formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his
statements.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether statements made during police “interrogations” produce
statements that are testimonial in nature and thus subject to the Confrontation
Clause.
Davis v.
Washington
547 U.S. 813
(2006)
In No. 05–5224, a 911 operator ascertained from Michelle
McCottry that she had been assaulted by her former
boyfriend, petitioner Davis, who had just fled the scene.
McCottry did not testify at Davis’s trial for felony violation of a
domestic no-contact order, but the court admitted the 911
recording despite Davis’s objection, which he based on the
Sixth Amendment’s Confrontation Clause. He was convicted.
The Washington Court of Appeals affirmed, as did the State
Supreme Court, which concluded that, inter alia, the portion of
the 911 conversation in which McCottry identified Davis as her
assailant was not testimonial.
Confrontation
Clause:
Victim
Statements
In No. 05–5705, when police responded to a reported
domestic disturbance at the home of Amy and Hershel
Hammon, Amy told them that nothing was wrong, but gave
them permission to enter. Once inside, one officer kept
petitioner Hershel in the kitchen while the other interviewed
Amy elsewhere and had her complete and sign a battery
affidavit. Amy did not appear at Hershel’s bench trial for, inter
alia, domestic battery, but her affidavit and testimony from the
officer who questioned her were admitted over Hershel’s
objection that he had no opportunity to cross-examine her.
Hershel was convicted, and the Indiana Court of Appeals
affirmed in relevant part. The State Supreme Court also
affirmed, concluding that, although Amy’s affidavit was
testimonial and wrongly admitted, it was harmless beyond a
reasonable doubt.
Held: Part 1. Affirmed. Part 2. Reversed and Remanded
The present cases involve statements that are non-testimonial when made in
the course of police interrogation under circumstances objectively indicating that
the primary purpose of interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose
of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution
1. McCottry’s statements identifying Davis as her assailant were not
testimonial. Only “testimonial statements” cause a declarant to be a witness.
The Court is unaware of any early American case invoking the Confrontation
Clause or the common-law right to confrontation that did not involve testimony
as thus defined. Well into the 20th century, this Court’s jurisprudence was
carefully applied only in the testimonial context, and its later cases never in
practice dispensed with the Confrontation Clause requirements of unavailability
and prior cross-examination in cases involving testimonial hearsay. The
question in Davis, therefore, is whether, objectively considered, the interrogation
during the 911 call produced testimonial statements. In contrast to Crawford,
where the interrogation took place at a police station and was directed solely at
establishing a past crime, a 911 call is ordinarily designed primarily to describe
current circumstances requiring police assistance. The difference is apparent
here. McCottry was speaking of events as they were actually happening, while
Crawford’s interrogation took place hours after the events occurred. Moreover,
McCottry was facing an ongoing emergency. Further, the statements elicited
were necessary to enable the police to resolve the present emergency rather
than simply to learn what had happened in the past. Finally, the difference in the
level of formality is striking. Crawford calmly answered questions at a station
house, with an officer-interrogator taping and taking notes, while McCottry’s
frantic answers were provided over the phone, in an environment that was not
tranquil, or even safe. Thus, the circumstances of her interrogation objectively
indicate that its primary purpose was to enable police assistance to meet an
ongoing emergency. She was not acting as a witness or testifying.
2. Amy Hammon’s statements were testimonial. They were not much different
from those in Crawford. It is clear from the circumstances that Amy’s
interrogation was part of an investigation into possibly criminal past conduct.
There was no emergency in progress, she told the police when they arrived that
things were fine, and the officer questioning her was seeking to determine not
what was happening but what had happened. Objectively viewed, the primary, if
not sole, purpose of the interrogation was to investigate a possible crime. While
the formal features of Crawford’s interrogation strengthened her statements’
testimonial aspect, such features were not essential to the point. In both cases,
the declarants were separated from the defendants, the statements recounted
how potentially criminal past events began and progressed, and the
interrogation took place some time after the events were over. For the same
reasons the comparison to Crawford is compelling, the comparison to Davis is
unpersuasive. The statements in Davis were taken when McCottry was alone,
unprotected by police, and apparently in immediate danger from Davis. She was
seeking aid, not telling a story about the past. The Indiana courts may determine
on remand whether a claim of forfeiture by wrongdoing—under which one who
obtains a witness’s absence by wrongdoing forfeits the constitutional right to
confrontation—is properly raised in Hammon, and, if so, whether it is
meritorious. Absent such a finding, the Sixth Amendment operates to exclude
Amy Hammon’s affidavit.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Crawford announced a new rule of criminal procedure that
does not fall within the Teague exception for watershed rules.
Wharton v.
Bockting
549 U.S. 406
(2007)
Confrontation
Clause:
Child Victims
At respondent's trial for sexual assault on his 6–year–old
stepdaughter, the court determined that the child was too
distressed to testify and allowed respondent's wife and a
police detective to recount her out-of-court statements about
the assaults, as permitted by Nevada law, rejecting
respondent's claim that admitting this testimony would violate
the Confrontation Clause. He was convicted and sentenced to
prison. On direct appeal, the Nevada Supreme Court found
the child's statements constitutional under Ohio v. Roberts,
then this Court's governing precedent, which had held that the
Confrontation Clause permitted the admission of a hearsay
statement made by a declarant unavailable to testify if the
statement bore sufficient indicia of reliability. Respondent
renewed his Confrontation Clause claim in a subsequent
federal habeas petition, which the District Court denied. While
his appeal was pending in the Ninth Circuit, this Court
overruled Roberts in Crawford v. Washington, holding that
“testimonial statements of witnesses absent from trial” are
admissible “only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to crossexamine the witness,” and concluding that Roberts'
interpretation of the Confrontation Clause was unsound.
Respondent contended that had Crawford been applied to his
case, the child's statements would not have been admitted,
and that it should have been applied because it was either an
old rule in existence at the time of his conviction or a
“watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal
proceeding.” The Ninth Circuit reversed, holding that Crawford
was a new rule, but a watershed rule that applies retroactively
to cases on collateral review.
Held: Yes. Reversed and Remanded.
(a) Under Teague's framework, an old rule applies both on direct and
collateral review, but a new rule generally applies only to cases still on
direct review and applies retroactively in a collateral proceeding only if it (1)
is substantive or (2) is a watershed rule that implicates “the fundamental
fairness and accuracy of the criminal proceeding.” Respondent's conviction
became final on direct appeal well before Crawford was decided, and
Crawford announced a new rule, i.e., “a rule that was not dictated by
precedent existing at the time the defendant's conviction became final.” It is
flatly inconsistent with Roberts, which it overruled. “The explicit overruling
of an earlier holding no doubt creates a new rule.” Prior to Crawford,
“reasonable jurists,” could have concluded that Roberts governed the
admission of testimonial hearsay statements made by an unavailable
declarant.
(b) Because Crawford announced a new rule and because that rule is
procedural and not substantive, it cannot be applied here unless it is a
“watershed rule” that implicates “the fundamental fairness and accuracy of
the criminal proceeding.” This exception is “extremely narrow,” and since
Teague, this Court has rejected every claim that a new rule has satisfied
the requirements necessary to qualify as a watershed. The Crawford rule
does not meet those two requirements. (1) First, the rule does not implicate
“the fundamental fairness and accuracy of the criminal proceeding”
because it is not necessary to prevent “an “impermissibly large risk” of an
inaccurate conviction, the only case that this Court has identified as
qualifying under this exception, provides guidance. There, the Court held
that counsel must be appointed for an indigent defendant charged with a
felony because, when such a defendant is denied representation, the risk of
an unreliable verdict is intolerably high. The Crawford rule is not
comparable to the Gideon rule. It is much more limited in scope, and its
relationship to the accuracy of the fact-finding process is far less direct and
profound. Crawford overruled Roberts because Roberts was inconsistent
with the original understanding of the Confrontation Clause, not because
the Crawford rule's overall effect would be to improve the accuracy of factfinding in criminal trials. With respect to testimonial out-of-court statements,
Crawford is more restrictive than Roberts, which may improve the accuracy
of fact-finding in some criminal cases. But whatever improvement in
reliability Crawford produced must be considered together with Crawford's
elimination of Confrontation Clause protection against the admission of
unreliable out-of-court non-testimonial statements. It is thus unclear
whether Crawford decreased or increased the number of unreliable out-ofcourt statements that may be admitted in criminal trials. But the question
here is not whether Crawford resulted in some net improvement in the
accuracy of fact-finding in criminal cases, but, as the dissent below noted,
whether testimony admissible under Roberts is so much more unreliable
that, without the Crawford rule, “the likelihood of an accurate conviction is
seriously diminished.” Crawford did not effect a change of this magnitude.
(2) Second, the Crawford rule did not “alter this Court's understanding of
the bedrock procedural elements essential to the fairness of a proceeding.”
The Court has “not hesitated to hold that less sweeping and fundamental
rules” than Gideon's do not qualify. The Crawford rule, while certainly
important, is not in the same category with Gideon, which effected a
profound and “sweeping” change.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the State’s use of Sylvia’s statement violated
the Confrontation Clause because, where testimonial
statements are at issue, the only indicium of reliability sufficient
to satisfy constitutional demands is confrontation
Crawford v.
Washington
541 U.S. 36
(2004)
Confrontation
Clause:
Victim
Statements
Petitioner was tried for assault and attempted murder. The
State sought to introduce a recorded statement that
petitioner’s wife Sylvia had made during police interrogation,
as evidence that the stabbing was not in self-defense. Sylvia
did not testify at trial because of Washington’s marital
privilege. Petitioner argued that admitting the evidence would
violate his Sixth Amendment right to be “confronted with the
witnesses against him.” Under Ohio v. Roberts, that right does
not bar admission of an unavailable witness’s statement
against a criminal defendant if the statement bears “adequate
‘indicia of reliability,” a test met when the evidence either falls
within a “firmly rooted hearsay exception” or bears
“particularized guarantees of trustworthiness.” The trial court
admitted the statement on the latter ground. The State
Supreme Court upheld the conviction, deeming the statement
reliable because it was nearly identical to, i.e., interlocked
with, petitioner’s own statement to the police, in that both were
ambiguous as to whether the victim had drawn a weapon
before petitioner assaulted him.
Held: Yes. Reversed and Remanded.
(a) The Confrontation Clause’s text does not alone resolve
this case, so this Court turns to the Clause’s historical
background. First, the principal evil at which the Clause was
directed was the civil-law mode of criminal procedure,
particularly the use of ex parte examinations as evidence
against the accused. The Clause’s primary object is testimonial
hearsay, and interrogations by law enforcement officers fall
squarely within that class. Second, the Framers would not have
allowed admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify and
the defendant had had a prior opportunity for crossexamination. The “right to be confronted with the witnesses
against him,” is most naturally read as a reference to the
common-law right of confrontation, admitting only those
exceptions established at the time of the founding.
(b) This Court’s decisions have generally remained faithful to
the Confrontation Clause’s original meaning.
(c) However, the Roberts test departs from historical principles
because it admits statements consisting of ex parte testimony
upon a mere reliability finding.
(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of
cross-examination. Roberts allows a jury to hear evidence,
untested by the adversary process, based on a mere judicial
determination of reliability, thus replacing the constitutionally
prescribed method of assessing reliability with a wholly foreign
one.
(e) Roberts’ framework is unpredictable. Whether a statement
is deemed reliable depends on which factors a judge considers
and how much weight he accords each of them. However, the
unpardonable vice of the Roberts test is its demonstrated
capacity to admit core testimonial statements that the
Confrontation Clause plainly meant to exclude.
(f) The instant case is a self-contained demonstration of
Roberts’ unpredictable and inconsistent application. It also
reveals Roberts’ failure to interpret the Constitution in a way that
secures its intended constraint on judicial discretion. The
Constitution prescribes the procedure for determining the
reliability of testimony in criminal trials, and this Court, no less
than the state courts, lacks authority to replace it with one of its
own devising.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the California Supreme Court’s theory of
forfeiture by wrongdoing is an exception to the Sixth
Amendment’s confrontation requirement because it was not an
exception established at the founding
Giles v.
California
554 U.S. 353
(2008)
Confrontation
Clause:
Unavailable
Victim
At petitioner Giles’ murder trial, the court allowed prosecutors
to introduce statements that the murder victim had made to a
police officer responding to a domestic violence call. Giles
was convicted. While his appeal was pending, this Court held
that the Sixth Amendment’s Confrontation Clause gives
defendants the right to cross-examine witnesses who give
testimony against them, except in cases where an exception
to the confrontation right was recognized at the founding. The
State Court of Appeal concluded that the Confrontation
Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of
forfeiture by wrongdoing. It concluded that Giles had forfeited
his right to confront the victim’s testimony because it found
Giles had committed the murder for which he was on trial—an
intentional criminal act that made the victim unavailable to
testify. The State Supreme Court affirmed on the same
ground.
Held: No. Vacated and Remanded.
(a) Common-law courts allowed the introduction of statements
by an absent witness who was “detained” or “kept away” by
“means or procurement” of the defendant. Cases and treatises
indicate that this rule applied only when the defendant engaged
in conduct designed to prevent the witness from testifying.
(b) The manner in which this forfeiture rule was applied makes
plain that un-confronted testimony would not be admitted
without a showing that the defendant intended to prevent a
witness from testifying. In cases where the evidence suggested
that the defendant wrongfully caused the absence of a witness,
but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the
separate common-law exception to the confrontation
requirement for statements made by speakers who were both
on the brink of death and aware that they were dying.
(c) Not only was California’s proposed exception to the
confrontation right plainly not an “exception established at the
time of the founding; it is not established in American
jurisprudence since the founding. No case before 1985 applied
forfeiture to admit statements outside the context of conduct
designed to prevent a witness from testifying. The view that the
exception applies only when the defendant intends to make a
witness unavailable is also supported by modern authorities,
such as FRE 804(b)(6), which “codifies the forfeiture doctrine,”
(d) The dissent’s contention that no testimony would come in
at common law under a forfeiture theory unless it was
confronted is not supported by the cases. In any event, if the
dissent’s theory were true, it would not support a broader
forfeiture exception but would eliminate the forfeiture exception
entirely. Previously confronted testimony by an unavailable
witness is always admissible, wrongful procurement or not.
(e) Acts of domestic violence are often intended to dissuade a
victim from resorting to outside help. A defendant’s prior abuse,
or threats of abuse, intended to dissuade a victim from resorting
to outside help would be highly relevant to determining the
intent of a defendant’s subsequent act causing the witness’s
absence, as would evidence of ongoing criminal proceedings at
which the victim would have been expected to testify. Here, the
state courts did not consider Giles’ intent, which they found
irrelevant under their interpretation of the forfeiture doctrine.
They are free to consider intent on remand.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §6811(8) is unconstitutional in its entirety under
the First and Fourteenth Amendments insofar as it applies to
nonprescription contraceptives.
Carey v.
Population
Services,
Intern.
431 U.S. 678
(1977)
Contraception
Section 6811(8) of the New York Education Law makes it a
crime (1) for any person to sell or distribute any contraceptive
of any kind to a minor under 16; (2) for anyone other than a
licensed pharmacist to distribute contraceptives to persons 16
or over; and (3) for anyone, including licensed pharmacists, to
advertise or display contraceptives. In appellees' action
against appellant state officials challenging the
constitutionality of §6811(8), a three-judge District Court
declared the statute unconstitutional in its entirety under the
First and Fourteenth Amendments insofar as it applies to
nonprescription contraceptives, and enjoined its enforcement
as so applied.
Held: Yes. Affirmed.
1. Appellee Population Planning Associates (PPA), a
corporation that makes mail-order sales of nonmedical
contraceptive devices from its North Carolina offices and
regularly advertises its products in New York periodicals and fills
mail orders from New York residents without limiting availability
of the products to persons of any particular age, has the
requisite standing to maintain the action not only in its own right
but also on behalf of its potential customers, and therefore there
is no occasion to decide the standing of the other appellees.
2. Regulations imposing a burden on a decision as
fundamental as whether to bear or beget a child may be justified
only by compelling state interests, and must be narrowly drawn
to express only those interests.
3. The provision prohibiting distribution of nonmedical
contraceptives to persons 16 or over except through licensed
pharmacists clearly burdens the right of such individuals to use
contraceptives if they so desire, and the provision serves no
compelling state interests. It cannot be justified by an interest in
protecting health insofar as it applies to nonhazardous
contraceptives or in protecting potential life, nor can it be
justified by a concern that young people not sell contraceptives,
or as being designed to serve as a quality control device or as
facilitating enforcement of the other provisions of the statute.
4. The prohibition of any advertisement or display of
contraceptives that seeks to suppress completely any
information about the availability and price of contraceptives
cannot be justified on the ground that advertisements of
contraceptive products would offend and embarrass those
exposed to them and that permitting them would legitimize
sexual activity of young people. These are classically not
justifications validating suppression of expression protected by
the First Amendment, and here the advertisements in question
merely state the availability of products that are not only entirely
legal but constitutionally protected.
Case
Subject
Boddie v.
Connecticut
Court Fees
401 U.S. 371
(1971)
Facts
Class action, on behalf of women in Connecticut receiving
state welfare assistance and desiring to obtain divorces but
barred from doing so by inability to pay required court fees
and costs incident to a divorce proceeding, for judgment
declaring statute requiring payment of fees and costs to be
unconstitutional as applied to such class and for injunctive
relief. The Three-Judge United States District Court for the
District of Connecticut dismissed the complaint, and the
Supreme Court noted probable jurisdiction.
Issue Presented and Holding
Issue: Whether due process of law prohibits a state from
denying a petition for dissolution of marriage, solely because of
inability to pay court fees and costs,
Held: Yes. Reversed.
In view of basic position of marriage relationship in society
and the state monopolization of means for dissolving that
relationship, due process of law prohibits a state from denying,
solely because of inability to pay court fees and costs, access to
its courts to indigents who, in good faith, seek judicial
dissolution of their marriages.
Case
Subject
Griffin v.
Illinois
Court Fees
351 U.S. 12
(1956)
Facts
Petitioners were tried together and convicted of armed
robbery. Immediately after their conviction they filed a motion
in the trial court asking that a certified copy of the entire
record, including a stenographic transcript of the proceedings,
be furnished them without cost. They alleged that they were
‘poor persons with no means of paying the necessary fees to
acquire the Transcript and Court Records needed to
prosecute an appeal. These allegations were not denied.
Under Illinois law in order to get full direct appellate review of
alleged errors by a writ of error it is necessary for the
defendant to furnish the appellate court with a bill of
exceptions or report of proceedings at the trial certified by the
trial judge. As Illinois concedes, it is sometimes impossible to
prepare such bills of exceptions or reports without a
stenographic transcript of the trial proceedings. Indigent
defendants sentenced to death are provided with a free
transcript at the expense of the county where convicted. In all
other criminal cases defendants needing a transcript, whether
indigent or not, must themselves buy it. Petitioners contended
in their motion before the trial court that failure to provide them
with the needed transcript would violate the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The
trial court denied the motion without a hearing. Petitioners
then filed a petition under the Illinois Post-Conviction Hearing
Act. Only questions arising under the Illinois or Federal
Constitution may be raised in proceedings under this Act. A
companion state act provides that indigent petitioners under
the Post-Conviction Act may, under some circumstances,
obtain a free transcript. The effect is that indigents may obtain
a free transcript to obtain appellate review of constitutional
questions but not of other alleged trial errors such as
admissibility and sufficiency of evidence. In their PostConviction proceeding petitioners alleged that there were
manifest nonconstitutional errors in the trial which entitled
them to have their convictions set aside on appeal and that
the only impediment to full appellate review was their lack of
funds to buy a transcript. These allegations have not been
denied. Petitioners repeated their charge that refusal to afford
full appellate review solely because of poverty was a denial of
due process and equal protection. This petition like the first
was dismissed without hearing any evidence. The Illinois
Supreme Court affirmed the dismissal solely on the ground
that the charges raised no substantial state or federal
constitutional questions-the only kind of questions which may
be raised in Post-Conviction proceedings.
Issue Presented and Holding
Issue: Whether that refusal to afford transcripts for full appellate review solely
because of poverty was a denial of due process and equal protection.
Held: Yes. Vacated and Remanded.
Providing equal justice for poor and rich, weak and powerful alike is an ageold problem. Our own constitutional guaranties of due process and equal
protection both call for procedures in criminal trials which allow no invidious
discriminations between persons and different groups of persons. Both equal
protection and due process emphasize the central aim of our entire judicial
system-all people charged with crime must, so far as the law is concerned,
‘stand on an equality before the bar of justice in every American court.’ Surely
no one would contend that either a State or the Federal Government could
constitutionally provide that defendants unable to pay court costs in advance
should be denied the right to plead not guilty or to defend themselves in court.
Such a law would make the constitutional promise of a fair trial a worthless
thing. Notice, the right to be heard, and the right to counsel would under such
circumstances be meaningless promises to the poor. In criminal trials a State
can no more discriminate on account of poverty than on account of religion,
race, or color. Plainly the ability to pay costs in advance bears no rational
relationship to a defendant's guilt or innocence and could not be used as an
excuse to deprive a defendant of a fair trial. Indeed, a provision in the
Constitution of Illinois provided that every person in Illinois ‘ought to obtain right
and justice freely, and without being obliged to purchase it, completely and
without denial, promptly and without delay, conformably to the laws. There is no
meaningful distinction between a rule which would deny the poor the right to
defend themselves in a trial court and one which effectively denies the poor an
adequate appellate review accorded to all who have money enough to pay the
costs in advance. It is true that a State is not required by the Federal
Constitution to provide appellate courts or a right to appellate review at all. But
that is not to say that a State that does grant appellate review can do so in a
way that discriminates against some convicted defendants on account of their
poverty. Appellate review has now become an integral part of the Illinois trial
system for finally adjudicating the guilt or innocence of a defendant.
Consequently at all stages of the proceedings the Due Process and Equal
Protection Clauses protect persons like petitioners from invidious
discriminations. All of the States now provide some method of appeal from
criminal convictions, recognizing the importance of appellate review to a correct
adjudication of guilt or innocence. Statistics show that a substantial proportion of
criminal convictions are reversed by state appellate courts. Thus to deny
adequate review to the poor means that many of them may lose their life, liberty
or property because of unjust convictions which appellate courts would set
aside. Many States have recognized this and provided aid for convicted
defendants who have a right to appeal and need a transcript but are unable to
pay for it. A few have not. Such a denial is a misfit in a country dedicated to
affording equal justice to all and special privileges to none in the administration
of its criminal law. There can be no equal justice where the kind of trial a man
gets depends on the amount of money he has. Destitute defendants must be
afforded as adequate appellate review as defendants who have money enough
to buy transcripts. The Illinois Supreme Court denied these petitioners relief
under the Post-Conviction Act because of its holding that no constitutional rights
were violated. In view of our holding to the contrary the State Supreme Court
may decide that petitioners are now entitled to a transcript, as the State's brief
suggests. We do not hold, however, that Illinois must purchase a stenographer's
transcript in every case where a defendant cannot buy it. The Supreme Court
may find other means of affording adequate and effective appellate review to
indigent defendants. The Illinois Supreme Court appears to have broad power to
promulgate rules of procedure and appellate practice. We are confident that the
State will provide corrective rules to meet the problem which this case lays bare.
Case
Godfrey v.
Gerogia
446 U.S. 420
(1980)
Subject
Definition of
Crime:
Aggravating
Factors
Facts
Under a provision of the Georgia Code, a person convicted of
murder may be sentenced to death if it is found beyond a
reasonable doubt that the offense “was outrageously or
wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim.”
(This statutory aggravating circumstance was held not to be
unconstitutional on its face in Gregg v. Georgia.) Upon a jury
trial in a Georgia state court, petitioner was convicted of two
counts of murder and one count of aggravated assault. The
evidence showed that after his wife, who was living with her
mother, had rebuffed his efforts for a reconciliation, petitioner
went to his mother-in-law's trailer; fired a shotgun through the
window, killing his wife instantly; proceeded into the trailer
striking and injuring his fleeing daughter with the barrel of the
gun; and then shot and instantly killed his mother-in-law.
Petitioner than called the sheriff's office and, when officers
arrived, acknowledged his responsibility, directed an officer to
the murder weapon, and later told an officer, “I've done a
hideous crime.” At the sentencing phase of the trial, the judge
quoted to the jury the statutory provision in question, and the
jury imposed death sentences on both murder convictions,
specifying that the aggravating circumstance as to each
conviction was that the offense “was outrageously or wantonly
vile, horrible and inhuman.” The Georgia Supreme Court
affirmed the trial court's judgments in all respects rejecting
petitioner's contention that the statutory provision was
unconstitutionally vague and holding that the evidence
supported the jury's finding of the statutory aggravating
circumstance.
Issue Presented and Holding
Issue: Whether, in affirming the death sentences in this case,
the Georgia Supreme Court adopted such a broad and vague
construction of the statute in question as to violate the Eighth
and Fourteenth Amendments.
Held: Yes. Reversed and Remanded.
(a) If a State wishes to authorize capital punishment, it has a
constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty, and thus it must define the crimes for which
death may be imposed in a way that obviates standardless
sentencing discretion.
(b) In earlier decisions interpreting the statutory provision, the
Georgia Supreme Court concluded that (i) the evidence that the
offense was “outrageously or wantonly vile, horrible or inhuman”
must demonstrate “torture, depravity of mind, or an aggravated
battery to the victim,” (ii) the phrase “depravity of mind”
comprehended only the kind of mental state that led the
murderer to torture or to commit an aggravated battery before
killing his victim, and (iii) the word “torture” must be construed in
pari materia with “aggravated battery” so as to require evidence
of serious physical abuse of the victim before death.
(c) However, the Georgia courts did not so limit the statute in
the present case. Petitioner did not torture or commit an
aggravated battery upon his victims, or cause either of them to
suffer any physical injury preceding their deaths. Nor can the
death sentences be upheld on the ground that the murders
were “outrageously or wantonly vile, horrible or inhuman in that
they involved depravity of mind.” Petitioner's crimes cannot be
said to have reflected a consciousness materially more
“depraved” than that of any person guilty of murder.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Florida felony offense of battery by “actually and
intentionally touching” another person has “as an element the use of physical
force against the person of another,” and thus constitutes a “violent felony.”
Johnson v.
United States
559 U.S. ___
(2010)
Definition of
Crime:
Violent Felony
Petitioner Johnson pleaded guilty to possession of
ammunition by a convicted felon. The Government sought
sentencing under the Armed Career Criminal Act, which
authorizes an enhanced penalty for a person who violates
§922(g) and who “has three previous convictions” for “a
violent felony,” defined as, inter alia, an offense that “has as
an element the use of physical force against the person of
another.” Among the three prior felony convictions the
Government proffered was Johnson’s 2003 Florida conviction
for simple battery, which ordinarily is a first-degree
misdemeanor, but was a felony conviction for Johnson
because he had previously been convicted of another battery.
Under Florida law, a battery occurs when a person either
“actually and intentionally touches or strikes another person
against his will,” or “intentionally causes bodily harm to
another person.” Nothing in the record permitted the District
Court to conclude that Johnson’s 2003 conviction rested upon
the “striking” or “intentionally causing bodily harm” elements of
the offense. Accordingly, his conviction was a predicate
conviction for a “violent felony” under the Armed Career
Criminal Act only if “actually and intentionally touching”
another constitutes the use of “physical force” under
§924(e)(2)(B)(i). Concluding it does, the District Court
enhanced Johnson’s sentence under §924(e)(1), sentencing
him to a term of 15 years and 5 months. The Eleventh Circuit
affirmed.
Held: No. Reversed and remanded.
(a) In interpreting the phrase “physical force” in §924(e)(2)(B)(i),the Court is
not bound by the Florida Supreme Court’s conclusion in State v. Hearns, that,
under Florida’s statutory equivalent to the Armed Career Criminal Act, the
offense of battery does not “involve the use of physical force or violence against
any individual.” The meaning of “physical force” in §924(e)(2)(B)(i) is a question
of federal law, not state law. The Court is bound, however, by the Florida
Supreme Court’s interpretation of the elements of the state law offense,
including the Florida Supreme Court’s holding that §784.03(1)(a)’s element of
“actually and intentionally touching” another person is satisfied by any
intentional physical contact, no matter how slight.
(b) Because §924(e)(2)(B)(i) does not define “physical force,” the Court gives
the phrase its ordinary meaning. The adjective “physical” is clear. The noun
“force,” however, has a number of meanings. Its ordinary meaning refers to the
application of strength, power, and violence—in this context, against another
person.
(c) The Government suggests that “force” in §924(e)(2)(B)(i)’s definition of
“violent felony” is a legal term of art describing one of the elements of the
common-law crime of battery. At common law, that element was satisfied by
even the slightest offensive touching. Although a common-law term of art should
be given its established common-law meaning, the Court does not ascribe to a
statutory term a common-law meaning where that meaning does not fit. Here
“physical force” is used in defining not the crime of battery, but rather the
statutory category of “violent felony.” In that context, “physical force” means
violent force—i.e., force capable of causing physical pain or injury to another
person. Moreover, it is significant that the meaning the Government seeks to
impute to the term “force” derives from the elements of a common-law
misdemeanor. Nothing in the text of§924(e)(2)(B)(i) suggests that “force” in the
definition of a “violent felony” should be regarded as a common-law term of art
used to define the contours of a misdemeanor. Nor can any negative inference
about the amount of “force” required by §924(e)(2)(B)(i) be drawn from
§924(e)(2)(B)(ii) and §922(g)(8)(C)(ii).
(d) There is no force to the Government’s prediction that this decision will
undermine its ability to enforce §922(g)(9)’s firearm disability against a person
previously convicted of a misdemeanor crime of domestic violence that has as
an element the “use of physical force.” The Court interprets the phrase “physical
force” only in the context of a statutory definition of “violent felony,” and does not
decide whether the same meaning applies in the context of defining the scope
of misdemeanor offenses. Similarly misplaced is the Government’s assertion
that it will now be more difficult to obtain sentencing enhancements for
individuals convicted under generic felony-battery statutes that cover both
violent force and unwanted physical contact, and to remove an alien convicted
of a nonviolent battery conviction under the statutory provision for an alien
convicted of a “crime of domestic violence.”
(e) Before the District Court the Government disclaimed any reliance upon the
so-called “residual clause” of the definition of “violent felony” in §924(e)(2)(B)(ii),
which covers an offense that “involves conduct that presents a serious potential
risk of physical injury to another.” Accordingly, the Court declines to remand for
consideration whether Johnson’s 2003 battery conviction qualifies as a “violent
felony” under that provision.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the limiting instruction used by trial court in
capital murder case to define the “especially heinous, atrocious,
or cruel” aggravating factor was constitutionally sufficient.
Shell v.
Mississippi
498 U.S. 1
(1990)
Definition of
Crime:
Aggravating
Factors
Petitioner was convicted of murder and sentenced to death.
He appealed his sentence on the ground that the jury had
been improperly instructed to consider whether the charged
murder was “especially heinous, atrocious or cruel,” an
aggravating factor that the court deemed unconstitutionally
vague in Maynard v. Cartwright. The Mississippi Supreme
Court affirmed. It reasoned that Maynard was distinguishable
because the trial court in this case limited the “especially
heinous, atrocious or cruel” factor in its charge to the jury. The
instruction in question provided:
“The word heinous means extremely wicked or shockingly
evil; atrocious means outrageously wicked and vile; and cruel
means designed to inflict a high degree of pain with
indifference to, or even enjoyment of, the suffering of others.”
These definitions, the court held, cured any constitutional
deficiency in the underlying “heinous, atrocious or cruel”
instruction. The defendant petitioned for leave to proceed in
forma pauperis and petitioned for a writ of certiorari.
Held: No. Reversed and remanded.
The trial court in Maynard issued a supplemental instruction
defining “especially heinous, atrocious or cruel” in terms nearly
identical to the “limiting” instruction given in this case. The Tenth
Circuit sitting en banc held that this instruction did not cure the
constitutional defect in the underlying “heinous, atrocious or
cruel” instruction, and, in affirming that judgment, this Court
implicitly agreed.
The basis for this conclusion is not difficult to discern.
Obviously, a limiting instruction can be used to give content to a
statutory factor that “is itself too vague to provide any guidance
to the sentencer” only if the limiting instruction's own “definitions
are constitutionally sufficient,” that is, only if the limiting
instruction itself “provides some guidance to the sentencer.” The
trial court's definitions of “heinous” and “atrocious” in this case
(and in Maynard ) clearly fail this test; like “heinous” and
“atrocious” themselves, the phrases “extremely wicked or
shockingly evil” and “outrageously wicked and vile” could be
used by “a person of ordinary sensibility to fairly characterize
almost every murder.” Indeed, there is no meaningful distinction
between these latter formulations and the “outrageously or
wantonly vile, horrible and inhuman” instruction expressly
invalidated in Godfrey v. Georgia.
Nor is it of any consequence that the trial court defined “cruel”
in an arguably more concrete fashion than “heinous” or
“atrocious.” “It has long been settled that when a case is
submitted to the jury on alternative theories the
unconstitutionality of any of the theories requires that the
conviction or verdict be set aside.” Even assuming that the trial
court permissibly defined “cruel,” the instruction in this case left
the jury with two constitutionally infirm, alternative bases on
which to find that petitioner committed the charged murder in an
“especially heinous, atrocious or cruel” fashion. There is no
legally tenable distinction, in sum, between this case and
Maynard v. Cartwright.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the statutory aggravating circumstance was
unconstitutionally vague.
Maynard v.
Cartwright
486 U.S. 356
(1988)
Definition of
Crime:
Aggravating
Factors
Respondent, a disgruntled ex-employee of a married couple,
entered the couple's home, shot the wife twice with a shotgun,
shot and killed the husband, and then slit the wife's throat and
stabbed her twice. Respondent was tried in an Oklahoma
court and found guilty of the first-degree murder of the
husband. The jury imposed the death penalty upon finding
that two statutory aggravating circumstances, including the
circumstance that the murder was “especially heinous,
atrocious, or cruel,” had been established, and that these
circumstances outweighed the mitigating evidence. The
Oklahoma Court of Criminal Appeals affirmed on direct
appeal, and later affirmed a denial of state collateral relief.
The Federal District Court then denied respondent's habeas
corpus petition, but the Court of Appeals reversed, holding
that the statutory words “heinous,” “atrocious,” and “cruel” do
not on their face offer sufficient guidance to the jury to escape
the strictures of Furman v. Georgia. The court also ruled that
the Oklahoma courts had not adopted a limiting construction
that cured the infirmity, concluding that the construction
utilized by the state appellate court, which simply declared
that the facts of the case were so plainly “especially heinous,
atrocious, or cruel” that the death penalty was warranted, was
itself unconstitutionally vague under the Eighth Amendment to
the Federal Constitution. The court therefore enjoined the
execution of the death sentence, but without prejudice to
further state proceedings for redetermination of the sentence.
Held: Yes. Affirmed.
(a) The State's contention that factual circumstances may, in
themselves, plainly characterize the killing as “especially heinous,
atrocious, or cruel” represents an improper, Due Process Clause
approach to vagueness that fails to recognize the rationale of this
Court's Eighth Amendment cases. Under Furman, supra, and its
progeny, the proper analysis of a vagueness claim focuses on
whether the challenged aggravating circumstance adequately
informs the jury as to what it must find in order to impose the death
penalty, or whether it leaves the jury with unchanneled discretion to
make an arbitrary and capricious decision. Godfrey v. Georgia,
which applied that analysis, controls this case. The language of the
Oklahoma provision gave no more guidance to the jury here than
did the “outrageously or wantonly vile, horrible, or inhuman”
language that was held unconstitutional in Godfrey. Moreover,
Oklahoma's addition of the word “especially” no more limited the
overbreadth of the aggravating factor than did the addition of
“outrageously or wantonly” to the word “vile” in the language
considered in Godfrey. Furthermore, the state appellate court's
factual approach to construction was indistinguishable from the
action of the Georgia court in Godfrey, which failed to cure the
jury's unfettered discretion and to satisfy the Eighth Amendment.
(b) The State's complaint that the Court of Appeals erroneously
ruled that torture or serious physical abuse is the only
constitutionally acceptable limiting construction of the aggravating
circumstance is unfounded, since, although the court noted cases
in which such a requirement was held to be curative, it expressly
refrained from directing the State to adopt any particular
construction. The contention that the death penalty should stand
because the jury found another, unchallenged aggravating
circumstance sufficient to sustain the sentence is also
unpersuasive, since, when this case was decided, Oklahoma had
no procedure for attempting to save a death penalty when one of
several aggravating circumstances found by the jury was held to be
invalid or unsupported by evidence, but simply vacated the death
sentence and automatically imposed a life-imprisonment sentence.
The significance for this case of the state appellate court's
decisions, which were issued after the Court of Appeals' decision
below, to adopt a torture-or-serious-physical-abuse limiting
construction of the aggravating circumstance, and to no longer
automatically set aside a death penalty where one of several
aggravating circumstances is invalid or inapplicable, must be
decided in the first instance by the Oklahoma courts in any further
proceedings for redetermination of the appropriate sentence.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Arizona's capital sentencing scheme violates
the Sixth Amendment and whether the especially heinous,
cruel, or depraved aggravating circumstance furnishes sufficient
guidance to the sentencer to satisfy the Eighth and Fourteenth
Amendments.
Walton v.
Arizona
497 U.S. 639
(1990)
Definition of
Crime:
Aggravating
Factors
Petitioner Walton was found guilty in an Arizona court of firstdegree murder and was sentenced in a separate sentencing
hearing before the judge, as required by state law. Under that
law, the judge, inter alia, determines the existence of
aggravating and mitigating circumstances and “shall impose”
a death sentence if he finds one or more of several
enumerated aggravating circumstances and that there are no
mitigating circumstances sufficiently substantial to call for
leniency. The burden is on the prosecution to establish the
existence of aggravating circumstances and on the defendant
to establish mitigating ones. The judge sentenced Walton to
death, after finding the presence of two aggravating
circumstances-that the murder was committed “in an
especially heinous, cruel or depraved manner,” and that it was
committed for pecuniary gain-and that, considering all of the
mitigating factors urged by Walton, the mitigating
circumstances did not call for leniency (In mitigation Walton
presented testimony from a psychiatrist who opined that
Walton had a long history of substance abuse which impaired
his judgment, and that Walton may have been abused
sexually as a child). The State Supreme Court upheld the
sentence. In an independent review, the court concluded that
the evidence was sufficient to prove the existence of both
aggravating factors. As to the first factor, the court noted that it
had previously defined “especially cruel” to mean that the
victim had suffered mental anguish before his death and had
defined “especially depraved” to mean that the perpetrator
had relished the murder, evidencing debasement or
perversion. The court also agreed that there were no
mitigating factors sufficient to call for leniency and determined
that the sentence was proportional to sentences imposed in
similar cases.
Held: Affirmed.
1. Arizona's capital sentencing scheme does not violate the
Sixth Amendment. The Constitution does not require that every
finding of fact underlying a sentencing decision be made by a
jury rather than by a judge. Since Arizona's aggravating factors
are standards to guide the making of the choice between
verdicts of death and life imprisonment rather than “elements of
the offense,” the judge's finding of any particular aggravating
circumstance does not require the death penalty, and the failure
to find any particular aggravating circumstance does not
preclude that penalty. Moreover, if the Constitution does not
require that the finding of Enmund v. Florida-that the defendant
killed, attempted to kill, or intended to kill-be proved as an
element of the offense of capital murder and be made by a jury,
it cannot be concluded that a State is required to denominate
aggravating circumstances “elements” of the offense or permit
only a jury to determine such circumstances' existence.
2. The especially heinous, cruel, or depraved aggravating
circumstance, as construed by the State Supreme Court,
furnishes sufficient guidance to the sentencer to satisfy the
Eighth and Fourteenth Amendments. The court's definition of
“especially cruel” is virtually identical to the construction
approved in Maynard v. Cartwright. Similarly, its definition of
“depraved” cannot be faulted. Although juries must be instructed
in more than bare terms about an aggravating circumstance that
is unconstitutionally vague on its face, trial judges are presumed
to know the law and to apply narrower definitions in their
decisions. Walton's challenge to the State Supreme Court's
proportionality review-that it should be overturned because it did
not distinguish his case from others in which the death sentence
was not imposed-is rejected. Such review is not constitutionally
required where, as here, the challenged factor has been
construed in a manner to give the sentencer sufficient guidance.
Furthermore, the Constitution does not require this Court to look
behind the state court's conclusion where it plainly undertook its
review in good faith.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Court of Appeals erred in holding that
Arizona's construction of the “especially heinous or depraved”
aggravating circumstance was proper and whether it was proper
to conduct a de novo, case-by-case comparison of those cases.
Lewis v. Jeffers
497 U.S. 764
(1990)
Definition of
Crime:
Aggravating
Factors
In affirming respondent Jeffers' first-degree murder conviction
and death sentence, the Arizona Supreme Court, inter alia,
independently reviewed the evidence supporting the trial
court's finding of the statutory aggravating circumstance that
the crime was committed “in an especially heinous, cruel or
depraved manner.” The court noted its recent ruling that the
infliction of gratuitous violence on the victim is among the
factors to be considered in determining whether the murder
was “especially heinous or depraved,” and found the presence
of this factor in light of evidence that Jeffers had climbed on
top of the dead victim and hit her in the face several times,
causing additional wounds and bleeding. Noting further that
the apparent relish with which the defendant commits the
murder is another relevant factor under its decisions, the court
concluded that Jeffers' relish for his crime was evidenced by
testimony that, while he was beating the dead victim, he called
her a “bitch” and a “dirty snitch” and stated, as each blow
landed, that “this one is for” someone on whom he felt she
had informed. The Federal District Court denied Jeffers'
habeas corpus petition. The Court of Appeals agreed with the
District Court that the “especially heinous or depraved”
aggravating circumstance, as interpreted and narrowed by the
State Supreme Court, was not void on its face, but vacated
Jeffers' death sentence on the ground that the circumstance
was unconstitutionally vague as applied to him.
Held: No. Reversed and Remanded.
1. The Court of Appeals erred in holding that Arizona's
construction of the “especially heinous or depraved” aggravating
circumstance in this case contravened Godfrey v. Georgia and
Maynard v. Cartwright. There is no dispute here that the Arizona
Supreme Court applied its narrowing construction to the facts of
Jeffers' case. More important, the Court of Appeals noted that
the circumstance, as construed by the state courts, was not
unconstitutionally vague on its face. Even if it had not so held,
Jeffers' claim that Arizona has not construed the circumstance
in a constitutionally narrow manner is disposed of by Walton v.
Arizona, which upheld, against a vagueness challenge, the
precise aggravating circumstance at issue here. Moreover, a
claim identical to Jeffers' assertion that the aggravating
circumstance may nevertheless be vague “as applied” to him
was rejected in Walton, which makes clear that if a State has
adopted a constitutionally narrow construction of a facially
vague aggravating circumstance and has applied that
construction to the facts of the particular case, the fundamental
constitutional requirement of channeling and limiting the capital
sentencer's discretion has been satisfied.
2. The Court of Appeals erred in conducting a de novo, caseby-case comparison of the facts of those cases with the facts of
this case to decide Jeffers' as-applied challenge. That challenge
reduces, in essence, to a claim that the state court simply
misapplied its own aggravating circumstance to the facts of
Jeffers' case. Because federal habeas corpus relief does not lie
for errors of state law, federal habeas review of a state court's
application of a constitutionally narrowed aggravating
circumstance is limited, at most, to determining whether the
state court's finding was so arbitrary or capricious as to
constitute an independent due process or Eighth Amendment
violation. In making that determination, the appropriate standard
of review is the “rational fact-finder” standard of Jackson v.
Virginia, under which the federal court must view the evidence
in the light most favorable to the prosecution to determine
whether “any rational trier of fact could have found the elements
of the crime beyond a reasonable doubt.” Under the standard, a
rational fact-finder could have found that Jeffers both relished
his crime and inflicted gratuitous violence, given the evidence of
his conduct toward the victim's body.
Case
Gormley v.
Director,
Connecticut
State
Department of
Adult Probation
449 U.S. 1023
(1980)
Subject
Definition of
Crime:
Harassment
Facts
Under Connecticut law, a person is guilty of a misdemeanor
when “with intent to harass, annoy or alarm another person,
he makes a telephone call, whether or not a conversation
ensues, in a manner likely to cause annoyance or alarm.”
Petitioner was convicted of violating this statute after she
made a telephone call to a woman with whom she had some
personal quarrel. Following an unsuccessful direct appeal in
the state courts, petitioner brought a federal habeas corpus
action arguing that under the First and Fourteenth
Amendments the statute was unconstitutionally overbroad.
The Court of Appeals for the Second Circuit found no
constitutional infirmity. The petition for certiorari challenges
that judgment.
Issue Presented and Holding
Issue: Whether the statute overbroad and thus unconstitutional
under the First and Fourteenth Amendments.
Held: The petition for a writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether an offense constitutes "burglary" under §924(e) if, regardless of its exact
definition or label, it has the basic elements of a "generic" burglary -- i.e., an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime -- or if the charging paper and jury instructions actually required the jury to find all the
elements of generic burglary in order to convict the defendant.
Taylor v. United
States
495 U.S. 575
(1990)
Definition of
Crime:
Violent Felony
When respondent Taylor pleaded guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. 922(g)(1),
he had four prior convictions, including two for second-degree
burglary under Missouri law. The Government sought to apply
§924(e), which, inter alia, (1) provides a sentence
enhancement for a "person" convicted under §922(g) who
"has three previous convictions for a violent felony," and (2)
defines "violent felony" as "(B) any crime punishable by
imprisonment for a term exceeding one year" that "(i) has as
an element the use, attempted use, or threatened use of
physical force against another's person," or "(ii) is burglary or
other specified offenses or otherwise involves conduct that
presents a serious potential risk of physical injury to another."
In imposing an enhanced sentence upon Taylor, the District
Court rejected his contention that, because his burglary
convictions did not present a risk of physical injury under
§924(e)(2)(B)(ii), they should not count. The Court of Appeals
affirmed, ruling that the word "burglary" in §924(e)(2)(B)(ii)
"means burglary' however a state chooses to define it."
Held: Yes. Vacated and Remanded.
(a) The convicting State's definition of "burglary" cannot control the word's meaning under
§924(e), since that would allow sentence enhancement for identical conduct in different
States to turn upon whether the particular States happened to call the conduct "burglary."
That result is not required by §924(e)'s omission of a "burglary" definition contained in a
prior version of the statute, absent a clear indication that Congress intended by the deletion,
to abandon its general approach of using uniform categorical definitions for predicate
offenses. "Burglary" in §924(e) must have some uniform definition independent of the labels
used by the various States' criminal codes
(b) Nor is § 924(e) limited to the common law definition of "burglary" -- i.e., a breaking and
entering of a dwelling at night with intent to commit a felony. Since that definition has been
expanded in most States to include entry without a "breaking," structures other than
dwellings, daytime offenses, intent to commit crimes other than felonies, etc., the modern
crime has little in common with its common law ancestor. Moreover, absent a specific
indication of congressional intent, a definition so obviously ill-suited to the statutory purpose
of controlling violent crimes by career offenders cannot be read into §924(e). The
definition's arcane distinctions have little relevance to modern law enforcement concerns,
and, because few of the crimes now recognized as burglaries would fall within the definition,
its adoption would come close to nullifying the effect of the statutory term "burglary." Under
these circumstances, the general rule of lenity does not require adoption of the common law
definition.
(c) Section 924(e) is not limited to those burglaries that involve especially dangerous
conduct, such as first-degree or aggravated burglaries. If that were Congress' intent, there
would have been no reason to add the word "burglary" to §924(e)(2)(B)(ii), since that
provision already includes any crime that "involves conduct that presents a serious potential
risk" of harm to persons. It is more likely that Congress thought that burglary and the other
specified offenses so often presented a risk of personal injury or were committed by career
criminals that they should be included even though, considered solely in terms of their
statutory elements, they do not necessarily involve the use or threat of force against a
person. Moreover, the choice of the unqualified language "is burglary or otherwise involves"
dangerous conduct indicates that Congress thought that ordinary burglaries, as well as
those involving especially dangerous elements, should be included.
(d) There thus being no plausible alternative, Congress meant by "burglary" the generic
sense in which the term is now used in most States' criminal codes. The fact that this
meaning is practically identical to the omitted statutory definition is irrelevant. That definition
was not explicitly replaced with a different or narrower one, and the legislative history
discloses that no alternative was ever discussed. The omission therefore implies, at most,
that Congress simply did not wish to specify an exact formulation.
(e) The sentencing court must generally adopt a formal categorical approach in applying
the enhancement provision, looking only to the fact of conviction and the statutory definition
of the predicate offense, rather than to the particular underlying facts. That approach is
required, since, when read in context, §924(e)(2)(B)(ii)'s "is burglary" phrase most likely
refers to the statutory elements of the offense rather than to the facts of the defendant's
conduct; since the legislative history reveals a general categorical approach to predicate
offenses; and since an elaborate fact-finding process regarding the defendant's prior
offenses would be impracticable and unfair. The categorical approach, however, would still
permit the sentencing court to go beyond the mere fact of conviction in the narrow range of
cases in which the indictment or information and the jury instructions actually required the
jury to find all of the elements of generic burglary even though the defendant was convicted
under a statute defining burglary in broader terms.
(f) The judgment must be vacated and the case remanded for further proceedings, since,
at the time of Taylor's convictions, most but not all of the Missouri second-degree burglary
statutes included all the elements of generic burglary, and it is not apparent from the sparse
record which of those statutes were the bases for the convictions.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether New Mexico’s felony DUI crime falls outside the
scope of the Act’s “violent felony” definition.
Begay v. United
States
553 U.S. 137
(2008)
Definition of
Crime:
Violent Felony
The Armed Career Criminal Act (Act) imposes a special
mandatory 15year prison term upon a felon who unlawfully
possesses a firearm and who has three or more prior
convictions for committing certain drug crimes or “a violent
felony.” The Act defines “violent felony” as a crime punishable
by more than one year’s imprisonment that “is burglary, arson,
or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another.” After petitioner Begay pleaded guilty to felony
possession of a firearm, his pre-sentence report revealed he
had12 New Mexico convictions for driving under the influence
of alcohol (DUI), which state law makes a felony (punishable
by a prison term of more than one year) the fourth (or
subsequent) time an individual commits it. Based on these
convictions, the sentencing judge concluded that Begay had
three or more “violent felony” convictions and, therefore,
sentenced him to an enhanced 15-year sentence. The Tenth
Circuit rejected Begay’s claim that DUI is not a “violent felony”
under the Act.
Held: Yes. Reversed and Remanded.
(a) Whether a crime is a violent felony is determined by how
the law defines it and not how an individual offender might have
committed it on a particular occasion.
(b) Even assuming that DUI involves conduct that “presents a
serious potential risk of physical injury to another” under clause
(ii), the crime falls outside the clause’s scope because it is
simply too unlike clause (ii)’s example crimes to indicate that
Congress intended that provision to cover it. Clause (ii)’s listed
examples—burglary, arson, extortion, and crimes involving the
use of explosives—should be read as limiting the crimes the
clause covers to those that are roughly similar, in kind as well as
in degree of risk posed, to the examples themselves. Their
presence in the statute indicates that Congress meant for the
statute to cover only similar crimes, rather than every crime that
“presents a serious potential risk of physical injury to another.” If
Congress meant the statute to be all encompassing, it would not
have needed to include the examples at all. Moreover, if clause
(ii) were meant to include all risky crimes, Congress likely would
not have included clause (i), which includes crimes that have
“as an element the use, attempted use, or threatened use of
physical force against the person of another.” And had
Congress included the examples solely for quantitative
purposes, demonstrating no more than the degree of risk of
physical injury sufficient to bring a crime within the statute’s
scope, it would likely have chosen examples that better
illustrated the degree of risk it had in mind rather than these that
are far from clear in respect to the degree of risk each poses.
The Government’s argument that the word “otherwise” just after
the examples is sufficient to demonstrate that they do not limit
the clause’s scope is rejected because “otherwise” can refer to
a crime that is similar to the examples in respect to the degree
of risk it produces, but different in respect to the way or manner
in which it produces that risk. DUI differs from the example
crimes in at least one important respect: The examples typically
involve purposeful, violent, and aggressive conduct, whereas
DUI statutes typically do not. The Act looks to past crimes to
determine which offenders create a special danger by
possessing a gun. In this respect, a history of crimes involving
purposeful, violent, and aggressive conduct, which shows an
increased likelihood that the offender is the kind of person who
might deliberately point a gun and pull the trigger, is different
from a history of DUI, which does not involve the deliberate kind
of behavior associated with violent criminal use of firearms.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Illinois’ crime of failure to report for penal
confinement falls outside the scope of ACCA’s “violent felony”
definition
Chambers v.
United States
555 U.S. 122
(2009)
Definition of
Crime:
Violent Felony
The Armed Career Criminal Act (ACCA) imposes a 15-year
mandatory prison term on a felon unlawfully in possession of a
firearm who has three prior convictions for committing certain
drug crimes or “a violent felony,” defined as a crime
punishable by more than one year’s imprisonment that, inter
alia, “involves conduct that presents a serious potential risk of
physical injury to another.” At petitioner Chambers’ sentencing
for being a felon in possession of a firearm, the Government
sought ACCA’s 15-yearmandatory prison term. Chambers
disputed one of his prior convictions—failing to report for
weekend confinement—as falling outside the ACCA definition
of “violent felony.” The District Court treated the failure to
report as a form of what the relevant state statute calls
“escape from a penal institution,” and held that it qualified as a
“violent felony” under ACCA. The Seventh Circuit agreed.
Held: No. Reversed and Remanded.
(a) For purposes of ACCA’s definitions, it is the generic crime that
counts, not how the crime was committed on a particular occasion.
Taylor v. United States. This categorical approach requires courts
to choose the right category, and sometimes the choice is not
obvious. The nature of the behavior that likely underlies a statutory
phrase matters in this respect. The state statute at issue places
together in a single section several different kinds of behavior,
which, as relevant here, may be categorized either as failure to
report for detention or as escape from custody. Failure to report is a
separate crime from escape. Its underlying behavior differs from
the more aggressive behavior underlying escape, and it is listed
separately in the statute’s title and body and is of a different felony
class than escape. At the same time, the statutory phrases setting
forth the various kinds of failure to report describe roughly similar
forms of behavior, thus constituting a single category.
Consequently, for ACCA purposes, the statute contains at least two
separate crimes, escape and failure to report.
(b) The “failure to report” crime does not satisfy ACCA’s “violent
felony” definition. Although it is punishable by imprisonment
exceeding one year, it satisfies none of the other parts of the
definition. Most critically, it does not “involve conduct that presents
a serious potential risk of physical injury to another.” Conceptually
speaking, the crime amounts to a form of inaction, and there is no
reason to believe that an offender who fails to report is otherwise
doing something that poses a serious potential risk of physical
injury. The Government’s argument that a failure to report reveals
the offender’s special, strong aversion to penal custody—pointing
to 3 state and federal cases over 30 years in which individuals shot
at officers attempting to recapture them—is unconvincing. Even
assuming the relevance of violence that may occur long after an
offender fails to report, the offender’s aversion to penal custody is
beside the point. The question is whether such an offender is
significantly more likely than others to attack or resist an
apprehender, thereby producing a serious risk of physical injury.
Here a United States Sentencing Commission report, showing no
violence in 160 federal failure-to-report cases over 2 recent years,
helps provide a negative answer. The three reported cases to
which the Government points do not show the contrary. Simple
multiplication (2 years versus 30 years; federal alone versus
federal-plus-state) suggests that they show only a statistically
insignificant risk of physical violence. And the Government provides
no other empirical information.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the doctrine of transferred intent was inapplicable to aggravated felony
murder for the version of Ohio Rev. Code Ann. under which respondent was convicted.
Bradshaw v.
Richey
546 U.S. 74
(2005)
Definition of
Crime:
Doctrine of
Transferred
Intent
Richey was tried in Ohio for aggravated murder committed in
the course of a felony. Evidence showed that respondent set
fire to the apartment of his neighbor, Hope Collins, in an
attempt to kill his ex-girlfriend and her new boyfriend, who
were spending the night together in the apartment below. The
intended victims escaped unharmed, but Hope Collins’ 2-yearold daughter Cynthia died in the fire. At trial, the State
presented evidence of respondent’s intent to kill his exgirlfriend and her boyfriend, but not of specific intent to kill
Cynthia Collins. The State also offered expert forensic
evidence to show that the fire had been started deliberately.
Respondent did not contest this forensic evidence at trial
because his retained arson expert had reported that the
State’s evidence conclusively established arson. Respondent
was convicted of aggravated felony murder on a theory of
transferred intent and sentenced to death. His conviction and
sentence were affirmed on direct appeal, where he was
represented by new counsel. Respondent sought postconviction relief in state court. The state trial court denied his
request for an evidentiary hearing and denied relief on all
claims, and the state appellate court affirmed. Respondent
then sought federal habeas relief. The District Court permitted
discovery on certain issues, but ultimately denied all of
respondent’s claims. The Sixth Circuit reversed, holding that
respondent was entitled to habeas relief on two alternative
grounds. First, that transferred intent was not a permissible
theory for aggravated felony murder under Ohio law, and that
the evidence of direct intent was constitutionally insufficient to
support conviction. Second, that the performance of
respondent’s trial counsel had been constitutionally deficient
under Strickland v. Washington, in his retaining and
mishandling of his arson expert and in his inadequate
treatment of the State’s expert testimony.
Held: No. Remanded.
The Sixth Circuit erred in holding that the Ohio Supreme Court’s interpretation of that
section, as announced in its review of respondent’s case, directly contradicts the Sixth
Circuit’s analysis: “The fact that the intended victims escaped harm, and that an innocent
child, Cynthia Collins, was killed instead, does not alter Richey’s legal and moral responsibility. ‘The doctrine of transferred intent is firmly rooted in Ohio law.’ Very simply, ‘the
culpability of a scheme designed to implement the calculated decision to kill is not altered
by the fact that the scheme is directed at someone other than the actual victim.’ ” This
statement was dictum, since the only sufficiency-of-evidence claim raised by respondent
pertained to his setting of the fire. Nonetheless, its explanation of Ohio law was perfectly
clear and unambiguous. We have repeatedly held that a state court’s interpretation of state
law, including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus. The Sixth Circuit held that the Ohio Supreme Court’s opinion
should not be read to endorse transferred intent in respondent’s case because such a
construction would likely constitute “an unforeseeable and retroactive judicial expansion of
narrow and precise statutory language,” in violation of the Due Process Clause. It is
doubtful whether this principle of fair notice has any application to a case of transferred
intent, where the defendant’s contemplated conduct was exactly what the relevant statute
forbade. And it is further doubtful whether the doctrine of constitutional doubt permits such a
flatly counter textual interpretation of what the Ohio Supreme Court said. But assuming all
that, Ohio law at the time of respondent’s offense provided fully adequate notice of the
applicability of transferred intent. The relevant mens rea provision in §2903.01(D) required
only that “no person shall be convicted of aggravated murder unless he is specifically found
to have intended to cause the death of another.” Respondent’s intention to kill his exgirlfriend and her boyfriend plainly came within this provision. There was no reason to read
“another” (counter-textually) as meaning only “the actual victim,” since the doctrine of
transferred intent was “firmly rooted in Ohio law.” Respondent could not plausibly claim
unfair surprise that the doctrine applied in his case. The foregoing provision was in effect at
the time of respondent’s crime in 1986. The Sixth Circuit reasoned, however, that the
following subsequent clause in the version of §2903.01(D) that existed in 1986. Contrary to
the Sixth Circuit’s reading, this clause by its terms did not apply to every case in which the
defendant was charged with aggravated felony murder, but rather only to those in which
intent to kill was sought to be proved from the inherent dangerousness of the relevant
felony. Here, however, intent to kill was proved directly. It was not inferred from the
dangerousness of the arson; it was shown to be the purpose of the arson. The Sixth Circuit
also argued that dicta in a case decided by an intermediate Ohio appellate court, prior to
the Ohio Supreme Court’s opinion here, rejected transferred intent for respondent’s crime,
and thus rendered its application in respondent’s case unforeseeable and retroactive. But
that case was decided long after the 1986 offense for which respondent was convicted, and
thus has no bearing on whether the law at the time of the charged conduct was clear
enough to provide fair notice. Because the Sixth Circuit disregarded the Ohio Supreme
Court’s authoritative interpretation of Ohio law, its ruling on sufficiency of the evidence was
erroneous.
The Sixth Circuit also held that respondent was entitled to relief on the ground that the
state courts’ denial of his Strickland claim was unreasonable. As petitioner contends, the
Sixth Circuit erred in its adjudication of this claim by relying on evidence that was not
properly presented to the state habeas courts without first determining (1) whether
respondent was at fault for failing to develop the factual bases for his claims in state court.
Similarly, the Sixth Circuit erred by disregarding the state habeas courts’ conclusion that the
forensic expert whom respondent’s trial counsel hired was a “properly qualified expert,”
without analyzing whether the state court’s factual finding had been rebutted by clear and
convincing evidence. In addition, as petitioner contends, the Sixth Circuit erred in relying on
certain grounds that were apparent from the trial record but not raised on direct appeal—
namely that trial counsel (1) inadequately cross-examined experts called by the State, (2)
erred by prematurely placing the forensic expert counsel had hired on the witness list, and
(3) failed to present competing scientific evidence against the State’s forensic experts—
without first determining whether respondent’s procedural default of these subclaims could
be excused by a showing of cause and prejudice or by the need to avoid a miscarriage of
justice. Respondent, however, contends that the State failed to preserve its objection to the
Sixth Circuit’s reliance on evidence not presented in state court by failing to raise this
argument properly before the Sixth Circuit. Because the relevant errors had not yet
occurred, the Sixth Circuit has had no opportunity to address the argument that the State
failed to preserve its Holland argument. It is better situated to address this argument in the
first instance.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the “cruel and unusual punishments” prohibition of the
Eighth Amendment prohibits the execution of a person who was under 16
years of age at the time of his or her offense.
Thompson v.
Oklahoma
487 U.S. 815
(1988)
Definition of
Crime:
Retaliatory
Crimes
Petitioner, when he was 15 years old, actively participated in a
brutal murder. The evidence at trial left no doubt that on the
night of January 22-23, 1983, Thompson brutally and with
premeditation murdered his former brother-in-law, Charles
Keene, the motive evidently being, at least in part, Keene's
physical abuse of Thompson's sister. As Thompson left his
mother's house that evening, in the company of three older
friends, he explained to his girlfriend that “we're going to kill
Charles.” Several hours later, early in the morning of January
23, a neighbor, Malcolm “Possum” Brown, was awakened by
the sound of a gunshot on his front porch. Someone pounded
on his front door shouting: “Possum, open the door, let me in.
They're going to kill me.” Brown telephoned the police, and
then opened the front door to see a man on his knees
attempting to repel blows with his arms and hands. There
were four other men on the porch. One was holding a gun and
stood apart, while the other three were hitting and kicking the
kneeling man, who never attempted to hit back. One of them
was beating the victim with an object 12 to 18 inches in length.
The police called back to see if the disturbance was still going
on, and while Brown spoke with them on the telephone the
men took the victim away in a car.
Because petitioner was a “child” as a matter of Oklahoma
law, the District Attorney filed a statutory petition seeking to
have him tried as an adult, which the trial court granted. He
was then convicted and sentenced to death, and the Court of
Criminal Appeals of Oklahoma affirmed.
Held: Yes. Vacated and Remanded.
(a) In determining whether the categorical Eighth Amendment prohibition
applies, this Court must be guided by the “evolving standards of decency
that mark the progress of a maturing society,” and, in so doing, must review
relevant legislative enactments and jury determinations and consider the
reasons why a civilized society may accept or reject the death penalty for a
person less than 16 years old at the time of the crime.
(b) Relevant state statutes-particularly those of the 18 States that have
expressly considered the question of a minimum age for imposition of the
death penalty, and have uniformly required that the defendant have
attained at least the age of 16 at the time of the capital offense-support the
conclusion that it would offend civilized standards of decency to execute a
person who was less than 16 years old at the time of his or her offense.
That conclusion is also consistent with the views expressed by respected
professional organizations, by other nations that share the Anglo-American
heritage, and by the leading members of the Western European
community.
(c) The behavior of juries-as evidenced by statistics demonstrating that,
although between 18 and 20 persons under the age of 16 were executed
during the first half of the 20th century, no such execution has taken place
since 1948 despite the fact that thousands of murder cases were tried
during that period, and that only 5 of the 1,393 persons sentenced to death
for willful homicide during the years 1982 through 1986 were less than 16
at the time of the offense-leads to the unambiguous conclusion that the
imposition of the death penalty on a 15-year-old offender is now generally
abhorrent to the conscience of the community.
(d) The juvenile's reduced culpability, and the fact that the application of
the death penalty to this class of offenders does not measurably contribute
to the essential purposes underlying the penalty, also support the
conclusion that the imposition of the penalty on persons under the age of
16 constitutes unconstitutional punishment. This Court has already
endorsed the proposition that less culpability should attach to a crime
committed by a juvenile than to a comparable crime committed by an adult,
since inexperience, less education, and less intelligence make the teenager
less able to evaluate the consequences of his or her conduct while at the
same time he or she is much more apt to be motivated by mere emotion or
peer pressure than is an adult. Given this lesser culpability, as well as the
teenager's capacity for growth and society's fiduciary obligations to its
children, the retributive purpose underlying the death penalty is simply
inapplicable to the execution of a 15-year-old offender. Moreover, the
deterrence rationale for the penalty is equally unacceptable with respect to
such offenders, since statistics demonstrate that the vast majority of
persons arrested for willful homicide are over 16 at the time of the offense,
since the likelihood that the teenage offender has made the kind of coldblooded, cost-benefit analysis that attaches any weight to the possibility of
execution is virtually nonexistent, and since it is fanciful to believe that a 15year-old would be deterred by the knowledge that a small number of
persons his age have been executed during the 20th century.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the statute violates the Equal Protection Clause of the
Fourteenth Amendment.
Michael M. v.
Superior Court
of Sonoma
County
450 U.S. 464
(1981)
Definition of
Crime:
Statutory Rape
Petitioner, then a 17 1/2-year-old male, was charged with
violating California's “statutory rape” law, which defines
unlawful sexual intercourse as “an act of sexual intercourse
accomplished with a female not the wife of the perpetrator,
where the female is under the age of 18 years.” Prior to trial,
petitioner sought to set aside the information on both state
and federal constitutional grounds, asserting that the statute
unlawfully discriminated on the basis of gender since men
alone where criminally liable thereunder. The trial court and
the California Court of Appeal denied relief, and on review the
California Supreme Court upheld the statute.
Held: No. Affirmed.
(a) Gender-based classifications are not “inherently suspect” so as to
be subject to so-called “strict scrutiny,” but will be upheld if they bear a
“fair and substantial relationship” to legitimate state ends. Because the
Equal Protection Clause does not “demand that a statute necessarily
apply equally to all persons” or require “things which are different in
fact to be treated in law as though they were the same,” a statute will
be upheld where the gender classification is not invidious, but rather
realistically reflects the fact that the sexes are not similarly situated in
certain circumstances.
(b) One of the purposes of the California statute in which the State
has a strong interest is the prevention of illegitimate teenage
pregnancies. The statute protects women from sexual intercourse and
pregnancy at an age when the physical, emotional, and psychological
consequences are particularly severe. Because virtually all of the
significant harmful and identifiable consequences of teenage
pregnancy fall on the female, a legislature acts well within it authority
when it elects to punish only the participant who, by nature, suffers few
of the consequences of his conduct.
(c) There is no merit in petitioner's contention that the statute is
impermissibly underinclusive and must, in order to pass judicial
scrutiny, be broadened so as to hold the female as criminally liable as
the male. The relevant inquiry is not whether the statute is drawn as
precisely as it might have been, but whether the line chosen by the
California Legislature is within constitutional limitations. In any event, a
gender-neutral statute would frustrate the State's interest in effective
enforcement since a female would be less likely to report violations of
the statute if she herself would be subject to prosecution. The Equal
Protection Clause does not require a legislature to enact a statute so
broad that it may well be incapable of enforcement.
(d) Nor is the statute impermissibly overbroad because it makes
unlawful sexual intercourse with prepubescent females, incapable of
becoming pregnant. Aside from the fact that the statute could be
justified on the grounds that very young females are particularly
susceptible to physical injury from sexual intercourse, the Constitution
does not require the California Legislature to limit the scope of the
statute to older teenagers and exclude young girls.
(e) And the statute is not unconstitutional as applied to petitioner
who, like the girl involved, was under 18 at the time of sexual
intercourse, on the asserted ground that the statute presumes in such
circumstances that the male is the culpable aggressor. The statute
does not rest on such an assumption, but instead is an attempt to
prevent illegitimate teenage pregnancy by providing an additional
deterrent for men. The age of the man is irrelevant since young men
are as capable as older men of inflicting the harm sought to be
prevented.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, for purposes of criminal prosecution under §241 or §1584, the term
“involuntary servitude” necessarily means a condition of servitude in which the victim
is forced to work for the defendant by the use or threat of physical restraint or
physical injury or by the use or threat of coercion through law or the legal process.
United States v.
Kozminski
487 U.S. 931
(1988)
Definition of
Crime:
Involuntary
Servitude
After two mentally retarded men were found laboring on
respondents' farm in poor health, in squalid conditions, and in
relative isolation from the rest of society, respondents were
charged with violating 18 U.S.C. §241 by conspiring to prevent
the men from exercising their Thirteenth Amendment right to
be free from involuntary servitude, and with violating 18
U.S.C. §1584 by knowingly holding the men in involuntary
servitude. At respondents' trial in Federal District Court, the
Government's evidence indicated, inter alia, that the two men
worked on the farm seven days a week, often 17 hours a day,
at first for $15 per week and eventually for no pay, and that, in
addition to actual or threatened physical abuse and a threat to
reinstitutionalize one of the men if he did not do as he was
told, respondents had used various forms of psychological
coercion to keep the men on the farm. The court instructed the
jury that, under both statutes, involuntary servitude may
include situations involving any “means of compulsion,
sufficient in kind and degree, to subject a person having the
same general station in life as the alleged victims to believe
they had no reasonable means of escape and no choice
except to remain in the service of the employer.” The jury
found respondents guilty, and the court imposed sentences.
However, the Court of Appeals reversed and remanded for a
new trial, concluding that the trial court's definition of
involuntary servitude was too broad in that it included general
psychological coercion. The court held that involuntary
servitude exists only when the master subjects the servant to
(1) threatened or actual physical force, (2) threatened or
actual state-imposed legal coercion, or (3) fraud or deceit
where the servant is a minor or an immigrant or is mentally
incompetent.
Held: Yes. Affirmed and Remanded.
This definition encompasses cases in which the defendant holds the victim in
servitude by placing him or her in fear of such physical restraint or injury or legal
coercion.
(a) The Government cannot prove a §241 conspiracy to violate rights secured by
the Thirteenth Amendment without proving that the conspiracy involved the use or
threatened use of physical or legal coercion. The fact that the Amendment excludes
from its prohibition involuntary servitude imposed “as a punishment for crime whereof
the party shall have been duly convicted” indicates that the Amendment's drafters
thought that involuntary servitude generally includes situations in which the victim is
compelled to work by law. Moreover, the facts that the phrase “involuntary servitude”
was intended “to cover those forms of compulsory labor akin to African slavery,” and
that the Amendment extends beyond state action, imply an intent to prohibit
compulsion through physical coercion. These assessments are confirmed by this
Court's decisions construing the Amendment, which have never interpreted the
guarantee of freedom from involuntary servitude to specifically prohibit compulsion of
labor by other means, such as psychological coercion.
(b) The language and legislative history of §1584 and its statutory progenitors
indicate that its reach should be limited to cases involving the compulsion of services
by the use or threatened use of physical or legal coercion. That is the understanding
of the Thirteenth Amendment's “involuntary servitude” phrase that prevailed at the
time of §1584's enactment and, since Congress clearly borrowed that phrase in
enacting §1584, the phrase should have the same meaning in both places absent any
contrary indications. Section 1584's history undercuts the contention that Congress
had a broader concept of involuntary servitude in mind when it enacted the statute,
and does not support the Court of Appeals' conclusion that immigrants, children, and
mental incompetents are entitled to any special protection.
(c) The Government's broad construction of “involuntary servitude”-which would
prohibit the compulsion of services by any type of speech or intentional conduct that,
from the victim's point of view, either leaves the victim with no tolerable alternative but
to serve the defendant or deprives the victim of the power of choice-could not have
been intended by Congress. That interpretation would appear to criminalize a broad
range of day-to-day activity; would delegate to prosecutors and juries the inherently
legislative task of determining what type of coercive activities are so morally
reprehensible that they should be punished as crimes; would subject individuals to
the risk of arbitrary or discriminatory prosecution and conviction; and would make the
type of coercion prohibited depend entirely on the victim's state of mind, thereby
depriving ordinary people of fair notice of what is required of them. These defects are
not cured by the Government's ambiguous specific intent requirement.
(d) The latter construction does not imply that evidence of other means of coercion,
or of extremely poor working conditions, or of the victim's special vulnerabilities, is
irrelevant. The victim's vulnerabilities are relevant in determining whether the physical
or legal coercion or threats thereof could plausibly have compelled the victim to
serve. Moreover, a trial court could properly find that evidence of other means of
coercion or of poor working conditions is relevant to corroborate disputed evidence
regarding the use or threats of physical or legal coercion, the defendant's intent in
using such means, or the causal effect of such conduct.
(e) Since the District Court's jury instructions encompassed means of coercion
other than actual or threatened physical or legal coercion, the instructions may have
caused respondents to be convicted for conduct that does not violate §241 or §1584.
The convictions must therefore be reversed. Because the record contains sufficient
evidence of physical or legal coercion to permit a conviction, however, a judgment of
acquittal is unwarranted, and the case is remanded for further proceedings consistent
with this opinion.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the court was precluded from deciding question of
whether Blakely error could ever be deemed harmless, and whether
the failure to submit sentencing factor to jury was a “structural error”
that would invalidate conviction.
Washington v.
Recuenco
548 U.S. 212
(2006)
Definition of
Crime:
Aggravating
Factors
After respondent threatened his wife with a handgun, he was
convicted of second-degree assault based on the jury's finding
that he had assaulted her “with a deadly weapon.” A “firearm”
qualifies as a “deadly weapon” under Washington law, but
nothing in the verdict form specifically required the jury to find
that respondent had engaged in assault with a “firearm,” as
opposed to any other kind of “deadly weapon.” Nevertheless,
the state trial court applied a 3–year firearm enhancement to
respondent's sentence, rather than the 1–year enhancement
that specifically applies to assault with a deadly weapon,
based on the court's own factual findings that respondent was
armed with a firearm. This Court then decided Apprendi v.
New Jersey, “other 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,” and Blakely v. Washington,
clarifying that “the ‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict.” Because the
trial court could not have subjected respondent to a firearm
enhancement based only on the jury's finding that respondent
was armed with a “deadly weapon,” the State conceded a
Sixth Amendment Blakely violation before the Washington
Supreme Court, but urged the court to find the Blakely error
harmless. In vacating respondent's sentence and remanding
for sentencing based solely on the deadly weapon
enhancement, however, the court declared Blakely error to be
“structural error,” which will always invalidate a conviction
under Sullivan v. Louisiana.
Held: No. Reversed and remanded.
1. Respondent's argument that this Court lacks power to reverse
because the Washington Supreme Court's judgment rested on
adequate and independent state-law grounds is rejected. It is far from
clear that respondent is correct that at the time of his conviction, state
law provided no procedure for a jury to determine whether a defendant
was armed with a firearm, so that it is impossible to conduct harmlesserror analysis on the Blakely error in his case. The correctness of
respondent's interpretation, however, is not determinative of the
question the State Supreme Court decided and on which this Court
granted review, i.e., whether Blakely error can ever be deemed
harmless. If respondent's reading of Washington law is correct, that
merely suggests that he will be able to demonstrate that the Blakely
violation in this particular case was not harmless. But it does not mean
that Blakely error—which is of the same nature, whether it involves a
fact that state law permits to be submitted to the jury or not—is
structural, or that this Court is precluded from deciding that question.
Thus, the Court need not resolve this open question of Washington
law.
2. Failure to submit a sentencing factor to the jury is not “structural”
error. If a criminal defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that most constitutional
errors are subject to harmless-error analysis. Only in rare cases has
this Court ruled an error “structural,” thus requiring automatic reversal.
In Neder, the Court held that failure to submit an element of an offense
to the jury—there, the materiality of false statements as an element of
the federal crimes of filing a false income tax return, mail fraud, wire
fraud, and bank fraud—is not structural, but is subject to Chapman's
harmless-error rule. This case is indistinguishable from Neder.
Apprendi makes clear that “any possible distinction between an
‘element’ of a felony and a ‘sentencing factor’ was unknown during the
years surrounding our Nation's founding.” Accordingly, the Court has
treated sentencing factors, like elements, as facts that have to be tried
to the jury and proved beyond a reasonable doubt. The only difference
between this case and Neder is that there the prosecution failed to
prove the materiality element beyond a reasonable doubt, while here
the prosecution failed to prove the “armed with a firearm” sentencing
factor beyond a reasonable doubt. Assigning this distinction
constitutional significance cannot be reconciled with Apprendi's
recognition that elements and sentencing factors must be treated the
same. Respondent attempts unpersuasively to distinguish Neder on
the ground that the jury there returned a guilty verdict on the offenses
for which the defendant was sentenced, whereas here the jury returned
a guilty verdict only on the offense of second-degree assault, and an
affirmative answer to the sentencing question whether respondent was
armed with a deadly weapon. Because Neder's jury did not find him
guilty of each element of the offenses, its verdict is no more fairly
described as a complete finding of guilt than is the verdict here.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Eleventh Amendment prohibited the District Court from
ordering state officials to conform their conduct to state law.
Pennhurst
State School &
Hosp. v.
Halderman
465 U.S. 89
(1984)
Duty to Protect:
Mental
Disability
Respondent Halderman, a resident of petitioner Pennhurst
State School and Hospital, a Pennsylvania institution for the
care of the mentally retarded, brought a class action in
Federal District Court against Pennhurst and various state and
county officials (also petitioners). It was alleged that conditions
at Pennhurst violated various federal constitutional and
statutory rights of the class members as well as their rights
under the Pennsylvania Mental Health and Mental Retardation
Act of 1966 (MH/MR Act). Residents of Pennhurst were
inadequately supervised, and as a consequence were often
injured by other residents or as a result of self-abuse. Assaults
on residents by staff members, including sexual assaults,
were frequent. Ultimately, the District Court awarded injunctive
relief based in part on the MH/MR Act, which was held to
provide a right to adequate habilitation. The Court of Appeals
affirmed, holding that the MH/MR Act required the State to
adopt the “least restrictive environment” approach for the care
of the mentally retarded, and rejecting petitioners' argument
that the Eleventh Amendment barred a federal court from
considering this pendent state-law claim. The court reasoned
that since that Amendment did not bar a federal court from
granting prospective injunctive relief against state officials on
the basis of federal claims, citing Ex parte Young, the same
result obtained with respect to a pendent state-law claim.
Held: Yes. Reversed and Remanded.
(a) The principle of sovereign immunity is a constitutional limitation on the
federal judicial power established in Art. III of the Constitution. The
Eleventh Amendment bars a suit against state officials when the State is
the real, substantial party in interest, regardless of whether the suit seeks
damages or injunctive relief. The Court in Ex parte Young, supra,
recognized an important exception to this general rule: a suit challenging
the federal constitutionality of a state official's action is not one against the
State.
(b) In Edelman v. Jordan this Court recognized that the need to promote
the supremacy of federal law that is the basis of Young must be
accommodated to the constitutional immunity of the States. Thus, the Court
declined to extend the Young doctrine to encompass retroactive relief, for
to do so would effectively eliminate the States' constitutional immunity.
Edelman's distinction between prospective and retroactive relief fulfilled
Young's underlying purpose of vindicating the supreme authority of federal
law while at the same time preserving to an important degree the States'
constitutional immunity. But this need to reconcile competing interests is
wholly absent when a plaintiff alleges that a state official has violated state
law. In such a case the entire basis for the doctrine of Young and Edelman
disappears. A federal court's grant of relief against state officials on the
basis of state law, whether prospective or retroactive, does not vindicate
the supreme authority of federal law. When a federal court instructs state
officials on how to conform their conduct to state law, this conflicts directly
with the principles of federalism that underlie the Eleventh Amendment.
(c) The dissenters' view is that an allegation that official conduct is
contrary to a state statute would suffice to override the State's protection
from injunctive relief under the Eleventh Amendment because such conduct
is ultra vires the official's authority. This view rests on fiction, is wrong on
the law, and would emasculate the Eleventh Amendment. At least insofar
as injunctive relief is sought, an error of law by state officers acting in their
official capacity will not suffice to override the sovereign immunity of the
State where the relief effectively is against it. Under the dissenters' view,
the ultra vires doctrine, a narrow and questionable exception, would
swallow the general rule that a suit is against the State if the relief will run
against it.
(d) The principle that a claim that state officials violated state law in
carrying out their official responsibilities is a claim against the State that is
protected by the Eleventh Amendment applies as well to state-law claims
brought into federal court under pendent jurisdiction.
(e) While it may be that applying the Eleventh Amendment to pendent
state-law claims results in federal claims being brought in state court or in
bifurcation of claims, such considerations of policy cannot override the
constitutional limitation on the authority of the federal judiciary to adjudicate
suits against a State.
(f) The judgment below cannot be sustained on the basis of the state-law
obligation of petitioner county officials, since any relief granted against
these officials on the basis of the MH/MR Act would be partial and
incomplete at best. Such an ineffective enforcement of state law would not
appear to serve the purposes of efficiency, convenience, and fairness that
must inform the exercise of pendent jurisdiction.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether deliberate indifference by prison personnel to a
prisoner's serious illness or injury constitutes cruel and unusual
punishment contravening the Eighth Amendment.
Estelle v.
Gamble
429 U.S. 97
(1976)
Duty to Protect:
Inmates
Respondent, state inmate, brought this civil rights action under
42 U.S.C. §1983 against petitioners, the state corrections
department medical director (Gray) and two correctional
officials, claiming that he was subjected to cruel and unusual
punishment in violation of the Eighth Amendment for
inadequate treatment of a back injury assertedly sustained
while he was engaged in prison work. The District Court
dismissed the complaint for failure to state a claim upon which
relief could be granted. The Court of Appeals held that the
alleged insufficiency of the medical treatment required
reinstatement of the complaint.
Held: Yes. Reversed and Remanded.
Here, however, respondent's claims against Gray do not
suggest such indifference, the allegations revealing that Gray
and other medical personnel saw respondent on 17 occasions
during a 3-month span and treated his injury and other
problems. The failure to perform an X-ray or to use additional
diagnostic techniques does not constitute cruel and unusual
punishment but is at most medical malpractice cognizable in the
state courts. The question whether respondent has stated a
constitutional claim against the other petitioners, the Director of
the Department of Corrections and the warden of the prison,
was not separately evaluated by the Court of Appeals and
should be considered on remand.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Petitioner can be liable for both compensatory
and punitive damages.
Smith v. Wade
461 U.S. 30
(1983)
Duty to Protect:
Inmates
Respondent, while an inmate in a Missouri reformatory for
youthful first offenders, was harassed, beaten, and sexually
assaulted by his cellmates. He brought suit under 42 U.S.C.
§1983 in Federal District Court against petitioner, a guard at
the reformatory, and others, alleging that his Eighth
Amendment rights had been violated. Because of petitioner's
qualified immunity, as a prison guard, from §1983 liability, the
trial judge instructed the jury that respondent could recover
only if petitioner was guilty of “gross negligence” or “egregious
failure to protect” respondent. The judge also charged the jury
that it could award punitive damages in addition to actual
damages if petitioner's conduct was shown to be “a reckless
or callous disregard of, or indifference to, the rights or safety
of others.” The District Court entered judgment on a verdict
finding petitioner liable and awarding both compensatory and
punitive damages. The Court of Appeals affirmed.
Held: Affirmed.
1. Punitive damages are available in a proper case under
§1983. While there is little in the legislative history of §1 of the
Civil Rights Act of 1871 (from which §1983 is derived)
concerning the damages recoverable for the tort liability created
by the statute, the availability of punitive damages was
accepted as settled law by nearly all state and federal courts at
the time of enactment. Moreover, this Court has rested
decisions on related issues on the premise that punitive
damages are available under §1983.
2. A jury may be permitted to assess punitive damages in a
§1983 action when the defendant's conduct involves reckless or
callous indifference to the plaintiff's federally protected rights, as
well as when it is motivated by evil motive or intent. The
common law, both in 1871 and now, allows recovery of punitive
damages in tort cases not only for actual malicious intent, but
also for reckless indifference to the rights of others. Neither the
policies nor the purposes of §1983 require a departure from the
common-law rule. Petitioner's contention that an actual-intent
standard is preferable to a recklessness standard because it is
less vague, and would more readily serve the purpose of
deterrence of future egregious conduct, is unpersuasive.
3. The threshold standard for allowing punitive damages for
reckless or callous indifference applies even in a case, such as
here, where the underlying standard of liability for compensatory
damages is also one of recklessness. There is no merit to
petitioner's contention that actual malicious intent should be the
standard for punitive damages because the deterrent purposes
of such damages would be served only if the threshold for those
damages is higher in every case than the underlying standard
for liability in the first instance. The common-law rule is
otherwise, and there is no reason to depart from the commonlaw rule in the context of §1983.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the defense of qualified immunity was precluded at the
summary judgment phase.
Hope v. Pelzer
536 U.S. 730
(2002)
Duty to Protect:
Inmates
In 1995, petitioner Hope, then an Alabama prison inmate, was
twice handcuffed to a hitching post for disruptive conduct.
During a 2-hour period in May, he was offered drinking water
and a bathroom break every 15 minutes, and his responses
were recorded on an activity log. He was handcuffed above
shoulder height, and when he tried moving his arms to
improve circulation, the handcuffs cut into his wrists, causing
pain and discomfort. After an altercation with a guard at his
chain gang's worksite in June, Hope was subdued,
handcuffed, placed in leg irons, and transported back to the
prison, where he was ordered to take off his shirt, thus
exposing himself to the sun, and spent seven hours on the
hitching post. While there, he was given one or two water
breaks but no bathroom breaks, and a guard taunted him
about his thirst. Hope filed a 42 U.S.C. §1983 suit against
three guards. Without deciding whether placing Hope on the
hitching post as punishment violated the Eighth Amendment,
the Magistrate Judge found that the guards were entitled to
qualified immunity. The District Court entered summary
judgment for respondents, and the Eleventh Circuit affirmed.
The latter court answered the constitutional question, finding
that the hitching post's use for punitive purposes violated the
Eighth Amendment. In finding the guards nevertheless entitled
to qualified immunity, it concluded that Hope could not show,
as required by Circuit precedent, that the federal law by which
the guards' conduct should be evaluated was established by
cases that were “materially similar” to the facts in his own
case.
Held: Yes. Reversed.
(a) Hope's allegations, if true, establish an Eighth Amendment violation.
Among the “unnecessary and wanton’ inflictions of pain constituting cruel and
unusual punishment forbidden by the Amendment are those that are ‘totally
without penological justification.” This determination is made in the context of
prison conditions by ascertaining whether an official acted with “deliberate
indifference” to the inmates' health or safety, a state of mind that can be inferred
from the fact that the risk of harm is obvious. The Eighth Amendment violation
here is obvious on the facts alleged. Any safety concerns had long since abated
by the time Hope was handcuffed to the hitching post, because he had already
been subdued, handcuffed, placed in leg irons, and transported back to prison.
He was separated from his work squad and not given the opportunity to return.
Despite the clear lack of emergency, respondents knowingly subjected him to a
substantial risk of physical harm, unnecessary pain, unnecessary exposure to
the sun, prolonged thirst and taunting, and a deprivation of bathroom breaks
that created a risk of particular discomfort and humiliation.
(b) Respondents may nevertheless be shielded from liability for their
constitutionally impermissible conduct if their actions did not violate “clearly
established statutory or constitutional rights of which a reasonable person would
have known.” In its assessment, the Eleventh Circuit erred in requiring that the
facts of previous cases and Hope's case be “materially similar.” Qualified
immunity operates to ensure that before they are subjected to suit, officers are
on notice that their conduct is unlawful. Officers sued in a §1983 civil action
have the same fair notice right as do defendants charged under 18 U.S.C. §242,
which makes it a crime for a state official to act willfully and under color of law to
deprive a person of constitutional rights. This Court's opinion in United States v.
Lanier, a §242 case, makes clear that officials can be on notice that their
conduct violates established law even in novel factual situations. Indeed, the
Court expressly rejected a requirement that previous cases be “fundamentally
similar.” Accordingly, the salient question that the Eleventh Circuit should have
asked is whether the state of the law in 1995 gave respondents fair warning that
Hope's alleged treatment was unconstitutional.
(c) A reasonable officer would have known that using a hitching post as Hope
alleged was unlawful. The obvious cruelty inherent in the practice should have
provided respondents with some notice that their conduct was unconstitutional.
In addition, binding Circuit precedent should have given them notice. Gates v.
Collier found several forms of corporal punishment impermissible, including
handcuffing inmates to fences or cells for long periods, and Ort v. White warned
that “physical abuse directed at a prisoner after he terminates his resistance to
authority would constitute an actionable eighth amendment violation.” Relevant
to the question whether Ort provided fair notice is a subsequent Alabama
Department of Corrections (ADOC) regulation specifying procedures for using a
hitching post, which included allowing an inmate to rejoin his squad when he
tells an officer that he is ready to work. If regularly observed, that provision
would have made Hope's case less like the kind of punishment Ort described as
impermissible. But conduct showing that the provision was a sham, or that
respondents could ignore it with impunity, provides equally strong support for
the conclusion that they were fully aware of their wrongful conduct. The
conclusion here is also buttressed by the fact that the Justice Department
specifically advised the ADOC of the constitutional infirmity of its practices
before the incidents in this case took place.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether an inmate seeking only money damages must
complete any prison administrative process capable of
addressing the inmate's complaint and providing some form of
relief, even if the process does not make specific provision for
monetary relief.
Booth v.
Churner
532 U.S. 731
(2001)
Duty to Protect:
Inmates
The Prison Litigation Reform Act of 1995 amended 42 U.S.C.
§1997e(a), which now requires a prisoner to exhaust “such
administrative remedies as are available” before suing over
prison conditions. Petitioner Booth was a Pennsylvania state
prison inmate when he began this 42 U.S.C. §1983 action in
Federal District Court, claiming that respondent corrections
officers violated his Eighth Amendment right to be free from
cruel and unusual punishment by assaulting him, using
excessive force against him, and denying him medical
attention to treat ensuing injuries. He sought various forms of
injunctive relief and money damages. At the time,
Pennsylvania provided an administrative grievance and
appeals system, which addressed Booth's complaints but had
no provision for recovery of money damages. Before resorting
to federal court, Booth filed an administrative grievance, but
did not seek administrative review after the prison authority
denied relief. Booth's failure to appeal administratively led the
District Court to dismiss the complaint without prejudice for
failure to exhaust administrative remedies under §1997e(a).
The Third Circuit affirmed, rejecting Booth's argument that the
exhaustion requirement is inapposite to his case because the
administrative process could not award him the monetary
relief he sought (money then being the only relief still
requested).
Held: Yes. Affirmed.
The meaning of the phrase “administrative remedies
available” is the crux of the case. Neither the practical
considerations urged by the parties nor their reliance on the
dictionary meanings of the words “remedies” and “available” are
conclusive in seeking congressional intent. Clearer clues are
found in two considerations. First, the broader statutory context
in which Congress referred to “available” “remedies” indicates
that exhaustion is required regardless of the relief offered
through administrative procedures. While the modifier
“available” requires the possibility of some relief for the action
complained of, the word “exhausted” has a decidedly procedural
emphasis. It makes no sense, for instance, to demand that
someone exhaust “such administrative redress” as is available;
one “exhausts” processes, not forms of relief, and the statute
provides that one must. Second, statutory history confirms the
suggestion that Congress meant to require procedural
exhaustion regardless of the fit between a prisoner's prayer for
relief and the administrative remedies possible. Before
§1997e(a) was amended by the 1995 Act, a court had discretion
(though no obligation) to require a state inmate to exhaust “such
remedies as are available,” but only if they were “plain, speedy,
and effective.” That scheme is now a thing of the past, for the
amendments eliminated both the discretion to dispense with
administrative exhaustion and the condition that the remedy be
“plain, speedy, and effective” before exhaustion could be
required. The significance of deleting that condition is apparent
in light of McCarthy v. Madigan. In holding that the preamended
version of §1997e(a) did not require exhaustion by those
seeking only money damages when money was unavailable at
the administrative level, the McCarthy Court reasoned in part
that only a procedure able to provide money damages would be
“effective” within the statute's meaning. It has to be significant
that Congress removed the very term, “effective,” the McCarthy
Court had previously emphasized in reaching the result Booth
now seeks, and the fair inference to be drawn is that Congress
meant to preclude the McCarthy result. Congress's imposition of
an obviously broader exhaustion requirement makes it highly
implausible that it meant to give prisoners an inducement to skip
the administrative process by limiting prayers for relief to money
damages not offered through administrative grievances.
Case
Youngberg v.
Romeo
457 U.S. 307
(1982)
Subject
Facts
Duty to Protect:
Mental
Disability
Respondent, who is mentally retarded, was involuntarily
committed to a Pennsylvania state institution. Subsequently,
after becoming concerned about injuries which respondent
had suffered at the institution, his mother filed an action as his
next friend in Federal District Court for damages under 42
U.S.C. §1983 against petitioner institution officials. She
claimed that respondent had constitutional rights to safe
conditions of confinement, freedom from bodily restraint, and
training or “habilitation” and that petitioners knew, or should
have known, about his injuries but failed to take appropriate
preventive procedures, thus violating his rights under the
Eighth and Fourteenth Amendments. In the ensuing jury trial,
the District Court instructed the jury on the assumption that
the Eighth Amendment was the proper standard of liability,
and a verdict was returned for petitioners, on which judgment
was entered. The Court of Appeals reversed and remanded
for a new trial, holding that the Fourteenth, rather than the
Eighth, Amendment provided the proper constitutional basis
for the asserted rights.
Issue Presented and Holding
Issue: Whether 14th Amendment represents the proper test for
determining whether the respondent’s rights have been violated.
Held: Yes. Vacated and Remanded.
Respondent has constitutionally protected liberty interests under
the Due Process Clause of the Fourteenth Amendment to
reasonably safe conditions of confinement, freedom from
unreasonable bodily restraints, and such minimally adequate
training as reasonably may be required by these interests.
Whether respondent's constitutional rights have been violated
must be determined by balancing these liberty interests against
the relevant state interests. The proper standard for determining
whether the State has adequately protected such rights is
whether professional judgment in fact was exercised. And in
determining what is “reasonable” courts must show deference to
the judgment exercised by a qualified professional, whose
decision is presumptively valid.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether 42 U.S.C. §1983 authorizes a convicted state
defendant to assert a claim for damages against a police officer
for giving perjured testimony at the defendant's criminal trial.
Briscoe v.
LaHue
460 U.S. 325
(1983)
Duty to Protect:
Perjured
Testimony
Petitioners Vickers and Ballard were jointly tried and convicted
of sexual assault in state court. They subsequently brought a
civil action under §1983 against respondent Hunley, a
member of the Cedar Lake, Indiana, police force, alleging that
he had deprived them of their constitutional rights to due
process and a fair trial. They alleged that, by giving false
testimony suggesting that they had been able to harmonize
their stories before making exculpatory statements to police,
he had prejudicially diminished the credibility of those
statements. Each plaintiff sought $150,000 in compensatory
and $50,000 in punitive damages.
The federal magistrate granted a motion to dismiss the
complaint on alternative grounds: 1) Hunley had not testified
“under color of law”; 2) he was entitled to absolute witness
immunity; and 3) petitioners had failed to state a claim under
§1983 because they did not allege that the prosecutor had
knowingly used false testimony. The District Court affirmed
the dismissal on the first ground. Both cases were appealed to
the United States Court of Appeals for the Seventh Circuit that
held that, in litigation brought under 42 U.S.C. § 1983, all
witnesses-police officers as well as lay witnesses-are
absolutely immune from civil liability based on their testimony
in judicial proceedings.
Held: No. Affirmed.
(a) The common law provided absolute immunity from
subsequent damages liability for all persons-governmental or
otherwise-who were integral parts of the judicial process.
Section 1983 does not authorize a damages claim against
private witnesses. Similarly, judges and prosecutors may not be
held liable for damages under §1983 for the performance of
their respective duties in judicial proceedings. When a police
officer appears as a witness, he may reasonably be viewed as
acting like any witness sworn to tell the truth, in which event he
can make a strong claim to witness immunity. Alternatively, he
may be regarded as an official performing a critical role in the
judicial process, in which event he may seek the benefit
afforded to other governmental participants in the same
proceeding. Nothing in §1983's language suggests that a police
officer witness belongs in a narrow, special category lacking
protection against damages suits.
(b) Nor does anything in the legislative history of the statute
indicate that Congress intended to abrogate common-law
witness immunity in order to provide a damages remedy under
§1983 against police officers or any other witnesses.
(c) There is some force to the contentions that the reasons
supporting common-law witness immunity-the need to avoid
intimidation and self-censorship-apply with diminished force to
police officers and that police officers' perjured testimony is
likely to be more damaging to constitutional rights than such
testimony by ordinary citizens. But immunity analysis rests on
functional categories, not on the defendant's status. A police
officer witness performs the same functions as any other
witness. Moreover, to the extent that traditional reasons for
witness immunity are less applicable to governmental
witnesses, other considerations of public policy support
absolute immunity for such witnesses more emphatically than
for ordinary witnesses. Subjecting government officials, such as
police officers, to damages liability under §1983 for their
testimony might undermine not only their contribution to the
judicial process but also the effective performance of their other
public duties.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Respondent had a property interest under the Due
Process Clause in police enforcement of the restraining order against
her husband.
Town of Castle
Rock, Colorado
v. Gonzales
545 U.S. 748
(2005)
Duty to Protect:
Protection from
Private Party
Respondent filed this suit under 42 U. S. C. §1983 alleging
that petitioner violated the Fourteenth Amendment’s Due
Process Clause when its police officers, acting pursuant to
official policy or custom, failed to respond to her repeated
reports over several hours that her estranged husband had
taken their three children in violation of her restraining order
against him. Ultimately, the husband murdered the children.
The District Court granted the town’s motion to dismiss, but an
en banc majority of the Tenth Circuit reversed, finding that
respondent had alleged a cognizable procedural due process
claim because a Colorado statute established the state
legislature’s clear intent to require police to enforce retraining
orders, and thus its intent that the order’s recipient have an
entitlement to its enforcement. The court therefore ruled,
among other things, that respondent had a protected property
interest in the enforcement of her restraining order.
Held: No. Reversed.
(a) The Due Process Clause’s procedural component does not protect everything that might be described as a government “benefit”: “To
have a property interest in a benefit, a person must have a legitimate
claim of entitlement to it.” Such entitlements are created by existing
rules or understandings stemming from an independent source such as
state law.
(b) A benefit is not a protected entitlement if officials have discretion
to grant or deny it. It is inappropriate here to defer to the Tenth Circuit’s
determination that Colorado law gave respondent a right to police
enforcement of the restraining order. This Court therefore proceeds to
its own analysis.
(c) Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not appear that state law truly made
such enforcement mandatory. A well-established tradition of police
discretion has long coexisted with apparently mandatory arrest
statutes. A true mandate of police action would require some stronger
indication than the Colorado statute’s direction to “use every
reasonable means to enforce a restraining order” or even to “arrest or
seek a warrant.” A Colorado officer would likely have some discretion
to determine that—despite probable cause to believe a restraining
order has been violated—the violation’s circumstances or competing
duties counsel decisively against enforcement in a particular instance.
The practical necessity for discretion is particularly apparent in a case
such as this, where the suspected violator is not actually present and
his whereabouts are unknown. In such circumstances, the statute does
not appear to require officers to arrest but only to seek a warrant.
(d) Even if the statute could be said to make enforcement “mandatory,” that would not necessarily mean that respondent has an entitlement to enforcement. Her alleged interest stems not from common
law or contract, but only from a State’s statutory scheme. If she was
given a statutory entitlement, the Court would expect to see some indication of that in the statute itself. Although the statute spoke of
“protected person[s]” such as respondent, it did so in connection with
matters other than a right to enforcement. Most importantly, it spoke
directly to the protected person’s power to “initiate” contempt
proceedings if the order was issued in a civil action, which contrasts
tellingly with its conferral of a power merely to “request” initiation of
criminal contempt proceedings—and even more dramatically with its
complete silence about any power to “request” (much less demand)
that an arrest be made.
(e) Even were the Court to think otherwise about Colorado’s creation
of an entitlement, it is not clear that an individual entitlement to
enforcement of a restraining order could constitute a “property” interest
for due process purposes. Such a right would have no ascertainable
monetary value and would arise incidentally, not out of some new
species of government benefit or service, but out of a function that
government actors have always performed—arresting people when
they have probable cause.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a physically present co-occupant’s stated refusal to permit entry renders
warrantless entry and search unreasonable and invalid as to Randolph.
Georgia v.
Randolph
547 U.S. 103
(2006)
Entry:
Permission to
Search Granted
by Estranged
Wife
Respondent’s estranged wife gave police permission to
search the marital residence for items of drug use after
respondent, who was also present, had unequivocally refused
to give consent. Respondent was indicted for possession of
cocaine, and the trial court denied his motion to suppress the
evidence as products of a warrantless search unauthorized by
consent. The Georgia Court of Appeals reversed. In affirming,
the State Supreme Court held that consent given by one
occupant is not valid in the face of the refusal of another
physically present occupant, and distinguished United States
v. Matlock, which recognized the permissibility of an entry
made with the consent of one co-occupant in the other’s
absence.
Held: Yes. Affirmed.
(a) The Fourth Amendment recognizes a valid warrantless entry and search of a premises
when the police obtain the voluntary consent of an occupant who shares, or is reasonably
believed to share, common authority over the property, and no present co-tenant objects.
The constant element in assessing Fourth Amendment reasonableness in such cases is the
great significance given to widely shared social expectations, which are influenced by
property law but not controlled by its rules. Thus, Matlock not only holds that a solitary coinhabitant may sometimes consent to a search of shared premises, but also stands for the
proposition that the reasonableness of such a search is in significant part a function of
commonly held understandings about the authority that co-inhabitants may exercise in ways
that affect each other’s interests.
(b) Matlock’s example of common understanding is readily apparent. The assumption
tenants usually make about their common authority when they share quarters is that any
one of them may admit visitors, with the consequence that a guest obnoxious to one may
be admitted in his absence. Matlock placed no burden on the police to eliminate the
possibility of atypical arrangements, absent reason to doubt that the regular scheme was in
place.
(c) This Court took a step toward addressing the issue here when it held in Minnesota v.
Olson, that overnight houseguests have a legitimate expectation of privacy in their
temporary quarters. If that customary expectation is a foundation of a houseguest’s Fourth
Amendment rights, it should follow that an inhabitant of shared premises may claim at least
as much. In fact, a co-inhabitant naturally has an even stronger claim. No sensible person
would enter shared premises based on one occupant’s invitation when a fellow tenant said
to stay out. Such reticence would show not timidity but a realization that when people living
together disagree over the use of their common quarters, a resolution must come through
voluntary accommodation, not by appeals to authority. Absent some recognized hierarchy,
e.g., parent and child, there is no societal or legal understanding of superior and inferior as
between co-tenants.
(d) Thus, a disputed invitation, without more, gives an officer no better claim to
reasonableness in entering than the officer would have absent any consent. Disputed
permission is no match for the Fourth Amendment central value of “respect for the privacy
of the home,” and the State’s other countervailing claims do not add up to outweigh it. A
co-tenant who has an interest in bringing criminal activity to light or in deflecting suspicion
from himself can, e.g., tell the police what he knows, for use before a magistrate in getting a
warrant. This case, which recognizes limits on evidentiary searches, has no bearing on the
capacity of the police, at the invitation of one tenant, to enter a dwelling over another
tenant’s objection in order to protect a resident from domestic violence. Though alternatives
to disputed consent will not always open the door to search for evidence that the police
suspect is inside, nothing in social custom or its reflection in private law argues for placing a
higher value on delving into private premises to search for evidence in the face of disputed
consent, than on requiring clear justification before the government searches private living
quarters over a resident’s objection.
(e) There are two loose ends. First, while Matlock’s explanation for the constitutional
sufficiency of a co-tenant’s consent to enter and search recognized a co-inhabitant’s “right
to permit the inspection in his own right,” the right to admit the police is not a right as
understood under property law. It is, instead, the authority recognized by customary social
usage as having a substantial bearing on Fourth Amendment reasonableness in specific
circumstances. The question here is whether customary social understanding accords the
consenting tenant authority to prevail over the co-tenant’s objection, a question Matlock did
not answer. Second, a fine line must be drawn to avoid undercutting Matlock—where the
defendant, though not present, was in a squad car not far away—and Rodriguez—where
the defendant was asleep in the apartment and could have been roused by a knock on the
door; if a potential defendant with self-interest in objecting is in fact at the door and objects,
the co-tenant’s permission does not suffice for a reasonable search, whereas the potential
objector, nearby but not part of the threshold colloquy, loses out. Such formalism is justified.
So long as there is no evidence that the police have removed the potentially objecting
tenant from the entrance specifically to avoid a possible objection, there is practical value in
the simple clarity of complementary rules, one recognizing the co-tenant’s permission when
no fellow occupant is on hand, the other according dispositive weight to the fellow
occupant’s expressed contrary indication.
(f) Here, respondent’s refusal is clear, and nothing in the record justifies the search on
grounds independent of his wife’s consent.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Police may enter a home without a warrant when
they have an objectively reasonable basis for believing that an
occupant is seriously injured or imminently threatened with such
injury.
Brigham City,
Utah v. Stuart
547 U.S. 398
(2006)
Entry:
Warrantless
Entry Due to
Emergency
Responding to a 3am call about a loud party, police arrived at
the house in question, heard shouting inside, proceeded down
the driveway, and saw two juveniles drinking beer in the
backyard. Entering the yard, they saw through a screen door
and windows an altercation in the kitchen between four adults
and a juvenile, who punched one of the adults, causing him to
spit blood in a sink. An officer opened the screen door and
announced the officers’ presence. Unnoticed amid the tumult,
the officer entered the kitchen and again cried out, whereupon
the altercation gradually subsided. The officers arrested
respondents and charged them with contributing to the
delinquency of a minor and related offenses. The trial court
granted their motion to suppress all evidence obtained after
the officers entered the home on the ground that the
warrantless entry violated the Fourth Amendment, and the
Utah Court of Appeals affirmed. Affirming, the State Supreme
Court held that the injury caused by the juvenile’s punch was
insufficient to trigger the “emergency aid doctrine” because it
did not give rise to an objectively reasonable belief that an
unconscious, semiconscious, or missing person feared injured
or dead was in the home. Furthermore, the court suggested
the doctrine was inapplicable because the officers had not
sought to assist the injured adult but had acted exclusively in
a law enforcement capacity. The court also held that the entry
did not fall within the exigent circumstances exception to the
warrant requirement.
Held: Yes. Reversed and Remanded.
Because the Fourth Amendment’s ultimate touchstone is
“reasonableness,” the warrant requirement is subject to certain
exceptions. For example, one exigency obviating the requirement is
the need to render emergency assistance to occupants of private
property who are seriously injured or threatened with such injury.
This Court has repeatedly rejected respondents ’contention that, in
assessing the reasonableness of an entry, consideration should be
given to the subjective motivations of individual officers. Because
the officers’ subjective motivation is irrelevant, it does not matter
here whether they entered the kitchen to arrest respondents and
gather evidence or to assist the injured and prevent further
violence. Relying on this Court’s holding in Welsh v. Wisconsin,
that “an important factor to be considered when determining
whether any exigency exists is the gravity of the underlying offense
for which the arrest is being made,” respondents further contend
that their conduct was not serious enough to justify the officers’
intrusion into the home. This contention is misplaced. In Welsh, the
“only potential emergency” confronting the officers was the need to
preserve evidence of the suspect’s blood-alcohol level, an exigency
the Court held insufficient under the circumstances to justify a
warrantless entry into the suspect’s home. Ibid. Here, the officers
were confronted with ongoing violence occurring within the home, a
situation Welsh did not address. The officers’ entry here was plainly
reasonable under the circumstances. Given the tumult at the house
when they arrived, it was obvious that knocking on the front door
would have been futile. Moreover, in light of the fracas they
observed in the kitchen, the officers had an objectively reasonable
basis for believing both that the injured adult might need help and
that the violence was just beginning. Nothing in the Fourth
Amendment required them to wait until another blow rendered
someone unconscious, semiconscious, or worse before entering.
The manner of their entry was also reasonable, since nobody heard
the first announcement of their presence, and it was only after the
announcing officer stepped into the kitchen and announced himself
again that the tumult subsided. That announcement was at least
equivalent to a knock on the screen door and, under the
circumstances, there was no violation of the Fourth Amendment’s
knock-and-announce rule. Furthermore, once the announcement
was made, the officers were free to enter; it would serve no
purpose to make them stand dumbly at the door awaiting a
response while those within brawled on, oblivious to their presence.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether officers violated Fisher’s Fourth Amendment rights by
entering a home without a warrant when they have an objectively
reasonable basis for believing that an occupant is seriously injured or
imminently threatened with such injury.
Michigan v.
Jeremy Fisher
558 U.S. ___
(2009)
Entry:
Warrantless
Entry Due to
Emergency
Police officers responded to a complaint of a disturbance. As
officers approached the area, a couple directed them to a
residence where a man was “going crazy.” Officers found a
household in considerable chaos: a pickup truck in the
driveway with its front smashed, damaged fence posts along
the side of the property, and three broken house windows, the
glass still on the ground outside. The officers also noticed
blood on the hood of the pickup and on clothes inside of it, as
well as on one of the doors to the house. Through a window,
the officers could see respondent, Jeremy Fisher, inside the
house, screaming and throwing things. The back door was
locked, and a couch had been placed to block the front door.
The officers knocked, but Fisher refused to answer. They saw
that Fisher had a cut on his hand, and they asked him whether
he needed medical attention. Fisher ignored these questions
and demanded, with accompanying profanity, that the officers
go to get a search warrant. Officer Goolsby then pushed the
front door partway open and ventured into the house. Through
the window of the open door he saw Fisher pointing a long
gun at him. Officer Goolsby withdrew.
Fisher was charged under Michigan law with assault with a
dangerous weapon and possession of a firearm during the
commission of a felony. The trial court concluded that Officer
Goolsby violated the Fourth Amendment when he entered
Fisher’s house, and granted Fisher’s motion to suppress the
evidence obtained as a result—that is, Officer Goolsby’s
statement that Fisher pointed a rifle at him. The Michigan
Court of Appeals initially remanded for an evidentiary hearing,
after which the trial court reinstated its order. The Court of
Appeals then affirmed over a dissent by Judge Talbot. The
Michigan Supreme Court granted leave to appeal, but after
hearing oral argument, it vacated its prior order and denied
leave instead; three justices, however, would have taken the
case and reversed on the ground that the Court of Appeals
misapplied the Fourth Amendment.
Held: No. Reversed.
“The ultimate touchstone of the Fourth Amendment,” we have often said, “is
‘reasonableness.’” Therefore, although “searches and seizures inside a
home without a warrant are presumptively unreasonable,” that presumption
can be overcome. Brigham City identified one such exigency: “the need to
assist persons who are seriously injured or threatened with such injury.”
Thus, law enforcement officers “may enter a home without a warrant to
render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” This “emergency aid exception” does not
depend on the officers’ subjective intent or the seriousness of any crime
they are investigating when the emergency arises. It requires only “an
objectively reasonable basis for believing,” that “a person within the house
is in need of immediate aid.” Just as in Brigham City, when they arrived on
the scene they encountered a tumultuous situation in the house and here
they also found signs of a recent injury, perhaps from a car accident,
outside. And just as in Brigham City, the officers could see violent behavior
inside. Although Officer Goolsby and his partner did not see punches
thrown, as did the officers in Brigham City, they did see Fisher screaming
and throwing things. It would be objectively reasonable to believe that
Fisher’s projectiles might have a human target (perhaps a spouse or a
child), or that Fisher would hurt himself in the course of his rage. In short,
we find it as plain here as we did in Brigham City that the officer’s entry was
reasonable under the Fourth Amendment. Officers do not need ironclad
proof of “a likely serious, life-threatening” injury to invoke the emergency
aid exception. The only injury police could confirm in Brigham City was the
bloody lip they saw the juvenile inflict upon the adult. Fisher argues that the
officers here could not have been motivated by a perceived need to provide
medical assistance, since they never summoned emergency medical
personnel. This would have no bearing, of course, upon their need to
assure that Fisher was not endangering someone else in the house.
Moreover, even if the failure to summon medical personnel conclusively
established that Goolsby did not subjectively believe, when he entered the
house, that Fisher or someone else was seriously injured (which is
doubtful), the test, as we have said, is not what Goolsby believed, but
whether there was “an objectively reasonable basis for believing that
medical assistance was needed, or persons were in danger.
It was error for the Michigan Court of Appeals to replace that objective
inquiry into appearances with its hindsight determination that there was in
fact no emergency. It does not meet the needs of law enforcement or the
demands of public safety to require officers to walk away from a situation
like the one they encountered here. Only when an apparent threat has
become an actual harm can officers rule out innocuous explanations for
ominous circumstances. But “the role of a peace officer includes preventing
violence and restoring order, not simply rendering first aid to casualties.” It
sufficed to invoke the emergency aid exception that it was reasonable to
believe that Fisher had hurt himself (albeit non-fatally) and needed
treatment that in his rage he was unable to provide, or that Fisher was
about to hurt, or had already hurt, someone else. The Michigan Court of
Appeals required more than what the Fourth Amendment demands.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the "murder scene exception" to the warrant
requirement is constitutional under the Fourth and Fourteenth
Amendments.
Mincey v.
Arizona
437 U. S. 385
(1978)
Entry:
Warrantless
Entry Due to
Emergency
During a narcotics raid on petitioner's apartment by an
undercover police officer and several plainclothes policemen,
the undercover officer was shot and killed, and petitioner was
wounded, as were two other persons in the apartment. Other
than looking for victims of the shooting and arranging for
medical assistance, the narcotics agents, pursuant to a police
department directive that police officers should not investigate
incidents in which they are involved, made no further
investigation. Shortly thereafter, however, homicide detectives
arrived on the scene to take charge of the investigation, and
they proceeded to conduct an exhaustive four-day warrantless
search of the apartment, which included the opening of
dresser drawers, the ripping up of carpets, and the seizure of
200 to 300 objects. In the evening of the same day as the raid,
one of the detectives went to the hospital where petitioner was
confined in the intensive care unit, and, after giving him
Miranda warnings, persisted in interrogating him while he was
lying in bed barely conscious, encumbered by tubes, needles,
and a breathing apparatus, and despite the fact that he
repeatedly asked that the interrogation stop until he could get
a lawyer. Subsequently, petitioner was indicted for, and
convicted of, murder, assault, and narcotics offenses. At his
trial in an Arizona court, during which much of the evidence
introduced against him was the product of the four-day
search, and on appeal, petitioner contended that the evidence
used against him had been unlawfully seized from his
apartment without a warrant, and that statements obtained
from him at the hospital, used to impeach his credibility, were
inadmissible because they had not been made voluntarily.
The Arizona Supreme Court reversed the murder and assault
convictions on state law grounds, but affirmed the narcotics
convictions, holding that the warrantless search of a homicide
scene is permissible under the Fourth and Fourteenth
Amendments and that petitioner's statements in the hospital
were voluntary.
Held: No. Reversed and Remanded.
(a) The search cannot be justified on the ground that no
constitutionally protected right of privacy was invaded, it being
one thing to say that one who is legally taken into police custody
has a lessened right of privacy in his person, and quite another
to argue that he also has a lessened right of privacy in his entire
house.
(b) Nor can the search be justified on the ground that a
possible homicide inevitably presents an emergency situation,
especially since there was no emergency threatening life or
limb, all persons in the apartment having been located before
the search began.
(c) The seriousness of the offense under investigation did not
itself create exigent circumstances of the kind that under the
Fourth Amendment justify a warrantless search, where there is
no indication that evidence would be lost, destroyed, or
removed during the time required to obtain a search warrant
and there is no suggestion that a warrant could not easily and
conveniently have been obtained.
(d) The Arizona Supreme Court's guidelines for the "murder
scene exception" did not afford sufficient protection to a person
in whose home a homicide or assault occurs where they
conferred unbridled discretion upon the individual officer to
interpret such terms as "reasonable search," "serious personal
injury with likelihood of death where there is reason to suspect
foul play," and "reasonable period," it being this kind of
judgmental assessment of the reasonableness and scope of a
proposed search that the Fourth Amendment requires be made
by a neutral and objective magistrate, not a police officer.
Due process requires that the statements obtained from
petitioner in the hospital not be used in any way against him at
his trial where it is apparent from the record that they were not
"the product of his free and rational choice," but, to the contrary,
that he wanted not to answer his interrogator, and that, while he
was weakened by pain and shock, isolated from family, friends,
and legal counsel, and barely conscious, his will was simply
overborne. While statements made by a defendant in
circumstances violating the strictures of Miranda, are admissible
for impeachment if their "trustworthiness satisfies legal
standards," any criminal trial use against a defendant of his
involuntary statement is a denial of due process of law.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Brady was denied a federal right when the Court of Appeals restricted the new trial to the
question of punishment.
Brady v.
Maryland
373 U.S. 83
(1963)
Evidence:
Suppression
Brady and a companion, Boblit, were found guilty of murder in
the first degree and were sentenced to death, their convictions
being affirmed by the Court of Appeals of Maryland. Their
trials were separate, Brady being tried first. At his trial Brady
took the stand and admitted his participation in the crime, but
he claimed that Boblit did the actual killing. And, in his
summation to the jury, Brady's counsel conceded that Brady
was guilty of murder in the first degree, asking only that the
jury return that verdict ‘without capital punishment.’ Prior to the
trial, petitioner's counsel had requested the prosecution to
allow him to examine Boblit's extrajudicial statements. Several
of those statements were shown to him; but one dated July 9,
1958, in which Boblit admitted the actual homicide, was
withheld by the prosecution and did not come to petitioner's
notice until after he had been tried, convicted, and sentenced,
and after his conviction had been affirmed. Brady moved the
trial court for a new trial based on the newly discovered
evidence that had been suppressed by the prosecution.
Brady’s appeal from a denial of that motion was dismissed by
the Court of Appeals without prejudice to relief under the
Maryland Post Conviction Procedure Act. The petition for
post-conviction relief was dismissed by the trial court; and on
appeal the Court of Appeals held that suppression of the
evidence by the prosecution denied petitioner due process of
law and remanded the case for a retrial of the question of
punishment, not the question of guilt.
Held: Yes. Affirmed.
We agree with the Court of Appeals that suppression of this confession was a violation of the Due
Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions
from the Third Circuit Court of Appeals-United States ex rel. Almeida v. Baldi, and United States ex rel.
Thompson v. Dye, which, we agree, state the correct constitutional rule. This ruling is an extension of
Mooney v. Holohan, where the Court ruled on what nondisclosure by a prosecutor violates due process: ‘It
is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived
a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant
of liberty through a deliberate deception of court and jury by the presentation of testimony known to be
perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as
inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.’ In
Pyle v. Kansas, we phrased the rule in broader terms: ‘Petitioner's papers are inexpertly drawn, but they do
set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State
authorities to obtain his conviction, and from the deliberate suppression by those same authorities of
evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the
Federal Constitution, and, if proven, would entitle petitioner to release from his present custody.’ The Third
Circuit in the Baldi case construed that statement in Pyle v. Kansas to mean that the ‘suppression of
evidence favorable’ to the accused was itself sufficient to amount to a denial of due process. In Napue v.
Illinois, we extended the test formulated in Mooney v. Holohan when we said: ‘The same result obtains
when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution. The principle of Mooney v. Holohan is not punishment of society
for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the
guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when
any accused is treated unfairly. An inscription on the walls of the Department of Justice states the
proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its
citizens in the courts.' A prosecution that withholds evidence on demand of an accused which, if made
available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the
defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with
standards of justice, even though, as in the present case, his action is not ‘the result of guile,’ to use the
words of the Court of Appeals. The question remains whether petitioner was denied a constitutional right
when the Court of Appeals restricted his new trial to the question of punishment. In justification of that
ruling the Court of Appeals stated: ‘There is considerable doubt as to how much good Boblit's undisclosed
confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the
one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him,
but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their
views would have been as to whether it did or did not matter whether it was Brady's hands or Boblit's
hands that twisted the shirt about the victim's neck. It would be ‘too dogmatic’ for us to say that the jury
would not have attached any significance to this evidence in considering the punishment of the defendant
Brady. ‘Not without some doubt, we conclude that the withholding of this particular confession of Boblit's
was prejudicial to the defendant Brady. ‘The appellant's sole claim of prejudice goes to the punishment
imposed. If Boblit's withheld confession had been before the jury, nothing in it could have reduced the
appellant Brady's offense below murder in the first degree. We, therefore, see no occasion to retry that
issue. If this were a jurisdiction where the jury was not the judge of the law, a different question would be
presented. But since it is, how can the Maryland Court of Appeals state that nothing in the suppressed
confession could have reduced petitioner's offense ‘below murder in the first degree’? If, as a matter of
Maryland law, juries in criminal cases could determine the admissibility of such evidence on the issue of
innocence or guilt, the question would seem to be foreclosed. But Maryland's constitutional provision
making the jury in criminal cases ‘the Judges of Law’ does not mean precisely what it seems to say. The
present status of that provision was reviewed recently in Giles v. State, where the several exceptions,
added by statute or carved out by judicial construction, are reviewed. One of those exceptions, material
here, is that ‘Trial courts have always passed and still pass upon the admissibility of evidence the jury may
consider on the issue of the innocence or guilt of the accused.’ The cases cited make up a long line going
back nearly a century. Wheeler v. State stated that instructions to the jury were advisory only, ‘except in
regard to questions as to what shall be considered as evidence.’ And the court ‘having such right, it follows
of course, that it also has the right to prevent counsel from arguing against such an instruction.’ We usually
walk on treacherous ground when we explore state law, for state courts, state agencies, and state
legislatures are its final expositors under our federal regime. But, as we read the Maryland decisions, it is
the court, not the jury, that passes on the ‘admissibility of evidence’ pertinent to ‘the issue of the innocence
or guilt of the accused.’ In the present case a unanimous Court of Appeals has said that nothing in the
suppressed confession ‘could have reduced the appellant Brady's offense below murder in the first
degree.’ We read that statement as a ruling on the admissibility of the confession on the issue of innocence
or guilt. A sporting theory of justice might assume that if the suppressed confession had been used at the
first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been
flouted by the jury just as might have been done if the court had first admitted a confession and then
stricken it from the record. But we cannot raise that trial strategy to the dignity of a constitutional right and
say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial denies
him due process or violates the Equal Protection Clause of the Fourteenth Amendment.
Case
Sims v.
Georgia
389 U.S. 404
(1967)
Subject
Evidence:
Confessions
Facts
This case is before us for the second time. The defendant was
convicted in the Superior Court, Charlton County of rape and
he brought error. The Georgia Supreme Court, affirmed and
the defendant brought certiorari. Last Term we granted
certiorari to consider five constitutional questions raised by
petitioner in challenging his conviction for rape and his
accompanying death sentence. Because we decided the case
on the ground that petitioner had not received the hearing on
the voluntariness of a confession introduced against him
required by our decision in Jackson v. Denno, we did not
reach the other issues argued by the parties.
On remand the case was submitted to the judge who had
presided at petitioner's original trial on the basis of the printed
record previously before this Court. On that record alone the
trial judge determined that petitioner's confession had been
voluntary and denied a new trial. The trial court specifically
refused to pass on any of the other questions previously
briefed and argued here, holding that the prior rulings on
these issues by the Georgia Supreme Court constituted the
law of the case. The Georgia Supreme Court affirmed,
upholding the trial court on all points.
In his present application petitioner raises again two of the
four issues not reached in our previous decision in this case:
the voluntariness of his confession and the composition of the
juries by which he was indicted and tried. In response to the
State's previous argument that ‘there was no evidence to
make any issue of voluntariness' and therefore there was no
need to apply Jackson v. Denno, Mr. Justice Clark stated: ‘We
cannot agree. There was a definite, clear-cut issue here.
Petitioner testified that Doctor Jackson physically abused him
while he was in his office and that he was suffering from that
abuse when he made the statement, thereby rendering such
confession involuntary and the result of coercion. The doctor
admitted that he saw petitioner on the floor of his office; that
he helped him disrobe and that he knew that petitioner
required hospital treatment because of the laceration over his
eye but he denied that petitioner was actually abused in his
presence. He was unable to state, however, that the state
patrolmen did not commit the alleged offenses against
petitioner's person because he was not in the room during the
entire time in which the petitioner and the patrolmen were
there. In fact, the doctor was quite evasive in his testimony
and none of the officers present during the incident were
produced as witnesses. Petitioner's claim of mistreatment,
therefore, went uncontradicted as to the officers and was in
conflict with the testimony of the physician.’
Issue Presented and Holding
Issue: Whether, since the state failed to produce testimony of
officers whom defendant claimed mistreated him after Supreme
Court had remanded case for a hearing on the issue of
voluntariness of confession, confession had been satisfactorily
shown to have been voluntary.
Held: No. Reversed and Remanded.
In remanding the case for a hearing on voluntariness we
indicated to the State that as the evidence then stood it had
failed adequately to rebut petitioner's testimony that he had
been subjected to physical violence prior to his confession. The
State had every opportunity to offer the police officers, whose
failure to testify had already been commented upon here, to
contradict petitioner's version of the events. Its failure to do so
when given a second chance lends support to the conclusion
that their testimony would not, in fact, have rebutted petitioner's.
It needs no extended citation of cases to show that a confession
produced by violence or threats of violence is involuntary and
cannot constitutionally be used against the person giving it. The
reliance by the State on subsequent warnings made to
petitioner prior to his confessing is misplaced. Petitioner had
been in the continuous custody of the police for over eight hours
and had not been fed at all during that time. He had not been
given access to family, friends, or counsel at any point. He is an
illiterate, with only a third grade education, whose mental
capacity is decidedly limited. Under such circumstances the fact
that the police may have warned petitioner of his right not to
speak is of little significance.
Petitioner also contends that he was indicted and tried by
juries from which members of his race had been
unconstitutionally excluded. The facts reveal that the grand and
petit jury lists were drawn from the county tax digests which
separately listed taxpayers by race in conformity with then
existing Georgia law. Negroes constituted 24.4% of the
individual taxpayers in the county. However, they amounted to
only 4.7% of the names on the grand jury list and 9.8% of the
names on the traverse jury list from which petitioner's grand and
petit juries were selected. The State's only response to that
showing was to call one of the jury commissioners as a witness;
the jury commissioner testified that he or one of the other
commissioners knew personally every qualified person in the
county and did not discriminate in selecting names for the jury
lists. The facts in this case make it virtually indistinguishable
from Whitus v. State of Georgia. Accordingly, it is clear that the
juries by which petitioner was indicted and tried were selected in
a manner that does not comport with constitutional
requirements.
Case
Subject
Facts
Evidence: DNA
Respondent Troy Brown was convicted of brutally raping 9-year-old
Jane Doe in the bedroom of her trailer. During and since his trial,
respondent has steadfastly maintained his innocence. He was,
however, admittedly intoxicated when the crime occurred, and after
he awoke on the following morning he told a friend “he wished that he
could remember what did go on or what went on.” The bedroom
where the rape occurred was dark, and Jane was unable to
conclusively identify her assailant. She was unable to identify Troy as
her assailant out of a photo lineup, and she could not identify her
assailant at trial. The police recovered semen from Jane's underwear
and from the rape kit. The State's expert, Renee Romero, determined
that the DNA matched Troy's and that the probability another person
from the general population would share the same DNA (the “random
match probability”) was only 1 in 3,000,000. At some time before
sentencing, Troy's family had additional DNA testing done. That
testing showed semen taken from the rape kit matched Troy's DNA,
with a random match probability of 1 in 10,000. The jury found Troy
guilty of sexual assault and sentenced him to life with the possibility
of parole after 10 years. On direct appeal, the Nevada Supreme
Court rejected Troy's claim that his conviction was not supported by
sufficient evidence, analyzing “whether the jury, acting reasonably,
could have been convinced of Troy's guilt beyond a reasonable
doubt.” Brown sought state post-conviction relief, claiming that his
trial counsel was constitutionally ineffective for failing to object to the
admission of the DNA evidence. The state post-conviction court
denied relief and the Nevada Supreme Court affirmed. Respondent
thereafter filed a federal habeas petition, claiming there was
insufficient evidence to convict him on the sexual assault charges
and that the Nevada Supreme Court's rejection of his claim was both
contrary to, and an unreasonable application of, Jackson. He did not
bring a typical Jackson claim, however. He argued that Romero's
testimony related to the DNA evidence was inaccurate and unreliable
in two primary respects: Romero mischaracterized the random match
probability and misstated the probability of a DNA match among his
brothers. Absent that testimony, he contended, there was insufficient
evidence to convict him. The court granted respondent habeas relief
on his Jackson claim. The Ninth Circuit affirmed, holding that the
Nevada Supreme Court had unreasonably applied Jackson. The
Court of Appeals first reasoned “the admission of Romero's
unreliable and misleading testimony violated Troy's due process
rights,” so the District Court was correct to exclude it. It then
“weighed the sufficiency of the remaining evidence,” including the
District Court's “catalogue of the numerous inconsistencies that
would raise a reasonable doubt as to Troy's guilt in the mind of any
rational juror.” In light of the “stark” conflicts in the evidence and the
State's concession that there was insufficient evidence absent the
DNA evidence, the court held it was objectively unreasonable for the
Nevada Supreme Court to reject respondent's insufficiency-of-theevidence claim.
McDaniel v.
Brown
___ U.S. ___
(2010)
Issue Presented and Holding
Issue: What is the proper standard of review for a Jackson claim on federal habeas, and whether such a claim may rely upon
evidence outside the trial record that goes to the reliability of trial evidence.
Held: Moot, No. Reversed and remanded.
(a) Although we granted certiorari to review respondent's Jackson claim, the parties now agree that the Court of Appeals'
resolution of his claim under Jackson was in error.
(b) Although both petitioners and respondent are now aligned on the same side of the questions presented for our review, the
case is not moot because “the parties continue to seek different relief” from this Court. Respondent primarily argues that we
affirm on his proposed alternative ground or remand to the Ninth Circuit for analysis of his due process claim under the standard
for harmless error of Brecht v. Abrahamson. The State, on the other hand, asks us to reverse. Respondent and one amicus have
also suggested that we dismiss the case as improvidently granted, but we think prudential concerns favor our review of the Court
of Appeals' application of Jackson. Respondent no longer argues it was proper for the District Court to admit the Mueller Report
for the purpose of evaluating his Jackson claim, and concedes the “purpose of a Jackson analysis is to determine whether the
jury acted in a rational manner in returning a guilty verdict based on the evidence before it, not whether improper evidence
violated due process.” There has been no suggestion that the evidence adduced at trial was insufficient to convict unless some
of it was excluded. Respondent's concession thus disposes of his Jackson claim. The concession is also clearly correct. An
“appellate court's reversal for insufficiency of the evidence is in effect a determination that the government's case against the
defendant was so lacking that the trial court should have entered a judgment of acquittal.” Because reversal for insufficiency of
the evidence is equivalent to a judgment of acquittal, such a reversal bars a retrial. To “make the analogy complete” between a
reversal for insufficiency of the evidence and the trial court's granting a judgment of acquittal, “a reviewing court must consider
all of the evidence admitted by the trial court,” regardless whether that evidence was admitted erroneously. Respondent
therefore correctly concedes that a reviewing court must consider all of the evidence admitted at trial when considering a
Jackson claim. Even if we set that concession aside, however, and assume that the Court of Appeals could have considered the
Mueller Report in the context of a Jackson claim, the court made an egregious error in concluding the Nevada Supreme Court's
rejection of respondent's insufficiency-of-the-evidence claim “involved an unreasonable application of clearly established Federal
law.” Even if the Court of Appeals could have considered it, the Mueller Report provided no warrant for entirely excluding the
DNA evidence or Romero's testimony from that court's consideration. The Report did not contest that the DNA evidence
matched Troy. That DNA evidence remains powerful inculpatory evidence even though the State concedes Romero overstated
its probative value by failing to dispel the prosecutor's fallacy. And Mueller's claim that Romero used faulty assumptions and
underestimated the probability of a DNA match between brothers indicates that two experts do not agree with one another, not
that Romero's estimates were unreliable. Mueller's opinion that “the chance that among four brothers one or more would match
is 1 in 66,” is substantially different from Romero's estimate of a 1 in 6,500 chance that one brother would match. But even if
Romero's estimate is wrong, our confidence in the jury verdict is not undermined. First, the estimate that is more pertinent to this
case is 1 in 132-the probability of a match among two brothers-because two of Troy's four brothers lived in Utah. Second,
although Jane Doe mentioned Trent as her assailant, and Travis lived in a nearby trailer, the evidence indicates that both (unlike
Troy) were sober and went to bed early on the night of the crime. Even under Mueller's odds, a rational jury could consider the
DNA evidence to be powerful evidence of guilt. Furthermore, the Court of Appeals' discussion of the non-DNA evidence
departed from the deferential review that Jackson and §2254(d)(1) demand. A federal habeas court can only set aside a statecourt decision as “an unreasonable application of clearly established Federal law,” if the state court's application of that law is
“objectively unreasonable.” And Jackson requires a reviewing court to review the evidence “in the light most favorable to the
prosecution.” Expressed more fully, this means a reviewing court “faced with a record of historical facts that supports conflicting
inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” The Court of Appeals acknowledged that it must review the evidence
in the light most favorable to the prosecution, but the court's recitation of inconsistencies in the testimony shows it failed to do
that. For example, the court highlights conflicting testimony regarding when Troy left the Peacock. It is true that if a juror were to
accept the testimony of one bartender that Troy left the bar at 1:30 a.m., then Troy would have left the bar after the attack
occurred. Yet the jury could have credited a different bartender's testimony that Troy left the Peacock at around 12:15 a.m.
Resolving the conflict in favor of the prosecution, the jury must have found that Troy left the bar in time to be the assailant. It is
undisputed that Troy washed his clothes immediately upon returning home. The court notes this is “plausibly consistent with him
being the assailant” but also that he provided an alternative reason for washing his clothes. Viewed in the light most favorable to
the prosecution, the evidence supports an inference that Troy washed the clothes immediately to clean blood from them. To be
sure, the court's Jackson analysis relied substantially upon a concession made by the State in state postconviction proceedings
that “absent the DNA findings, there was insufficient evidence to convict Troy of the crime.” But that concession posited a
situation in which there was no DNA evidence at all, not a situation in which some pieces of testimony regarding the DNA
evidence were called into question. In sum, the Court of Appeals' analysis failed to preserve “the factfinder's role as weigher of
the evidence” by reviewing “all of the evidence in the light most favorable to the prosecution,” and it further erred in finding that
the Nevada Supreme Court's resolution of the Jackson claim was objectively unreasonable. Resolution of the Jackson claim
does not end our consideration of this case because respondent asks us to affirm on an alternative ground. He contends the two
errors “in describing the statistical meaning” of the DNA evidence rendered his trial fundamentally unfair and denied him due
process of law. Because the Ninth Circuit held that “the admission of Romero's unreliable and misleading testimony violated
respondent's due process rights,” and in respondent's view merely applied Jackson (erroneously) to determine whether that error
was harmless, he asks us to affirm the judgment below on the basis of what he calls his “DNA due process” claim. As
respondent acknowledges, in order to prevail on this claim, he would have to show that the state court's adjudication of the claim
was “contrary to, or involved an unreasonable application of, clearly established Federal law.” The clearly established law he
points us to is Manson v. Brathwaite, in which we held that when the police have used a suggestive eyewitness identification
procedure, “reliability is the linchpin in determining” whether an eyewitness identification may be admissible, with reliability
determined according to factors set out in. Respondent argues that the admission of the inaccurate DNA testimony violated
Brathwaite because the testimony was “identification testimony,” was “unnecessarily suggestive,” and was unreliable.
Respondent has forfeited this claim, which he makes for the very first time in his brief on the merits in this Court. Respondent did
not present his new “DNA due process” claim in his federal habeas petition, but instead consistently argued that Romero's
testimony should be excluded from the Jackson analysis simply because it was “unreliable” and that the due process violation
occurred because the remaining evidence was insufficient to convict. In the Ninth Circuit, too, respondent presented only his
Jackson claim, and it is, at the least, unclear whether respondent presented his newly minted due process claim in the state
courts. Recognizing that his Jackson claim cannot prevail, respondent tries to rewrite his federal habeas petition. His attempt
comes too late, however, and he cannot now start over. We have stated before that “DNA testing can provide powerful new
evidence unlike anything known before.” Given the persuasiveness of such evidence in the eyes of the jury, it is important that it
be presented in a fair and reliable manner. The State acknowledges that Romero committed the prosecutor's fallacy, and the
Mueller Report suggests that Romero's testimony may have been inaccurate regarding the likelihood of a match with one of
respondent's brothers. Regardless, ample DNA and non-DNA evidence in the record adduced at trial supported the jury's guilty
verdict under Jackson, and we reject respondent's last minute attempt to recast his claim under Brathwaite. The Court of
Appeals did not consider, however, the ineffective-assistance claims on which the District Court also granted respondent habeas
relief.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, assuming Osborne's claims can be pursued using §1983, he
has a constitutional right to obtain post-conviction access to the State's
evidence for DNA testing.
District
Attorney's
Office for Third
Judicial Dist. v.
Osborne
557 U.S. ___
(2009)
Evidence: DNA
Respondent Osborne was convicted of sexual assault and
other crimes in state court. Years later, he filed this suit under
42 U.S.C. §1983, claiming he had a due process right to
access the evidence used against him in order to subject it to
DNA testing at his own expense. The Federal District Court
first dismissed his claim under Heck v. Humphrey, holding that
Osborne must proceed in habeas because he sought to set
the stage for an attack on his conviction. The Ninth Circuit
reversed, concluding that §1983 was the proper vehicle for
Osborne's claims. On remand, the District Court granted
Osborne summary judgment, concluding that he had a limited
constitutional right to the new testing under the unique and
specific facts presented, i.e., that such testing had been
unavailable at trial, that it could be accomplished at almost no
cost to the State, and that the results were likely to be
material. The Ninth Circuit affirmed, relying on the
prosecutorial duty to disclose exculpatory evidence under
Brady v. Maryland.
Held: No. Reversed and Remanded.
(a) DNA testing has an unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty. The availability of new DNA testing
technologies, however, cannot mean that every criminal conviction, or even
every criminal conviction involving biological evidence, is suddenly in doubt. The
task of establishing rules to harness DNA's power to prove innocence without
unnecessarily overthrowing the established criminal justice system belongs
primarily to the legislature. Forty-six States and the Federal Government have
already enacted statutes dealing specifically with access to evidence for DNA
testing. These laws recognize the value of DNA testing but also the need for
conditions on accessing the State's evidence. Alaska is one of a handful of
States yet to enact specific DNA testing legislation, but Alaska courts are
addressing how to apply existing discovery and post-conviction relief laws to this
novel technology.
(b) The Court assumes without deciding that the Ninth Circuit was correct that
Heck does not bar Osborne's §1983 claim. That claim can be rejected without
resolving the proper application of Heck.
(c) The Ninth Circuit erred in finding a due process violation.
(i) While Osborne does have a liberty interest in pursuing the post-conviction
relief granted by the State, the Ninth Circuit erred in extending the Brady right of
pretrial disclosure to the post-conviction context. Osborne has already been
found guilty and therefore has only a limited liberty interest in post-conviction
relief. Instead of the Brady inquiry, the question is whether consideration of
Osborne's claim within the framework of the State's post-conviction relief
procedures “offends some fundamental principle of justice” or “transgresses any
recognized principle of fundamental fairness in operation.” Federal courts may
upset a State's post-conviction relief procedures only if they are fundamentally
inadequate to vindicate the substantive rights provided. There is nothing
inadequate about Alaska's post-conviction relief procedures in general or its
methods for applying those procedures to persons seeking access to evidence
for DNA testing. The State provides a substantive right to be released on a
sufficiently compelling showing of new evidence that establishes innocence. It
also provides for discovery in post-conviction proceedings, and has-through
judicial decision-specified that such discovery is available to those seeking
access to evidence for DNA testing. These procedures are similar to those
provided by federal law and the laws of other States, and they satisfy due
process. The same is true for Osborne's reliance on a claimed federal right to be
released upon proof of “actual innocence.” Even assuming such a right exists,
which the Court has not decided and does not decide, there is no due process
problem, given the procedures available to access evidence for DNA testing. (ii)
The Court rejects Osborne's invitation to recognize a freestanding, substantive
due process right to DNA evidence untethered from the liberty interests he
hopes to vindicate with it. In the circumstances of this case, there is no such
right. Generally, the Court is “reluctant to expand the concept of substantive due
process because guideposts for responsible decision-making in this unchartered
area are scarce and open-ended.” There is no long history of a right of access
to state evidence for DNA testing that might prove innocence. “The mere novelty
of such a claim is reason enough to doubt that ‘substantive due process'
sustains it.” Moreover, to suddenly constitutionalize this area would short-circuit
what has been a prompt and considered legislative response by Congress and
the States. It would shift to the Federal Judiciary responsibility for devising rules
governing DNA access and creating a new constitutional code of procedures to
answer the myriad questions that would arise. There is no reason to suppose
that federal courts' answers to those questions will be any better than those of
state courts and legislatures, and good reason to suspect the opposite.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Rule 801(d)(1)(B) permits the introduction of a
declarant's consistent out-of-court statements to rebut a charge of
recent fabrication or improper influence or motive only when those
statements were made before the charged fabrication, influence, or
motive, conditions that were not established here.
Tome v. United
States
513 U.S. 150
(1995)
Evidence:
Hearsay
Statements of a
Child Victim
Petitioner Tome was charged with sexually abusing his
daughter A.T. when she was four years old. The Government
theorized that he committed the assault while A.T. was in his
custody and that the crime was disclosed while she was
spending vacation time with her mother. The defense
countered that the allegations were concocted so A.T. would
not be returned to her father, who had primary physical
custody. A.T. testified at the trial, and, in order to rebut the
implicit charge that her testimony was motivated by a desire to
live with her mother, the Government presented six witnesses
who recounted out-of-court statements that A.T. made about
the alleged assault while she was living with her mother. The
District Court admitted the statements under, inter alia,
Federal Rule of Evidence 801(d)(1)(B), which provides that
prior statements of a witness are not hearsay if they are
consistent with the witness' testimony and offered to rebut a
charge against the witness of “recent fabrication or improper
influence or motive.” Tome was convicted, and the Court of
Appeals affirmed, adopting the Government's argument that
A.T.'s statements were admissible even though they had been
made after her alleged motive to fabricate arose. Reasoning
that the premotive requirement is a function of relevancy, not
the hearsay rules, the court balanced A.T.'s motive to lie
against the probative value of one of the statements and
determined that the District Court had not erred in admitting
the statements.
Held: Yes. Reversed and Remanded.
(a) Rule 801(d)(1)(B) embodies the prevailing common-law rule in
existence for more than a century before the Federal Rules of
Evidence were adopted: A prior consistent statement introduced to
rebut a charge of recent fabrication or improper influence or motive
was admissible if the statement had been made before the alleged
fabrication, influence, or motive came into being but was
inadmissible if made afterwards. The Rule's language speaks of
rebutting charges of recent fabrication and improper influence and
motive to the exclusion of other forms of impeachment, and it bears
close similarity to the language used in many of the common-law
premotive requirement cases.
(b) The Government's argument that the common-law rule is
inconsistent with the Federal Rules' liberal approach to relevancy
misconceives the design of the Rules' hearsay provisions. Hearsay
evidence is often relevant. But if relevance were the sole criterion
of admissibility, it would be difficult to account for the Rules' general
proscription of hearsay testimony or the traditional analysis of
hearsay that the Rules, for the most part, reflect. The Government's
reliance on academic commentators critical of excluding a witness'
out-of-court statements is also misplaced. The Advisory Committee
rejected the balancing approach such commentators proposed
when the Rules were adopted. The approach used by the Court of
Appeals here creates the precise dangers the Advisory Committee
sought to avoid: It involves considerable judicial discretion, reduces
predictability, and enhances the difficulties of trial preparation
because parties will have difficulty knowing in advance whether or
not particular out-of-court statements will be admitted.
(c) The instant case illustrates some of the important
considerations supporting the foregoing interpretation. Permitting
the introduction of prior statements as substantive evidence to
rebut every implicit charge that a witness' in-court testimony results
from recent fabrication or improper influence or motive would shift
the trial's whole emphasis to the out-of-court, rather than the incourt, statements. It may be difficult to ascertain when a particular
fabrication, influence, or motive arose in some cases. However, a
majority of common-law courts were performing this task for over a
century, and the Government has presented no evidence that those
courts or the courts that adhere to the rule today have been unable
to make the determination. The admissibility of A.T.'s statements
under Rule 803(24) or any other evidentiary principle is left for the
Court of Appeals to decide in the first instance.
Case
Clewis v. State
of Tex.
386 U.S. 707
(1967)
Subject
Evidence:
Voluntary
Statements
Facts
Petitioner, Marvin Peterson Clewis, stands convicted of the murder, by
strangulation, of his wife, Dorothy Mae Clewis. Petitioner was taken into
custody at about 6 a.m. on Sunday, July 8, 1962, and first gave a
statement to the police late in the afternoon of Monday, July 9.
Thereafter, he was taken before a magistrate. On the view most
favorable to the State, petitioner had been held some 38 hours before
being taken before a magistrate to be charged, had had little sleep and
very little food, and appeared to the police to be sick. He had been visited
briefly once or twice, but had had no contact with a lawyer. He had
consistently denied all knowledge of his wife's death until the point at
which he agreed to give a statement, and then had confessed to killing
her in a way (by shooting) that—it later developed—was inconsistent with
the facts. Petitioner next gave a statement on Thursday, July 12. The
events leading up to the second ‘confession’ may be summarized: having
been formally charged, but unrepresented and unadvised by counsel,
petitioner was interrogated fairly frequently and by several different
officers from Monday evening to Thursday afternoon. During this period
he was driven on a round trip of about 600 miles, was administered
several polygraph tests, was detained in at least three different police
buildings, and apparently had very little to eat and little contact except
with policemen. Despite all this, and in the face of his earlier ‘confession,’
he steadfastly denied any guilt—or even knowledge—with respect to his
wife's death until he finally produced the second ‘confession.’ At about
9:30am, Tuesday, July 17, petitioner was again interrogated, this time by
two deputy sheriffs. He again began by denying any guilt in connection
with his wife's death. No lawyer was present, nor had petitioner been
advised of his right to have one appointed. The Midland County District
Attorney arrived, and shortly thereafter petitioner confessed for the third
time. There is no testimony that any warning of the right to remain silent
was given prior to this oral confession. About 10:45 a.m. preparation of a
written statement was begun, following a formal warning of the right not
to make it. Shortly thereafter, Clewis signed the statement which was
introduced against him at trial.
The jury which found him guilty imposed a sentence of 25 years'
imprisonment. During the course of his trial, petitioner moved to exclude
from evidence three statements he had made while in police custody.
Petitioner claimed that these statements had not been voluntarily made,
and that their use against him at his trial would deny him due process of
law, as guaranteed by the Fourteenth Amendment to the Constitution.
Evidence was taken by the court outside of the jury's presence, and the
structed verdict and for a new trial, both motion was overruled.
Petitioner's third, and last, written confession was then introduced in
evidence over objection. The question of its voluntariness was presented
to the jury, which, by its general verdict, resolved the question against
petitioner. Petitioner's constitutional objection to the use of his statement
was renewed in his motions for instructed verdict, and for a new trial,
both of which the trial judge overruled. On appeal, the Court of Criminal
Appeals of Texas affirmed the judgment of conviction. That court
reviewed the record and concluded that it could not hold ‘that there are
any undisputed facts which rendered the confession inadmissible as a
matter of law.’
Issue Presented and Holding
Issue: Whether, considering the ‘totality of the circumstances,’
Marvin Clewis' statements were voluntary and the third
statement should have been excluded.
Held: No. Reversed.
On this record, we cannot hold that petitioner's third statement
was voluntary. It plainly cannot on these facts, be separated
from the circumstances surrounding the two earlier
‘confessions.’ There is here no break in the stream of events
from the time Sunday morning when petitioner was taken to the
police station to the time Tuesday morning some nine days later
that he signed the statement in issue, sufficient to insulate the
statement from the effect of all that went before. Among the
factors which require our conclusion that the ‘confession’ was
not voluntary are the following:
(1) During this long period of custody, petitioner was never
fully advised that he could consult counsel and have counsel
appointed if necessary, that he was entitled to remain silent,
and that anything he said could be used as evidence against
him. Even after he was arraigned, he was not advised of his
right to appointed counsel. Post-arraignment interrogation, over
a period of more than a week, occurred without the presence of
counsel for the accused, and without any waiver thereof.
(2) The first statement was secured following an initial takinginto-custody which was concededly not supported by probable
cause, followed by 38 hours of intermittent interrogation—
despite the Texas rule that an accused be taken before a
magistrate ‘immediately.’ This was followed by the prolonged, if
intermittent, interrogation by numerous officers, in several
buildings, punctuated by a trip to the gravesite and a long trip to
another town, and accompanied by several polygraph tests. The
police testimony makes it clear that the interrogation was not
intended merely to secure information, but was specifically
designed to elicit a signed statement of ‘the truth’—and the
police view of ‘the truth’ was made clear to petitioner. The
petitioner repudiated each of the first two confessions shortly
after it was made, and denied the truth of the third one at his
trial.
(3) The record inspires substantial concern as to the extent to
which petitioner's faculties were impaired by inadequate sleep
and food, sickness, and long subjection to police custody with
little or no contact with anyone other than police. This factor
takes on additional weight in that petitioner, a Negro, had only a
fifth-grade education. He had apparently never been in trouble
with the law before.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Virginia violated Brady and its progeny by failing to
disclose exculpatory evidence to petitioner.
Stickler v.
Greene
527 U.S. 263
(1999)
Evidence:
Duty to
Disclose
The Commonwealth of Virginia charged petitioner with capital
murder and related crimes. Because an open file policy gave
petitioner access to all of the evidence in the prosecutor's
files, petitioner's counsel did not file a pretrial motion for
discovery of possible exculpatory evidence. At the trial, Anne
Stoltzfus gave detailed eyewitness testimony about the crimes
and petitioner's role as one of the perpetrators. The
prosecutor failed to disclose exculpatory materials in the
police files, consisting of notes taken by a detective during
interviews with Stoltzfus, and letters written by Stoltzfus to the
detective, that cast serious doubt on significant portions of her
testimony. The jury found petitioner guilty, and he was
sentenced to death. The Virginia Supreme Court affirmed. In
subsequent state habeas corpus proceedings, petitioner
advanced an ineffective-assistance-of-counsel claim based, in
part, on trial counsel's failure to file a motion under Brady v.
Maryland, for disclosure of all exculpatory evidence known to
the prosecution or in its possession. In response, the
Commonwealth asserted that such a motion was unnecessary
because of the prosecutor's open file policy. The trial court
denied relief. The Virginia Supreme Court affirmed. Petitioner
then filed a federal habeas petition and was granted access to
the exculpatory Stoltzfus materials for the first time. The
District Court vacated petitioner's capital murder conviction
and death sentence on the grounds that the Commonwealth
had failed to disclose those materials and that petitioner had
not, in consequence, received a fair trial. The Fourth Circuit
reversed because petitioner had procedurally defaulted his
Brady claim by not raising it at his trial or in the state collateral
proceedings. In addition, the Fourth Circuit concluded that the
claim was, in any event, without merit.
Held: No. Affirmed.
(a) There are three essential components of a true Brady violation:
the evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued. The record in this case unquestionably
establishes two of those components. The contrast between (a) the
terrifying incident that Stoltzfus confidently described in her testimony
and (b) her initial statement to the detective that the incident seemed a
trivial episode suffices to establish the impeaching character of the
undisclosed documents. Moreover, with respect to some of those
documents, there is no dispute that they were known to the
Commonwealth but not disclosed to trial counsel. It is the third
component-whether petitioner has established the necessary
prejudice-that is the most difficult element of the claimed Brady
violation here. Because petitioner acknowledges that his Brady claim is
procedurally defaulted, this Court must first decide whether that default
is excused by an adequate showing of cause and prejudice. In this
case, cause and prejudice parallel two of the three components of the
alleged Brady violation itself. The suppression of the Stoltzfus
documents constitutes one of the causes for the failure to assert a
Brady claim in the state courts, and unless those documents were
“material” for Brady purposes, their suppression did not give rise to
sufficient prejudice to overcome the procedural default.
(b) Petitioner has established cause for failing to raise a Brady claim
prior to federal habeas because (a) the prosecution withheld
exculpatory evidence; (b) petitioner reasonably relied on the
prosecution's open file policy as fulfilling the prosecution's duty to
disclose such evidence; and (c) the Commonwealth confirmed
petitioner's reliance on the open file policy by asserting during state
habeas proceedings that petitioner had already received everything
known to the government. This Court need not decide whether any one
or two of the foregoing factors would be sufficient to constitute cause,
since the combination of all three surely suffices.
(c) However, in order to obtain relief, petitioner must convince this
Court that there is a reasonable probability that his conviction or
sentence would have been different had the suppressed documents
been disclosed to the defense. The adjective is important. The question
is not whether the defendant would more likely than not have received
a different verdict with the suppressed evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence. Here, other evidence in the record
provides strong support for the conclusion that petitioner would have
been convicted of capital murder and sentenced to death, even if
Stoltzfus had been severely impeached or her testimony excluded
entirely. Notwithstanding the obvious significance of that testimony,
therefore, petitioner cannot show prejudice sufficient to excuse his
procedural default.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §111 treats unmarried parents differently
according to their sex and violates the Equal Protection Clause
of the Fourteenth Amendment.
Caban v.
Mohammed
441 U.S. 380
(1979)
Gender-Based
Classifications:
Parental Rights
Appellant and appellee Maria Mohammed lived together out of
wedlock for several years in New York City, during which time
two children were born. Appellant, who was identified as the
father on the birth certificates, contributed to the children's
support. After the couple separated, Maria took the children
and married her present husband (also an appellee). During
the next two years appellant frequently saw or otherwise
maintained contact with the children. Appellees subsequently
petitioned for adoption of the children, and appellant filed a
cross-petition. The Surrogate granted appellees' petition under
§111 of the New York Domestic Relations Law, which permits
an unwed mother, but not an unwed father, to block the
adoption of their child simply by withholding her consent.
Rejecting appellant's contention that §111 is unconstitutional,
the state appellate courts affirmed on the basis of In re
Malpica-Orsini. In that case the New York Court of Appeals
held that §111 furthered the interests of illegitimate children,
for whom adoption is often the best course, reasoning that
people wishing to adopt a child born out of wedlock would be
discouraged if the natural father could prevent adoption
merely by withholding his consent. Moreover, the court
suggested that if the consent of the natural father were
required, adoptions would be jeopardized because of his
unavailability.
Held: Yes. Reversed.
1. Contrary to appellees' contention, it is clear that §111 treats
unmarried parents differently according to their sex. The
section's consent requirement is no mere formality, since the
New York Courts have held that the question of whether
consent is required is entirely separate from the consideration of
the best interests of the child. In this very case, the Surrogate
held that adoption by appellant was impermissible absent
Maria's consent, whereas adoption by Maria and her husband
could be prevented by appellant only if he could show that such
adoption would not be in the children's best interests.
2. The sex-based distinction in §111 between unmarried
mothers and unmarried fathers violates the Equal Protection
Clause of the Fourteenth Amendment because it bears no
substantial relation to any important state interest. (a) Maternal
and paternal roles are not invariably different in importance.
Even if unwed mothers as a class were closer than unwed
fathers to their newborn infants, the generalization concerning
parent-child relations would become less acceptable to support
legislative distinctions as the child's age increased. (b) Unwed
fathers are no more likely to oppose adoption of their children
than are unwed mothers. (c) Even if special difficulties in
locating and identifying unwed fathers at birth warranted a
legislative distinction between mothers and fathers of newborns,
such difficulties need not persist past infancy; and in those
instances where, unlike the present case, the father has not
participated in the rearing of the child, nothing in the Equal
Protection Clause precludes the State from withholding from
him the privilege of vetoing the adoption of that child.
Case
Heckler v.
Mathews
465 U.S. 728
(1984)
Subject
Facts
Gender-Based
Classifications:
Benefits
Prior to 1977, spousal benefits under the Social Security Act
(Act) were payable only to husbands or widowers who could
demonstrate dependency on their wives for one-half of their
support, whereas wives and widows were entitled to benefits
without any such showing of dependency on their husbands.
In Califano v. Goldfarb this Court affirmed a District Court
judgment holding that the gender-based dependency
requirement for widowers violated the equal protection
component of the Due Process Clause of the Fifth
Amendment. Thereafter, while repealing the dependency
requirement for widowers and husbands, Congress, in order
to avoid a fiscal drain on the Social Security trust fund,
enacted a “pension offset” provision that generally requires
the reduction of spousal benefits by the amount of Federal or
State Government pensions received by the Social Security
applicant. However, in order to protect the interests of those
individuals who had retired or were about to retire and who
had planned their retirements in reliance on their entitlement,
under pre-1977 law, to spousal benefits unreduced by
government pension benefits, Congress exempted from the
pension offset requirement those spouses who were eligible to
receive pension benefits prior to December 1982 and who
would have qualified for unreduced spousal benefits under the
Act as administered in January 1977. Congress also included
a severability clause, which, in substance, provides that if the
exception to the pension offset requirement is held invalid,
that requirement would not be affected, and the application of
the exception would not be broadened to include persons not
included within it. Appellee husband (hereafter appellee), after
retiring from the United States Postal Service, applied for
husband's benefits under the Act on account of his wife, who
had retired earlier and was fully insured under the Act. It was
determined administratively that although appellee was
entitled to spousal benefits, they were entirely offset by his
Postal Service pension pursuant to the pension offset
provision of the Act. Appellee then brought a class action in
Federal District Court, alleging that application of the pension
offset provision to him and other nondependent men but not to
similarly situated nondependent women violated the Due
Process Clause of the Fifth Amendment, and that the
severability clause was also unconstitutional. The District
Court held both the pension offset provision and the
severability clause unconstitutional, concluding that the latter
would, if valid, deprive appellee of standing to bring the action
by preventing him from receiving any more spousal benefits if
he prevails than he is now allowed.
Issue Presented and Holding
Issue: Whether the pension offset provision and the severability clause are
constitutional.
Held: Yes. Reversed
1. Appellee has standing to prosecute this action. Because the right he
asserts is the right to receive benefits according to classifications that do not
without sufficient justification differentiate among covered applicants solely on
the basis of sex, and not a substantive right to any particular amount of benefits,
appellee's standing does not depend on his ability to obtain increased Social
Security payments. The right to equal treatment guaranteed by the Constitution
is not coextensive with any substantive rights to the benefits denied the party
discriminated against. Rather, discrimination itself, by perpetuating “archaic and
stereotypic notions” or by stigmatizing members of the disfavored group as
“innately inferior” and therefore less worthy participants in the political
community, can cause serious noneconomic injuries to those persons who are
denied equal treatment solely because of their membership in a disfavored
group. Because the severability clause would forbid only the extension of
benefits to the excluded class and not the withdrawal of benefits from the
favored class, the injury caused by the unequal treatment allegedly suffered by
appellee may be redressed.
2. The pension offset exception applies to otherwise eligible men only when
they can show dependency on their wives for one-half of their support. The
language and history of the exception plainly demonstrate that Congress
intended to resurrect, for a 5-year grace period, the gender-based dependency
test of pre- Goldfarb law so as to afford protection to those who anticipated
receiving spousal benefits prior to Goldfarb without providing it also to those
who would qualify only as a result of the Goldfarb decision. To interpret the
exception, as appellee urges, so that it does not incorporate a gender-based
classification of the kind invalidated in Goldfarb but instead exempts from the
offset requirement both men and women, without regard to dependency, would
defeat Congress' intention and, by rendering the offset requirement applicable to
only a few applicants, frustrate the congressional aim of preventing a fiscal drain
on the Social Security trust fund.
3. The gender-based classification of the pension offset exception is
constitutional. (a) Although temporarily reviving the gender-based classification
invalidated in Goldfarb, the offset exception is directly and substantially related
to the important governmental objective of protecting individuals who planned
their retirements in reasonable reliance on the law in effect prior to that decision
under which they could receive spousal benefits unreduced by the amount of
government pensions to which they were also entitled. This objective provides
an exceedingly persuasive justification for the gender-based classification
incorporated in the offset exception. (b) And the means employed by the statute
is substantially related to the achievement of that objective. By reviving for a 5year period the eligibility criteria in effect in January 1977, the offset exception is
narrowly tailored to protect only those persons who made retirement plans prior
to the changes in the law that occurred after that date. Such persons, men as
well as women, may receive spousal benefits unreduced by their government
pensions while those persons, men as well as women, who first became eligible
for benefits after January 1977 may not. The exception distinguishes Social
Security applicants, not according to archaic generalizations about the roles and
abilities of men and women, but rather according to whether they planned their
retirements with the expectation, created by the law in effect in January 1977,
that they would receive full spousal benefits and a government pension.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the different treatment of men and women
mandated by §402(f)(1)(D) constituted invidious discrimination
against female wage earners by affording them less protection
for their surviving spouses than is provided to male employees.
Califano v.
Goldfarb
430 U.S. 199
(1977)
Gender-Based
Classifications:
Benefits
Under the Social Security Act survivors' benefits based on the
earnings of a deceased husband covered by the Act are
payable to his widow regardless of dependency, but under 42
U.S.C. §402(f)(1)(D) such benefits on the basis of a deceased
wife covered by the Act are payable to her widower only if he
was receiving at least half of his support from her. In a suit
challenging these provisions, a three-judge District Court held
that the different treatment of men and women mandated by
§402(f)(1)(D) constituted invidious discrimination against
female wage earners by affording them less protection for
their surviving spouses than is provided to male employees.
Held: Yes. Affirmed.
(a) Such distinction, which results in the efforts of female
workers required to pay social security taxes producing less
protection for their spouses than is produced by the efforts of
male workers, is constitutionally forbidden at least when
supported by no more substantial justification than ‘archaic and
overbroad’ generalizations or ‘old notions,’ such as
‘assumptions as to dependency,’ that are more consistent with
‘the role-typing society has long imposed’ than with
contemporary reality.
(b) Equal protection analysis here cannot center solely on the
distinction drawn between widowers and widows but must be
focused as well on the gender-based discrimination against
covered female wage earners.
(c) The fact that a covered employee's interest in future social
security benefits is ‘noncontractual’ does not preclude any claim
of equal protection denial, but benefits “directly related to years
worked and amount earned by a covered employee, and not to
the needs of the beneficiaries directly must be distributed
according to classifications which do not without sufficient
justification differentiate among covered employees solely on
the basis of sex.”
(d) It appears from §402(f)(1)(D)‘s phrasing and legislative
history as well as from the general scheme of the Old-Age,
Survivors, and Disability Insurance benefits program, that the
differential treatment of nondependent widows and widowers
results, not from a deliberate congressional intention to remedy
the arguably greater needs of the former, but rather from an
intention to aid the dependent spouses of deceased wage
earners, coupled with a presumption that wives are usually
dependent. The only justification for a classification based on
this latter presumption is the unverified assumption that it would
save the Government time, money, and effort simply to pay
benefits to all widows rather than to require proof of
dependency of both sexes, and such an assumption does not
suffice to justify a gender-based discrimination in the distribution
of employment-related benefits.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Section §13981 can be sustained under the
Commerce Clause or §5 of the Fourteenth Amendment.
United States v.
Morrison
529 U.S. 598,
(2000)
Gender-Based
Classifications:
Congressional
Authority
Petitioner filed suit, alleging that she was raped by
respondents while the three were students at Virginia
Polytechnic Institute, and that this attack violated 42 U. S. C.
§13981, which provides a federal civil remedy for the victims
of gender-motivated violence. Respondents moved to dismiss
on the grounds that the complaint failed to state a claim and
that §13981’s civil remedy is unconstitutional. Petitioner
United States intervened to defend the section’s
constitutionality. In dismissing the complaint, the District Court
held that it stated a claim against respondents, but that
Congress lacked authority to enact §13981 under either the
Commerce Clause or §5 of the Fourteenth Amendment, which
Congress had explicitly identified as the sources of federal
authority for §13981. The en banc Fourth Circuit affirmed.
Held: No. Affirmed.
(a) The Commerce Clause does not provide Congress with
authority to enact §13981’s federal civil remedy. A
congressional enactment will be invalidated only upon a plain
showing that Congress has exceeded its constitutional bounds.
Petitioners assert that §13981 can be sustained under
Congress’ commerce power as a regulation of activity that
substantially affects interstate commerce. Gender-motivated
crimes of violence are not, in any sense, economic activity.
Second, §13981 contains no jurisdictional element establishing
that the federal cause of action is in pursuance of Congress’
regulation of interstate commerce. Third, although §13981 is
supported by numerous findings regarding the serious impact of
gender-motivated violence on victims and their families, these
findings are substantially weakened by the fact that they rely on
reasoning that this Court has rejected, namely, a but-for causal
chain from the initial occurrence of violent crime to every
attenuated effect upon interstate commerce. Congress therefore
may not regulate non-economic, violent criminal conduct based
solely on the conduct’s aggregate effect on interstate
commerce.
(b) Section 5 of the Fourteenth Amendment permits Congress
to enforce by appropriate legislation the constitutional guarantee
that no State shall deprive any person of life, liberty, or property
without due process, or deny any person equal protection of the
laws. Petitioners’ assertion that there is pervasive bias in
various state justice systems against victims of gendermotivated violence is supported by a voluminous congressional
record. However, the Fourteenth Amendment places limitations
on the manner in which Congress may attack discriminatory
conduct. Foremost among them is the principle that the
Amendment prohibits only state action, not private conduct.
Assuming that there has been gender-based disparate
treatment by state authorities in these cases, it would not be
enough to save §13981’s civil remedy, which is directed not at a
State or state actor but at individuals who have committed
criminal acts motivated by gender bias. Section 13981 visits no
consequence on any Virginia public official involved in
investigating or prosecuting Brzonkala’s assault, and it is thus
unlike any of the §5 remedies this Court has previously upheld.
Section 13981 is also different from previously upheld remedies
in that it applies uniformly throughout the Nation, even though
Congress’ findings indicate that the problem addressed does
not exist in all, or even most, States.
Case
North Haven
Bd. of Ed. v.
Bell
456 U.S. 512
(1982)
Subject
Facts
Gender-Based
Classifications:
Education
Section 901(a) of Title IX of the Education Amendments of
1972 provides that “no person,” on the basis of sex, shall “be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.” Section 902
authorizes each agency awarding federal financial assistance
to any education program to promulgate regulations ensuring
that aid recipients adhere to §901(a), and as a sanction for
noncompliance provides for termination of federal funds
limited to the particular program, or part thereof, in which such
noncompliance has been found. Pursuant to §902, the
Department of Health, Education, and Welfare (HEW),
interpreting “person” in §901(a) to encompass employees as
well as students, issued regulations (Subpart E) prohibiting
federally funded education programs from discriminating on
the basis of sex with respect to employment. Petitioners,
federally funded public school boards, when threatened with
enforcement proceedings for alleged violations of §901(a) with
respect to board employees, brought separate suits
challenging HEW's authority to issue the Subpart E
regulations on the alleged ground that §901(a) was not
intended to apply to employment practices, and seeking
declaratory and injunctive relief. The District Court in each
case granted the school board's motion for summary
judgment. In a consolidated appeal, the Court of Appeals
reversed, holding that §901(a) was intended to prohibit
employment discrimination and that the Subpart E regulations
were consistent with §902.
Issue Presented and Holding
Issue: Whether §901(a) was intended to prohibit employment
discrimination and that the Subpart E regulations were
consistent with §902.
Held: Affirmed and Remanded.
1. Employment discrimination comes within Title IX's
prohibition. (a) While §901(a) does not expressly include
employees within its scope or expressly exclude them, its broad
directive that “no person” may be discriminated against on the
basis of gender, on its face, includes employees as well as
students. (b) Title IX's legislative history corroborates the
conclusion that employment discrimination was intended to
come within its prohibition. (c) Title IX's postenactment history
provides additional evidence of Congress' desire to ban
employment discrimination in federally financed education
programs.
2. The Subpart E regulations are valid. (a) An agency's
authority under Title IX both to promulgate regulations and to
terminate funds is subject to the program-specific limitation of
§§901(a) and 902. The Subpart E regulations are not
inconsistent with this restriction. (b) But whether termination of
petitioners' federal funds is permissible under Title IX is a
question that must be answered by the District Court in the first
instance.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Title IX precludes a §1983 action alleging unconstitutional
gender discrimination in schools.
Fitzgerald v.
Barnstable
School
Committee
555 U.S. 246
(2009)
Gender-Based
Classifications:
Sexual
Harassment at
School
Petitioners filed suit against respondents, the local school
district's governing board and superintendent, alleging that
their response to allegations of sexual harassment of
petitioners' daughter by an older student was inadequate,
raising claims under, inter alia, Title IX of the Education
Amendments of 1972, 20 U.S.C. §1681(a), and 42 U.S.C.
§1983 for violation of the Equal Protection Clause of the
Fourteenth Amendment. Among its rulings, the District Court
dismissed the §1983 claim. The First Circuit affirmed, holding
that, under this Court's precedents, Title IX's implied private
remedy was sufficiently comprehensive to preclude the use of
§1983 to advance constitutional claims.
Held: No. Reversed and Remanded.
(a) In Middlesex County Sewerage Authority v. National Sea Clammers Assn.,
Smith v. Robinson, and Rancho Palos Verdes v. Abrams, this Court found that
particular statutory enactments precluded §1983 claims where it was
established that Congress intended the statute's remedial scheme to “be the
exclusive avenue through which a plaintiff may assert the claims.” In
determining whether Congress intended for a subsequent statute to preclude
the enforcement of a federal right under §1983, the Court has placed primary
emphasis on the nature and extent of that statute's remedial scheme. Where the
§1983 claim alleges a constitutional violation, a lack of congressional intent to
preclude may also be inferred from a comparison of the rights and protections of
the other statute and those existing under the Constitution.
(b) In the absence of a comprehensive remedial scheme comparable to those
at issue in Sea Clammers, Smith, and Rancho Palos Verdes, and in light of the
divergent coverage of Title IX and the Equal Protection Clause, it must be
concluded that Title IX was not meant to be an exclusive mechanism for
addressing gender discrimination in schools, or a substitute for §1983 suits as a
means of enforcing constitutional rights. (i) Title IX's only express enforcement
mechanism is an administrative procedure resulting in the withdrawal of federal
funding from noncompliant institutions. This Court has also recognized an
implied private right of action, for which both injunctive relief and damages are
available. These remedies stand in stark contrast to the “unusually elaborate,”
“carefully tailored,” and “restrictive” enforcement schemes of the statutes in Sea
Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX has
no administrative exhaustion requirement and no notice provisions. Plaintiffs
can file directly in court under its implied private right of action and can obtain
the full range of remedies. Accordingly, parallel and concurrent §1983 claims will
neither circumvent required procedures nor allow access to new remedies.
Moreover, under Rancho Palos Verdes, “the provision of an express, private
means of redress in the statute itself” is a key consideration in determining
congressional intent, and “the existence of a more restrictive private remedy for
statutory violations has been the dividing line between those cases in which an
action would lie under §1983 and those in which we have held that it would not.”
Title IX contains no express private remedy, much less a more restrictive one.
(ii) Because Title IX's protections are narrower in some respects and broader in
others than those guaranteed under the Equal Protection Clause, the Court
cannot agree with the First Circuit that Congress saw Title IX as the sole means
of correcting unconstitutional gender discrimination in schools. Title IX reaches
institutions and programs that receive federal funds, which may include
nonpublic institutions, but it has consistently been interpreted as not authorizing
suit against school officials, teachers, and other individuals. Moreover, while the
constitutional provision reaches only state actors, § 983 equal protection claims
may be brought against individuals as well as state entities. And Title IX
exempts from its restrictions several activities that may be challenged on
constitutional grounds. Even where particular activities and particular
defendants are subject to both Title IX and the Equal Protection Clause, the
standards for establishing liability may not be wholly congruent. (iii) Because the
Congress that enacted Title IX authorized the Attorney General to intervene in
private suits alleging sex discrimination violative of the Equal Protection Clause,
Congress must have explicitly envisioned that private plaintiffs would bring
constitutional claims to challenge gender discrimination via §1983. Moreover,
Title IX was modeled after Title VI of the Civil Rights Act of 1964, and, at the
time of Title IX's 1972 enactment, the lower courts routinely interpreted Title VI
to allow for parallel and concurrent §1983 claims. Absent contrary evidence, it
follows that Congress intended Title IX to be interpreted similarly to allow for
parallel and concurrent §1983 claims.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Title VII actions for “discrimination because of
sex” apply only to women.
Oncale v.
Sundowner
Offshore
Services
523 U.S. 75
(1998)
Gender-Based
Classifications:
Employment
Petitioner Oncale filed a complaint against his employer,
respondent Sundowner Offshore Services, Inc., claiming that
sexual harassment directed against him by respondent
coworkers in their workplace constituted “discrimination
because of sex” prohibited by Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e—2(a)(1). Relying on Fifth Circuit
precedent, the District Court held that Oncale, a male, had no
Title VII cause of action for harassment by male coworkers.
The Fifth Circuit affirmed.
Held: No. Reversed and Remanded.
Sex discrimination consisting of same-sex sexual harassment
is actionable under Title VII. Title VII’s prohibition of
discrimination “because of sex” protects men as well as women,
and in the related context of racial discrimination in the
workplace this Court has rejected any conclusive presumption
that an employer will not discriminate against members of his
own race. There is no justification in Title VII’s language or the
Court’s precedents for a categorical rule barring a claim of
discrimination “because of sex” merely because the plaintiff and
the defendant (or the person charged with acting on behalf of
the defendant) are of the same sex. Recognizing liability for
same-sex harassment will not transform Title VII into a general
civility code for the American workplace, since Title VII is
directed at discrimination because of sex, not merely conduct
tinged with offensive sexual connotations; since the statute
does not reach genuine but innocuous differences in the ways
men and women routinely interact with members of the same,
and the opposite, sex; and since the objective severity of
harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the
circumstances.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the pregnancy limitation in petitioner's amended
health plan discriminates against male employees in violation of
§703(a)(1).
Newport News
Shipbuilding &
Dry Dock Co. v.
EEOC
462 U.S. 669
(1983)
Gender-Based
Classifications:
Employment
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964
makes it an unlawful employment practice for an employer to
discriminate against an employee with respect to
compensation, terms, conditions, or privileges of employment,
because of the employee's race, color, religion, sex, or
national origin. Title VII was amended in 1978 by the
Pregnancy Discrimination Act to prohibit discrimination on the
basis of pregnancy. Petitioner employer then amended its
health insurance plan to provide its female employees with
hospitalization benefits for pregnancy-related conditions to the
same extent as for other medical conditions, but the plan
provided less extensive pregnancy benefits for spouses of
male employees. Petitioner filed an action in Federal District
Court challenging the EEOC's guidelines which indicated that
the amended plan was unlawful, and the EEOC in turn filed an
action against petitioner alleging discrimination on the basis of
sex against male employees in petitioner's provision of
hospitalization benefits. The District Court upheld the
lawfulness of petitioner's amended plan and dismissed the
EEOC's complaint. On a consolidated appeal, the Court of
Appeals reversed.
Held: Yes. Affirmed.
(a) Congress, by enacting the Pregnancy Discrimination Act,
not only overturned the holding of General Electric Co. v.
Gilbert, that the exclusion of disabilities caused by pregnancy
from an employer's disability plan providing general coverage
did not constitute discrimination based on sex, but also rejected
the reasoning employed in that case that differential treatment
of pregnancy is not gender-based discrimination because only
women can become pregnant.
(b) The Pregnancy Discrimination Act makes it clear that it is
discriminatory to exclude pregnancy coverage from an
otherwise inclusive benefits plan. Thus, petitioner's health plan
unlawfully gives married male employees a benefit package for
their dependents that is less inclusive than the dependency
coverage provided to married female employees.
(c) There is no merit to petitioner's argument that the
prohibitions of Title VII do not extend to pregnant, spouses
because the statute applies only to discrimination in
employment. Since the Pregnancy Discrimination Act makes it
clear that discrimination based on pregnancy is, on its face,
discrimination based on sex, and since the spouse's sex is
always the opposite of the employee's sex, discrimination
against female spouses in the provision of fringe benefits is also
discrimination against male employees.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Cleveland rule violates the Equal Protection Clause of the Fourteenth Amendment
Cleveland Bd.
of Educ. v.
LaFleur
414 U.S. 632
(1974)
Gender-Based
Classifications:
Pregnancy
Jo Carol LaFleur and Ann Elizabeth Nelson, the respondents
in No. 72-777, are junior high school teachers employed by
the Board of Education of Cleveland, Ohio. Pursuant to a rule
first adopted in 1952, the school board requires every
pregnant school teacher to take maternity leave without pay,
beginning five months before the expected birth of her child.
Application for such leave must be made no later than two
weeks prior to the date of departure. A teacher on maternity
leave is not allowed to return to work until the beginning of the
next regular school semester which follows the date when her
child attains the age of three months. A doctor's certificate
attesting to the health of the teacher is a prerequisite to return;
an additional physical examination may be required. The
teacher or maternity leave is not promised re-employment
after the birth of the child; she is merely given priority in
reassignment to a position for which she is qualified. Failure to
comply with the mandatory maternity leave provisions is
ground for dismissal.
Neither Mrs. LaFleur nor Mrs. Nelson wished to take an
unpaid maternity leave; each wanted to continue teaching until
the end of the school year. Because of the mandatory
maternity leave rule, however, each was required to leave her
job in March 1971. The two women then filed separate suits in
the United States District Court for the Northern District of
Ohio under 42 U.S.C.§1983, challenging the constitutionality
of the maternity leave rule. The District Court tried the cases
together, and rejected the plaintiffs' arguments. A divided
panel of the United States Court of Appeals for the Sixth
Circuit reversed, finding the Cleveland rule in violation of the
Equal Protection Clause of the Fourteenth Amendment.
We granted certiorari in both cases in order to resolve the
conflict between the Courts of Appeals regarding the
constitutionality of such mandatory maternity leave rules for
public school teachers.
Held:
This Court has long recognized that freedom of personal choice in matters of marriage and family life is
one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As we noted in
Eisenstadt v. Baird, there is a right ‘to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child.’ By acting to penalize the
pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a
heavy burden on the exercise of these protected freedoms. Because public school maternity leave rules
directly affect ‘one of the basic civil rights of man,’ the Due Process Clause of the Fourteenth Amendment
requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a
teacher's constitutional liberty. The question before us in these cases is whether the interests advanced in
support of the rules of the Cleveland and Chesterfield County School Boards can justify the particular
procedures they have adopted.
The school boards in these cases have offered two essentially overlapping explanations for their
mandatory maternity leave rules. First, they contend that the firm cutoff dates are necessary to maintain
continuity of classroom instruction, since advance knowledge of when a pregnant teacher must leave
facilitates the finding and hiring of a qualified substitute. Secondly, the school boards seek to justify their
maternity rules by arguing that at least some teachers become physically incapable of adequately
performing certain of their duties during the latter part of pregnancy. By keeping the pregnant teacher out of
the classroom during these final months, the maternity leave rules are said to protect the health of the
teacher and her unborn child, while at the same time assuring that students have a physically capable
instructor in the classroom at all times. It cannot be denied that continuity of instruction is a significant and
legitimate educational goal. Regulations requiring pregnant teachers to provide early notice of their
condition to school authorities undoubtedly facilitate administrative planning toward the important objective
of continuity. But, while the advance-notice provisions in the Cleveland and Chesterfield County rules are
wholly rational and may well be necessary to serve the objective of continuity of instruction, the absolute
requirements of termination at the end of the fourth or fifth month of pregnancy are not. Were continuity the
only goal, cutoff dates much later during pregnancy would serve as well as or better than the challenged
rules, providing that ample advance notice requirements were retained. Indeed, continuity would seem just
as well attained if the teacher herself were allowed to choose the date upon which to commence her leave,
at least so long as the decision were required to be made and notice given of it well in advance of the date
selected.
In fact, since the fifth or sixth month of pregnancy will obviously begin at different times in the school year
for different teachers, the present Cleveland and Chesterfield County rules may serve to hinder attainment
of the very continuity objectives that they are purportedly designed to promote. For example, the beginning
of the fifth month of pregnancy for both Mrs. LaFleur and Mrs. Nelson occurred during March of 1971. Both
were thus required to leave work with only a few months left in the school year, even though both were fully
willing to serve through the end of the term. Similarly, if continuity were the only goal, it seems ironic that
the Chesterfield County rule forced Mrs. Cohen to leave work in mid-December 1970 rather than at the end
of the semester in January, as she requested. We thus conclude that the arbitrary cutoff dates embodied in
the mandatory leave rules before us have no rational relationship to the valid state interest of preserving
continuity of instruction. As long as the teachers are required to give substantial advance notice of their
condition, the choice of firm dates later in pregnancy would serve the boards' objectives just as well, while
imposing a far lesser burden on the women's exercise of constitutionally protected freedom. The question
remains as to whether the cutoff dates at the beginning of the fifth and sixth months can be justified on the
other ground advanced by the school boards-the necessity of keeping physically unfit teachers out of the
classroom. There can be no doubt that such an objective is perfectly legitimate, both on educational and
safety grounds. And, despite the plethora of conflicting medical testimony in these cases, we can assume,
arguendo, that at least some teachers become physically disabled from effectively performing their duties
during the latter stages of pregnancy. The mandatory termination provisions of the Cleveland and
Chesterfield County rules surely operate to insulate the classroom from the presence of potentially
incapacitated pregnant teachers. But the question is whether the rules sweep too broadly. That question
must be answered in the affirmative, for the provisions amount to a conclusive presumption that every
pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing.
There is no individualized determination by the teacher's doctor-or the school board's-as to any particular
teacher's ability to continue at her job. The rules contain an irrebuttable presumption of physical
incompetency, and that presumption applies even when the medical evidence as to an individual woman's
physical status might be wholly to the contrary. These principles control our decision in the cases before
us. While the medical experts in these cases differed on many points, they unanimously agreed on one-the
ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very
much an individual matter. Even assuming, arguendo, that there are some women who would be physically
unable to work past the particular cutoff dates embodied in the challenged rules, it is evident that there are
large numbers of teachers who are fully capable of continuing work for longer than the Cleveland and
Chesterfield County regulations will allow. Thus, the conclusive presumption embodied in these rules, like
that in Vlandis, is neither ‘necessarily (nor) universally true,’ and is violative of the Due Process Clause.
While it might be easier for the school boards to conclusively presume that all pregnant women are unfit
to teach past the fourth or fifth month or even the first month, of pregnancy, administrative convenience
alone is insufficient to make valid what otherwise is a violation of due process of law. The Fourteenth
Amendment requires the school boards to employ alternative administrative means, which do not so
broadly infringe upon basic constitutional liberty, in support of their legitimate goals. We conclude,
therefore, that neither the necessity for continuity of instruction nor the state interest in keeping physically
unfit teachers out of the classroom can justify the sweeping mandatory leave regulations that the Cleveland
and Chesterfield County School Boards have adopted. While the regulations no doubt represent a goodfaith attempt to achieve a laudable goal, they cannot pass muster under the Due Process Clause of the
Fourteenth Amendment, because they employ irrebuttable presumptions that unduly penalize a female
teacher for deciding to bear a child.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Arizona's licensing law is expressly preempted.
Chamber of
Commerce of
U.S. v. Whiting
131 U.S. 1968
(2011)
Immigration
The Immigration Reform and Control Act (IRCA) makes it
“unlawful for a person or other entity to hire, or to recruit or
refer for a fee, for employment in the United States an alien
knowing the alien is an unauthorized alien.” Employers that
violate that prohibition may be subjected to federal civil and
criminal sanctions. IRCA also restricts the ability of States to
combat employment of unauthorized workers; the Act
expressly preempts “any State or local law imposing civil or
criminal sanctions (other than through licensing and similar
laws) upon those who employ, or recruit or refer for a fee for
employment, unauthorized aliens.” IRCA also requires
employers to take steps to verify an employee's eligibility for
employment. In an attempt to improve that verification process
in the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), Congress created E–Verify—an internet-based
system employers can use to check the work authorization
status of employees.
Against this statutory background, several States have
recently enacted laws attempting to impose sanctions for the
employment of unauthorized aliens through, among other
things, “licensing and similar laws.” Arizona is one of them.
The Legal Arizona Workers Act provides that the licenses of
state employers that knowingly or intentionally employ
unauthorized aliens may be, and in certain circumstances
must be, suspended or revoked. That law also requires that all
Arizona employers use E–Verify. The Chamber of Commerce
of the United States and various business and civil rights
organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the
Arizona law, arguing that the state law's license suspension
and revocation provisions were both expressly and impliedly
preempted by federal immigration law, and that the mandatory
use of E–Verify was impliedly preempted. The District Court
found that the plain language of IRCA's preemption clause did
not invalidate the Arizona law because the law did no more
than impose licensing conditions on businesses operating
within the State. Nor was the state law preempted with respect
to E–Verify, the court concluded, because although Congress
had made the program voluntary at the national level, it had
expressed no intent to prevent States from mandating
participation. The Ninth Circuit affirmed.
Held: No. Affirmed.
Arizona's licensing law falls well within the confines of the authority Congress chose to leave to
the States and therefore is not expressly preempted. While IRCA prohibits States from imposing
“civil or criminal sanctions” on those who employ unauthorized aliens, it preserves state authority
to impose sanctions “through licensing and similar laws.” That is what the Arizona law does—it
instructs courts to suspend or revoke the business licenses of in-state employers that employ
unauthorized aliens. The definition of “license” contained in the Arizona statute largely parrots the
definition of “license” that Congress codified in the Administrative Procedure Act (APA).
The state statute also includes within its definition of “license” documents such as articles of
incorporation, certificates of partnership, and grants of authority to foreign companies to transact
business in the State, each of which has clear counterparts in APA and dictionary definitions of the
word “license.” And even if a law regulating articles of incorporation and the like is not itself a
“licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings
clause. The Chamber's argument that the Arizona law is not a “licensing” law because it operates
only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic.
The Chamber contends that the savings clause should apply only to certain types of licenses or
only to license revocation following an IRCA adjudication because Congress, when enacting IRCA,
eliminated unauthorized worker prohibitions and associated adjudication procedures in another
federal statute. But no such limits are even remotely discernible in the statutory text. The
Chamber's reliance on IRCA's legislative history to bolster its textual and structural arguments is
unavailing given the Court's conclusion that Arizona's law falls within the plain text of the savings
clause.
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the
Chamber's argument is that Congress intended the federal system to be exclusive. But Arizona's
procedures simply implement the sanctions that Congress expressly allowed the States to pursue
through licensing laws. Given that Congress specifically preserved such authority for the States, it
stands to reason that Congress did not intend to prevent the States from using appropriate tools to
exercise that authority. And here Arizona's law closely tracks IRCA's provisions in all material
respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,”
provides that state investigators must verify the work authorization of an allegedly unauthorized
alien with the Federal Government, making no independent determination of the matter; and
requires a state court to “consider only the federal government's determination.” The Chamber's
more general contention that the Arizona law is preempted because it upsets the balance that
Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this
argument all involve uniquely federal areas of interest. Regulating in-state businesses through
licensing laws is not such an area. And those cases all concern state actions that directly interfered
with the operation of a federal program. There is no similar interference here. The Chamber
asserts that employers will err on the side of discrimination rather than risk the “business death
penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an
available sanction for merely hiring unauthorized workers, but is triggered only by far more
egregious violations. And because the Arizona law covers only knowing or intentional violations, an
employer acting in good faith need not fear the law's sanctions. Moreover, federal and state
antidiscrimination laws protect against employment discrimination and provide employers with a
strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E–
Verify as required by the Arizona law. The most rational path for employers is to obey both the law
barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no
reason to suppose that Arizona employers will choose not to do so.
Arizona's requirement that employers use E–Verify is not impliedly preempted. The IIRIRA
provision setting up E–Verify contains no language circumscribing state action. It does, however,
constrain federal action: absent a prior violation of federal law, “the Secretary of Homeland
Security may not require any person or ... entity” outside the Federal Government “to participate in”
E–Verify. The fact that the Federal Government may require the use of E–Verify in only limited
circumstances says nothing about what the States may do. The Government recently argued just
that in another case and approvingly referenced Arizona's law as an example of a permissible use
of E–Verify when doing so. Moreover, Arizona's use of E–Verify does not conflict with the federal
scheme. The state law requires no more than that an employer, after hiring an employee, “verify
the employment eligibility of the employee” through E–Verify. And the consequences of not using
E–Verify are the same under the state and federal law—an employer forfeits an otherwise
available rebuttable presumption of compliance with the law.
Arizona's requirement that employers use E–Verify in no way obstructs achieving the aims of the
federal program. In fact, the Government has consistently expanded and encouraged the use of
E–Verify, and Congress has directed that E–Verify be made available in all 50 States. And the
Government has expressly rejected the Chamber's claim that the Arizona law, and those like it, will
overload the federal system.
Case
Subject
Judulang v.
Holder
Immigration
___ U.S. ___
(2011)
Facts
Federal immigration law governs both the exclusion of aliens from
admission to this country and the deportation of aliens previously
admitted. Before 1996, these two kinds of action occurred in
different procedural settings; since then, the Government has
employed a unified “removal proceeding” for exclusions and
deportations alike. But the immigration laws have always
provided separate lists of substantive grounds for the two actions.
One list specifies what crimes render an alien excludable, while
another—sometimes overlapping and sometimes divergent—list
specifies what crimes render an alien deportable.
Until repealed in 1996, §212(c) of the Immigration and
Nationality Act permitted the Attorney General to grant
discretionary relief to an excludable alien, if the alien had lawfully
resided in the United States for at least seven years before
temporarily leaving the country and if the alien was not
excludable on one of two specified grounds. By its terms, §212(c)
applied only in exclusion proceedings, but the Board of
Immigration Appeals (BIA) extended it decades ago to
deportation proceedings as well. Although Congress substituted a
narrower discretionary remedy for §212(c) in 1996, §212(c)'s
broader relief remains available to an alien whose removal is
based on a guilty plea entered before §212(c)'s repeal. In
deciding whether to exclude such an alien, the BIA first checks
the statutory ground identified by the Department of Homeland
Security (DHS) as the basis for exclusion. Unless that ground is
one of the two falling outside §212(c)'s scope, the alien is eligible
for discretionary relief. The BIA then determines whether to grant
relief based on such factors as the seriousness of the offense.
This case concerns the BIA's method for applying §212(c) in
the deportation context. The BIA's approach, known as the
“comparable-grounds” rule, evaluates whether the charged
deportation ground has a close analogue in the statute's list of
exclusion grounds. If the deportation ground consists of a set of
crimes “substantially equivalent” to the set making up an
exclusion ground, the alien can seek §212(c) relief. But if the
deportation ground covers different or more or fewer offenses
than any exclusion ground, the alien is ineligible for relief, even if
the alien's particular offense falls within an exclusion ground.
Petitioner Judulang, who has lived continuously in the United
States as a lawful permanent resident since 1974, pleaded guilty
to voluntary manslaughter in 1988. After he pleaded guilty to
another crime in 2005, DHS commenced a deportation action,
charging him with having committed an “aggravated felony”
involving “a crime of violence” based on his manslaughter
conviction. The Immigration Judge ordered Judulang's
deportation, and the BIA affirmed, finding Judulang ineligible for
§12(c) relief because the “crime of violence” deportation ground is
not comparable to any exclusion ground. The Ninth Circuit,
having previously upheld the BIA's comparable-grounds rule,
denied Judulang's petition for review.
Issue Presented and Holding
Issue: Whether the BIA's policy for applying §212(c) in deportation cases is
“arbitrary and capricious” under the Administrative Procedure Act
Held: Yes. Reversed and remanded.
(a) While agencies have expertise and experience in administering their
statutes that no court may properly ignore, courts retain a narrow but important
role in ensuring that agencies have engaged in reasoned decisionmaking. Thus,
in reviewing the BIA's action, this Court must assess, among other matters,
“whether the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” That task involves examining
the reasons for agency decisions, or the absence of such reasons. The
comparable-grounds approach cannot survive scrutiny under this standard. By
hinging a deportable alien's eligibility for discretionary relief on the chance
correspondence between statutory categories—a matter irrelevant to the alien's
fitness to reside in this country—the BIA has failed to exercise its discretion in a
reasoned manner.
(b) Even if the BIA has legitimate reasons for limiting §212(c)'s scope in
deportation cases, it must do so in some rational way. In other words, the BIA
must use an approach that is tied to the purposes of the immigration laws or the
appropriate operation of the immigration system. The comparable-grounds rule
has no connection to these factors. Instead, it makes §212(c) eligibility turn on
an irrelevant comparison between statutory provisions. Whether the set of
offenses in a particular deportation ground lines up with the set in an exclusion
ground has nothing to do with whether a deportable alien whose prior conviction
falls within both grounds merits the ability to stay in this country. Here, Judulang
was found ineligible for §212(c) relief because the “crime of violence”
deportation ground includes a few offenses—simple assault, minor burglary,
and unauthorized use of a vehicle—not found in the similar moral turpitude
exclusion ground. But the inclusion of simple assaults and minor burglaries in
the deportation ground is irrelevant to the merits of Judulang's case. The BIA's
approach has other odd features. In applying the comparable-grounds rule, the
BIA has denied relief to aliens whose deportation ground fits entirely within a
much broader exclusion ground. Yet providing relief in exclusion cases to a
broad class of aliens hardly justifies denying relief in deportation cases to a
subset of that group. In addition, the outcome of the comparable-grounds
analysis may itself rest on an arbitrary decision. An alien's prior conviction could
fall within a number of deportation grounds, only one of which corresponds to an
exclusion ground. In such cases, an alien's eligibility for relief would hinge on an
individual official's decision as to which deportation ground to charge. An alien
appearing before one official may suffer deportation, while an identically situated
alien appearing before another may gain the right to stay in this country. In
short, the comparable-grounds approach does not rest on any factors relevant
to whether an alien should be deported. Instead, it turns deportation decisions
into a “sport of chance.” That is what the APA's “arbitrary and capricious”
standard is designed to prevent.
(c) The Government's arguments in defense of the comparable-grounds rule
are not persuasive. First, §212(c)'s text does not support the rule. That section
cannot provide a textual anchor for any method of providing discretionary relief
in deportation cases because it addresses only exclusion. Second, the history of
the comparable-grounds rule does not work in the Government's favor. The BIA
repeatedly vacillated in its method for applying §212(c) to deportable aliens,
settling on the current rule only in 2005. Third, the Government's claim that the
comparable-grounds rule saves time and money falls short. Cost may be an
important factor for agencies to consider in many contexts, but cheapness alone
cannot save an arbitrary agency policy. In any event, it is unclear that the
comparable-grounds rule saves money when compared with alternative
approaches.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the “double-bunking” practice that the MCC had failed to make a showing of
“compelling necessity” sufficient to justify such practice.
Bell v. Wolfish
441 U.S. 520
(1979)
Individual
Rights:
Body Cavity
Searches
Respondent inmates brought this class action in Federal
District Court challenging the constitutionality of numerous
conditions of confinement and practices in the Metropolitan
Correctional Center (MCC), a federally operated short-term
custodial facility in New York City designed primarily to house
pretrial detainees. The District Court found that the stripping
was “unpleasant, embarrassing, and humiliating.” A
psychiatrist testified that the practice placed inmates in the
most degrading position possible, a conclusion amply
corroborated by the testimony of the inmates themselves.
There was evidence, moreover, that these searches
engendered among detainees fears of sexual assault, were
the occasion for actual threats of physical abuse by guards,
and caused some inmates to forgo personal visits. The District
Court, on various constitutional grounds, enjoined, inter alia,
the practice of housing, primarily for sleeping purposes, two
inmates in individual rooms originally intended for single
occupancy (“double-bunking”); enforcement of the so-called
“publisher-only” rule prohibiting inmates from receiving hardcover books that are not mailed directly from publishers, book
clubs, or bookstores; the prohibition against inmates' receipt of
packages of food and personal items from outside the
institution; the practice of body-cavity searches of inmates
following contact visits with person from outside institution;
and the requirement that pretrial detainees remain outside
their rooms during routine inspections by MCC officials. The
Court of Appeals affirmed these rulings, holding with respect
to the “double-bunking” practice that the MCC had failed to
make a showing of “compelling necessity” sufficient to justify
such practice.
Held: No. Reversed and Remanded.
1. The “double-bunking” practice does not deprive pretrial detainees of their liberty without
due process of law in contravention of the Fifth Amendment. (a) There is no source in the
Constitution for the Court of Appeals' compelling-necessity standard. Neither the
presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial
detainee's right to be free from punishment provides any basis for such standard. (b) In
evaluating the constitutionality of conditions or restrictions of pretrial detention that
implicates only the protection against deprivation of liberty without due process of law, the
proper inquiry is whether those conditions or restrictions amount to punishment of the
detainee. Absent a showing of an expressed intent to punish, if a particular condition or
restriction is reasonably related to a legitimate nonpunitive governmental objective, it does
not, without more, amount to “punishment,” but, conversely, if a condition or restriction is
arbitrary or purposeless, a court may permissibly infer that the purpose of the governmental
action is punishment that may not constitutionally be inflicted upon detainees qua
detainees. In addition to ensuring the detainees' presence at trial, the effective
management of the detention facility once the individual is confined is a valid objective that
may justify imposition of conditions and restrictions of pretrial detention and dispel any
inference that such conditions and restrictions are intended as punishment. (c) Judged by
the above analysis and on the record, “double-bunking” as practiced at the MCC did not, as
a matter of law, amount to punishment and hence did not violate respondents' rights under
the Due Process Clause of the Fifth Amendment. While “double-bunking” may have taxed
some of the equipment or particular facilities in certain of the common areas in the MCC,
this does not mean that the conditions at the MCC failed to meet the standards required by
the Constitution, particularly where it appears that nearly all pretrial detainees are released
within 60 days.
2. Nor do the “publisher-only” rule, body-cavity searches, the prohibition against the
receipt of packages, or the room-search rule violate any constitutional guarantees. (a)
Simply because prison inmates retain certain constitutional rights does not mean that these
rights are not subject to restrictions and limitations. There must be a “mutual
accommodation between institutional needs and objectives and the provisions of the
Constitution that are of general application,” and this principle applies equally to pretrial
detainees and convicted prisoners. Maintaining institutional security and preserving internal
order and discipline are essential goals that may require limitation or retraction of the
retained constitutional rights of both convicted prisoners and pretrial detainees. Since
problems that arise in the day-to-day operation of a corrections facility are not susceptible of
easy solutions, prison administrators should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security. (b) The
“publisher-only” rule does not violate the First Amendment rights of MCC inmates but is a
rational response by prison officials to the obvious security problem of preventing the
smuggling of contraband in books sent from outside. Moreover, such rule operates in a
neutral fashion, without regard to the content of the expression, there are alternative means
of obtaining reading material, and the rule's impact on pretrial detainees is limited to a
maximum period of approximately 60 days. (c) The restriction against the receipt of
packages from outside the facility does not deprive pretrial detainees of their property
without due process of law in contravention of the Fifth Amendment, especially in view of
the obvious fact that such packages are handy devices for the smuggling of contraband. (d)
Assuming that a pretrial detainee retains a diminished expectation of privacy after
commitment to a custodial facility, the room-search rule does not violate the Fourth
Amendment but simply facilitates the safe and effective performance of the searches and
thus does not render the searches “unreasonable” within the meaning of that Amendment.
(e) Similarly, assuming that pretrial detainees retain some Fourth Amendment rights upon
commitment to a corrections facility, the body-cavity searches do not violate that
Amendment. Balancing the significant and legitimate security interests of the institution
against the inmates' privacy interests, such searches can be conducted on less than
probable cause and are not unreasonable. (f) None of the security restrictions and practices
described above constitute “punishment” in violation of the rights of pretrial detainees under
the Due Process Clause of the Fifth Amendment. These restrictions and practices were
reasonable responses by MCC officials to legitimate security concerns, and, in any event,
were of only limited duration so far as the pretrial detainees were concerned.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the regulations promulgated by the Missouri Division of Corrections
are unconstitutional.
Turner v. Safley
482 U.S. 78
(1987)
Individual
Rights:
Prison Marriage
Respondent inmates brought a class action challenging two
regulations promulgated by the Missouri Division of
Corrections. The first permits correspondence between
immediate family members who are inmates at different
institutions within the Division's jurisdiction, and between
inmates “concerning legal matters,” but allows other inmate
correspondence only if each inmate's classification/treatment
team deems it in the best interests of the parties. The second
regulation permits an inmate to marry only with the prison
superintendent's permission, which can be given only when
there are “compelling reasons” to do so. Testimony indicated
that generally only a pregnancy or the birth of an illegitimate
child would be considered “compelling.” Petitioners have
identified both security and rehabilitation concerns in support
of the marriage prohibition. The security concern emphasized
by petitioners is that “love triangles” might lead to violent
confrontations between inmates. With respect to rehabilitation,
prison officials testified that female prisoners often were
subject to abuse at home or were overly dependent on male
figures, and that this dependence or abuse was connected to
the crimes they had committed. The superintendent at Renz,
petitioner William Turner, testified that in his view, these
women prisoners needed to concentrate on developing skills
of self-reliance, and that the prohibition on marriage furthered
this rehabilitative goal. Petitioners emphasize that the
prohibition on marriage should be understood in light of
Superintendent Turner's experience with several ill-advised
marriage requests from female inmates. The Federal District
Court found both regulations unconstitutional, and the Court of
Appeals affirmed.
Held: Affirmed in part, Reversed in part, and Remanded.
1. The lower courts erred in ruling that Procunier v. Martinez, and its progeny require
the application of a strict scrutiny standard of review for resolving respondents'
constitutional complaints. Rather, those cases indicate that a lesser standard is
appropriate whereby inquiry is made into whether a prison regulation that impinges
on inmates' constitutional rights is “reasonably related” to legitimate penological
interests. In determining reasonableness, relevant factors include (a) whether there is
a “valid, rational connection” between the regulation and a legitimate and neutral
governmental interest put forward to justify it, which connection cannot be so remote
as to render the regulation arbitrary or irrational; (b) whether there are alternative
means of exercising the asserted constitutional right that remain open to inmates,
which alternatives, if they exist, will require a measure of judicial deference to the
corrections officials' expertise; (c) whether and the extent to which accommodation of
the asserted right will have an impact on prison staff, on inmates' liberty, and on the
allocation of limited prison resources, which impact, if substantial, will require
particular deference to corrections officials; and (d) whether the regulation represents
an “exaggerated response” to prison concerns, the existence of a ready alternative
that fully accommodates the prisoner's rights at de minimis costs to valid penological
interests being evidence of unreasonableness.
2. The Missouri inmate correspondence regulation is, on the record here,
reasonable and facially valid. The regulation is logically related to the legitimate
security concerns of prison officials, who testified that mail between prisons can be
used to communicate escape plans, to arrange violent acts, and to foster prison gang
activity. Moreover, the regulation does not deprive prisoners of all means of
expression, but simply bars communication with a limited class of people-other
inmates-with whom authorities have particular cause to be concerned. The regulation
is entitled to deference on the basis of the significant impact of prison
correspondence on the liberty and safety of other prisoners and prison personnel, in
light of officials' testimony that such correspondence facilitates the development of
informal organizations that threaten safety and security at penal institutions. Nor is
there an obvious, easy alternative to the regulation, since monitoring inmate
correspondence clearly would impose more than a de minimis cost in terms of the
burden on staff resources required to conduct item-by-item censorship, and would
create an appreciable risk of missing dangerous communications. The regulation is
content neutral and does not unconstitutionally abridge the First Amendment rights of
prison inmates.
3. The constitutional right of prisoners to marry is impermissibly burdened by the
Missouri marriage regulation. (a) Prisoners have a constitutionally protected right to
marry under Zablocki v. Redhail. Although such a marriage is subject to substantial
restrictions as a result of incarceration, sufficient important attributes of marriage
remain to form a constitutionally protected relationship. (b) The regulation is facially
invalid under the reasonable relationship test. Although prison officials may regulate
the time and circumstances under which a marriage takes place, and may require
prior approval by the warden, the almost complete ban on marriages here is not, on
the record, reasonably related to legitimate penological objectives. The contention
that the regulation serves security concerns by preventing “love triangles” that may
lead to violent inmate confrontations is without merit, since inmate rivalries are likely
to develop with or without a formal marriage ceremony. Moreover, the regulation's
broad prohibition is not justified by the security of fellow inmates and prison staff, who
are not affected where the inmate makes the private decision to marry a civilian.
Rather, the regulation represents an exaggerated response to the claimed security
objectives, since allowing marriages unless the warden finds a threat to security,
order, or the public safety represents an obvious, easy alternative that would
accommodate the right to marry while imposing a de minimis burden. Nor is the
regulation reasonably related to the articulated rehabilitation goal of fostering selfreliance by female prisoners. In requiring refusal of permission to marry to all inmates
absent a compelling reason, the regulation sweeps much more broadly than is
necessary, in light of officials' testimony that male inmates' marriages had generally
caused them no problems and that they had no objections to prisoners marrying
civilians.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Sixth Circuit employed the wrong standard
for determining whether particular conduct falls within the range
of criminal liability under §242.
United States v.
Lanier
520 U.S. 259
(1997)
Individual
Rights:
Freedom from
Sexual Assault
Respondent Lanier was convicted under 18 U.S.C. §242 of
criminally violating the constitutional rights of five women by
assaulting them sexually while he served as a state judge.
The jury had been instructed, inter alia, that the Government
had to prove as an element of the offense that Lanier had
deprived the victims of their Fourteenth Amendment due
process right to liberty, which included the right to be free from
sexually motivated physical assaults and coerced sexual
battery. The en banc Sixth Circuit set aside the convictions for
lack of any notice to the public that §242 covers simple or
sexual assault crimes. Invoking general interpretive canons
and Screws v. United States, the court held that §242 criminal
liability may be imposed only if the constitutional right said to
have been violated is first identified in a decision of this Court,
and only when the right has been held to apply in a factual
situation “fundamentally similar” to the one at bar. The court
regarded these combined requirements as substantially higher
than the “clearly established” standard used to judge qualified
immunity in civil cases under 42 U.S.C. §1983.
Held: Yes. Vacated and remanded.
Section 242's general language prohibiting “the deprivation of
any rights secured by the Constitution” does not describe the
specific conduct it forbids, but-like its companion conspiracy
statute, 18 U.S.C. §241-incorporates constitutional law by
reference. Before criminal liability may be imposed for violation
of any penal law, due process requires “fair warning of what the
law intends.” The touchstone is whether the statute, either
standing alone or as construed by the courts, made it
reasonably clear at the time of the charged conduct that the
conduct was criminal. Section 242 was construed in light of this
due process requirement in Screws. The Sixth Circuit erred in
adding as a gloss to this standard the requirement that a prior
decision of this Court have declared the constitutional right at
issue in a factual situation “fundamentally similar” to the one at
bar. The Screws plurality referred in general terms to rights
made specific by “decisions interpreting” the Constitution; no
subsequent case has confined the universe of relevant
decisions to the Court's opinions; and the Court has specifically
referred to Court of Appeals decisions in defining the
established scope of a constitutional right under §241, and in
enquiring whether a right was “clearly established” when
applying the qualified immunity rule under §1983 and Bivens v.
Six Unknown Narcotics Agents. Nor has this Court demanded
precedents applying the right at issue to a “fundamentally
similar” factual situation at the level of specificity meant by the
Sixth Circuit. Rather, the Court has upheld convictions under
§241 or §242 despite notable factual distinctions between prior
cases and the later case, so long as the prior decisions gave
reasonable warning that the conduct at issue violated
constitutional rights. The Sixth Circuit's view that due process
under §242 demands more than the “clearly established”
qualified immunity test under §1983 or Bivens is error. In effect
that test is simply the adaptation of the fair warning standard to
give officials (and, ultimately, governments) the same protection
from civil liability and its consequences that individuals have
traditionally possessed in the face of vague criminal statutes. As
with official conduct under §1983 or Bivens, liability may be
imposed under §242 if, but only if, in the light of pre-existing law
the unlawfulness of the defendant's conduct is apparent.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a prison official is liable under the Eighth Amendment for acting with
“deliberate indifference” to inmate health or safety only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.
Farmer v.
Brennan
511 U.S. 825
(1994)
Individual
Rights:
Transsexual
Inmates
Petitioner, a preoperative transsexual who projects feminine
characteristics, has been incarcerated with other males in the
federal prison system, sometimes in the general prison
population but more often in segregation. Petitioner claims to
have been beaten and raped by another inmate after being
transferred by respondent federal prison officials from a
correctional institute to a penitentiary-typically a higher
security facility with more troublesome prisoners-and placed in
its general population. Filing an action under Bivens v. Six
Unknown Fed. Narcotics Agents, petitioner sought damages
and an injunction barring future confinement in any
penitentiary, and alleged that respondents had acted with
“deliberate indifference” to petitioner's safety in violation of the
Eighth Amendment because they knew that the penitentiary
had a violent environment and a history of inmate assaults
and that petitioner would be particularly vulnerable to sexual
attack. The District Court granted summary judgment to
respondents, denying petitioner's motion under Federal Rule
of Civil Procedure 56(f) to delay its ruling until respondents
complied with a discovery request. It concluded that failure to
prevent inmate assaults violates the Eighth Amendment only if
prison officials were “reckless in a criminal sense,” i.e., had
“actual knowledge” of a potential danger, and that
respondents lacked such knowledge because petitioner never
expressed any safety concerns to them. The Court of Appeals
affirmed.
Held: Yes. Vacated and Remanded.
(a) Prison officials have a duty under the Eighth Amendment to provide humane
conditions of confinement. They must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must protect prisoners from violence at the hands of other
prisoners. However, a constitutional violation occurs only where the deprivation alleged is,
objectively, “sufficiently serious,” and the official has acted with “deliberate indifference” to
inmate health or safety.
(b) Deliberate indifference entails something more than negligence, but is satisfied by
something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this
does not establish the level of culpability deliberate indifference entails, for the term
recklessness is not self-defining, and can take subjective or objective forms.
(c) Subjective recklessness, as used in the criminal law, is the appropriate test for
“deliberate indifference.” Permitting a finding of recklessness only when a person has
disregarded a risk of harm of which he was aware is a familiar and workable standard that
is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's
cases. The Eighth Amendment outlaws cruel and unusual “punishments,” not “conditions,”
and the failure to alleviate a significant risk that an official should have perceived but did
not, while no cause for commendation, cannot be condemned as the infliction of
punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test
for determining liability-whether the risk is known or should have been known-is rejected.
This Court's cases “mandate inquiry into a prison official's state of mind,” and it is no
accident that the Court has repeatedly said that the Eighth Amendment has a “subjective
component.”
(d) The subjective test does not permit liability to be premised on obviousness or
constructive notice. However, this does not mean that prison officials will be free to ignore
obvious dangers to inmates. Whether an official had the requisite knowledge is a question
of fact subject to demonstration in the usual ways, and a factfinder may conclude that the
official knew of a substantial risk from the very fact that it was obvious. Nor may an official
escape liability by showing that he knew of the risk but did not think that the complainant
was especially likely to be assaulted by the prisoner who committed the act. It does not
matter whether the risk came from a particular source or whether a prisoner faced the risk
for reasons personal to him or because all prisoners in his situation faced the risk. But
prison officials may not be held liable if they prove that they were unaware of even an
obvious risk or if they responded reasonably to a known risk, even if the harm ultimately
was not averted.
(e) Use of a subjective test will not foreclose prospective injunctive relief, nor require a
prisoner to suffer physical injury before obtaining prospective relief. The subjective test
adopted today is consistent with the principle that “one does not have to await the
consummation of threatened injury to obtain preventive relief.” In a suit for prospective
relief, the subjective factor, deliberate indifference, “should be determined in light of the
prison authorities' current attitudes and conduct,” their attitudes and conduct at the time suit
is brought and persisting thereafter. In making the requisite showing of subjective
culpability, the prisoner may rely on developments that postdate the pleadings and pretrial
motions, as prison officials may rely on such developments to show that the prisoner is not
entitled to an injunction. A court that finds the Eighth Amendment's objective and subjective
requirements satisfied may grant appropriate injunctive relief, though it should approach
issuance of injunctions with the usual caution. A court need not ignore a prisoner's failure to
take advantage of adequate prison procedures to resolve inmate grievances, and may
compel a prisoner to pursue them.
On remand, the District Court must reconsider its denial of petitioner's Rule 56(f)
discovery motion and apply the Eighth Amendment principles explained herein. The court
may have erred in placing decisive weight on petitioner's failure to notify respondents of a
danger, and such error may have affected the court's ruling on the discovery motion, so that
additional evidence may be available to petitioner. Neither of two of respondents'
contentions-that some of the officials had no knowledge about the confinement conditions
and thus were alleged to be liable only for the transfer, and that there is no present threat
that petitioner will be placed in a penitentiary-is so clearly correct as to justify affirmance.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the exclusion order and the Massachusetts statute
as requiring, under all circumstances, the exclusion of the press
and public during the testimony of a minor victim in a sex-offense
trial.
Globe
Newspaper Co.
v. Superior
Court for
Norfolk County
457 U.S. 596
(1982)
Individual
Rights:
Privacy
Appellee Massachusetts trial court, relying on a
Massachusetts statute providing for exclusion of the general
public from trials of specified sexual offenses involving a
victim under the age of 18, ordered the exclusion of the press
and public from the courtroom during the trial of a defendant
charged with rape of three minor girls. Appellant newspaper
publisher challenged the exclusion order, and ultimately, after
the trial had resulted in the defendant's acquittal, the
Massachusetts Supreme Judicial Court construed the
Massachusetts statute as requiring, under all circumstances,
the exclusion of the press and public during the testimony of a
minor victim in a sex-offense trial.
Held: Reversed.
1. The fact that the exclusion order expired with completion of the
trial at which the defendant was acquitted does not render the
controversy moot within the meaning of Art. III. The controversy is
“capable of repetition, yet evading review,” since it can reasonably
be assumed that appellant will someday be subjected to another
order relying on the Massachusetts statute and since criminal trials
are typically of short duration.
2. The Massachusetts statute, as construed by the
Massachusetts Supreme Judicial Court, violates the First
Amendment as applied to the States through the Fourteenth
Amendment. (a) To the extent that the First Amendment embraces
a right of access to criminal trials, it is to ensure that the
constitutionally protected “discussion of governmental affairs” is an
informed one. The right of access to criminal trials in particular is
properly afforded protection by the First Amendment both because
such trials have historically been open to the press and public and
because such right of access plays a particularly significant role in
the functioning of the judicial process and the government as a
whole. (b) The right of access to criminal trials is not absolute, but
the circumstances under which the press and public can be barred
are limited. The State must show that denial of such right is
necessitated by a compelling governmental interest and is narrowly
tailored to serve that interest.
3. The Massachusetts statute cannot be justified on the basis of
either the State's interest in protecting minor victims of sex crimes
from further trauma and embarrassment or its interest in
encouraging such victims to come forward and testify in a truthful
and credible manner. (a) Compelling as the first interest is, it does
not justify a mandatory closure rule. Such interest could be just as
well served by requiring the trial court to determine on a case-bycase basis whether the State's legitimate concern for the minor
victim's well-being necessitates closure. Such an approach ensures
that the constitutional right of the press and public to gain access to
criminal trials will not be restricted except where necessary to
protect the State's interest. (b) The second asserted interest is not
only speculative in empirical terms but is also open to serious
question as a matter of logic and common sense. Although the
statute was construed to bar the press and public from the
courtroom during a minor sex victim's testimony, the press is not
denied access to the transcript, court personnel, or any other
source that could provide an account of such testimony, and thus
the statute cannot prevent the press from publicizing the substance
of that testimony, as well as the victim's identity.
Case
Civil Rights
Cases
109 U.S. 3
(1883)
Subject
Individual
Rights:
Government
Authority
Facts
These cases were all founded on the first and second sections
of the Act of Congress known as the Civil Rights Act, passed
March 1st, 1875, entitled "An Act to protect all citizens in their
civil and legal rights.” The case of Robinson and wife against
the Memphis & Charleston R.R. Company was an action
brought in the Circuit Court of the United States for the
Western District of Tennessee to recover the penalty of five
hundred dollars given by the second section of the act, and
the gravamen was the refusal by the conductor of the railroad
company to allow the wife to ride in the ladies' car, for the
reason, as stated in one of the counts, that she was a person
of African descent. The jury rendered a verdict for the
defendants in this case upon the merits, under a charge of the
court to which a bill of exceptions was taken by the plaintiffs.
The case was tried on the assumption by both parties of the
validity of the act of Congress, and the principal point made by
the exceptions was that the judge allowed evidence to go to
the jury tending to show that the conductor had reason to
suspect that the plaintiff, the wife, was an improper person
because she was in company with a young man whom he
supposed to be a white man, and, on that account, inferred
that there was some improper connection between them, and
the judge charged the jury, in substance, that, if this was the
conductor's bona fide reason for excluding the woman from
the car, they might take it into consideration on the question of
the liability of the company. The case was brought here by writ
of error at the suit of the plaintiffs. The cases of Stanley,
Nichols, and Singleton came up on certificates of division of
opinion between the judges below as to the constitutionality of
the first and second sections of the act referred to, and the
case of Ryan on a writ of error to the judgment of the Circuit
Court for the District of California sustaining a demurrer to the
information. Two of the cases, those against Stanley and
Nichols, were indictments for denying to persons of color the
accommodations and privileges of an inn or hotel; two of
them, those against Ryan and Singleton, were, one on
information, the other an indictment, for denying to individuals
the privileges and accommodations of a theatre, the
information against Ryan being for refusing a colored person a
seat in the dress circle of Maguire's theatre in San Francisco,
and the indictment against Singleton was for denying to
another person, whose color was not stated, the full
enjoyment of the accommodations of the theatre known as the
Grand Opera House in New York, said denial not being made
for any reasons by law applicable to citizens of every race and
color, and regardless of any previous condition of servitude.
Issue Presented and Holding
Issue: Whether the Civil Rights Act protects citizens from
prejudicial action beyond slavery and involuntary servitude.
Held: No.
1. The 1st and 2d sections of the Civil Rights Act passed
March 1st, 1876, are unconstitutional enactments as applied to
the several States, not being authorized either by the XIIIth or
XIVth Amendments of the Constitution.
2. The XIVth Amendment is prohibitory upon the States only,
and the legislation authorized to be adopted by Congress for
enforcing it is not direct legislation on the matters respecting
which the States are prohibited from making or enforcing certain
laws, or doing certain acts, but is corrective legislation such as
may be necessary or proper for counteracting and redressing
the effect of such laws or acts.
3. The XIIIth Amendment relates only to slavery and
involuntary servitude (which it abolishes), and, although, by its
reflex action, it establishes universal freedom in the United
States, and Congress may probably pass laws directly enforcing
its provisions, yet such legislative power extends only to the
subject of slavery and its incidents, and the denial of equal
accommodations in inns, public conveyances, and places of
public amusement (which is forbidden by the sections in
question), imposes no badge of slavery or involuntary servitude
upon the party but at most, infringes rights which are protected
from State aggression by the XIVth Amendment.
4. Whether the accommodations and privileges sought to be
protected by the 1st and 2d sections of the Civil Rights Act are
or are not rights constitutionally demandable, and if they are, in
what form they are to be protected, is not now decided.
5. Nor is it decided whether the law, as it stands, is operative
in the Territories and District of Columbia, the decision only
relating to its validity as applied to the States.
6. Nor is it decided whether Congress, under the commercial
power, may or may not pass a law securing to all persons equal
accommodations on lines of public conveyance between two or
more States.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Turner was entitled to all the constitutional safeguards applicable in criminal
contempt proceedings in his child support contempt hearing.
Turner v.
Rogers
131 U.S. 2507
(2011)
Parental Rights:
Child Support
After a South Carolina family court ordered petitioner Turner
to pay $51.73 per week to respondent Rogers to help support
their child, Turner repeatedly failed to pay the amount due and
was held in contempt five times. For the first four, he was
sentenced to 90 days' imprisonment, but he ultimately paid
what he owed (twice without being jailed, twice after spending
a few days in custody). The fifth time he did not pay but
completed a 6–month sentence. After his release, the family
court clerk issued a new “show cause” order against Turner
because he was $5728.76 in arrears. Both he and Rogers
were unrepresented by counsel at his brief civil contempt
hearing. The judge found Turner in willful contempt and
sentenced him to 12 months in prison without making any
finding as to his ability to pay or indicating on the contempt
order form whether he was able to make support payments.
After Turner completed his sentence, the South Carolina
Supreme Court rejected his claim that the Federal Constitution
entitled him to counsel at his contempt hearing, declaring that
civil contempt does not require all the constitutional
safeguards applicable in criminal contempt proceedings.
Held: Yes. Vacated and Remanded.
1. Even though Turner has completed his 12–month sentence, and there are not alleged to be
collateral consequences of the contempt determination that might keep the dispute alive, this case
is not moot, because it is “capable of repetition” while “evading review.” A case remains live if “(1)
the challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there is a reasonable expectation that the same complaining party will be
subjected to the same action again.” Here, the “challenged action,” Turner's imprisonment for up to
12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here)
prior to its “expiration.” And there is a more than “reasonable” likelihood that Turner will again be
“subjected to the same action” because he has frequently failed to make his support payments,
has been the subject of several civil contempt proceedings, has been imprisoned several times,
and is, once again, the subject of civil contempt proceedings for failure to pay.
2. The Fourteenth Amendment's Due Process Clause does not automatically require the State to
provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to
a child support order, even if that individual faces incarceration. In particular, that Clause does not
require that counsel be provided where the opposing parent or other custodian is not represented
by counsel and the State provides alternative procedural safeguards equivalent to adequate notice
of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant
information, and express court findings as to the supporting parent's ability to comply with the
support order. (a) This Court's precedents provide no definitive answer to the question whether
counsel must be provided. The Sixth Amendment grants an indigent criminal defendant the right to
counsel, but does not govern civil cases. Civil and criminal contempt differ. A court may not impose
punishment “in a civil contempt proceeding when it is clearly established that the alleged
contemnor is unable to comply with the terms of the order.” And once a civil contemnor complies
with the underlying order, he is purged of the contempt and is free. The Due Process Clause
allows a State to provide fewer procedural protections in civil contempt proceedings than in a
criminal case. Cases directly concerning a right to counsel in civil cases have found a presumption
of such a right “only” in cases involving incarceration, but have not held that a right to counsel
exists in all such cases. (b) Because a contempt proceeding to compel support payments is civil,
the question whether the “specific dictates of due process” require appointed counsel is
determined by examining the “distinct factors” this Court has used to decide what specific
safeguards are needed to make a civil proceeding fundamentally fair. As relevant here those
factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk”
of an “erroneous deprivation” of that interest with and without “additional or substitute procedural
safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing
“additional or substitute procedural requirements.” The “private interest that will be affected” argues
strongly for the right to counsel here. That interest consists of an indigent defendant's loss of
personal liberty through imprisonment. Freedom “from bodily restraint” lies “at the core of the
liberty protected by the Due Process Clause.” Thus, accurate decision-making as to the “ability to
pay”—which marks a dividing line between civil and criminal contempt, must be assured because
an incorrect decision can result in a wrongful incarceration. And because ability to comply divides
civil and criminal contempt proceedings, an erroneous determination would also deprive a
defendant of the procedural protections a criminal proceeding would demand. Questions about
ability to pay are likely to arise frequently in child custody cases. On the other hand, due process
does not always require the provision of counsel in civil proceedings where incarceration is
threatened. To determine whether a right to counsel is required here, opposing interests and the
probable value of “additional or substitute procedural safeguards” must be taken into account.
Doing so reveals three related considerations that, taken together, argue strongly against requiring
counsel in every proceeding of the present kind. First, the likely critical question in these cases is
the defendant's ability to pay, which is often closely related to his indigence and relatively
straightforward. Second, sometimes, as here, the person opposing the defendant at the hearing is
not the government represented by counsel but the custodial parent un represented by counsel. A
requirement that the State provide counsel to the noncustodial parent in these cases could create
an asymmetry of representation that would “alter significantly the nature of the proceeding,”
creating a degree of formality or delay that would unduly slow payment to those immediately in
need and make the proceedings less fair overall. Third, as the Federal Government points out, an
available set of “substitute procedural safeguards,” if employed together, can significantly reduce
the risk of an erroneous deprivation of liberty. These include (1) notice to the defendant that his
“ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the
equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him
to respond to statements and questions about his financial status; and (4) an express finding by
the court that the defendant has the ability to pay. This decision does not address civil contempt
proceedings where the underlying support payment is owed to the State, e.g., for reimbursement
of welfare funds paid to the custodial parent, or the question what due process requires in an
unusually complex case where a defendant “can fairly be represented only by a trained advocate.”
3. Turner's incarceration violated due process because he received neither counsel nor the
benefit of alternative procedures like the Court describes. He did not have notice that his ability to
pay would be the critical question in his civil contempt proceeding. No one provided him with a
form designed to elicit information about his financial circumstances. Trial court did not find that he
was able to pay his arrearage, but still found him in civil contempt and ordered him incarcerated.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §1409 is consistent with the equal protection guarantee embedded in the Fifth
Amendment's Due Process Clause
Tuan Anh
Nguyen v.
I.N.S.
533 U.S. 53
(2001)
Parental Rights:
Paternity and
Citizenship
Petitioner Tuan Anh Nguyen was born out of wedlock in
Vietnam to a Vietnamese citizen and copetitioner Joseph
Boulais, a United States citizen. Nguyen became a lawful
permanent United States resident at age six and was raised
by Boulais. At age 22, Nguyen pleaded guilty in a Texas state
court to two counts of sexual assault on a child. Subsequently,
respondent Immigration and Naturalization Service initiated
deportation proceedings against him based on his serious
criminal offenses. The Immigration Judge ordered him
deportable. Boulais obtained an order of parentage from a
state court while Nguyen's appeal was pending before the
Board of Immigration Appeals, but the Board dismissed the
appeal, rejecting Nguyen's citizenship claim because he had
not complied with 8 U.S.C. §1409(a)'s requirements for one
born out of wedlock and abroad to a citizen father and a
noncitizen mother. On appeal, the Fifth Circuit rejected
petitioners' claim that §1409 violates equal protection by
providing different citizenship rules for children born abroad
and out of wedlock depending on whether the citizen parent is
the mother or the father.
Held: Yes. Affirmed.
(a) A child born abroad and out of wedlock acquires at birth the nationality status of a citizen mother who
meets a specified residency requirement. However, when the father is the citizen parent, inter alia, one of
three affirmative steps must be taken before the child turns 18: legitimization, a declaration of paternity
under oath by the father, or a court order of paternity. §1409(a)(4). The failure to satisfy this section
renders Nguyen ineligible for citizenship.
(b) A gender-based classification withstands equal protection scrutiny if it serves important governmental
objectives and the discriminatory means employed are substantially related to the achievement of those
objectives. Congress' decision to impose different requirements on unmarried fathers and unmarried
mothers is based on the significant difference between their respective relationships to the potential citizen
at the time of birth and is justified by two important governmental interests. (1) The first such interest is the
importance of assuring that a biological parent-child relationship exists. The mother's relation is verifiable
from the birth itself and is documented by the birth certificate or hospital records and the witnesses to the
birth. However, a father need not be present at the birth, and his presence is not incontrovertible proof of
fatherhood. Because fathers and mothers are not similarly situated with regard to proof of biological
parenthood, the imposition of different rules for each is neither surprising nor troublesome from a
constitutional perspective. Section 1409(a)(4)'s provision of three options is designed to ensure acceptable
documentation of paternity. Petitioners argue that § 1409(a)(1)' s requirement that a father provide clear
and convincing evidence of parentage is sufficient to achieve the end of establishing paternity, given the
sophistication of modern DNA tests. However, that section does not mandate DNA testing. Moreover, the
Constitution does not require that Congress elect one particular mechanism from among many possible
methods of establishing paternity, and §1409(a)(4) represents a reasonable legislative conclusion that the
satisfaction of one of several alternatives will suffice to establish the father-child blood link required as a
predicate to the child's acquisition of citizenship. Finally, even a facially neutral rule would sometimes
require fathers to take additional affirmative steps which would not be required of mothers, whose names
will be on the birth certificate as a result of their presence at the birth, and who will have the benefit of
witnesses to the birth to call upon. (2) The second governmental interest furthered by §1409(a)(4) is the
determination to ensure that the child and citizen parent have some demonstrated opportunity to develop a
relationship that consists of real, everyday ties providing a connection between child and citizen parent
and, in turn, the United States. Such an opportunity inheres in the event of birth in the case of a citizen
mother and her child, but does not result as a matter of biological inevitability in the case of an unwed
father. He may not know that a child was conceived, and a mother may be unsure of the father's identity.
One concern in this context has always been with young men on duty with the Armed Forces in foreign
countries. Today, the ease of travel and willingness of Americans to visit foreign countries have resulted in
numbers of trips abroad that must be of real concern when contemplating the prospect of mandating,
contrary to Congress' wishes, citizenship by male parentage subject to no condition other than the father's
residence in this country. Equal protection principles do not require Congress to ignore this reality. Section
1409 takes the unremarkable step of ensuring that the opportunity inherent in the event of birth as to the
mother-child relationship exists between father and child before citizenship is conferred upon the latter.
That interest's importance is too profound to be satisfied by a DNA test because scientific proof of
biological paternity does not, by itself, ensure father-child contact during the child's minority. Congress is
well within its authority in refusing, absent proof of an opportunity for a relationship to develop, to commit
this country to embracing a child as a citizen. Contrary to petitioners' argument, §1409 does not embody a
gender-based stereotype. There is nothing irrational or improper in recognizing that at the moment of birtha critical event in the statutory scheme and tradition of citizenship law-the mother's knowledge of the child
and the fact of parenthood have been established in a way not guaranteed to the unwed father. (3) The
means Congress chose substantially relate to its interest in facilitating a parent-child relationship. First,
various statutory provisions, in addition to §1409(a), require that some act linking a child to the United
States occur before the child turns 18. Second, petitioners' argument that §1409(a)(4) reflects a stereotype
that women are more likely than men to actually establish the required relationship misconceives both the
governmental interest's nature and the equal protection inquiry. As to the former, Congress could have
chosen to advance the interest of ensuring a meaningful relationship in every case, but it enacted instead
an easily administered scheme to promote the different but still substantial interest of ensuring an
opportunity for that relationship to develop. Petitioners' argument confuses the equal protection inquiry's
means and ends; §1409(a)(4) should not be invalidated because Congress elected to advance an interest
that is less demanding to satisfy than some alternative. Even if one conceives of Congress' real interest as
the establishment of a meaningful relationship, it is almost axiomatic that a policy seeking to foster the
opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the
governmental interest in that bond's formation. Here, Congress' means are in substantial furtherance of an
important governmental objective, and the fit between the means and that end is exceedingly persuasive.
(c) Section 1409(a)(4) imposes a minimal obligation. Only the least onerous of its three options must be
satisfied; and it can be satisfied on the day of birth, or the next day, or for the next 18 years. Section
1409(a), moreover, is not the sole means of attaining citizenship for the child, who can seek citizenship in
his or her own right, rather than via reliance on parental ties.
(d) Because the statute satisfies the equal protection scrutiny applied to gender-based qualifications, this
Court need not consider whether it can confer citizenship on terms other than those specified by Congress
or assess the implications of statements in earlier cases regarding the wide deference afforded to
Congress in exercising its immigration and naturalization power.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether appellant’s due process or equal protection
rights were violated.
Lehr v.
Robertson
463 U.S. 248
(1983)
Parental Rights:
Adoption
Appellant is the putative father of a child born out of wedlock.
Appellee mother of the child married another man (also an
appellee) after the child was born. Subsequently, when the
child was over two years old appellees filed an adoption
petition in the Ulster County, NY, Family Court, which entered
an order of adoption. Appellant never supported the child or
offered to marry appellee mother, did not enter his name in
New York's “putative father registry,” which would have
entitled him to notice of the adoption proceeding, and was not
in any of the classes of putative fathers who are required by
New York law to receive notice of adoption proceedings. After
the adoption proceeding was commenced, appellant filed a
paternity petition in the Westchester County, NY, Family
Court. Appellant learned of the pending adoption proceeding
several months later. Shortly thereafter, his attorney sought a
stay of the adoption proceeding pending the determination of
the paternity action, but by that time the Ulster County Family
Court had entered the adoption order. Appellant filed a petition
to vacate the adoption order on the ground that it was
obtained in violation of his rights under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. The
Ulster County Family Court denied the petition, and both the
Appellate Division of the New York Supreme Court and the
New York Court of Appeals affirmed.
Held: No. Affirmed.
Appellant's rights under the Due Process Clause were not
violated. (a) Where an unwed father demonstrates a full
commitment to the responsibilities of parenthood by “coming
forward to participate in the rearing of his child,” his interest in
personal contact with his child acquires substantial protection
under the Due Process Clause. But the mere existence of a
biological link does not merit equivalent protection. If the natural
father fails to grasp the opportunity to develop a relationship
with his child, the Constitution will not automatically compel a
State to listen to his opinion of where the child's best interests
lie. (b) Here, New York has adequately protected appellant's
inchoate interest in assuming a responsible role in the future of
his child. Under New York's special statutory scheme, the right
to receive notice was completely within appellant's control. By
mailing a postcard to the putative father registry, he could have
guaranteed that he would receive notice of any adoption
proceedings. The State's conclusion that a more open-ended
notice requirement would merely complicate the adoption
process, threaten the privacy interests of unwed mothers, create
the risk of unnecessary controversy, and impair the desired
finality of adoption decrees, cannot be characterized as
arbitrary. The Constitution does not require either the trial judge
or a litigant to give special notice to nonparties who are
presumptively capable of asserting and protecting their own
rights.
Nor were appellant's rights under the Equal Protection Clause
violated. Because he has never established a substantial
relationship with his child, the New York statutes at issue did not
operate to deny him equal protection. Appellee mother had a
continuous custodial responsibility for the child, whereas
appellant never established any custodial, personal, or financial
relationship with the child. In such circumstances, the Equal
Protection Clause does not prevent a State from according the
two parents different legal rights.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §§74-203 and 74-403(3) violates the Equal
Protection Clause of the Fourteenth Amendment.
Parental Rights:
Adoption
Under Georgia law no adoption of a child born in wedlock is
permitted without the consent of each living parent (including
divorced or separated parents) who has not voluntarily
surrendered rights in the child or been adjudicated an unfit
parent. In contrast, §§74-403(3) and 74-203 of the Georgia
Code provide that only the mother's consent is required for the
adoption of an illegitimate child. However, the father may
acquire veto authority over the adoption if he has legitimated
the child pursuant to § 74-103 of the Code. These provisions
were applied to deny appellant, the father of an illegitimate
child, authority to prevent the adoption of the child by the
husband of the child's mother. Until the adoption petition was
filed, appellant had not attempted to legitimate the child, who
had always been in the mother's custody and was then living
with the mother and her husband, appellees. In opposing the
adoption appellant, seeking to legitimate the child but not to
secure custody, claimed that §§74-203 and 74-403(3), as
applied to his case, violated the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. The trial
court, granting the adoption on the ground that it was in the
“best interests of the child” and that legitimation by appellant
was not, rejected appellant's constitutional claims, and the
Georgia Supreme Court affirmed.
Quilloin v.
Walcott
434 U.S. 246
(1978)
Held: No. Affirmed.
1. Under the circumstances appellant's substantive rights
under the Due Process Clause were not violated by application
of a “best interests of the child” standard. This is not a case in
which the unwed father at any time had, or sought, custody of
his child or in which the proposed adoption would place the
child with a new set of parents with whom the child had never
lived. Rather, the result of adoption here is to give full
recognition to an existing family unit.
2. Equal protection principles do not require that appellant's
authority to veto an adoption be measured by the same
standard as is applied to a divorced father, from whose interests
appellant's interests are readily distinguishable. The State was
not foreclosed from recognizing the difference in the extent of
commitment to a child's welfare between that of appellant, an
unwed father who has never shouldered any significant
responsibility for the child's rearing, and that of a divorced father
who at least will have borne full responsibility for his child's
rearing during the period of marriage.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a parent has a right of custody under the Convention by reason of that parent’s ne
exeat right.
Abbott v.
Abbott
560 U.S. ___
(2010)
Parental Rights:
Custody Under
the Hague
Convention
After the Abbotts, a married couple, moved to Chile and
separated, the Chilean courts granted respondent wife daily
care and control of their minor son, A.J.A., while awarding
petitioner husband visitation rights. Mr. Abbott also had a ne
exeat right to consent before Ms. Abbott could take A.J.A. out
of the country under Chile Minors Law. When Ms. Abbott
brought A.J.A. to Texas without permission from Mr. Abbott or
the Chilean family court, Mr. Abbott filed this suit in the
Federal District Court, seeking an order requiring his son’s
return to Chile under the Hague Convention on the Civil
Aspects of International Child Abduction (Convention) and the
implementing statute, the International Child Abduction
Remedies Act. Among its provisions, the Convention seeks “to
secure the prompt return of children wrongfully removed or
retained in any Contracting State,”; provides that such
“removal or retention is to be considered wrongful where” “it is
in breach of rights of custody attributed to a person under the
law of the State in which the child was theretofore habitually
resident,” and where “those rights had been actually exercised
or would have been so exercised but for the removal or
retention”; and defines “rights of custody” to “include the right
to determine the child’s place of residence.” The District Court
denied relief, holding that the father’s ne exeat right did not
constitute a “right of custody” under the Convention and, thus,
that the return remedy was not authorized. The Fifth Circuit
affirmed.
Held: Yes. Reversed and Remanded.
(a) The Convention applies because A.J.A. is under 16; he was habitual resident of Chile; and
both Chile and the United States are contracting states. The ICARA instructs the state or federal
court in which a petition alleging international child abduction has been filed to “decide the case in
accordance with the Convention.”
(b) That A.J.A. was wrongfully removed from Chile in violation of a “right of custody” is shown by
the Convention’s text, by the U.S. State Department’s views, by contracting states’ court decisions,
and by the Convention’s purposes. Because Mr. Abbott has direct and regular visitation rights, it
follows that he has a ne exeat right under article 49. The Convention recognizes that custody rights
can be decreed jointly or alone, and Mr. Abbott’s ne exeat right is best classified as a “joint right of
custody, which the Convention defines to “include rights relating to the care of the person of the
child and, in particular, the right to determine the child’s place of residence.” Mr. Abbott’s right to
decide A.J.A.’s country of residence allows him to “determine the child’s place of residence,”
especially given the Convention’s purpose to prevent wrongful removal across international
borders. It also gives him “rights relating to the care of the person of the child,” in that choosing
A.J.A.’s residence country can determine the shape of his early and adolescent years and his
language, identity, and culture and traditions. That a ne exeat right does not fit within traditional
physical custody notions is beside the point because the Convention’s definition of “rights of
custody” controls. This uniform, text-based approach ensures international consistency in
interpreting the Convention, foreclosing courts from relying on local usage to undermine
recognition of custodial arrangements in other countries and under other legal traditions. In any
case, this country has adopted modern conceptions of custody e.g., joint legal custody, that accord
with the Convention’s broad definition. Ms. Abbott mistakenly claims that a ne exeat right cannot
qualify as a right of custody because the Convention requires that any such right be capable of
“exercise.” When one parent removes a child without seeking the ne exeat holder’s consent, it is
an instance where the right would have been “exercised but for the removal or retention.” The Fifth
Circuit’s conclusion that a breach of a ne exeat right does not give rise to a return remedy would
render the Convention meaningless in many cases where it is most needed. A ne exeat right is not
even arguably a “right to take a child for a limited period of time.” Ms. Abbott’s argument that the
ne exeat order in this case cannot create a right of custody is not dispositive because Mr. Abbott
asserts rights under Minors Law, which do not derive from the order. This Court’s conclusion is
strongly supported and informed by the longstanding view of the State Department’s Office of
Children’s Issues, this country’s Convention enforcement entity, that ne exeat rights are rights of
custody. The Court owes deference to the Executive Branch’s treaty interpretations. There is no
reason to doubt this well-established canon here. The Executive, when dealing with delicate
foreign relations matters like international child abductions, possesses a great store of information
on practical realities such as the reactions from treaty partners to a particular treaty interpretation
and the impact that interpretation may have on the State Department’s ability to reclaim children
abducted from this country. The Court’s view is also substantially informed by the views of sister
contracting states on the issue, particularly because the ICARA directs that “uniform international
interpretation” of the Convention is part of its framework. While the Supreme Court of Canada has
reached an arguably contrary view, and French courts are divided, a review of the international law
confirms that courts and other legal authorities in England, Israel, Austria, South Africa, Germany,
Australia, and Scotland have accepted the rule that ne exeat rights are rights of custody within the
Convention’s meaning. Scholars agree that there is an emerging international consensus on the
matter. And the Convention’s history is fully consistent with the conclusion that ne exeat rights are
just one of the many ways in which custody of children can be exercised. The Court’s holding also
accords with the Convention’s objects and purposes. There is no reason to doubt the ability of
other contracting states to carry out their duty to make decisions in the best interests of the
children. To interpret the Convention to permit an abducting parent to avoid a return remedy, even
when the other parent holds a ne exeat right, runs counter to the Convention’s purpose of deterring
child abductions to a country that provides a friendlier forum. Denying such a remedy would
legitimize the very action, removal of the child, that the Convention was designed to prevent, while
requiring return of the child in cases like this one helps deter abductions and respects the
Convention’s purpose to prevent harms to the child resulting from abductions.
(c) While a parent possessing a ne exeat right has a right of custody and may seek a return
remedy, return will not automatically be ordered if the abducting parent can establish the
applicability of a Convention exception, such as “a grave risk that return would expose the child to
harm or an otherwise intolerable situation,” or the objection to removal by a child who has reached
a sufficient “age and degree of maturity” to state a preference. The proper interpretation and
application of exceptions may be addressed on remand.
Case
Stanley v.
Illinois
405 U.S. 645
(1972)
Subject
Facts
Parental Rights:
Death of
Primary Parent
Joan Stanley lived with Peter Stanley intermittently for 18
years, during which time they had three children. When Joan
Stanley died, Peter Stanley lost not only her but also his
children. Under Illinois law, the children of unwed fathers
become wards of the State upon the death of the mother.
Accordingly, upon Joan Stanley's death, in a dependency
proceeding instituted by the State of Illinois, Stanley's children
were declared wards of the State and placed with courtappointed guardians. Stanley appealed, claiming that he had
never been shown to be an unfit parent and that since married
fathers and unwed mothers could not be deprived of their
children without such a showing, he had been deprived of the
equal protection of the laws guaranteed him by the Fourteenth
Amendment. The Illinois Supreme Court accepted the fact that
Stanley's own unfitness had not been established but rejected
the equal protection claim, holding that Stanley could properly
be separated from his children upon proof of the single fact
that he and the dead mother had not been married. Stanley's
actual fitness as a father was irrelevant.
Stanley presses his equal protection claim here. The State
continues to respond that unwed fathers are presumed unfit to
raise their children and that it is unnecessary to hold
individualized hearings to determine whether particular fathers
are in fact unfit parents before they are separated from their
children. We granted certiorari to determine whether this
method of procedure by presumption could be allowed to
stand in light of the fact that Illinois allows married fatherswhether divorced, widowed, or separated-and mothers-even if
unwed-the benefit of the presumption that they are fit to raise
their children.
Issue Presented and Holding
Issue: Whether the Illinois statute violates the equal protection
clause of the Fourteenth Amendment
Held: Yes. Reversed and Remanded
1. Under the Due Process Clause of the Fourteenth
Amendment petitioner was entitled to a hearing on his fitness as
a parent before his children were taken from him. (a) The fact
that petitioner can apply for adoption or for custody and control
of his children does not bar his attack on the dependency
proceeding. (b) The State cannot, consistently with due process
requirements, merely presume that unmarried fathers in general
and petitioner in particular are unsuitable and neglectful
parents. Parental unfitness must be established on the basis of
individualized proof.
2. The denial to unwed fathers of the hearing on fitness
accorded to all other parents whose custody of their children is
challenged by the State constitutes a denial of equal protection
of the laws.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Equal Protection Clause prohibits
discrimination in jury selection on the basis of gender, or on the
assumption that an individual will be biased in a particular case
solely because that person happens to be a woman or a man.
J.E.B. v.
Alabama ex rel.
T.B.
511 U.S. 127
(1994)
Parental Rights:
Jury Selection
At petitioner's paternity and child support trial, respondent
State used 9 of its 10 peremptory challenges to remove male
jurors. The court empaneled an all-female jury after rejecting
petitioner's claim that the logic and reasoning of Batson v.
Kentucky, in which this Court held that the Equal Protection
Clause of the Fourteenth Amendment prohibits peremptory
strikes based solely on race-extend to forbid gender-based
peremptory challenges. The jury found petitioner to be the
father of the child in question and the trial court ordered him to
pay child support. The Alabama Court of Civil Appeals
affirmed.
Held: Yes. Reversed and Remanded.
The Equal Protection Clause prohibits discrimination in jury
selection on the basis of gender, or on the assumption that an
individual will be biased in a particular case solely because that
person happens to be a woman or a man. Respondent's
gender-based peremptory challenges cannot survive the
heightened equal protection scrutiny that this Court affords
distinctions based on gender. Respondent's rationale-that its
decision to strike virtually all males in this case may reasonably
have been based on the perception, supported by history, that
men otherwise totally qualified to serve as jurors might be more
sympathetic and receptive to the arguments of a man charged
in a paternity action, while women equally qualified might be
more sympathetic and receptive to the arguments of the child's
mother-is virtually unsupported and is based on the very
stereotypes the law condemns. The conclusion that litigants
may not strike potential jurors solely on the basis of gender
does not imply the elimination of all peremptory challenges. So
long as gender does not serve as a proxy for bias, unacceptable
jurors may still be removed, including those who are members
of a group or class that is normally subject to “rational basis”
review and those who exhibit characteristics that are
disproportionately associated with one gender. Nor is the value
of the peremptory challenge to the litigant diminished when the
peremptory is exercised in a gender-based manner. We know
that like race, gender matters. A plethora of studies make clear
that in rape cases, for example, female jurors are somewhat
more likely to vote to convict than male jurors. Moreover, though
there have been no similarly definitive studies regarding, for
example, sexual harassment, child custody, or spousal or child
abuse, one need not be a sexist to share the intuition that in
certain cases a person's gender and resulting life experience
will be relevant to his or her view of the case. “Jurors are not
expected to come into the jury box and leave behind all that
their human experience has taught them.” Individuals are not
expected to ignore as jurors what they know as men-or women.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the District Court erred in holding unconstitutional the State's
procedures for admitting a child for treatment to a state mental hospital, since on
the record in this case, Georgia's medical fact-finding processes are consistent
with constitutional guarantees.
Parham v. J. R.
442 U.S. 584
(1979)
Parental Rights:
Mental Health
Treatment for
Child
Appellees, children being treated in a Georgia state mental
hospital, instituted in Federal District Court a class action
against Georgia mental health officials. Appellees sought a
declaratory judgment that Georgia's procedures for voluntary
commitment of children under the age of 18 to state mental
hospitals violated the Due Process Clause of the Fourteenth
Amendment, and requested an injunction against their future
enforcement. Under the Georgia statute providing for the
voluntary admission of children to state regional hospitals,
admission begins with an application for hospitalization signed
by a parent or guardian and, upon application, the
superintendent of the hospital is authorized to admit
temporarily any child for “observation and diagnosis.” If after
observation the superintendent finds “evidence of mental
illness” and that the child is “suitable for treatment” in the
hospital, the child may be admitted “for such period and under
such conditions as may be authorized by law.” Under
Georgia's mental health statute, any child who has been
hospitalized for more than five days may be discharged at the
request of a parent or guardian, and the hospital
superintendent, even without a request for discharge, has an
affirmative duty to release any child “who has recovered from
his mental illness or who has sufficiently improved that the
superintendent determines that hospitalization of the patient is
no longer desirable.” The District Court held that Georgia's
statutory scheme was unconstitutional because it failed to
protect adequately the appellees' due process rights and that
the process due included at least the right after notice to an
adversary-type hearing before an impartial tribunal.
Held: Yes. Reversed and Remanded.
(a) Testing challenged state procedures under a due process claim requires a
balancing of (i) the private interest that will be affected by the official action; (ii)
the risk of an erroneous deprivation of interest through the procedures used,
and the probable value, of additional or substitute procedural safeguards; and
(iii) the state's interest, including the function and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail.
(b) Notwithstanding a child's liberty interest in not being confined
unnecessarily for medical treatment, and assuming that a person has a
protectible interest in not being erroneously labeled as mentally ill, parents-who
have traditional interests in and responsibility for the upbringing of their childretain a substantial, if not the dominant, role in the decision, absent a finding of
neglect or abuse. However, the child's rights and the nature of the commitment
decision are such that parents do not always have absolute discretion to
institutionalize a child; they retain plenary authority to seek such care for their
children, subject to an independent medical judgment.
(c) The State has significant interests in confining the use of costly mental
health facilities to cases of genuine need, in not imposing unnecessary
procedural obstacles that may discourage the mentally ill or their families from
seeking needed psychiatric assistance, and in allocating priority to the diagnosis
and treatment of patients as soon as they are admitted to a hospital rather than
to time-consuming preadmission procedures.
(d) The risk of error inherent in the parental decision to have a child
institutionalized for mental health care is sufficiently great that some kind of
inquiry should be made by a “neutral factfinder” to determine whether the
statutory requirements for admission are satisfied, and to probe the child's
background. The decisionmaker must have the authority to refuse to admit any
child who does not satisfy the medical standards for admission. The need for
continuing commitment must be reviewed periodically.
(e) Due process does not require that the neutral factfinder be law trained or a
judicial or administrative officer; nor is it necessary that the admitting physician
conduct a formal or quasi-formal adversary hearing or that the hearing be
conducted by someone other than the admitting physician. While the medical
decisionmaking process may not be error free, nevertheless the independent
medical decisionmaking process, which includes a thorough psychiatric
investigation followed by additional periodic review of a child's condition will
identify children who should not be admitted; risks of error will not be
significantly reduced by a more formal, judicial-type hearing.
(f) Georgia's practices, as described in the record, comport with minimum due
process requirements. The state statute envisions a careful diagnostic medical
inquiry to be conducted by the admitting physician at each regional hospital.
Georgia's procedures are not “arbitrary” in the sense that a single physician or
other professional has the “unbridled discretion” to commit a child to a regional
hospital. While Georgia's general administrative and statutory scheme for the
voluntary commitment of children is not unconstitutional, the District Court, on
remand, may consider any individual claims that the initial admissions of
particular children did not meet due process standards, and may also consider
whether the hospitals' procedures for periodic review of their patients' need for
institutional care are sufficient to justify continuing a voluntary commitment.
(g) The differences between the situation where the child is a ward of the
State of Georgia and the State requests his admission to a state mental
hospital, and the situation where the child's natural parents request his
admission, do not justify requiring different procedures at the time of the child's
initial admission to the hospital.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the PKPA provides an implied cause of action in
federal court to determine which of two conflicting state custody
decisions is valid.
Thompson v.
Thompson
484 U.S. 174
(1988)
Parental Rights:
Parental
Kidnapping
Under the Parental Kidnaping Prevention Act of 1980 (PKPA
or Act), States are required to afford full faith and credit to
valid child custody determinations entered by a sister State's
courts. When a California state court's award of joint custody
to respondent and petitioner over their son became infeasible
because of respondent's decision to move to Louisiana, the
court granted respondent sole custody pending an
investigator's report, whereupon the court intended to make a
more studied custody determination. After respondent
obtained a Louisiana court order enforcing the California
decree and awarding her sole custody, the California court,
having received and reviewed the investigator's report,
entered an order granting sole custody to petitioner. Without
first attempting to enforce the California decree in Louisiana,
petitioner filed suit in Federal District Court seeking an order
declaring the Louisiana decree invalid and the California
decree valid, and enjoining the enforcement of the Louisiana
decree. The court dismissed the complaint and the Court of
Appeals affirmed on the ground that petitioner had failed to
state a claim upon which relief could be granted.
Held: No. Affirmed.
The PKPA does not provide an implied cause of action in
federal court to determine which of two conflicting state custody
decisions is valid. The context in which the PKPA was enactedthe existence of jurisdictional deadlocks among the States in
custody cases and a nationwide problem of interstate parental
kidnaping-suggests that Congress' principal aim was to extend
the requirements of the Full Faith and Credit Clause to custody
determinations, and not to create an entirely new cause of
action. The language and placement of the Act reinforce this
conclusion, in that the Act is an addendum to, and is therefore
clearly intended to have the same operative effect as, the
federal full faith and credit statute, the Act's heading is “Full faith
and credit given to child custody determinations,” and, unlike
statutes that explicitly confer a right on a specified class of
persons, the Act is addressed to States and to state courts.
Moreover, in discussing the congressional rejection of a
competing legislative proposal that would have extended the
district courts' diversity jurisdiction to custody decree
enforcement actions, the PKPA's legislative history provides an
unusually clear indication that Congress did not intend the
federal courts to play the enforcement role. The fact that the
cause of action petitioner seeks to infer is narrower than the
congressionally rejected alternative is not controlling, since the
federal courts would still be entangled in traditional state-law
questions that they have little expertise to resolve. The
argument that failure to infer a cause of action would render the
PKPA nugatory is also not persuasive, since it is based on the
unacceptable presumption that the States are either unable or
unwilling to enforce the Act's provisions, and since ultimate
review remains available in this Court for truly intractable
deadlocks.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a mother who is the custodian of her child
pursuant to a court order may invoke the Fifth Amendment
privilege against self-incrimination to resist a subsequent court
order to produce the child.
Baltimore
Social Services
v. Bouknight
493 U.S. 549
(1990)
Parental Rights:
Privilege
Against SelfIncrimination
Based on evidence that respondent Bouknight had abused
petitioner Maurice M., her infant son, petitioner Baltimore City
Department of Social Services (BCDSS) secured a juvenile
court order removing Maurice from Bouknight's control. That
order was subsequently modified to return custody to
Bouknight pursuant to extensive conditions and subject to
further court order. After Bouknight violated the order's
conditions, the court granted BCDSS' petition to remove
Maurice from her control and held her in civil contempt when
she failed to produce the child as ordered. Rejecting her
subsequent claim that the contempt order violated the Fifth
Amendment's guarantee against self-incrimination, the court
stated that the contempt would be purged by the production of
Maurice and was issued not because Bouknight refused to
testify but because she failed to obey the production order. In
vacating the juvenile court's judgment upholding the contempt
order, the State Court of Appeals found that that order
unconstitutionally compelled Bouknight to admit through the
act of production a measure of continuing control over
Maurice in circumstances in which she had a reasonable
apprehension that she would be prosecuted.
Held: No. Reversed and remanded.
(a) Although the privilege applies only when an accused is
compelled to make an incriminating testimonial communication,
the fact that Bouknight could comply with the order through the
unadorned act of producing Maurice does not necessarily
deprive her of the privilege, because the act of complying may
testify to the existence, possession, or authenticity of the thing
produced.
(b) Even assuming that the act of production would amount to
a communication regarding Bouknight's control over, and
possession of, Maurice that is sufficiently incriminating and
testimonial in character, she may not invoke the privilege to
resist the production order in the present circumstances. The
ability to invoke the privilege is greatly diminished when
invocation would interfere with the effective operation of a
generally applicable regulatory regime constructed to effect the
State's public purposes unrelated to the enforcement of its
criminal laws, and when a person assumes control over items
that are the legitimate object of the government's noncriminal
regulatory powers. Here, Maurice's care and safety became the
particular object of the State's regulatory interest once the
juvenile court adjudicated him a child in need of assistance.
Moreover, by taking responsibility for such care subject to the
custodial order's conditions, Bouknight submitted to the
regulatory system's routine operation, agreed to hold Maurice in
a manner consonant with the State's interests, and accepted the
incident obligation to permit inspection. Furthermore, the State
imposes that obligation as part of a broadly directed,
noncriminal regulatory regime governing children cared for
pursuant to custodial orders. Persons who care for such
children are not a selective group inherently suspect of criminal
activities. Similarly, the efforts of BCDSS and the judiciary to
gain access to the children focus primarily on the children's wellbeing rather than on criminal conduct, and are enforced through
measures unrelated to criminal law enforcement. Finally,
production in the vast majority of cases will embody no
incriminating testimony.
(c) The custodial role that limits Bouknight's ability to resist the
production order may give rise to corresponding limitations upon
the State's ability to use the testimonial aspects of her act of
production directly or indirectly in any subsequent criminal
proceedings.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a parent has due process at a termination hearing and
what standard of proof is required.
Santosky v.
Kramer
455 U.S. 745
(1982)
Parental Rights:
Termination
Under New York law, the State may terminate, over parental
objection, the rights of parents in their natural child upon a
finding that the child is “permanently neglected.” The New
York Family Court Act (§622) requires that only a “fair
preponderance of the evidence” support that finding. Neglect
proceedings were brought in Family Court to terminate
petitioners' rights as natural parents in their three children.
Rejecting petitioners' challenge to the constitutionality of
§622's “fair preponderance of the evidence” standard, the
Family Court weighed the evidence under that standard and
found permanent neglect. After a subsequent dispositional
hearing, the Family Court ruled that the best interests of the
children required permanent termination of petitioners'
custody. The Appellate Division of the New York Supreme
Court affirmed, and the New York Court of Appeals dismissed
petitioners' appeal to that court.
Held: Vacated and Remanded.
1. Process is constitutionally due a natural parent at a state-initiated
parental rights termination proceeding. (a) The fundamental liberty interest
of natural parents in the care, custody, and management of their child is
protected by the Fourteenth Amendment, and does not evaporate simply
because they have not been model parents or have lost temporary custody
of their child to the State. A parental rights termination proceeding
interferes with that fundamental liberty interest. When the State moves to
destroy weakened familial bonds, it must provide the parents with
fundamentally fair procedures. (b) The nature of the process due in
parental rights termination proceedings turns on a balancing of three
factors: the private interests affected by the proceedings; the risk of error
created by the State's chosen procedure; and the countervailing
governmental interest supporting use of the challenged procedure. In any
given proceeding, the minimum standard of proof tolerated by the due
process requirement reflects not only the weight of the public and private
interests affected, but also a societal judgment about how the risk of error
should be distributed between the litigants. The minimum standard is a
question of federal law which this Court may resolve. Retrospective caseby-case review cannot preserve fundamental fairness when a class of
proceedings is governed by a constitutionally defective evidentiary
standard.
2. The “fair preponderance of the evidence” standard prescribed by §622
violates the Due Process Clause of the Fourteenth Amendment. (a) The
balance of private interests affected weighs heavily against use of such a
standard in parental rights termination proceedings, since the private
interest affected is commanding and the threatened loss is permanent.
Once affirmed on appeal, a New York decision terminating parental rights is
final and irrevocable. (b) A preponderance standard does not fairly allocate
the risk of an erroneous fact-finding between the State and the natural
parents. In parental rights termination proceedings, which bear many of the
indicia of a criminal trial, numerous factors combine to magnify the risk of
erroneous fact-finding. Coupled with the preponderance standard, these
factors create a significant prospect of erroneous termination of parental
rights. A standard of proof that allocates the risk of error nearly equally
between an erroneous failure to terminate, which leaves the child in an
uneasy status quo, and an erroneous termination, which unnecessarily
destroys the natural family, does not reflect properly the relative severity of
these two outcomes. (c) A standard of proof more strict than
preponderance of the evidence is consistent with the two state interests at
stake in parental rights termination proceedings-a parens patriae interest in
preserving and promoting the child's welfare and a fiscal and administrative
interest in reducing the cost and burden of such proceedings.
3. Before a State may sever completely and irrevocably the rights of
parents in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence. A “clear and
convincing evidence” standard adequately conveys to the fact-finder the
level of subjective certainty about his factual conclusions necessary to
satisfy due process. Determination of the precise burden equal to or greater
than that standard is a matter of state law properly left to state legislatures
and state courts.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether appointment of counsel for indigent defendants
in parental status termination proceedings is required by the
Constitution.
Lassiter v.
Department of
Social Servs. of
Durham Cty.
452 U.S. 18
(1981)
Parental Rights:
Termination
In 1975, a North Carolina state court adjudicated petitioner's
infant son to be a neglected child and transferred him to the
custody of respondent Durham County Department of Social
Services. A year later, petitioner was convicted of seconddegree murder, and she began a sentence of 25 to 40 years
of imprisonment. In 1978, respondent petitioned the court to
terminate petitioner's parental rights. Petitioner was brought
from prison to the hearing on the petition, and the court, after
determining, sua sponte, that she had been given ample
opportunity to obtain counsel and that her failure to do so was
without just cause, did not postpone the proceedings.
Petitioner did not aver that she was indigent, and the court did
not appoint counsel for her. At the hearing, petitioner crossexamined a social worker from respondent, and both
petitioner and her mother testified under the court's
questioning. The court thereafter terminated petitioner's
parental status, finding that she had not contacted respondent
about her child since December 1975, and that she had
“wilfully failed to maintain concern or responsibility for the
welfare of the minor.” The North Carolina Court of Appeals
rejected petitioner's sole contention on appeal that because
she was indigent, the Due Process Clause of the Fourteenth
Amendment required the State to provide counsel for her. The
North Carolina Supreme Court summarily denied discretionary
review.
Held: No. Affirmed.
1. The Constitution does not require the appointment of
counsel for indigent parents in every parental status termination
proceeding. The decision whether due process calls for the
appointment of counsel is to be answered in the first instance by
the trial court, subject to appellate review. (a) With regard to
what the “fundamental fairness” requirement of the Due Process
Clause means concerning the right to appointed counsel, there
is a presumption that an indigent litigant has a right to appointed
counsel only when, if he loses, he may be deprived of his
physical liberty. The other elements of the due process
decision-the private interest at stake, the government's interest,
and the risk that the procedures used will lead to erroneous
decisions, must be balanced against each other and then
weighed against the presumption. (b) The parent's interest in
the accuracy and justice of the decision to terminate parental
status is an extremely important one (and may be supplemented
by the dangers of criminal liability inherent in some termination
proceedings); the State shares with the parent an interest in a
correct decision, has a relatively weak pecuniary interest in
avoiding the expense of appointed counsel and the cost of the
lengthened proceedings his presence may cause, and, in some
but not all cases, has a possibly stronger interest in informal
procedures; and the complexity of the proceeding and the
incapacity of the uncounseled parent could be, but would not
always be, great enough to make the risk of an erroneous
deprivation of the parent's rights insupportably high. Thus if, in a
given case, the parent's interests were at their strongest, the
State's interests were at their weakest, and the risks of error
were at their peak, the Eldridge factors would overcome the
presumption against the right to appointed counsel, and due
process would require appointment of counsel.
2. In the circumstances of this case, the trial judge did not
deny petitioner due process of law when he did not appoint
counsel for her. The record shows, inter alia, that the petition to
terminate petitioner's parental rights contained no allegations of
neglect or abuse upon which criminal charges could be based;
no expert witnesses testified; the case presented no specially
troublesome points of law; the presence of counsel could not
have made a determinative difference for petitioner; she had
expressly declined to appear at the 1975 child custody hearing;
and the trial court found that her failure to make an effort to
contest the termination proceeding was without cause.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a State may block an indigent parent’s appellate review of the sufficiency of the
evidence on which the trial court based its parental termination decree.
MLB v. SLJ
519 U.S. 102
(1996)
Parental Rights:
Termination
In a decree forever terminating petitioner M.L.B.'s parental
rights to her two minor children, a Mississippi Chancery Court
recited a segment of the governing Mississippi statute and
stated, without elaboration, that respondents, the children's
natural father and his second wife, had met their burden of
proof by “clear and convincing evidence.” The Chancery
Court, however, neither described the evidence nor otherwise
revealed precisely why M.L.B. was decreed a stranger to her
children. M.L.B. filed a timely appeal from the termination
decree, but Mississippi law conditioned her right to appeal on
prepayment of record preparation fees estimated at
$2,352.36. Lacking funds to pay the fees, M.L.B. sought leave
to appeal in forma pauperis. The Supreme Court of
Mississippi denied her application on the ground that, under
its precedent, there is no right to proceed in forma pauperis in
civil appeals. Urging that the size of her pocketbook should
not be dispositive when “an interest far more precious than
any property right” is at stake, M.L.B. contends in this Court
that a State may not, consistent with the Due Process and
Equal Protection Clauses of the Fourteenth Amendment,
condition appeals from trial court decrees terminating parental
rights on the affected parent's ability to pay record preparation
fees.
Held: No. Reversed and remanded.
(a) The foundation case in the relevant line of decisions is Griffin v. Illinois, in which the Court
struck down an Illinois rule that effectively conditioned thoroughgoing appeals from criminal
convictions on the defendant's procurement of a transcript of trial proceedings. The Illinois rule
challenged in Griffin deprived most defendants lacking the means to pay for a transcript of any
access to appellate review. Although the Federal Constitution guarantees no right to appellate
review, once a State affords that right, Griffin held, the State may not “bolt the door to equal
justice.” The Griffin plurality drew support for its decision from the Due Process and Equal
Protection Clauses, while Justice Frankfurter emphasized and explained the decision's equal
protection underpinning. Of prime relevance to the question presented by M.L.B., Griffin 's principle
has not been confined to cases in which imprisonment is at stake, but extends to appeals from
convictions of petty offenses, involving conduct “quasi criminal” in nature. In contrast, an indigent
defendant's right to counsel at state expense does not extend to nonfelony trials if no term of
imprisonment is actually imposed.
(b) This Court has also recognized a narrow category of civil cases in which the State must
provide access to its judicial processes without regard to a party's ability to pay court fees. Making
clear, however, that a constitutional requirement to waive court fees in civil cases is the exception,
not the general rule, the Court has refused to extend Griffin to the broad array of civil cases. But
the Court has consistently set apart from the mine run of civil cases those involving state controls
or intrusions on family relationships. In that domain, to guard against undue official intrusion, the
Court has examined closely and contextually the importance of the governmental interest
advanced in defense of the intrusion.
(c) M.L.B.'s case, involving the State's authority to sever permanently a parent-child bond,
demands the close consideration the Court has long required when a family association “of basic
importance in our society” is at stake. The Court approaches M.L.B.'s petition mindful of the gravity
of the sanction imposed on her and in light of two prior decisions most immediately in point.
Although both Lassiter and Santosky yielded divided opinions, the Court was unanimously of the
view that “the interest of parents in their relationship with their children is sufficiently fundamental
to come within the finite class of liberty interests protected by the Fourteenth Amendment,” and
that “few consequences of judicial action are so grave as the severance of natural family ties.”
(d) Guided by Lassiter, Santosky, and other decisions acknowledging the primacy of the parentchild relationship, the Court agrees with M.L.B. that Mayer points to the disposition proper in this
case: Her parental termination appeal must be treated as the Court has treated petty offense
appeals, and Mississippi may not withhold the transcript she needs to gain review of the order
ending her parental status. The Court's decisions concerning access to judicial processes,
commencing with Griffin and running through Mayer, reflect both equal protection and due process
concerns. A “precise rationale” has not been composed, because cases of this order “cannot be
resolved by resort to easy slogans or pigeonhole analysis.” Nevertheless, “most decisions in this
area,” the Court has recognized, “rest on an equal protection framework,” as M.L.B.'s plea heavily
does, for due process does not independently require that the State provide a right to appeal.
Placing this case within the framework established by the Court's past decisions in this area, the
Court inspects the character and intensity of the individual interest at stake, on the one hand, and
the State's justification for its exaction, on the other. As in the case of the indigent petty offender
charged in Mayer, the stakes for M.L.B. are large. Parental status termination is “irretrievably
destructive” of the most fundamental family relationship. And the risk of error, Mississippi's
experience shows, is considerable. Mississippi has, consistent with Santosky, adopted a “clear and
convincing proof” standard for parental status termination cases, but the Chancellor's order in this
case simply recites statutory language; it describes no evidence, and otherwise details no reasons
for finding M.L.B. “clearly and convincingly” unfit to be a parent. Only a transcript can reveal the
sufficiency, or insufficiency, of the evidence to support that stern judgment. Mississippi's
countervailing interest in offsetting the costs of its court system is unimpressive when measured
against the stakes for M.L.B. The record discloses that, in the tightly circumscribed category of
parental status termination cases, appeals are few, and not likely to impose an undue burden on
the State. Moreover, it would be anomalous to recognize a right to a transcript needed to appeal a
misdemeanor conviction—though trial counsel may be flatly denied such a defendant—but hold, at
the same time, that a transcript need not be prepared for M.L.B.—though were her defense
sufficiently complex, state-paid counsel, as Lassiter instructs, would be designated for her. While
the Court does not question the general rule, stated in Ortwein, that fee requirements ordinarily are
examined only for rationality, the Court's cases solidly establish two exceptions to that rule. The
basic right to participate in political processes as voters and candidates cannot be limited to those
who can pay for a license. Nor may access to judicial processes in cases criminal or “quasi
criminal” in nature turn on ability to pay. The Court places decrees forever terminating parental
rights in the category of cases in which the State may not “bolt the door to equal justice.”
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether § 2254(a) confers jurisdiction on federal courts
to consider collateral challenges to state-court judgments
involuntarily terminating parental rights.
Lehman v.
Lycoming
County
Children's
Services
Agency
458 U.S. 502
(1982)
Parental Rights:
Termination
Petitioner voluntarily placed her three sons in the legal
custody of respondent county agency, which in turn placed
them in foster homes. Thereafter, a Pennsylvania state court
terminated petitioner's parental rights with respect to her sons
because of parental incapacity, and the Pennsylvania
Supreme Court affirmed. Petitioner then filed an action in
Federal District Court, seeking a writ of habeas corpus under
28 U.S.C. §2254(a), which requires a district court to entertain
an application for such a writ in behalf “of a person in custody”
pursuant to a state-court judgment in alleged violation of the
Federal Constitution. She requested a declaration of the
invalidity of the Pennsylvania statute under which her parental
rights were terminated and an order releasing her sons to her
custody. The District Court dismissed the petition on the
ground that respondent's custody over petitioner's sons was
not the type of custody to which §2254(a) may be addressed.
The Court of Appeals affirmed.
Held: No. Affirmed.
(a) Although the scope of the federal writ of habeas corpus
has been extended beyond that which the most literal reading of
the statute might require, the writ has not been considered a
generally available federal remedy for every violation of federal
rights. The writ's availability has been limited to challenges to
state-court judgments in situations where, as a result of a statecourt criminal conviction, a petitioner has suffered substantial
restraints not shared by the public generally, and the petitioner
has been found to be “in custody” within the meaning of
§2254(a). Here, petitioner's children are not in the “custody” of
the State in the way in which this term has been used in
determining the availability of the writ of habeas corpus. They
are in the “custody” of their foster parents in essentially the
same way, and to the same extent, other children are in the
custody of their natural or adoptive parents. They suffer no
restraint on liberty not shared by the public generally, nor do
they suffer “collateral consequences” sufficient to outweigh the
need for finality. To extend the federal writ to challenges to state
child-custody decisions based on alleged constitutional defects
collateral to the actual custody decision would be an
unprecedented expansion of the jurisdiction of the federal
courts.
(b) Federalism and the exceptional need for finality in childcustody disputes also argue strongly against the grant of the
writ here. Extended uncertainty for the children would be
inevitable in many cases if federal courts had jurisdiction to
relitigate state custody decisions.
(c) Habeas corpus has been used in child-custody cases in
many States and in England, and 28 U.S.C. §2255, authorizing
federal-court collateral review of federal decisions, could be
construed to include the type of custody to which petitioner's
children are subject. But reliance on what may be appropriate
within the federal system or within a state system is of little force
where, as in this case, a state judgment is attacked collaterally
in a federal court. Petitioner would have the federal judicial
system entertain a writ that is not time-barred to challenge
collaterally a final judgment entered in a state judicial system.
Case
Doe v.
Delaware
450 U.S. 382
(1981)
Subject
Facts
Parental Rights:
Termination
Appellants, a half brother and sister, are the natural parents of
five children who were in the custody of the Division of Social
Services of the Delaware Department of Health and Social
Services at the beginning of this litigation. After determining
that the children should be put up for adoption, the Division
filed suit pursuant to Delaware law to obtain termination of
appellants' parental rights over their children. Appellants
argued that the termination order and the Delaware statute
authorizing it were unconstitutional. Appellants challenge the
constitutionality of certain portions of the former Del. Code
Ann., Tit. 13, §§1101-1112 (1975), in effect while this litigation
was pending in the state courts. These provisions established
a “procedure for termination of parental rights for the purpose
of adoption or, if a suitable adoption plan cannot be effected,
for the purpose of providing for the care of the child by some
other plan which may or may not contemplate the continued
possibility of eventual adoption.” Petitions for termination of
parental rights could be filed by certain specified categories of
persons, including the Division. Upon a finding by the Superior
Court that the parents were “not fitted to continue to exercise
parental rights,” and that termination of existing parental rights
would be “in the best interests of the child,” the court was
required to issue an order of termination, and to transfer
parental rights to another person, organization, or agency.
The effect of the termination order was “that all of the rights,
duties, privileges and obligations recognized by law between
the parents and the child shall forever thereafter cease to exist
as fully and to all intents and purposes as if the child and the
parents were and always had been strangers.” Either an order
of termination or the consent of the natural parents was
required before children in the custody of the State could be
placed for adoption. The Superior Court of Delaware ordered
termination, and the Supreme Court of Delaware affirmed.
Issue Presented and Holding
Issue: Whether this statutory scheme for termination of parental
rights was invalid under the United States Constitution.
Held: The appeal is dismissed for want of a properly presented
federal question.
Case
Subject
Facts
Issue Presented and Holding
Issue: (1) Whether §2252A(a)(3)(B) is overbroad under the First Amendment,
and (2) Whether §2252A(a)(3)(B) is impermissibly vague under the Due Process
Clause
United States v.
Williams
553 U.S. 285
(2008)
Pornographic
Material:
Child
Pornography
After this Court found facially overbroad a federal statutory
provision criminalizing the possession and distribution of
material pandered as child pornography, regardless of
whether it actually was that, Ashcroft v. Free Speech
Coalition, Congress passed the pandering and solicitation
provision at issue, 18 U.S.C. §2252A(a)(3)(B). Respondent
Williams pleaded guilty to this offense and others, but
reserved the right to challenge his pandering conviction's
constitutionality. The District Court rejected his challenge, but
the Eleventh Circuit reversed, finding the statute both
overbroad under the First Amendment and impermissibly
vague under the Due Process Clause.
Held: No. Reversed.
1. No, §2252A(a)(3)(B) is not overbroad under the First Amendment. (a) A
statute is facially invalid if it prohibits a substantial amount of protected speech.
Section 2252A(a)(3)(B) generally prohibits offers to provide and requests to
obtain child pornography. It targets not the underlying material, but the collateral
speech introducing such material into the child-pornography distribution
network. Its definition of material or purported material that may not be pandered
or solicited precisely tracks the material held constitutionally proscribable in New
York v. Ferber, and Miller v. California: obscene material depicting (actual or
virtual) children engaged in sexually explicit conduct, and any other material
depicting actual children engaged in sexually explicit conduct. The statute's
important features include: (1) a scienter requirement; (2) operative verbs that
are reasonably read to penalize speech that accompanies or seeks to induce a
child pornography transfer from one person to another; (3) a phrase-“in a
manner that reflects the belief,” ibid.-that has both the subjective component
that the defendant must actually have held the “belief” that the material or
purported material was child pornography, and the objective component that the
statement or action must manifest that belief; (4) a phrase-“in a manner that is
intended to cause another to believe,” that has only the subjective element that
the defendant must “intend” that the listener believe the material to be child
pornography; and (5) a “sexually explicit conduct” definition that is very similar to
that in the New York statute upheld in Ferber. (b) As thus construed, the statute
does not criminalize a substantial amount of protected expressive activity. Offers
to engage in illegal transactions are categorically excluded from First
Amendment protection. The Eleventh Circuit mistakenly believed that this
exclusion extended only to commercial offers to provide or receive contraband.
The exclusion's rationale, however, is based not on the less privileged status of
commercial speech, but on the principle that offers to give or receive what it is
unlawful to possess have no social value and thus enjoy no First Amendment
protection. The constitutional defect in Free Speech Coalition's pandering
provision was that it went beyond pandering to prohibit possessing material that
could not otherwise be proscribed. The Eleventh Circuit's erroneous conclusion
led it to apply strict scrutiny to §2252A(a)(3)(B), lodging three fatal objections
that lack merit.
2. No, §2252A(a)(3)(B) is not impermissibly vague under the Due Process
Clause. A conviction fails to comport with due process if the statute under which
it is obtained fails to provide a person of ordinary intelligence fair notice of what
is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement. In the First Amendment context plaintiffs may argue
that a statute is overbroad because it is unclear whether it regulates a
substantial amount of protected speech. The Eleventh Circuit mistakenly
believed that “in a manner that reflects the belief” and “in a manner that is
intended to cause another to believe” were vague and standardless phrases
that left the public with no objective measure of conformance. What renders a
statute vague, however, is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been proved; but
rather the indeterminacy of what that fact is. There is no such indeterminacy
here. The statute's requirements are clear questions of fact. It may be difficult in
some cases to determine whether the requirements have been met, but courts
and juries every day pass upon the reasonable import of a defendant's
statements and upon “knowledge, belief and intent.”
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.
Ashcroft v.
Free Speech
Coalition
535 U.S. 234
(2002)
Pornographic
Material:
Child
Pornography
The Child Pornography Prevention Act of 1996 (CPPA)
expands the federal prohibition on child pornography to
include not only pornographic images made using actual
children, but also “any visual depiction, including any
photograph, film, video, picture, or computer or computergenerated image or picture,” that “is, or appears to be, of a
minor engaging in sexually explicit conduct,” and any sexually
explicit image that is “advertised, promoted, presented,
described, or distributed in such a manner that conveys the
impression” it depicts “a minor engaging in sexually explicit
conduct.” Thus, §2256(8)(B) bans a range of sexually explicit
images, sometimes called “virtual child pornography,” that
appear to depict minors but were produced by means other
than using real children, such as through the use of youthfullooking adults or computer-imaging technology. Section
2256(8)(D) is aimed at preventing the production or
distribution of pornographic material pandered as child
pornography. Fearing that the CPPA threatened their
activities, respondents, an adult-entertainment trade
association and others, filed this suit alleging that the “appears
to be” and “conveys the impression” provisions are overbroad
and vague, chilling production of works protected by the First
Amendment. The District Court disagreed and granted the
Government summary judgment, but the Ninth Circuit
reversed. Generally, pornography can be banned only if it is
obscene under Miller v. California, but pornography depicting
actual children can be proscribed whether or not the images
are obscene because of the State's interest in protecting the
children exploited by the production process, New York v.
Ferber, and in prosecuting those who promote such sexual
exploitation. The Ninth Circuit held the CPPA invalid on its
face, finding it to be substantially overbroad because it bans
materials that are neither obscene under Miller nor produced
by the exploitation of real children as in Ferber.
Held: Yes. Affirmed.
(a) Section 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons
the Government offers in support of limiting the freedom of speech have no justification in this Court's precedents or
First Amendment law. (1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the
Miller standard, which requires the Government to prove that the work in question, taken as a whole, appeals to the
prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or
scientific value. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction of
sexually explicit activity, no matter how it is presented. It is not necessary, moreover, that the image be patently
offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case
contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing the
visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been
a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore
themes within the wide sweep of the statute's prohibitions. If those movies contain a single graphic depiction of
sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry
into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work's artistic merit
does not depend on the presence of a single explicit scene. Under Miller, redeeming value is judged by considering
the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become
obscene, even though the scene in isolation might be offensive. The CPPA cannot be read to prohibit obscenity
because it lacks the required link between its prohibitions and the affront to community standards prohibited by the
obscenity definition. (2) The CPPA finds no support in Ferber. The Court rejects the Government's argument that
speech prohibited by the CPPA is virtually indistinguishable from material that may be banned under Ferber. That
case upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these
acts were “intrinsically related” to the sexual abuse of children in two ways. First, as a permanent record of a child's
abuse, the continued circulation itself would harm the child who had participated. Second, because the traffic in child
pornography was an economic motive for its production, the State had an interest in closing the distribution network.
Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it
came. In contrast to the speech in Ferber, speech that is itself the record of sexual abuse, the CPPA prohibits
speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically
related” to the sexual abuse of children. While the Government asserts that the images can lead to actual instances
of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but
depends upon some unquantified potential for subsequent criminal acts. The Government's argument that these
indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech,
suffers from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on
what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual
abuse, it does not fall outside the First Amendment's protection. Second, Ferber did not hold that child pornography
is by definition without value. It recognized some works in this category might have significant value, but relied on
virtual images-the very images prohibited by the CPPA-as an alternative and permissible means of expression.
Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding, it
provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. (3)
The Court rejects other arguments offered by the Government to justify the CPPA's prohibitions. The contention that
the CPPA is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the
principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield
children from it. That the evil in question depends upon the actor's unlawful conduct, defined as criminal quite apart
from any link to the speech in question, establishes that the speech ban is not narrowly drawn. The argument that
virtual child pornography whets pedophiles' appetites and encourages them to engage in illegal conduct is unavailing
because the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, absent
some showing of a direct connection between the speech and imminent illegal conduct. The argument that
eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as
well is somewhat implausible because few pornographers would risk prosecution for abusing real children if fictional,
computerized images would suffice. Moreover, even if the market deterrence theory were persuasive, the argument
cannot justify the CPPA because, here, there is no underlying crime at all. Finally, the First Amendment is turned
upside down by the argument that, because it is difficult to distinguish between images made using real children and
those produced by computer imaging, both kinds of images must be prohibited. The overbreadth doctrine prohibits
the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled
in the process. The Government's rejoinder that the CPPA should be read not as a prohibition on speech but as a
measure shifting the burden to the accused to prove the speech is lawful raises serious constitutional difficulties. The
Government misplaces its reliance on §2252A(c), which creates an affirmative defense allowing a defendant to avoid
conviction for nonpossession offenses by showing that the materials were produced using only adults and were not
otherwise distributed in a manner conveying the impression that they depicted real children. Even if an affirmative
defense can save a statute from First Amendment challenge, here the defense is insufficient because it does not
apply to possession or to images created by computer imaging, even where the defendant could demonstrate no
children were harmed in producing the images. Thus, the defense leaves unprotected a substantial amount of
speech not tied to the Government's interest in distinguishing images produced using real children from virtual ones.
(b) Section 2256(8)(D) is also substantially overbroad. The Court disagrees with the Government's view that the
only difference between that provision and §2256(8)(B)'s “appears to be” provision is that §2256(8)(D) requires the
jury to assess the material at issue in light of the manner in which it is promoted, but that the determination would still
depend principally upon the prohibited work's content. The “conveys the impression” provision requires little
judgment about the image's content; the work must be sexually explicit, but otherwise the content is irrelevant. Even
if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and
trailers convey the impression that such scenes will be found in the movie. The determination turns on how the
speech is presented, not on what is depicted. The Government's other arguments in support of the CPPA do not
bear on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal
trial. Pandering may be relevant, as an evidentiary matter, to the question whether particular materials are obscene.
Where a defendant engages in the “commercial exploitation” of erotica solely for the sake of prurient appeal, the
context created may be relevant to evaluating whether the materials are obscene. Section 2256(8)(D), however,
prohibits a substantial amount of speech that falls outside Ginzburg's rationale. Proscribed material is tainted and
unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or
described. The statute, furthermore, does not require that the context be part of an effort at “commercial
exploitation.” Thus, the CPPA does more than prohibit pandering. It bans possession of material pandered as child
pornography by someone earlier in the distribution chain, as well as a sexually explicit film that contains no youthful
actors but has been packaged to suggest a prohibited movie. Possession is a crime even when the possessor knows
the movie was mislabeled. The First Amendment requires a more precise restriction.
(c) In light of the foregoing, contention that §§2256(8)(B) and 2256(8)(D) are void for vagueness need not be
addressed.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §2252 is facially unconstitutional under the First
Amendment.
United States v.
X-Citement
Video
513 U.S. 64
(1994)
Pornographic
Material:
Child
Pornography
Respondents were convicted under the Protection of Children
Against Sexual Exploitation Act of 1977, which prohibits
“knowingly” transporting, shipping, receiving, distributing, or
reproducing a visual depiction, 18 U.S.C. §§2252(a)(1) and
(2), if such depiction “involves the use of a minor engaging in
sexually explicit conduct.” In reversing, the Ninth Circuit held,
inter alia, that §2252 was facially unconstitutional under the
First Amendment because it did not require a showing that the
defendant knew that one of the performers was a minor.
Held: No. Reversed.
Because the term “knowingly” in §§2252(a)(1) and (2)
modifies the phrase “the use of a minor” in subsections (1)(A)
and (2)(A), the Act is properly read to include a scienter
requirement for age of minority. This Court rejects the most
natural grammatical reading, adopted by the Ninth Circuit, under
which “knowingly” modifies only the relevant verbs in
subsections (1) and (2), and does not extend to the elements of
the minority of the performers, or the sexually explicit nature of
the material, because they are set forth in independent clauses
separated by interruptive punctuation. Some applications of that
reading would sweep within the statute's ambit actors who had
no idea that they were even dealing with sexually explicit
material, an anomalous result that the Court will not assume
Congress to have intended. Moreover, Morissette v. United
States, reinforced by Staples v. United States, instructs that the
standard presumption in favor of a scienter requirement should
apply to each of the statutory elements that criminalize
otherwise innocent conduct, and the minority status of the
performers is the crucial element separating legal innocence
from wrongful conduct under §2252. The legislative history,
although unclear as to whether Congress intended “knowingly”
to extend to performer age, persuasively indicates that the word
applies to the sexually explicit conduct depicted, and thereby
demonstrates that “knowingly” is emancipated from merely
modifying the verbs in subsections (1) and (2). As a matter of
grammar, it is difficult to conclude that the word modifies one of
the elements in subsections (1)(A) and (2)(A), but not the other.
This interpretation is supported by the canon that a statute is to
be construed where fairly possible so as to avoid substantial
constitutional questions.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, as applied to respondent and others who
distribute similar material, the statute in question violates the
First Amendment as applied to the States through the
Fourteenth Amendment.
New York v.
Ferber
458 U.S. 747
(1982)
Pornographic
Material:
Child
Pornography
A New York statute prohibits persons from knowingly
promoting a sexual performance by a child under the age of
16 by distributing material which depicts such a performance.
The statute defines “sexual performance” as any performance
that includes sexual conduct by such a child, and “sexual
conduct” is in turn defined as actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of
the genitals. Respondent bookstore proprietor was convicted
under the statute for selling films depicting young boys
masturbating, and the Appellate Division of the New York
Supreme Court affirmed. The New York Court of Appeals
reversed, holding that the statute violated the First
Amendment as being both underinclusive and overbroad. The
court reasoned that in light of the explicit inclusion of an
obscenity standard in a companion statute banning the
knowing dissemination of similarly defined material, the
statute in question could not be construed to include an
obscenity standard, and therefore would prohibit the
promotion of materials traditionally entitled to protection under
the First Amendment.
Held: No. Reversed and Remanded.
(a) The States are entitled to greater leeway in the regulation
of pornographic depictions of children for the following reasons:
(1) the legislative judgment that the use of children as subjects
of pornographic materials is harmful to the physiological,
emotional, and mental health of the child, easily passes muster
under the First Amendment; (2) the standard of Miller v.
California, for determining what is legally obscene is not a
satisfactory solution to the child pornography problem; (3) the
advertising and selling of child pornography provide an
economic motive for and are thus an integral part of the
production of such materials, an activity illegal throughout the
Nation; (4) the value of permitting live performances and
photographic reproductions of children engaged in lewd
exhibitions is exceedingly modest, if not de minimis; and (5)
recognizing and classifying child pornography as a category of
material outside the First Amendment's protection is not
incompatible with this Court's decisions dealing with what
speech is unprotected. When a definable class of material, such
as that covered by the New York statute, bears so heavily and
pervasively on the welfare of children engaged in its production,
the balance of competing interests is clearly struck, and it is
permissible to consider these materials as without the First
Amendment's protection.
(b) The New York statute describes a category of material the
production and distribution of which is not entitled to First
Amendment protection. Accordingly, there is nothing
unconstitutionally “underinclusive” about the statute, and the
State is not barred by the First Amendment from prohibiting the
distribution of such unprotected materials produced outside the
State.
(c) Nor is the New York statute unconstitutionally overbroad
as forbidding the distribution of material with serious literary,
scientific, or educational value. The substantial overbreath rule
of Broadrick v. Oklahoma applies. This is the paradigmatic case
of a state statute whose legitimate reach dwarfs its arguably
impermissible applications. “Whatever overbreadth may exist
should be cured through case-by-case analysis of the fact
situations to which the statute's sanctions, assertedly, may not
be applied.”
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Ohio may constitutionally proscribe the possession and viewing of child
pornography and whether Osborne’s First Amendment rights were violated.
Osborne v.
Ohio
495 U.S. 103
(1988)
Pornographic
Material:
Child
Pornography
After Ohio police found photographs in petitioner Osborne's
home, each of which depicted a nude male adolescent posed
in a sexually explicit position, he was convicted of violating a
state statute prohibiting any person from possessing or
viewing any material or performance showing a minor who is
not his child or ward in a state of nudity, unless (a) the
material or performance is presented for a bona fide purpose
by or to a person having a proper interest therein, or (b) the
possessor knows that the minor's parents or guardian has
consented in writing to such photographing or use of the
minor. An intermediate appellate court and the State Supreme
Court affirmed the conviction. The latter court rejected
Osborne's contention that the First Amendment prohibits the
States from proscribing the private possession of child
pornography. The court also found that the statute is not
unconstitutionally overbroad, since, in light of its specific
exceptions, it must be read as only applying to depictions of
nudity involving a lewd exhibition or graphic focus on the
minor's genitals, and since scienter is an essential element of
the offense. In rejecting Osborne's contention that the trial
court erred in not requiring the government to prove lewd
exhibition and scienter as elements of his crime, the court
emphasized that he had not objected to the jury instructions
given at his trial and stated that the failures of proof did not
amount to plain error.
Held: Reversed and Remanded.
1. Ohio may constitutionally proscribe the possession and viewing of child pornography.
Even assuming that Osborne has a valid First Amendment interest in such activities, this
case is distinct from Stanley v. Georgia, which struck down a Georgia law outlawing the
private possession of obscene material on the ground that the State's justifications for the
law-primarily, that obscenity would poison the minds of its viewers-were inadequate. In
contrast, Ohio does not rely on a paternalistic interest in regulating Osborne's mind, but has
enacted its law on the basis of its compelling interests in protecting the physical and
psychological well-being of minors and in destroying the market for the exploitative use of
children by penalizing those who possess and view the offending materials. Moreover,
Ohio's ban encourages possessors to destroy such materials, which permanently record the
victim's abuse and thus may haunt him for years to come, and which, available evidence
suggests, may be used by pedophiles to seduce other children.
2. Osborne's First Amendment overbreadth arguments are unpersuasive. (a) The Ohio
statute is not unconstitutionally overbroad. Although, on its face, the statute purports to
prohibit constitutionally protected depictions of nudity, it is doubtful that any overbreadth
would be “substantial” under this Court's cases, in light of the statutory exemptions and
“proper purposes” provisions. In any event, the statute, as construed by the Ohio Supreme
Court, plainly survives overbreadth scrutiny. By limiting the statute's operation to nudity that
constitutes lewd exhibition or focuses on genitals, that court avoided penalizing persons for
viewing or possessing innocuous photographs of naked children and thereby rendered the
“nudity” language permissible. Moreover, the statute's failure, on its face, to provide a mens
rea requirement is cured by the court's conclusion that the State must establish scienter
under the Ohio default statute specifying that recklessness applies absent a statutory intent
provision. (b) It was not impermissible for the State Supreme Court to rely on its narrowed
construction of the statute when evaluating Osborne's overbreadth claim. A statute as
construed may be applied to conduct occurring before the construction, provided such
application affords fair warning to the defendant. It is obvious from the face of the child
pornography statute, and from its placement within the “Sexual Offenses” chapter of the
Ohio Code, that Osborne had notice that his possession of the photographs at issue was
proscribed. Shuttlesworth v. Birmingham-which stands for the proposition that where a
State Supreme Court narrows an unconstitutionally overbroad statute, the State must
ensure that defendants are convicted under the statute as it is subsequently construed and
not as it was originally written-does not conflict with the holding in this case. Nor does
Massachusetts v. Oakes-in which five Justices agreed in a separate opinion that a state
legislature could not cure a potential overbreadth problem through a postconviction
statutory amendment-support Osborne's view that an overbroad statute is void as written,
such that a court may not narrow it, affirm a conviction on the basis of the narrowing
construction, and leave the statute in full force. Since courts routinely adopt the latter
course, acceptance of Osborne's proposition would require a radical reworking of American
law. Moreover, the Oakes approach is based on the fear that legislators who know they can
cure their own mistakes by amendment without significant cost may not be careful to avoid
drafting overbroad laws in the first place. A similar effect will not be likely if a judicial
construction of a statute to eliminate overbreadth is allowed to be applied in the case before
the Court, since legislatures cannot be sure that the statute, when examined by a court, will
be saved by a narrowing construction rather than invalidated for overbreadth, and since
applying even a narrowed statute to pending cases might be barred by the Due Process
Clause. Furthermore, requiring that statutes be facially invalidated whenever overbreadth is
perceived would very likely invite reconsideration or redefinition of the overbreadth doctrine
in a way that would not serve First Amendment interests.
3. Nevertheless, due process requires that Osborne's conviction be reversed and the
case remanded for a new trial, since it is unclear whether the conviction was based on a
finding that the State had proved each of the elements of the offense. It is true that this
Court is precluded from reaching the due process challenge with respect to the scienter
element of the crime because counsel's failure to comply with the state procedural rule
requiring an objection to faulty jury instructions constitutes an independent state-law ground
adequate to support the result below. However, this Court is not so barred with respect to
counsel's failure to object to the failure to instruct on lewdness, since, shortly before the
brief trial, counsel moved to dismiss on the ground that the statute was overbroad in its
failure to allow the viewing of innocent nude photographs. Nothing would be gained by
requiring counsel to object a second time, specifically to the jury instructions. The assertion
of federal rights, when plainly and reasonably made, may not be defeated under the name
of local practice.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the statute can constitutionally be applied to
defendant.
Massachusetts
v. Oakes
491 U.S. 576
(1989)
Pornographic
Material:
Child
Pornography
In 1984, respondent Oakes took color photographs of his
partially nude and physically mature 14-year-old stepdaughter,
L.S. He was indicted, tried, and convicted of violating a
Massachusetts statute §29A prohibiting adults from posing or
exhibiting minors “in a state of nudity” for purposes of visual
representation or reproduction in any publication, motion
picture, photograph, or picture. The Massachusetts Supreme
Judicial Court reversed the conviction. After holding that
Oakes' posing of L.S. was speech for First Amendment
purposes, the court struck down the statute as substantially
overbroad under the First Amendment without addressing
whether §29A could be constitutionally applied to Oakes. It
concluded that §29A criminalized conduct that virtually every
person would regard as lawful, such as the taking of family
photographs of nude infants. Subsequently, §29A was
amended to add a “lascivious intent” requirement to the
“nudity” portion of the statute and to eliminate exemptions
contained in the prior version.
Held: Vacated and Remanded.
1. As a practical matter, the intervening amendment of the
statute moots the overbreadth question in this case. Thus,
overbreadth analysis is inappropriate under Bigelow v. Virginia.
The overbreadth doctrine-an exception to the general rule that a
person to whom a statute may be constitutionally applied can no
longer challenge the statute on the ground that it may be
unconstitutionally applied to others-is designed to prevent the
chilling of protected expression, which the former version of
§29A cannot do since it has been repealed. That overbreadth
was discussed and rejected as a mode of analysis in Bigelowwhere there was no need to comment on that issue since the
defendant's conviction was reversed on the narrower and
alternative ground that the statute was unconstitutional as
applied-is evidence that the application of Bigelow does not
depend on whether other questions presented will be answered
adversely to the defendant. It is not constitutionally offensive to
decline to reach Oakes' challenge, since an overbroad statute is
not void ab initio but merely voidable. Since the special concern
that animates the overbreadth doctrine is no longer present, the
doctrine's benefits need not be extended to a defendant whose
conduct is not protected. Moreover, the amendment of a state
statute pending appeal to eliminate overbreadth is not different,
in terms of applying the new law to past conduct, from a state
appellate court adopting a limiting construction of a statute to
cure overbreadth. This Court has long held in the latter situation
that the statute, as construed, may be applied to conduct
occurring before the limiting construction.
2. Since the sole issue before this Court has become moot,
and a live dispute remains as to whether the former version of
§29A can constitutionally be applied to Oakes, this case is
remanded for a determination of that remaining live issue.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Georgia obscenity laws meet the First
Amendment standards.
Paris Adult
Theatre I v.
Slaton
413 U.S. 49
(1973)
Pornographic
Material:
Theaters
Petitioners are two Atlanta, Georgia, movie theaters and their
owners and managers, operating in the style of ‘adult’
theaters. On December 28, 1970, respondents, the local state
district attorney and the solicitor for the local state trial court,
filed civil complaints in that court alleging that petitioners were
exhibiting to the public for paid admission two allegedly
obscene films, contrary to Georgia Code Ann. §26-2101. The
two films in question, ‘Magic Mirror’ and ‘It All Comes Out in
the End,’ depict sexual conduct characterized by the Georgia
Supreme Court as ‘hard core pornography’ leaving ‘little to the
imagination.’ In a jury-waived trial, the trial court (which did not
require ‘expert’ affirmative evidence of obscenity) viewed the
films and thereafter dismissed the complaints on the ground
that the display of the films in commercial theaters to
consenting adult audiences (reasonable precautions having
been taken to exclude minors) was ‘constitutionally
permissible.’ The Georgia Supreme Court reversed, holding
that the films constituted ‘hard core’ pornography not within
the protection of the First Amendment.
Held: No. Vacated and Remanded
1. Obscene material is not speech entitled to First Amendment
protection.
2. The Georgia civil procedure followed here (assuming use of
a constitutionally acceptable standard for determining what is
unprotected by the First Amendment) comported with the
standards of Teitel Film Corp. v. Cusack, Freedman v.
Maryland, and Kingsley Books, Inc. v. Brown
3. It was not error to fail to require expert affirmative evidence
of the film's obscenity, since the films (which were the best
evidence of what they depicted) were themselves placed in
evidence.
4. States have a legitimate interest in regulating commerce in
obscene material and its exhibition in places of public
accommodation, including ‘adult’ theaters. (a) There is a proper
state concern with safeguarding against crime and the other
arguably ill effects of obscenity by prohibiting the public or
commercial exhibition of obscene material. Though conclusive
proof is lacking, the States may reasonably determine that a
nexus does or might exist between antisocial behavior and
obscene material, just as States have acted on unprovable
assumptions in other areas of public control. (b) Though States
are free to adopt a laissez-faire policy toward commercialized
obscenity, they are not constitutionally obliged to do so. (c)
Exhibition of obscene material in places of public
accommodation is not protected by any constitutional doctrine
of privacy. A commercial theater cannot be equated with a
private home; nor is there here a privacy right arising from a
special relationship, such as marriage. Nor can the privacy of
the home be equated with a ‘zone’ of ‘privacy’ that follows a
consumer of obscene materials wherever he goes. (d)
Preventing the unlimited display of obscene material is not
thought control. (e) Not all conduct directly involving ‘consenting
adults' only has a claim to constitutional protection.
5. The Georgia obscenity laws involved herein should now be
re-evaluated in the light of the First Amendment standards
newly enunciated by the Court in Miller v. California.
Case
California v.
LaRue
409 U.S. 109
(1972)
Subject
Pornographic
Material:
Adult Dancers
Facts
Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an
administrative agency vested by the California Constitution with primary authority
for the licensing of the sale of alcoholic beverages in that State, and with the
authority to suspend or revoke any such license if it determines that its continuation
would be contrary to public welfare or morals. Appellees include holders of various
liquor licenses issued by appellant, and dancers at premises operated by such
licensees. In 1970 the Department promulgated rules regulating the type of
entertainment that might be presented in bars and nightclubs that it licensed.
Appellees then brought this action in the United States District Court for the Central
District of California under the provisions of 28 U.S.C. §§1331, 1343, 2201, 2202,
and 42 U.S.C. §1983. A three-judge court was convened in accordance with 28
U.S.C. §§2281 and 2284, and the majority of that court held that substantial
portions of the regulations conflicted with the First and Fourteenth Amendments to
the United States Constitution.
Concerned with the progression in a few years' time from ‘topless' dancers to
‘bottomless' dancers and other forms of ‘live entertainment’ in bars and nightclubs
that it licensed, the Department heard a number of witnesses on the subject at
public hearings held prior to the promulgation of the rules. The majority opinion of
the District Court described the testimony in these words: ‘Law enforcement
agencies, counsel and owners of licensed premises and investigators for the
Department testified. The story that unfolded was a sordid one, primarily relating to
sexual conduct between dancers and customers.’ References to the transcript of
the hearings submitted by the Department to the District Court indicated that in
licensed establishments where ‘topless' and ‘bottomless' dancers, nude
entertainers, and films displaying sexual acts were shown, numerous incidents of
legitimate concern to the Department had occurred. Customers were found
engaging in oral copulation with women entertainers; customers engaged in public
masturbation; and customers placed rolled currency either directly into the vagina
of a female entertainer, or on the bar in order that she might pick it up herself.
Numerous other forms of contact between the mouths of male customers and the
vaginal areas of female performers were reported to have occurred. Prostitution
occurred in and around such licensed premises, and involved some of the female
dancers. Indecent exposure to young girls, attempted rape, rape itself, and
assaults on police officers took place on or immediately adjacent to such premises.
At the conclusion of the evidence, the Department promulgated the regulations
here challenged, imposing standards as to the type of entertainment that could be
presented in bars and nightclubs that it licensed. Those portions of the regulations
found to be unconstitutional by the majority of the District Court prohibited the
following kinds of conduct on licensed premises: (a) The performance of acts, or
simulated acts, of ‘sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation or any sexual acts which are prohibited by law’; (b) The
actual or simulated ‘touching, caressing or fondling on the breast, buttocks, anus or
genitals'; (c) The actual or simulated ‘displaying of the public hair, anus, vulva or
genitals'; (d) The permitting by a licensee of ‘any person to remain in or upon the
licensed premises who exposes to public view any portion of his or her genitals or
anus'; and, by a companion section, (e) The displaying of films or pictures depicting
acts a live performance of which was prohibited by the regulations quoted above.
Shortly before the effective date of the Department's regulations appellees
unsuccessfully sought discretionary review of them in both the State Court of
Appeal and the Supreme Court of California. The Department then joined with
appellees in requesting the three-judge District Court to decide the merits of
appellees' claims that the regulations were invalid under the Federal Constitution.
The District Court majority upheld the appellees' claim that the regulations in
question unconstitutionally abridged the freedom of expression guaranteed to them
by the First and Fourteenth Amendments to the United States Constitution. It
reasoned that the state regulations had to be justified either as a prohibition of
obscenity in accordance with the Roth line of decisions in this Court, or else as a
regulation of ‘conduct’ having a communicative element in it under the standards
laid down by this Court in United States v. O'Brien. Concluding that the regulations
would bar some entertainment that could not be called obscene under the Roth line
of cases, and that the governmental interest being furthered by the regulations did
not meet the tests laid down in O'Brien, the court enjoined the enforcement of the
regulations.
Issue Presented and Holding
Issue: Whether the regulations in question unconstitutionally abridged the freedom of
expression guaranteed to them by the First and Fourteenth Amendments.
Held: No. Reversed.
The state regulations here challenged come to us, not in the context of censoring a
dramatic performance in a theater, but rather in a context of licensing bars and
nightclubs to sell liquor by the drink. While the States, vested as they are with general
police power, require no specific grant of authority in the Federal Constitution to
legislate with respect to matters traditionally within the scope of the police power, the
broad sweep of the Twenty-first Amendment has been recognized as conferring
something more than the normal state authority over public health, welfare, and
morals. These decisions did not go so far as to hold or say that the Twenty-first
Amendment supersedes all other provisions of the United States Constitution in the
area of liquor regulations. A common element in the regulations struck down by the
District Court appears to be the Department's conclusion that the sale of liquor by the
drink and lewd or naked dancing and entertainment should not take place in bars and
cocktail lounges for which it has licensing responsibility. Based on the evidence from
the hearings that it cited to the District Court, and mindful of the principle that in
legislative rulemaking the agency may reason from the particular to the general we do
not think it can be said that the Department's conclusion in this respect was an
irrational one.
Appellees insist that the same results could have been accomplished by requiring
that patrons already well on the way to intoxication be excluded from the licensed
premises. But wide latitude as to choice of means to accomplish a permissible end
must be accorded to the state agency that is itself the repository of the State's power
under the Twenty-first Amendment. Nothing in the record before us or in common
experience compels the conclusion that either self-discipline on the part of the
customer or self-regulation on the part of the bartender could have been relied upon
by the Department to secure compliance with such an alternative plan of regulation.
The Department's choice of a prophylactic solution instead of one that would have
required its own personnel to judge individual instances of inebriation cannot,
therefore, be deemed an unreasonable one under the holdings of our prior cases. We
do not disagree with the District Court's determination that these regulations on their
face would proscribe some forms of visual presentation that would not be found
obscene under Roth and subsequent decisions of this Court. But we do not believe
that the state regulatory authority in this case was limited to either dealing with the
problem it confronted within the limits of our decisions as to obscenity, or in
accordance with the limits prescribed for dealing with some forms of communicative
conduct in O'Brien.
But as the mode of expression moves from the printed page to the commission of
public acts that may themselves violate valid penal statutes, the scope of permissible
state regulations significantly increases. States may sometimes proscribe expression
that is directed to the accomplishment of an end that the State has declared to be
illegal when such expression consists, in part, of ‘conduct’ or ‘action. The substance
of the regulations struck down prohibits licensed bars or nightclubs from displaying,
either in the form of movies or live entertainment, ‘performances' that partake more of
gross sexuality than of communication. While we agree that at least some of the
performances to which these regulations address themselves are within the limits of
the constitutional protection of freedom of expression, the critical fact is that California
has not forbidden these performances across the board. It has merely proscribed
such performances in establishments that it licenses to sell liquor by the drink.
Viewed in this light, we conceive the State's authority in this area to be somewhat
broader than did the District Court. This is not to say that all such conduct and
performance are without the protection of the First and Fourteenth Amendments. But
we would poorly serve both the interests for which the State may validly seek
vindication and the interests protected by the First and Fourteenth Amendments were
we to insist that the sort of bacchanalian revelries that the Department sought to
prevent by these liquor regulations were the constitutional equivalent of a
performance by a scantily clad ballet troupe in a theater. The Department's
conclusion, embodied in these regulations that certain sexual performances and the
dispensation of liquor by the drink ought not to occur at premises that have licenses
was not an irrational one. Given the added presumption in favor of the validity of the
state regulation in this area that the Twenty-first Amendment requires, we cannot hold
that the regulations on their face violate the Federal Constitution.
Case
Randall Book
Corporation v.
Maryland
464 U.S. 919
(1983)
Subject
Pornographic
Material:
Advertising
Facts
Petitioner was charged with violating Article 27, §416D of the
Maryland Code Annotated, which makes a person or firm
guilty of a misdemeanor “if it knowingly displays for advertising
purposes any picture, photograph, drawing, sculpture or other
visual representation or image of a person or portion of the
human body that depicts sadomasochistic abuse, sexual
conduct or sexual excitement, or any verbal description or
narrative account of these activities or items.” The Circuit
Court for Baltimore County dismissed the charges, concluding
that the statute was unconstitutionally vague and overbroad.
On the State's appeal, the Maryland Court of Special
Appeals reversed. The court, relying on Smiley v. State,
concluded that the statute is constitutional and remanded to
the trial court for further proceedings. In Smiley, the Maryland
Court of Appeals construed the statute to prohibit only
“obscene material,” which this Court has held is unprotected
by the First Amendment.
Issue Presented and Holding
Issue: Whether “obscene material is protected by the First
Amendment.
Held: The petition for writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Plaintiffs have standing and whether the case is constitutional.
Virginia v.
American
Booksellers
Ass'n, Inc.
484 U.S. 383
(1988)
Pornographic
Material:
Display
A 1985 amendment to a Virginia statute makes it unlawful for
any person “to knowingly display for commercial purposes in a
manner whereby juveniles may examine and peruse” certain
visual or written sexual or sadomasochistic material that is
harmful to juveniles. What is “harmful to juveniles” is defined
elsewhere in the statute. Plaintiffs, a number of booksellers'
organizations and two Virginia non-“adults only,” generalpurpose bookstores (appellees here), filed suit in Federal
District Court under 42 U.S.C. §1983, alleging that the
amendment is facially violative of the First Amendment in that
it significantly and unnecessarily burdens the expressive rights
of adults because of the economically devastating and
extremely restrictive measures booksellers must adopt to
comply; is overbroad in that it restricts access by mature
juveniles to works that are “harmful” only to younger children;
and is unconstitutionally vague because it is impossible to
determine what standard should be used in deciding whether
a work is appropriate for juveniles of different ages and levels
of maturity. At the trial, the owners of the bookstores
introduced as exhibits 16 general-subject books they believed
to be covered by the amendment, and testified that the law
might apply to as much as one-half of their inventory.
However, on cross-examination, they admitted their
unfamiliarity with the portion of the law defining “harmful to
juveniles.” Nevertheless, upon finding, inter alia, that the
amendment would cover between 5 and 25 percent of a
typical bookseller's inventory, the court held the amendment
unconstitutional and permanently enjoined its enforcement.
The Court of Appeals affirmed. Although critical of the
evidentiary basis for the determination, the court neither
accepted nor rejected the District Court's finding as to the
statute's scope. However, the court did declare that
booksellers would face “significant” difficulty in attempting to
comply. In so ruling, the court rejected the State's suggestion
that a bookseller could avoid prosecution by merely tagging
offensive materials or placing them behind “blinder” racks. The
court also questioned whether treating all juveniles identically
was constitutional, but did not determine the issue.
Held: The Court certifies the questions.
1. Plaintiffs had standing to bring suit. The “injury in fact” standing requirement
is met here, since the amendment is aimed directly at plaintiffs, who, if their
interpretation is correct, will have to take significant and costly compliance
measures or risk criminal prosecution. The usual rule that a party may assert
only a violation of its own rights must give way to the exception allowing the
assertion of the free expression rights of others, since plaintiffs have alleged an
infringement of the First Amendment rights of bookbuyers. The pre-enforcement
nature of the suit is irrelevant, since plaintiffs have alleged an actual and wellfounded fear that the statute will be enforced against them, and there is no
reason to assume otherwise. Indeed, the statute's alleged danger is, in large
measure, one of self-censorship; a harm that can be realized even without an
actual prosecution.
2. In light of the case's unique factual and procedural setting, this Court will
not attempt to decide the constitutional issues presented, but instead certifies
two questions of statutory interpretation to the Virginia Supreme Court, answers
to which will substantially aid this Court's review and may determine the case
entirely. (a) Under the unusual circumstances of the case, where the
amendment's constitutionality turns upon the way in which it is read, but where
none of the conflicting interpretations are reliable, and where the State Attorney
General apparently is willing to concede the case if the statute is not narrowly
interpreted, it is essential that this Court have the benefit of the Virginia
Supreme Court's authoritative answer to the certified question whether any of
the books introduced by plaintiffs as exhibits below fall within the statute's
scope, and what general standard should be used to determine the statute's
reach in light of juveniles' differing ages and levels of maturity. The Attorney
General's interpretation that the statute covers only a very few “borderline”
obscene works and none of plaintiffs' exhibits cannot be accepted as
authoritative, since the Attorney General does not bind the state courts or local
law enforcement authorities. Moreover, the District Court's holding that the law
applies to up to a quarter of a typical bookstore's inventory is not supported by
reliable evidence, since the bookstore owners who testified were unfamiliar with
the statutory definition of “harmful to minors.” Nor can the Court of Appeals'
construction that the amendment would confront booksellers with a “substantial”
compliance problem be relied upon, since, although it criticized the basis of the
District Court's holding, the Court of Appeals gave no alternative basis for its
own determination. (b) The question whether, as asserted by the State at oral
argument, the amendment is satisfied if a bookseller, as a matter of policy,
prevents a juvenile observed reviewing covered works from continuing to do so,
even if the restricted materials are not segregated from nonobjectionable works,
and, if not, whether the statute would be complied with if the store's policy were
announced or otherwise manifested to the public, is also certified, since an
affirmative answer to the first alternative would mean, while a positive response
to the second alternative might mean, that the burden to the bookseller, and
therefore to the adult bookbuying public, is significantly less than that feared and
asserted by plaintiffs. There is some advantage and no cost, either in terms of
the First Amendment chilling effect or unnecessary delay, in certifying this
question, which proffers a narrowing construction that is neither inevitable nor
impossible, in light of the unusual circumstances of this case; i.e., that another
question is already being certified, that enforcement of the statute will remain
enjoined throughout the certification process, and that no state court has ever
had the opportunity to interpret the pertinent statutory language.
Case
International
Amusements v.
Utah
434 U.S. 1023
(1978)
Subject
Pornographic
Material:
Distribution
Facts
Petitioners were convicted following a jury trial in the District
Court for Weber County, Utah, for distributing pornographic
material in violation of Utah Law §76-10-1204, which provided
“(1) A person is guilty of distributing pornographic material
when he knowingly: (c) Distributes or offers to distribute,
exhibits or offers to exhibit, any pornographic material to
others.” “Pornographic material” was defined by §76-10-1203
as: (a) The average person, applying contemporary
community standards, finds that, taken as a whole, it appeals
to prurient interest in sex; (b) It is patently offensive in the
description or depiction of nudity, sexual conduct, sexual
excitement, sadomasochistic abuse, or excretion; and (c)
Taken as a whole it does not have serious literary, artistic,
political or scientific value.” “(2) In any prosecution dealing
with an offense relating to pornographic material or
performances, or dealing in harmful material, the question
whether material or a performance appeals to prurient interest
in sex shall be determined with reference to average adults or
average minors as the case may be; (3) Neither the
prosecution nor the defense shall be required to introduce
expert witness testimony concerning the pornographic
character of the material or performance which is the subject
of a prosecution under this part.”
The conviction was affirmed by the Utah Supreme Court.
Issue Presented and Holding
Issue: Whether, in the absence of distribution to juveniles or
obtrusive exposure to unconsenting adults, the First and
Fourteenth Amendments prohibit the State and Federal
Governments from attempting wholly to suppress sexually
oriented materials on the basis of their allegedly ‘obscene’
contents.
Held: The petition for a writ of certiorari is denied.
Case
Film Follies,
Inc. v. Haas
426 U.S. 913
(1976)
Subject
Pornographic
Material:
Distribution
Facts
Action was brought for declaratory relief that the Oregon
statutes relating to prohibited sexual conduct and
dissemination of obscene material are unconstitutional under
the First and Fifth Amendments as applied to the States
through the Fourteenth Amendment. The Circuit Court entered
decree that the statutes were constitutional and dismissed
complaint and the plaintiff appealed. The Court of Appeals
held, inter alia, that statutes did not violate constitutional
provisions on freedom of expression, that statute relating to
defendant's affirmative burden of proof in obscenity cases, if
applicable, did not, as interpreted, render the new statutes
unconstitutional and that the Oregon constitutional provision
on freedom of expression did not provide broader protection in
speech-related areas than the First Amendment.
Oregon Laws 1973, c. 699, §4, provides in pertinent part:
(1) A person commits the crime of disseminating obscene
material if he knowingly makes, exhibits, sells, delivers or
provides, or offers or agrees to make, exhibit, sell, deliver or
provide, or has in his possession with intent to exhibit, sell,
deliver or provide any obscene writing, picture, motion picture,
films, slides, drawings or other visual reproduction.
(2) As used in subsection (1) of this section, matter is
obscene if: (a) It depicts or describes in a patently offensive
manner sadomasochistic abuse or sexual conduct; (b) The
average person applying contemporary state standards would
find the work, taken as a whole, appeals to the prurient
interest in sex; and (c) Taken as a whole, it lacks a serious
literary, artistic, political or scientific value.
Section 167.060(10) provides: Sexual conduct means
human masturbation, sexual intercourse, or any touching of
the genitals, public areas or buttocks of the human male or
female, or the breasts of the female, whether alone or
between members of the same or opposite sex or between
humans and animals in an act of apparent sexual stimulation
or gratification.
Issue Presented and Holding
Issue: Whether the statutes are unconstitutional under the First
and Fourteenth Amendments in that the State and Federal
Governments are prohibited from attempting wholly to suppress
sexually oriented materials on the basis of their allegedly
‘obscene’ contents.
Held: The appeal is dismissed for want of a substantial federal
question.
Case
Liles v. Oregon
425 U.S. 963
(1976)
Subject
Pornographic
Material:
Distribution
Facts
Petitioners were convicted of selling obscene motion picture
films in violation of the recently enacted and as yet uncodified
provisions of Oregon Laws 1973, c. 699, § 4. Section 4
provides:
(1) A person commits the crime of disseminating obscene
material if he knowingly makes, exhibits, sells, delivers or
provides, or offers or agrees to make, exhibit, sell, deliver or
provide, or has in his possession with intent to exhibit, sell,
deliver or provide any obscene writing, picture, motion picture,
films, slides, drawings or other visual reproduction.
(2) As used in subsection (1) of this section, matter is
obscene if: (a) It depicts or describes in a patently offensive
manner sadomasochistic abuse or sexual conduct; (b) The
average person applying contemporary state standards would
find the work, taken as a whole, appeals to the prurient
interest in sex; and (c) Taken as a whole, it lacks a serious
literary, artistic, political or scientific value.
The judgments of conviction were affirmed by the Oregon
Court of Appeals, and a timely petition for review was
subsequently denied by the Oregon Supreme Court.
Issue Presented and Holding
Issue: Whether the Oregon laws governing dissemination of
obscene material follow guidelines of United States Supreme
Court and do not violate constitutional prohibition against log
rolling.
Held: The petition for a writ of certiorari is denied.
Case
Ginsberg v.
State of N.Y.
390 U.S. 629
(1968)
Subject
Pornographic
Material:
Distribution to
Minors
Facts
Appellant and his wife operate ‘Sam's Stationery and
Luncheonette’ in Bellmore, Long Island. They have a lunch
counter, and, among other things, also sell magazines
including some so-called ‘girlie’ magazines. Appellant was
prosecuted under two informations, each in two counts, which
charged that he personally sold a 16-year-old boy two ‘girlie’
magazines on each of two dates in October 1965, in violation
of §484-h of the New York Penal Law, McKinney's
Consol.Laws. He was tried before a judge without a jury in
Nassau County District Court and was found guilty on both
counts. The judge found (1) that the magazines contained
pictures which depicted female ‘nudity’ in a manner defined in
subsection 1(b), that is ‘the showing of female buttocks with
less than a full opaque covering, or the showing of the female
breast with less than a fully opaque covering of any portion
thereof below the top of the nipple,’ and (2) that the pictures
were ‘harmful to minors' in that they had, within the meaning
of subsection 1(f) ‘that quality of representation of nudity
(which) (i) predominantly appeals to the prurient, shameful or
morbid interest of minors, and (ii) is patently offensive to
prevailing standards in the adult community as a whole with
respect to what is suitable material for minors, and (iii) is
utterly without redeeming social importance for minors.’ He
held that both sales to the 16-year-old boy therefore
constituted the violation under §484-h of ‘knowingly to sell to a
minor’ under 17 of ‘(a) any picture which depicts nudity and
which is harmful to minors,’ and ‘(b) any magazine which
contains (such pictures) and which, taken as a whole, is
harmful to minors.’ The conviction was affirmed without
opinion by the Appellate Term, Second Department, of the
Supreme Court. Appellant was denied leave to appeal to the
New York Court of Appeals and then appealed to this Court.
Issue Presented and Holding
Issue: Whether the New York criminal obscenity statute which
prohibits the sale to minors under 17 years of age of material
defined to be obscene on the basis of its appeal to them
whether or not it would be obscene to adults is constitutional.
Held: No. Affirmed.
Section 484-e of the law states a legislative finding that the
material condemned by §484-h is ‘a basic factor in impairing the
ethical and moral development of our youth and a clear and
present danger to the people of the state.’ It is very doubtful that
this finding expresses an accepted scientific fact. But obscenity
is not protected expression and may be suppressed without a
showing of the circumstances which lie behind the phrase ‘clear
and present danger’ in its application to protected speech. To
sustain state power to exclude material defined as obscenity by
§484-h requires only that we be able to say that it was not
irrational for the legislature to find that exposure to material
condemned by the statute is harmful to minors. In Meyer v.
State of Nebraska, we were able to say that children's
knowledge of the German language ‘cannot reasonably be
regarded as harmful.’ That cannot be said by us of minors'
reading and seeing sex material. To be sure, there is no lack of
‘studies' which purport to demonstrate that obscenity is or is not
‘a basic factor in impairing the ethical and moral development of
youth and a clear and present danger to the people of the state.’
But the growing consensus of commentators is that ‘while these
studies all agree that a causal link has not been demonstrated,
they are equally agreed that a causal link has not been
disproved either.’ We do not demand of legislatures
‘scientifically certain criteria of legislation.’ We therefore cannot
say that §484-h, in defining the obscenity of material on the
basis of its appeal to minors under 17, has no rational relation to
the objective of safeguarding such minors from harm
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Georgia obscenity statute, insofar as it
punishes mere private possession of obscene matter, violates
the First Amendment.
Stanley v.
Georgia
394 U.S. 557
(1969)
Pornographic
Material:
Possession
An investigation of appellant's alleged bookmaking activities
led to the issuance of a search warrant for appellant's home.
Under authority of this warrant, federal and state agents
secured entrance. They found very little evidence of
bookmaking activity, but while looking through a desk drawer
in an upstairs bedroom, one of the federal agents,
accompanied by a state officer, found three reels of eightmillimeter film. Using a projector and screen found in an
upstairs living room, they viewed the films. The state officer
concluded that they were obscene and seized them. Since a
further examination of the bedroom indicated that appellant
occupied it, he was charged with possession of obscene
matter and placed under arrest. He was later indicted for
‘knowingly having possession of obscene matter’ in violation
of Georgia law. Appellant was tried before a jury and
convicted. The Supreme Court of Georgia affirmed.
Held: Yes. Reversed and Remanded.
The mere private possession of obscene matter cannot
constitutionally be made a crime. Perhaps recognizing this,
Georgia asserts that exposure to obscene materials may lead to
deviant sexual behavior or crimes of sexual violence. There
appears to be little empirical basis for that assertion. But more
important, if the State is only concerned about printed or filmed
materials inducing antisocial conduct, we believe that in the
context of private consumption of ideas and information we
should adhere to the view that ‘among free men, the deterrents
ordinarily to be applied to prevent crime are education and
punishment for violations of the law.’ Given the present state of
knowledge, the State may no more prohibit mere possession of
obscene matter on the ground that it may lead to antisocial
conduct than it may prohibit possession of chemistry books on
the ground that they may lead to the manufacture of homemade
spirits. We hold that the First and Fourteenth Amendments
prohibit making mere private possession of obscene material a
crime. Roth and the cases following that decision are not
impaired by today's holding. As we have said, the States retain
broad power to regulate obscenity; that power simply does not
extend to mere possession by the individual in the privacy of his
own home.
Case
Subject
Facts
Issue Presented and Holding
Issue: (1) Whether the case is properly before the Court on appeal
from specific denial of injunctive relief; (2) Roe has standing to sue and
(3) whether the statute violates the Due Process Clause of the
Fourteenth Amendment, which protects against state action the right to
privacy, including a woman's qualified right to terminate her pregnancy.
Roe v. Wade
410 U.S. 113
(1973)
Right to
Abortion
A pregnant single woman (Roe) brought a class action
challenging the constitutionality of the Texas criminal abortion
laws, which proscribe procuring or attempting an abortion
except on medical advice for the purpose of saving the
mother's life. A licensed physician (Hallford), who had two
state abortion prosecutions pending against him, was
permitted to intervene. A childless married couple (the Does),
the wife not being pregnant, separately attacked the laws,
basing alleged injury on the future possibilities of
contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge
District Court, which consolidated the actions, held that Roe
and Hallford, and members of their classes, had standing to
sue and presented justiciable controversies. Ruling that
declaratory, though not injunctive, relief was warranted, the
court declared the abortion statutes void as vague and
overbroadly infringing those plaintiffs' Ninth and Fourteenth
Amendment rights. The court ruled the Does' complaint not
justiciable. Appellants directly appealed to this Court on the
injunctive rulings, and appellee cross-appealed from the
District Court's grant of declaratory relief to Roe and Hallford.
Held: Affirmed in part and reversed in part.
1. While 28 U.S.C. §1253 authorizes no direct appeal to this Court
from the grant or denial of declaratory relief alone, review is not
foreclosed when the case is properly before the Court on appeal from
specific denial of injunctive relief and the arguments as to both
injunctive and declaratory relief are necessarily identical.
2. Roe has standing to sue; the Does and Hallford do not. (a)
Contrary to appellee's contention, the natural termination of Roe's
pregnancy did not moot her suit. Litigation involving pregnancy, which
is ‘capable of repetition, yet evading review,’ is an exception to the
usual federal rule that an actual controversy must exist at review
stages and not simply when the action is initiated. (b) The District Court
correctly refused injunctive, but erred in granting declaratory, relief to
Hallford, who alleged no federally protected right not assertable as a
defense against the good-faith state prosecutions pending against him.
(c) The Does' complaint, based as it is on contingencies, any one or
more of which may not occur, is too speculative to present an actual
case or controversy.
3. State criminal abortion laws, like those involved here, that except
from criminality only a life-saving procedure on the mother's behalf
without regard to the stage of her pregnancy and other interests
involved violate the Due Process Clause of the Fourteenth
Amendment, which protects against state action the right to privacy,
including a woman's qualified right to terminate her pregnancy. Though
the State cannot override that right, it has legitimate interests in
protecting both the pregnant woman's health and the potentiality of
human life, each of which interests grows and reaches a ‘compelling’
point at various stages of the woman's approach to term. (a) For the
stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the
pregnant woman's attending physician. (b) For the stage subsequent to
approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal
health. (c) For the stage subsequent to viability the State, in promoting
its interest in the potentiality of human life, may, if it chooses, regulate,
and even proscribe, abortion except where necessary, in appropriate
medical judgment, for the preservation of the life or health of the
mother.
4. The State may define the term ‘physician’ to mean only a physician
currently licensed by the State, and may proscribe any abortion by a
person who is not a physician as so defined.
5. It is unnecessary to decide the injunctive relief issue since the
Texas authorities will doubtless fully recognize the Court's ruling that
the Texas criminal abortion statutes are unconstitutional.
Case
Gonzales v.
Carhart
550 U.S. 124
(2007)
Subject
Right to
Abortion:
Partial Birth
Abortion
Facts
Following this Court's decision that Nebraska's “partial birth abortion”
statute violated the Federal Constitution, as interpreted in Planned
Parenthood of Southeastern Pa. v. Casey, Congress passed the Partial–
Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of
ending fetal life in the later stages of pregnancy. The Act does not
regulate the most common abortion procedures used in the first trimester
of pregnancy, when the vast majority of abortions take place. In the usual
second-trimester procedure, “dilation and evacuation” (D & E), the doctor
dilates the cervix and then inserts surgical instruments into the uterus
and maneuvers them to grab the fetus and pull it back through the cervix
and vagina. The fetus is usually ripped apart as it is removed, and the
doctor may take 10 to 15 passes to remove it in its entirety. The
procedure that prompted the federal Act and various state statutes,
including Nebraska's, is a variation of the standard D & E, and is herein
referred to as “intact D & E.” The main difference between the two
procedures is that in intact D & E a doctor extracts the fetus intact or
largely intact with only a few passes, pulling out its entire body instead of
ripping it apart. In order to allow the head to pass through the cervix, the
doctor typically pierces or crushes the skull. The Act responded to
Stenberg in two ways. First, Congress found that unlike this Court in
Stenberg, it was not required to accept the District Court's factual
findings, and that that there was a moral, medical, and ethical consensus
that partial-birth abortion is a gruesome and inhumane procedure that is
never medically necessary and should be prohibited. Second, the Act's
language differs from that of the Nebraska statute struck down in
Stenberg. Among other things, the Act prohibits “knowingly performing a
partial-birth abortion that is not necessary to save the life of a mother.” It
defines “partial-birth abortion,” as a procedure in which the doctor: “(A)
deliberately and intentionally vaginally delivers a living fetus until, in the
case of a head-first presentation, the entire fetal head is outside the
mother's body, or, in the case of breech presentation, any part of the fetal
trunk past the navel is outside the mother's body, for the purpose of
performing an overt act that the person knows will kill the partially
delivered living fetus”; and “(B) performs the overt act, other than
completion of delivery, that kills the fetus.”
In No. 05–380, respondent abortion doctors challenged the Act's
constitutionality on its face, and the Federal District Court granted a
permanent injunction prohibiting petitioner Attorney General from
enforcing the Act in all cases but those in which there was no dispute the
fetus was viable. The court found the Act unconstitutional because it (1)
lacked an exception allowing the prohibited procedure where necessary
for the mother's health and (2) covered not merely intact D & E but also
other D & Es. Affirming, the Eighth Circuit found that a lack of consensus
existed in the medical community as to the banned procedure's
necessity, and thus Stenberg required legislatures to err on the side of
protecting women's health by including a health exception. In No. 05–
1382, respondent abortion advocacy groups brought suit challenging the
Act. The District Court enjoined the Attorney General from enforcing the
Act, concluding it was unconstitutional on its face because it (1) unduly
burdened a woman's ability to choose a second-trimester abortion, (2)
was too vague, and (3) lacked a health exception as required by
Stenberg. The Ninth Circuit agreed and affirmed.
Issue Presented and Holding
Issue: Whether the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on
its overbreadth or lack of a health exception.
Held: No. Reversed.
1. The Casey Court reaffirmed what it termed Roe's three-part “essential holding”: First, a woman has the right to choose to have an abortion
before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after
viability, if the law contains exceptions for pregnancies endangering the woman's life or health. And third, the State has legitimate interests
from the pregnancy's outset in protecting the health of the woman and the life of the fetus that may become a child. Though all three are
implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government's legitimate
interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the previability abortion right exists if a regulation's
“purpose or effect is to place a substantial obstacle in the woman's path,” but that “regulations which do no more than create a structural
mechanism by which the State may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to
the woman's exercise of the right to choose.” Casey struck a balance that was central to its holding, and the Court applies Casey's standard
here. A central premise of Casey's joint opinion—that the government has a legitimate, substantial interest in preserving and promoting fetal
life—would be repudiated were the Court now to affirm the judgments below.
2. The Act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth. (a) The Act's text
demonstrates that it regulates and proscribes performing the intact D & E procedure. First, since the doctor must “vaginally deliver a living
fetus,” the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or
hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living
organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a
specific anatomical landmark depending on the fetus' presentation, an abortion not involving such partial delivery is permitted. Third, because
the doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered fetus,” the “overt act” must be separate
from delivery. It must also occur after delivery to an anatomical landmark, since killing “the partially delivered” fetus, when read in context,
refers to a fetus that has been so delivered. Fourth, given the Act's scienter requirements, delivery of a living fetus past an anatomical
landmark by accident or inadvertence is not a crime because it is not “deliberate and intentional.” Nor is such a delivery prohibited if the fetus
has not been delivered for the purpose of performing an overt act that the doctor knows will kill it.” (b) The Act is not unconstitutionally vague
on its face. It satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors “of ordinary intelligence a reasonable
opportunity to know what is prohibited,” setting forth “relatively clear guidelines as to prohibited conduct” and providing “objective criteria” to
evaluate whether a doctor has performed a prohibited procedure. Second, it does not encourage arbitrary or discriminatory enforcement. Its
anatomical landmarks “establish minimal guidelines to govern law enforcement,” and its scienter requirements narrow the scope of its
prohibition and limit prosecutorial discretion. Respondents' arbitrary enforcement arguments, furthermore, are somewhat speculative, since this
is a preenforcement challenge. (c) The Court rejects respondents' argument that the Act imposes an undue burden, as a facial matter, because
its restrictions on second-trimester abortions are too broad. (i) The Act's text discloses that it prohibits a doctor from intentionally performing an
intact D & E. Its dual prohibitions correspond with the steps generally undertaken in this procedure: The doctor (1) delivers the fetus until its
head lodges in the cervix, usually past the anatomical landmark for a breech presentation, and (2) proceeds to the overt act of piercing or
crushing the fetal skull after the partial delivery. The Act's scienter requirements limit its reach to those physicians who carry out the intact D &
E, with the intent to undertake both steps at the outset. The Act excludes most D & Es in which the doctor intends to remove the fetus in pieces
from the outset. This interpretation is confirmed by comparing the Act with the Nebraska statute in Stenberg. There, the Court concluded that
the statute encompassed D & E, which “often involves a physician pulling a ‘substantial portion’ of a still living fetus, say, an arm or leg, into the
vagina prior to the death of the fetus,” and rejected the Nebraska Attorney General's limiting interpretation that the statute's reference to a
“procedure” that “kills the unborn child” was to a distinct procedure, not to the abortion procedure as a whole. It is apparent Congress
responded to these concerns because the Act adopts the phrase “delivers a living fetus,” instead of “delivering a living unborn child, or a
substantial portion thereof,” thereby targeting extraction of an entire fetus rather than removal of fetal pieces; identifies specific anatomical
landmarks to which the fetus must be partially delivered, thereby clarifying that the removal of a small portion of the fetus is not prohibited;
requires the fetus to be delivered so that it is partially “outside the mother's body,” ibid., thereby establishing that delivering a substantial
portion of the fetus into the vagina would not subject a doctor to criminal sanctions; and adds the overt-act requirement, thereby making the
distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced). Finally, the canon of constitutional avoidance,
extinguishes any lingering doubt. Interpreting the Act not to prohibit standard D & E is the most reasonable reading and understanding of its
terms. (ii) Respondents' contrary arguments are unavailing. The contention that any D & E may result in the delivery of a living fetus beyond
the Act's anatomical landmarks because doctors cannot predict the amount the cervix will dilate before the procedure does not take account of
the Act's intent requirements, which preclude liability for an accidental intact D & E. The evidence supports the legislative determination that an
intact delivery is almost always a conscious choice rather than a happenstance, belying any claim that a standard D & E cannot be performed
without intending or foreseeing an intact D & E. That many doctors begin every D & E with the objective of removing the fetus as intact as
possible based on their belief that this is safer does not prove, as respondents suggest, that every D & E might violate the Act, thereby
imposing an undue burden. It demonstrates only that those doctors must adjust their conduct to the law by not attempting to deliver the fetus to
an anatomical landmark. Respondents have not shown that requiring doctors to intend dismemberment before such a delivery will prohibit the
vast majority of D & E abortions.
3. The Act, measured by its text in this facial attack, does not impose a “substantial obstacle” to late-term, but previability, abortions, as
prohibited by the Casey plurality. (a) The contention that the Act's congressional purpose was to create such an obstacle is rejected. The Act's
stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community's ethics and
reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” Moreover, Casey
reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. The
Act's ban on abortions involving partial delivery of a living fetus furthers the Government's objectives. Congress determined that such abortions
are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life
and are close to actions that are condemned. The Act also recognizes that respect for human life finds an ultimate expression in a mother's
love for her child. Whether to have an abortion requires a difficult and painful moral decision, which some women come to regret. In a decision
so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is,
however, precisely this lack of information that is of legitimate concern to the State. The State's interest in respect for life is advanced by the
dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the
consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D &
E is in some respects as brutal, if not more, than intact D & E is unpersuasive. It was reasonable for Congress to think that partial-birth
abortion, more than standard D & E, undermines the public's perception of the doctor's appropriate role during delivery, and perverts the birth
process. (b) The Act's failure to allow the banned procedure's use where “necessary, in appropriate medical judgment, for the preservation of
the mother's health,” does not have the effect of imposing an unconstitutional burden on the abortion right. The Court assumes the Act's
prohibition would be unconstitutional, under controlling precedents, if it “subjected women to significant health risks.” Whether the Act creates
such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates
both sides have medical support for their positions. The Court's precedents instruct that the Act can survive facial attack when this medical
uncertainty persists. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for
human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not
foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support
the Court's conclusion, including the fact that safe alternatives to the prohibited procedure, such as D & E, are available. In addition, if intact D
& E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act's
prohibition only applies to the delivery of “a living fetus.” The Court rejects certain of the parties' arguments. On the one hand, the Attorney
General's contention that the Act should be upheld based on the congressional findings alone fails because some of the Act's recitations are
factually incorrect, and some of the important findings have been superseded. Also unavailing, however, is respondents' contention that an
abortion regulation must contain a health exception if “substantial medical authority supports the proposition that banning a particular
procedure could endanger women's health.” Interpreting Stenberg as leaving no margin for legislative error in the face of medical uncertainty is
too exacting a standard. Marginal safety considerations, including the balance of risks, are within the legislative competence where, as here,
the regulation is rational and pursues legitimate ends, and standard, safe medical options are available.
4. These facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider
exceptions is by as-applied challenge. This is the proper manner to protect the woman's health if it can be shown that in discrete and welldefined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used. No as-applied challenge need
be brought if the Act's prohibition threatens a woman's life, because the Act already contains a life exception.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the provisions in question violated this Court's decisions in Roe v. Wade
and subsequent cases.
Webster v.
Reproductive
Health Services
492 U.S. 490
(1989)
Right to
Abortion:
Status of the
Fetus
Appellees, state-employed health professionals and private
nonprofit corporations providing abortion services, brought suit
in the District Court for declaratory and injunctive relief
challenging the constitutionality of a Missouri statute
regulating the performance of abortions. The statute, inter alia:
(1) sets forth “findings” in its preamble that “the life of each
human being begins at conception,” and that “unborn children
have protectable interests in life, health, and well-being,” and
requires that all state laws be interpreted to provide unborn
children with the same rights enjoyed by other persons,
subject to the Federal Constitution and this Court's
precedents; (2) specifies that a physician, prior to performing
an abortion on any woman whom he has reason to believe is
20 or more weeks pregnant, must ascertain whether the fetus
is “viable” by performing “such medical examinations and tests
as are necessary to make a finding of the fetus' gestational
age, weight, and lung maturity”; (3) prohibits the use of public
employees and facilities to perform or assist abortions not
necessary to save the mother's life; and (4) makes it unlawful
to use public funds, employees, or facilities for the purpose of
“encouraging or counseling” a woman to have an abortion not
necessary to save her life. The District Court struck down
each of the above provisions, among others, and enjoined
their enforcement. The Court of Appeals affirmed, ruling that
the provisions in question violated this Court's decisions in
Roe v. Wade and subsequent cases.
Held: No. Reversed.
1. This Court need not pass on the constitutionality of the Missouri statute's preamble. In
invalidating the preamble, the Court of Appeals misconceived the meaning of the dictum in
Akron v. Akron Center for Reproductive Health, Inc., that “a State may not adopt one theory
of when life begins to justify its regulation of abortions.” That statement means only that a
State could not “justify” any abortion regulation otherwise invalid under Roe v. Wade on the
ground that it embodied the State's view about when life begins. The preamble does not by
its terms regulate abortions or any other aspect of appellees' medical practice, and
§1.205.2 can be interpreted to do no more than offer protections to unborn children in tort
and probate law, which is permissible under Roe v. Wade. This Court has emphasized that
Roe implies no limitation on a State's authority to make a value judgment favoring childbirth
over abortion, and the preamble can be read simply to express that sort of value judgment.
The extent to which the preamble's language might be used to interpret other state statutes
or regulations is something that only the state courts can definitively decide, and, until those
courts have applied the preamble to restrict appellees' activities in some concrete way, it is
inappropriate for federal courts to address its meaning.
2. The restrictions in §§188.210 and 188.215 of the Missouri statute on the use of public
employees and facilities for the performance or assistance of nontherapeutic abortions do
not contravene this Court's abortion decisions. The Due Process Clauses generally confer
no affirmative right to governmental aid, even where such aid may be necessary to secure
life, liberty, or property interests of which the government may not deprive the individual.
Thus, in Maher v. Roe; Poelker v. Doe; and Harris v. McRae, this Court upheld
governmental regulations withholding public funds for nontherapeutic abortions but allowing
payments for medical services related to childbirth, recognizing that a government's
decision to favor childbirth over abortion through the allocation of public funds does not
violate Roe v. Wade. A State may implement that same value judgment through the
allocation of other public resources, such as hospitals and medical staff. There is no merit
to the claim that Maher, Poelker, and McRae must be distinguished on the grounds that
preventing access to a public facility narrows or forecloses the availability of abortion. Just
as in those cases, Missouri's decision to use public facilities and employees to encourage
childbirth over abortion places no governmental obstacle in the path of a woman who
chooses to terminate her pregnancy, but leaves her with the same choices as if the State
had decided not to operate any hospitals at all. The challenged provisions restrict her ability
to obtain an abortion only to the extent that she chooses to use a physician affiliated with a
public hospital. Also without merit is the assertion that Maher, Poelker, and McRae must be
distinguished on the ground that, since the evidence shows that all of a public facility's costs
in providing abortion services are recouped when the patient pays such that no public funds
are expended, the Missouri statute goes beyond expressing a preference for childbirth over
abortion by creating an obstacle to the right to choose abortion that cannot stand absent a
compelling state interest. Nothing in the Constitution requires States to enter or remain in
the abortion business or entitles private physicians and their patients access to public
facilities for the performance of abortions. Indeed, if the State does recoup all of its costs in
performing abortions and no state subsidy, direct or indirect, is available, it is difficult to see
how any procreational choice is burdened by the State's ban on the use of its facilities or
employees for performing abortions. The cases in question all support the view that the
State need not commit any resources to performing abortions, even if it can turn a profit by
doing so.
3. The controversy over §188.205's prohibition on the use of public funds to encourage or
counsel a woman to have a nontherapeutic abortion is moot. The Court of Appeals did not
consider §188.205 separately from §§188.210 and 188.215-which respectively prohibit the
use of public employees and facilities for such counseling-in holding all three sections
unconstitutionally vague and violative of a woman's right to choose an abortion. Missouri
has appealed only the invalidation of § 88.205. In light of the State's claim, which this Court
accepts for purposes of decision, that §188.205 is not directed at the primary conduct of
physicians or health care providers, but is simply an instruction to the State's fiscal officers
not to allocate public funds for abortion counseling, appellees contend that they are not
“adversely” affected by the section and therefore that there is no longer a case or
controversy before the Court on this question. Since plaintiffs are masters of their
complaints even at the appellate stage, and since appellees no longer seek equitable relief
on their §188.205 claim, the Court of Appeals is directed to vacate the District Court's
judgment with instructions to dismiss the relevant part of the complaint with prejudice.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Nebraska's statute criminalizing the performance of “partial birth abortions” violates the Federal Constitution, as
interpreted in Casey and Roe.
Stenberg v.
Carhart
530 U.S. 914
(2000)
Right to
Abortion:
Partial Birth
Abortion
The Constitution offers basic protection to a woman's right to
choose whether to have an abortion. Before fetal viability, a
woman has a right to terminate her pregnancy, and a state
law is unconstitutional if it imposes on the woman's decision
an “undue burden,” i.e., if it has the purpose or effect of
placing a substantial obstacle in the woman's path. Postviability, the State, in promoting its interest in the potentiality of
human life, may regulate, and even proscribe, abortion except
where “necessary, in appropriate medical judgment, for the
preservation of the mother's life or health.” The Nebraska law
at issue prohibits any “partial birth abortion” unless that
procedure is necessary to save the mother's life. It defines
“partial birth abortion” as a procedure in which the doctor
“partially delivers vaginally a living unborn child before killing
the child,” and defines the latter phrase to mean “intentionally
delivering into the vagina a living unborn child, or a substantial
portion thereof, for the purpose of performing a procedure that
the abortionist knows will kill the child and does kill the child.”
Violation of the law is a felony, and it provides for the
automatic revocation of a convicted doctor's state license to
practice medicine. Respondent Carhart, a Nebraska physician
who performs abortions in a clinical setting, brought this suit
seeking a declaration that the statute violates the Federal
Constitution. The District Court held the statute
unconstitutional. The Eighth Circuit affirmed.
Held: Yes. Affirmed.
(a) Because the statute seeks to ban one abortion method, the Court discusses several different abortion procedures, as
described in the evidence below and the medical literature. During a pregnancy's second trimester (12 to 24 weeks), the most
common abortion procedure is “dilation and evacuation,” which involves dilation of the cervix, removal of at least some fetal
tissue using nonvacuum surgical instruments, and (after the 15th week) the potential need for instrumental dismemberment of
the fetus or the collapse of fetal parts to facilitate evacuation from the uterus. When such dismemberment is necessary, it
typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. The risks of mortality and
complication that accompany D & E are significantly lower than those accompanying induced labor procedures (the next safest
midsecond trimester procedures). A variation of D & E, known as “intact D & E,” is used after 16 weeks. It involves removing the
fetus from the uterus through the cervix “intact,” i.e., in one pass rather than several passes. The intact D & E proceeds in one of
two ways, depending on whether the fetus presents head first or feet first. The feet-first method is known as “dilation and
extraction” (D & X). D & X is ordinarily associated with the term “partial birth abortion.” The District Court concluded that clear
and convincing evidence established that Carhart's D & X procedure is superior to, and safer than, the D & E and other abortion
procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Carhart. Moreover, materials
presented at trial emphasize the potential benefits of the D & X procedure in certain cases.
(b) The Nebraska statute lacks the requisite exception “for the preservation of the health of the mother.” The State may
promote but not endanger a woman's health when it regulates the methods of abortion. (i) The Court rejects Nebraska's
contention that there is no need for a health exception here because safe alternatives remain available and a ban on partial birth
abortion/D & X would create no risk to women's health. The parties strongly contested this factual question in the District Court;
and the findings and evidence support Dr. Carhart. (ii) Nebraska and its supporting amici respond with eight arguments as to
why the District Court's findings are irrelevant, wrong, or applicable only in a tiny number of instances. (iii) The eight arguments
are insufficient to demonstrate that Nebraska's law needs no health exception. For one thing, certain of the arguments are
beside the point. The D & X procedure's relative rarity (argument (1)) is not highly relevant. The State cannot prohibit a person
from obtaining treatment simply by pointing out that most people do not need it. And the fact that only a “handful” of doctors use
the procedure (argument (2)) may reflect the comparative rarity of late second term abortions, the procedure's recent
development, the controversy surrounding it, or, as Nebraska suggests, the procedure's lack of utility. For another thing, the
record responds to Nebraska's medically based arguments. As to argument (3), the District Court agreed that alternatives such
as D & E and induced labor are “safe,” but found that the D & X method was safer in the circumstances used by Carhart. As to
argument (4)-that testimony showed that the statutory ban would not increase a woman's risk of several rare abortion
complications-the District Court simply relied on different expert testimony than the State. Argument (5)-the assertion of amici
Association of American Physicians and Surgeons et al. that elements of the D & X procedure may create special risks is
disputed by Carhart's amici, including the American College of Obstetricians and Gynecologists (ACOG), which claims that the
suggested alternative procedures involve similar or greater risks of cervical and uterine injury. Nebraska's argument (6) is rightthere are no general medical studies documenting the comparative safety of the various abortion procedures. Nor does the
Court deny the import of the American Medical Association's (AMA) recommendation (argument (7)) that intact D & X not be
used unless alternative procedures pose materially greater risk to the woman. However, the Court cannot read ACOG's
qualification that it could not identify a circumstance where D & X was the “only” life- or health-preserving option as if, according
to Nebraska's argument (8), it denied the potential health-related need for D & X. ACOG has also asserted that D & X can be the
most appropriate abortion procedure and presents a variety of potential safety advantages. (iv) The upshot is a District Court
finding that D & X obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might
be so, a division of medical opinion over whether D & X is generally safer, and an absence of controlled medical studies that
would help answer these medical questions. Given these circumstances, the Court believes the law requires a health exception.
For one thing, the word “necessary” in Casey's phrase “necessary, in appropriate medical judgment, for the health of the
mother,” cannot refer to absolute proof or require unanimity of medical opinion. Doctors often differ in their estimation of
comparative health risks and appropriate treatment. And Casey's words “appropriate medical judgment” must embody the
judicial need to tolerate responsible differences of medical opinion. For another thing, the division of medical opinion signals
uncertainty. If those who believe that D & X is a safer abortion method in certain circumstances turn out to be right, the absence
of a health exception will place women at an unnecessary risk. If they are wrong, the exception will simply turn out to have been
unnecessary.
(c) The Nebraska statute imposes an “undue burden” on a woman's ability to choose an abortion. (i) Nebraska does not deny
that the statute imposes an “undue burden” if it applies to the more commonly used D & E procedure as well as to D & X. This
Court agrees with the Eighth Circuit that the D & E procedure falls within the statutory prohibition of intentionally delivering into
the vagina a living fetus, or “a substantial portion thereof,” for the purpose of performing a procedure that the perpetrator knows
will kill the fetus. Because the evidence makes clear that D & E will often involve a physician pulling an arm, leg, or other
“substantial portion” of a still living fetus into the vagina prior to the fetus' death, the statutory terms do not to distinguish between
D & X and D & E. The statute's language does not track the medical differences between D & E and D & X, but covers both.
Using the law's statutory terms, it is impossible to distinguish between D & E (where a foot or arm is drawn through the cervix)
and D & X (where the body up to the head is drawn through the cervix). Both procedures can involve the introduction of a
“substantial portion” of a still living fetus, through the cervix, into the vagina-the very feature of an abortion that leads to
characterizing such a procedure as involving “partial birth.” (ii) The Court rejects the Nebraska Attorney General's arguments
that the state law does differentiate between the two procedures- i.e., that the words “substantial portion” mean “the child up to
the head,” such that the law is inapplicable where the physician introduces into the birth canal anything less than the entire fetal
body-and that the Court must defer to his views. The Court's case law makes clear that the Attorney General's narrowing
interpretation cannot be given controlling weight. For one thing, this Court normally follows lower federal-court interpretations of
state law, e.g., McMillian v. Monroe County, and rarely reviews such an interpretation that is agreed upon by the two lower
federal courts. Here, the two lower courts both rejected the Attorney General's narrowing interpretation. For another, the Court's
precedent warns against accepting as “authoritative” an Attorney General's interpretation of state law where, as here, that
interpretation does not bind the state courts or local law enforcement. In Nebraska, elected county attorneys have independent
authority to initiate criminal prosecutions. Some present prosecutors (and future Attorneys General) might use the law at issue to
pursue physicians who use D & E procedures. Nor can it be said that the lower courts used the wrong legal standard in
assessing the Attorney General's interpretation. The Eighth Circuit recognized its duty to give the law a construction that would
avoid constitutional doubt, but nonetheless concluded that the Attorney General's interpretation would twist the law's words,
giving them a meaning they cannot reasonably bear. The Eighth Circuit is far from alone in rejecting such a narrowing
interpretation, since 11 of the 12 federal courts that have interpreted on the merits the model statutory language on which the
Nebraska law is based have found the language potentially applicable to abortion procedures other than D & X. Regardless,
were the Court to grant the Attorney General's views “substantial weight,” it would still have to reject his interpretation, for it
conflicts with the statutory language. The statutory words, “substantial portion,” indicate that the statute does not include the
Attorney General's restriction-“the child up to the head.” The Nebraska Legislature's debates hurt the Attorney General's
argument more than they help it, indicating that as small a portion of the fetus as a foot would constitute a “substantial portion.”
Even assuming that the distinction the Attorney General seeks to draw between the overall abortion procedure itself and the
separate procedure used to kill an unborn child would help him make the D & E/D & X distinction he seeks, there is no language
in the statute that supports it. Although adopting his interpretation might avoid the constitutional problem discussed above, the
Court lacks power to do so where, as here, the narrowing construction is not reasonable and readily apparent. Finally, the Court
has never held that a federal litigant must await a state-court construction or the development of an established practice before
bringing the federal suit. But any authoritative state-court construction is lacking here. The Attorney General neither sought a
narrowing interpretation from the Nebraska Supreme Court nor asked the federal courts to certify the interpretive question. Even
were the Court inclined to certify the question now, it could not do so because certification is appropriate only where the statute
is “fairly susceptible” to a narrowing construction, as is not the case here. Moreover, the Nebraska Supreme Court grants
certification only if the certified question is determinative of the cause, as it would not be here. In sum, because all those who
perform abortion procedures using the D & E method must fear prosecution, conviction, and imprisonment, the Nebraska law
imposes an undue burden upon a woman's right to make an abortion decision.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Florida Supreme Court apply the appropriate level of scrutiny.
Madsen v.
Women's
Health Center,
Inc.
512 U.S. 753
(1994)
Right to
Abortion:
Access
After petitioners and other antiabortion protesters threatened
to picket and demonstrate around a Florida abortion clinic, a
state court permanently enjoined petitioners from blocking or
interfering with public access to the clinic, and from physically
abusing persons entering or leaving it. Later, when
respondent clinic operators sought to broaden the injunction,
the court found that access to the clinic was still being
impeded, that petitioners' activities were having deleterious
physical effects on patients and discouraging some potential
patients from entering the clinic, and that doctors and clinic
workers were being subjected to protests at their homes.
Accordingly, the court issued an amended injunction, which
applies to petitioners and persons acting “in concert” with
them, and which, inter alia, excludes demonstrators from a 36foot buffer zone around the clinic entrances and driveway and
the private property to the north and west of the clinic; restricts
excessive noisemaking within the earshot of, and the use of
“images observable” by, patients inside the clinic; prohibits
protesters within a 300-foot zone around the clinic from
approaching patients and potential patients who do not
consent to talk; and creates a 300-foot buffer zone around the
residences of clinic staff. In upholding the amended injunction
against petitioners' claim that it violated their First Amendment
right to freedom of speech, the Florida Supreme Court
recognized that the forum at issue is a traditional public forum;
refused to apply the heightened scrutiny dictated by Perry
Education Assn. v. Perry Local Educators' Assn., because the
injunction's restrictions are content neutral; and concluded that
the restrictions were narrowly tailored to serve a significant
government interest and left open ample alternative channels
of communication.
Held: Affirmed in part and Reversed in part.
1. The injunction at issue is not subject to heightened scrutiny as content or viewpoint based simply
because it restricts only the speech of antiabortion protesters. To accept petitioners' claim to the contrary
would be to classify virtually every injunction as content based. An injunction, by its very nature, does not
address the general public, but applies only to particular parties, regulating their activities, and perhaps
their speech, because of their past actions in the context of a specific dispute. The fact that this injunction
did not prohibit activities by persons demonstrating in favor of abortion is justly attributable to the lack of
such demonstrations and of any consequent request for relief. Moreover, none of the restrictions at issue
were directed at the content of petitioners' antiabortion message. The principal inquiry in determining
content neutrality is whether the government has regulated speech without reference to its content. The
government's purpose is therefore the threshold consideration. Here, the injunction imposed incidental
restrictions on petitioners' message because they repeatedly violated the original injunction. That the
injunction covers people who all share the same viewpoint suggests only that those in the group whose
conduct violated the court's order happen to share that viewpoint.
2. In evaluating a content-neutral injunction, the governing standard is whether the injunction's
challenged provisions burden no more speech than necessary to serve a significant government interest.
Thus, the injunction must be couched in the narrowest terms that will accomplish its pinpointed objective.
Although the forum around the clinic is a traditional public forum, the obvious differences between a
generally applicable ordinance-which represents a legislative choice to promote particular societal
interests-and an injunction-which remedies an actual or threatened violation of a legislative or judicial
decree, and carries greater risks of censorship and discriminatory application than an ordinance, but can
be tailored to afford greater relief where a violation of law has already occurred-require a somewhat more
stringent application of general First Amendment principles in this context than traditional time, place, and
manner analysis allows. The combination of the governmental interests identified by the Florida Supreme
Court-protecting a pregnant woman's freedom to seek lawful medical or counseling services, ensuring
public safety and order, promoting the free flow of traffic on public streets and sidewalks, protecting
citizens' property rights, and assuring residential privacy-is quite sufficient to justify an appropriately
tailored injunction.
3. Given the focus of the picketing on patients and clinic staff, the narrowness of the confines around the
clinic, the fact that protesters could still be seen and heard from the clinic parking lots, and the failure of the
first injunction to accomplish its purpose, the 36-foot buffer zone around the clinic entrances and driveway,
on balance, burdens no more speech than necessary to accomplish the governmental interests in
protecting access to the clinic and facilitating an orderly traffic flow on the street. The need for a complete
buffer zone may be debatable, but some deference must be given to the state court's familiarity with the
facts and the background of the dispute even under heightened review. Petitioners argued against
including the factual record as an appendix in the Florida Supreme Court, and never certified a full record.
This Court must therefore judge the case on the assumption that the evidence and testimony presented to
the state court supported its findings that the protesters' activities near the clinic's entrance interfered with
access despite the earlier injunction.
4. However, the 36-foot buffer zone as applied to the private property to the north and west of the clinic
burdens more speech than necessary to protect access to the clinic. Patients and staff wishing to reach the
clinic do not have to cross that property. Moreover, nothing in the record indicates that petitioners' activities
on the property have obstructed clinic access, blocked vehicular traffic, or otherwise unlawfully interfered
with the clinic's operation.
5. The limited noise restrictions imposed by the injunction burden no more speech than necessary to
ensure the health and well-being of the clinic's patients. Noise control is particularly important around
medical facilities during surgery and recovery periods. The First Amendment does not demand that
patients at such a facility undertake Herculean efforts to escape the cacophony of political protests.
6. The blanket ban on “images observable” sweeps more broadly than necessary to accomplish the goals
of limiting threats to clinic patients or their families and reducing the patients' level of anxiety and
hypertension inside the clinic. Prohibiting the display of signs that could be interpreted as threats or veiled
threats would satisfy the first goal, while a clinic could simply pull its curtains to protect a patient bothered
by a disagreeable placard.
7. Absent evidence that the protesters' speech is independently proscribable (i.e., “fighting words” or
threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, the 300foot no-approach zone around the clinic-and particularly its consent requirement-burdens more speech
than is necessary to accomplish the goals of preventing intimidation and ensuring access to the clinic.
8. The 300-foot buffer zone around staff residences sweeps more broadly than is necessary to protect
the tranquility and privacy of the home. The record does not contain sufficient justification for so broad a
ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets
outside a smaller zone could have accomplished the desired results. As to the use of sound amplification
equipment within the zone, however, the government may demand that petitioners turn down the volume if
the protests overwhelm the neighborhood.
9. Petitioners, as named parties in the injunction, lack standing to challenge its “in concert” provision as
applied to persons who are not parties. Moreover, that phrase is not subject, at petitioners' behest, to a
challenge for “overbreadth.” Nor does the “in concert” provision impermissibly burden their freedom of
association. They are not enjoined from associating with others or from joining with them to express a
particular viewpoint, and the First Amendment does not protect joining with others to deprive third parties of
their lawful rights.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Hyde Amendment had substantively amended Title XIX to relieve a State of
any obligation to fund those medically necessary abortions for which federal reimbursement is
unavailable, but that the Amendment violates the equal protection component of the Fifth
Amendment's Due Process Clause and the Free Exercise Clause of the First Amendment.
Harris v. McRae
448 U.S. 297
(1980)
Right to
Abortion:
Federal Funds
Title XIX of the Social Security Act established the Medicaid
program in 1965 to provide federal financial assistance to
States that choose to reimburse certain costs of medical
treatment for needy persons. Since 1976, versions of the socalled Hyde Amendment have severely limited the use of any
federal funds to reimburse the cost of abortions under the
Medicaid program. Actions were brought in Federal District
Court by appellees (including indigent pregnant women, who
sued on behalf of all women similarly situated, the New York
City Health and Hospitals Corp., which operates hospitals
providing abortion services, officers of the Women's Division
of the Board of Global Ministries of the United Methodist
Church (Women's Division), and the Women's Division itself),
seeking to enjoin enforcement of the Hyde Amendment on
grounds that it violates, inter alia, the Due Process Clause of
the Fifth Amendment and the Religion Clauses of the First
Amendment, and that, despite the Hyde Amendment, a
participating State remains obligated under Title XIX to fund
all medically necessary abortions. Ultimately, the District
Court, granting injunctive relief, held that the Hyde
Amendment had substantively amended Title XIX to relieve a
State of any obligation to fund those medically necessary
abortions for which federal reimbursement is unavailable, but
that the Amendment violates the equal protection component
of the Fifth Amendment's Due Process Clause and the Free
Exercise Clause of the First Amendment.
Held: No. Reversed and Remanded.
1. Title XIX does not require a participating State to pay for those medically necessary abortions
for which federal reimbursement is unavailable under the Hyde Amendment. (a) The cornerstone
of Medicaid is financial contribution by both the Federal Government and the participating State.
Nothing in Title XIX as originally enacted or in its legislative history suggests that Congress
intended to require a participating State to assume the full costs of providing any health services in
its Medicaid plan. To the contrary, Congress' purpose in enacting Title XIX was to provide federal
financial assistance for all legitimate state expenditures under an approved Medicaid plan. (b) Nor
does the Hyde Amendment's legislative history contain any indication that Congress intended to
shift the entire cost of some medically necessary abortions to the participating States, but rather
suggests that Congress has always assumed that a participating State would not be required to
fund such abortions once federal funding was withdrawn pursuant to the Hyde Amendment.
2. The funding restrictions of the Hyde Amendment do not impinge on the “liberty” protected by
the Due Process Clause of the Fifth Amendment held in Roe v. Wade, to include the freedom of a
woman to decide whether to terminate a pregnancy. (a) The Hyde Amendment places no
governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but
rather, by means of unequal subsidization of abortion and other medical services, encourages
alternative activity deemed in the public interest. (b) Regardless of whether the freedom of a
woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of
the due process liberty recognized in Wade, supra, it does not follow that a woman's freedom of
choice carries with it a constitutional entitlement to the financial resources to avail herself of the full
range of protected choices. Although government may not place obstacles in the path of a
woman's exercise of her freedom of choice, it need not remove those not of its own creation, and
indigency falls within the latter category. Although Congress has opted to subsidize medically
necessary services generally, but not certain medically necessary abortions, the fact remains that
the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding
whether to obtain a medically necessary abortion as she would have had if Congress had chosen
to subsidize no health care costs at all. (c) To translate the limitation on governmental power
implicit in the Due Process Clause into an affirmative funding obligation would require Congress to
subsidize the medically necessary abortion of an indigent woman even if Congress had not
enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due
Process Clause supports such an extraordinary result.
3. Nor does the Hyde Amendment violate the Establishment Clause of the First Amendment. The
fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of
the Roman Catholic Church does not, without more, contravene that Clause.
4. Appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise
Clause of the First Amendment. The named appellees consisting of indigent pregnant women
suing on behalf of other women similarly situated lack such standing because none alleged, much
less proved, that she sought an abortion under compulsion of religious belief. The named
appellees consisting of officers of the Women's Division, although they provided a detailed
description of their religious beliefs, failed to allege either that they are or expect to be pregnant or
that they are eligible to receive Medicaid, and they therefore lacked the personal stake in the
controversy needed to confer standing to raise such a challenge to the Hyde Amendment. And the
Women's Division does not satisfy the standing requirements for an organization to assert the
rights of its membership, since the asserted claim is one that required participation of the individual
members for a proper understanding and resolution of their free exercise claims.
5. The Hyde Amendment does not violate the equal protection component of the Due Process
Clause of the Fifth Amendment. (a) While the presumption of constitutional validity of a statutory
classification that does not itself impinge on a right or liberty protected by the Constitution
disappears if the classification is predicated on criteria that are “suspect,” the Hyde Amendment is
not predicated on a constitutionally suspect classification. Although the impact of the Amendment
falls on the indigent, that fact does not itself render the funding restrictions constitutionally invalid,
for poverty, standing alone, is not a suspect classification. (b) Where, as here, Congress has
neither invaded a substantive constitutional right or freedom, nor enacted legislation that
purposefully operates to the detriment of a suspect class, the only requirement of equal protection
is that congressional action be rationally related to a legitimate governmental interest. The Hyde
Amendment satisfies that standard, since, by encouraging childbirth except in the most urgent
circumstances, it is rationally related to the legitimate governmental objective of protecting
potential life.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the five provisions of the Pennsylvania Abortion Control Act of 1982 are constitutional.
Planned
Parenthood v.
Casey
505 U.S. 833
(1992)
Right to
Abortion:
Informed
Consent
At issue are five provisions of the Pennsylvania Abortion
Control Act of 1982: §3205, which requires that a woman
seeking an abortion give her informed consent prior to the
procedure, and specifies that she be provided with certain
information at least 24 hours before the abortion is performed;
§3206, which mandates the informed consent of one parent
for a minor to obtain an abortion, but provides a judicial
bypass procedure; §3209, which commands that, unless
certain exceptions apply, a married woman seeking an
abortion must sign a statement indicating that she has notified
her husband; §3203, which defines a “medical emergency”
that will excuse compliance with the foregoing requirements;
and §§ 3207(b), 3214(a), and 3214(f), which impose certain
reporting requirements on facilities providing abortion
services. Before any of the provisions took effect, the
petitioners, five abortion clinics and a physician representing
himself and a class of doctors who provide abortion services,
brought this suit seeking a declaratory judgment that each of
the provisions was unconstitutional on its face, as well as
injunctive relief. The District Court held all the provisions
unconstitutional and permanently enjoined their enforcement.
The Court of Appeals affirmed in part and reversed in part,
striking down the husband notification provision but upholding
the others.
Held: Affirmed in part and reversed in part. Remanded.
(1) a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it
without undue interference from the State, whose previability interests are not strong enough to support an
abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the
procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains
exceptions for pregnancies endangering a woman's life or health; and (3) the principle that the State has
legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of
the fetus that may become a child.
(a) A reexamination of the principles that define the woman's rights and the State's authority regarding
abortions is required by the doubt this Court's subsequent decisions have cast upon the meaning and
reach of Roe's central holding and by the necessity that courts and legislatures have adequate guidance.
(b) Roe determined that a woman's decision to terminate her pregnancy is a “liberty” protected against
state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment.
Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's
adoption marks the outer limits of the substantive sphere of such “liberty.” Rather, the adjudication of
substantive due process claims may require this Court to exercise its reasoned judgment in determining
the boundaries between the individual's liberty and the demands of organized society. The Court's
decisions have afforded constitutional protection to personal decisions relating to marriage, family
relationships, child rearing and education, and contraception, and have recognized the right of the
individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child. Roe's central holding properly invoked the
reasoning and tradition of these precedents.
(c) Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed.
In reexamining that holding, the Court's judgment is informed by a series of prudential and pragmatic
considerations designed to test the consistency of overruling the holding with the ideal of the rule of law,
and to gauge the respective costs of reaffirming and overruling.
(d) Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it
does a simple limitation beyond which a state law is unenforceable.
(e) The Roe rule's limitation on state power could not be repudiated without serious inequity to people
who, for two decades of economic and social developments, have organized intimate relationships and
made choices that define their views of themselves and their places in society, in reliance on the availability
of abortion in the event that contraception should fail. The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly
measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and
living around that case be dismissed.
(f) No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by
society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy, since
subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty
recognized in such cases. Similarly, if Roe is seen as stating a rule of personal autonomy and bodily
integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its
rejection, this Court's post-Roe decisions accord with Roe's view that a State's interest in the protection of
life falls short of justifying any plenary override of individual liberty claims. Finally, if Roe is classified as sui
generis, there clearly has been no erosion of its central determination. It was expressly reaffirmed in Akron
and Thornburgh and in Webster, a majority either voted to reaffirm or declined to address the constitutional
validity of Roe' s central holding.
(g) No change in Roe's factual underpinning has left its central holding obsolete, and none supports an
argument for its overruling. Although subsequent maternal health care advances allow for later abortions
safe to the pregnant woman, and post-Roe neonatal care developments have advanced viability to a point
somewhat earlier, these facts go only to the scheme of time limits on the realization of competing interests.
Thus, any later divergences from the factual premises of Roe have no bearing on the validity of its central
holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally
adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that
constitutional judgment in no sense turns on when viability occurs. Whenever it may occur, its attainment
will continue to serve as the critical fact.
(h) A comparison between Roe and two decisional lines of comparable significance—the line identified
with Lochner and the line that began with Plessy v. Ferguson—confirms the result reached here. Those
lines were overruled on the basis of facts, or an understanding of facts, changed from those which
furnished the claimed justifications for the earlier constitutional resolutions. The overruling decisions were
comprehensible to the Nation, and defensible, as the Court's responses to changed circumstances. In
contrast, because neither the factual underpinnings of Roe's central holding nor this Court's understanding
of it has changed (and because no other indication of weakened precedent has been shown), the Court
could not pretend to be reexamining Roe with any justification beyond a present doctrinal disposition to
come out differently from the Roe Court. That is an inadequate basis for overruling a prior case.
(i) Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis
principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as
the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of
unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal
cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart
its implementation. Only the most convincing justification under accepted standards of precedent could
suffice to demonstrate that a later decision overruling the first was anything but a surrender to political
pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first
instance. Moreover, the country's loss of confidence in the Judiciary would be underscored by
condemnation for the Court's failure to keep faith with those who support the decision at a cost to
themselves. A decision to overrule Roe's essential holding under the existing circumstances would address
error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy
and to the Nation's commitment to the rule of law.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, on its face, H.B. 319 imposes an undue, or otherwise unconstitutional,
burden on a minor seeking an abortion.
Ohio v. Akron
Center for
Reproductive
Health
497 U.S. 502
(1990)
Right to
Abortion:
Minors
As enacted, Ohio's Amended Substitute H.B. 319 makes it a
crime for a physician or other person to perform an abortion
on an unmarried, unemancipated, minor woman, unless, inter
alia, the physician provides timely notice to one of the minor's
parents or a juvenile court issues an order authorizing the
minor to consent. To obtain a judicial bypass of the notice
requirement, the minor must present clear and convincing
proof that she has sufficient maturity and information to make
the abortion decision herself, that one of her parents has
engaged in a pattern of physical, emotional, or sexual abuse
against her, or that notice is not in her best interests. Among
other things, H.B. 319 also allows the physician to give
constructive notice if actual notice to the parent proves
impossible “after a reasonable effort”; requires the minor to file
a bypass complaint in the juvenile court on prescribed forms;
requires that court to appoint a guardian ad litem and an
attorney for the minor if she has not retained counsel;
mandates expedited bypass hearings and decisions in that
court and expedited review by a court of appeals; provides
constructive authorization for the minor to consent to the
abortion if either court fails to act in a timely fashion; and
specifies that both courts must maintain the minor's anonymity
and the confidentiality of all papers. Shortly before H.B. 319's
effective date, appellees-an abortion facility, one of its doctors,
and an unmarried, unemancipated, minor woman seeking an
abortion there-and others filed a facial challenge to the
statute's constitutionality in the Federal District Court, which
ultimately issued an injunction preventing H.B. 319's
enforcement. The Court of Appeals affirmed, concluding that
various of the statute's provisions were constitutionally
defective.
Held: No. Reversed.
1. House Bill 319 accords with this Court's cases addressing the constitutionality of
parental notice or consent statutes in the abortion context. (a) Whether or not the
Fourteenth Amendment requires parental notice statutes, as opposed to parental consent
statutes, to contain judicial bypass procedures, H.B. 319's bypass procedure is sufficient
because it meets the requirements identified in Danforth, Bellotti, Ashcroft, and Akron for
the more intrusive consent statutes, particularly the four criteria set forth by the principal
opinion in Bellotti. First, the statute satisfies the requirement that the minor be allowed to
show the maturity to make her abortion decision without regard to her parents' wishes.
Second, by requiring the juvenile court to authorize her consent upon determining that the
abortion is in her best interests and in cases where she has shown a pattern of abuse, H.B.
319 satisfies the requirement that she be allowed to show that, even if she cannot make the
decision by herself, the abortion would be in her best interests. Third, the requirement that a
bypass procedure ensure the minor's anonymity is satisfied, since H.B. 319 prohibits the
juvenile court from notifying the parents that the complainant is pregnant and wants an
abortion and requires both state courts to preserve her anonymity and the confidentiality of
court papers, and since state law makes it a crime for any state employee to disclose
documents not designated as public records. Neither the mere possibility of unauthorized,
illegal disclosure by state employees nor the fact that the H.B. 319 complaint forms require
the minor to provide identifying information for administrative purposes is dispositive.
Complete anonymity is not critical under this Court's decisions, and H.B. 319 takes
reasonable steps to prevent the public from learning of the minor's identity. Fourth, H.B.
319's time limits on judicial action satisfy the requirement that a bypass procedure be
conducted with expedition. Even if, as appellees contend, the bypass procedure could take
up to 22 calendar days, including weekends and legal holidays, that possibility does not
suffice to invalidate the statute on its face. (b) The Bellotti criteria need not be extended by
imposing appellees' suggested additional requirements on bypass procedures. First, H.B.
319 is not rendered unconstitutional by the fact that its constructive authorization provisions
do not require an affirmative order authorizing the physician to act in the event that either
state court fails to act within the prescribed time limits. Absent a showing that those limits
will be ignored, the State may expect that its judges will follow mandated procedural
requirements. Moreover, Ashcroft does not require constructive authorization provisions,
which were added by Ohio out of an abundance of caution and concern for the minor's
interests. Second, a bypass procedure such as Ohio's does not violate due process by
placing the burden of proof on the issues of maturity or best interests on the minor or by
requiring a heightened, clear and convincing evidence standard of proof. Justice Powell in
Bellotti indicated that a State may require the minor to bear the burden of proof on these
issues. Moreover, a State may require a heightened standard of proof when, as here, the
bypass procedure contemplates an ex parte proceeding at which no one opposes the
minor's testimony and she is assisted by an attorney and a guardian ad litem. Third, H.B.
319's statutory scheme and the bypass complaint forms do not deny an unwary and
unrepresented minor the opportunity to prove her case by requiring her to choose among
three forms, the first of which relates only to maturity, the second to best interests, and the
third to both. Even assuming some initial confusion, it is unlikely that the Ohio courts will
treat a minor's choice of forms without due care and understanding for her unrepresented
status. Moreover, she does not make a binding election by her initial form choice, since
H.B. 319 provides her with appointed counsel after filing the complaint and allows her to
move to amend the pleadings.
2. Even assuming that H.B. 319 gives a minor a substantive, state-law liberty or property
right “to avoid unnecessary or hostile parental involvement” upon proof of maturity or best
interests, the statute does not deprive her of this right without due process, since its
confidentiality provisions, expedited procedures, pleading form requirements, clear and
convincing evidence standard, and constructive authorization provisions are valid on their
face.
3. House Bill 319 is not facially invalid simply because it requires parental notice to be
given by the physician rather than by some other qualified person. Since the physician has
a superior ability to garner and use important medical and psychological data supplied by a
parent upon receiving notice, a State may require the physician himself to take reasonable
steps to notify the parent. In addition, the conversation with an experienced and detached
physician may assist the parent in approaching the problem in a mature and balanced way
and thereby enable him to provide better advice to the minor than would a conversation with
a less experienced person. Any imposition on the physician's schedule is diminished by
provisions allowing him to give notice by mail if he cannot reach the parent “after a
reasonable effort” and to forgo notice in the event of certain emergencies, which provisions
constitute an adequate recognition of his professional status.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether it is necessary or justified to invalidate an entire statute
that unconstitutionally regulates access to abortion in medical
emergencies.
Ayotte v.
Planned
Parenthood of
Northern New
England
546 U.S. 320
(2006)
Right to
Abortion:
Minors
New Hampshire's Parental Notification Prior to Abortion Act, in
relevant part, prohibits physicians from performing an abortion
on a pregnant minor until 48 hours after written notice of such
abortion is delivered to her parent or guardian. The Act does
not require notice for an abortion necessary to prevent the
minor's death if there is insufficient time to provide notice, and
permits a minor to petition a judge to authorize her physician
to perform an abortion without parental notification. The Act
does not explicitly permit a physician to perform an abortion in
a medical emergency without parental notification.
Respondents, who provide abortions for pregnant minors and
expect to provide emergency abortions for them in the future,
filed suit under Rev.Stat. §1979, 42 U.S.C. §1983, claiming
that the Act is unconstitutional because it lacks a health
exception and because of the inadequacy of the life exception
and the judicial bypass' confidentiality provision. The District
Court declared the Act unconstitutional and permanently
enjoined its enforcement, and the First Circuit affirmed.
Held: No. Vacated and Remanded
(a) As the case comes to this Court, three propositions are
established. First, States have the right to require parental involvement
when a minor considers terminating her pregnancy. Second, a State
may not restrict access to abortions that are “necessary, in appropriate
medical judgment for preservation of the life or health of the mother.”
Third, New Hampshire has not taken issue with the case's factual
basis: In a very small percentage of cases, pregnant minors need
immediate abortions to avert serious and often irreversible damage to
their health. New Hampshire has conceded that, under this Court's
cases, it would be unconstitutional to apply the Act in a manner that
subjects minors to significant health risks.
(b) Generally speaking, when confronting a statute's constitutional
flaw, this Court tries to limit the solution to the problem, preferring to
enjoin only the statute's unconstitutional applications while leaving the
others in force, or to sever its problematic portions while leaving the
remainder intact. Three interrelated principles inform the Court's
approach to remedies. First, the Court tries not to nullify more of a
legislature's work than is necessary. Second, mindful that its
constitutional mandate and institutional competence are limited, the
Court restrains itself from “rewriting state law to conform it to
constitutional requirements.” Third, the touchstone for any decision
about remedy is legislative intent. After finding an application or portion
of a statute unconstitutional, the Court must ask: Would the legislature
have preferred what is left of its statute to no statute at all? Here, the
courts below chose the most blunt remedy—permanently enjoining the
Act's enforcement and thereby invalidating it entirely. They need not
have done so. In Stenberg v. Carhart, where this Court invalidated
Nebraska's “partial birth abortion” law in its entirety for lacking a health
exception—the parties did not ask for, and this Court did not
contemplate, relief more finely drawn, but here New Hampshire asked
for and respondents recognized the possibility of a more modest
remedy. Only a few applications of the Act would present a
constitutional problem. So long as they are faithful to legislative intent,
then, in this case the lower courts can issue a declaratory judgment
and an injunction prohibiting the Act's unconstitutional application. On
remand, they should determine in the first instance whether the
legislature intended the statute to be susceptible to such a remedy.
(c) Because an injunction prohibiting unconstitutional applications or
a holding that consistency with legislative intent requires invalidating
the statute in toto should obviate any concern about the Act's life
exception, this Court need not pass on the lower courts' alternative
holding. If the Act survives in part on remand, the Court of Appeals
should address respondents' separate objection to the judicial bypass'
confidentiality provision.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether , there is a constitutionally significant distinction
between requiring a minor to show that parental notification is
not in her best interests, and requiring a minor to show that an
abortion (without such notification) is in her best interests.
Lambert v.
Wickland
520 U.S. 292
(1997)
Right to
Abortion:
Minors
In 1995, Montana enacted the Parental Notice of Abortion Act.
The Act prohibits a physician from performing an abortion on a
minor unless the physician has notified one of the minor's
parents or the minor's legal guardian 48 hours in advance.
However, an “unemancipated” minor may petition the state
youth court to waive the notification requirement, pursuant to
the statute's “judicial bypass” provision. The provision gives
the minor a right to court-appointed counsel, and guarantees
expeditious handling of the minor's petition (since the petition
is automatically granted if the youth court fails to rule on the
petition within 48 hours from the time it is filed). The minor's
identity remains anonymous, and the proceedings and related
documents are kept confidential. If the court finds by clear and
convincing evidence that any of the following three conditions
are met, it must grant the petition and waive the notice
requirement, including: (iii) “the notification of a parent or
guardian is not in the best interests of the minor.”
Before the Act's effective date, respondents-several
physicians who perform abortions, and other medical
personnel-filed a complaint seeking a declaration that the Act
was unconstitutional and an order enjoining its enforcement.
The District Court for the District of Montana, addressing only
one of respondents' arguments, held that the Act was
unconstitutional because the third condition set out above was
too narrow. According to the District Court, our precedents
require that judicial bypass mechanisms authorize waiver of
the notice requirement whenever “the abortion would be in the
minor's best interests,” not just when “notification would not be
in the minor's best interests.” Three days before the Act was
to go into effect, the District Court enjoined its enforcement.
The Court of Appeals affirmed, stating that it was bound by its
prior decision in Glick v. McKay; Glick struck down Nevada's
parental notification statute which, like Montana's statute here,
allowed a minor to bypass the notification requirement if a
court determined that the notification would not be in the
minor's best interests. The court's conclusion was based on its
analysis of our decisions in Bellotti v. Baird, and Ohio v. Akron
Center for Reproductive Health.
Held: No. Reversed.
This decision simply cannot be squared with our decision in
Akron. The Ohio parental notification statute at issue there was
indistinguishable in any relevant way from the Montana statute
at issue here. Both allow for judicial bypass if the minor shows
that parental notification is not in her best interests. We asked in
Akron whether this met the Bellotti requirement that the minor
be allowed to show that “the desired abortion would be in her
best interests.” We explicitly held that it did. Thus, the Montana
statute meets this requirement, too. In concluding otherwise, the
Ninth Circuit was mistaken.
Respondents place great emphasis on our statement in Akron,
that “the statute requires the juvenile court to authorize the
minor's consent where the court determines that the abortion is
in the minor's best interest.” But since we had clearly stated that
the statute actually required such authorization only when the
court determined that notification would not be in the minor's
best interests, it is wrong to take our statement to imply that the
statute said otherwise. Rather, underlying our statement was an
assumption that a judicial bypass procedure requiring a minor to
show that parental notification is not in her best interests is
equivalent to a judicial bypass procedure requiring a minor to
show that abortion without notification is in her best interests, as
the context of the opinion, the statutory language, and the
concurring opinion all make clear.
Respondents, echoing the Ninth Circuit in Glick, claim that
there is a constitutionally significant distinction between
requiring a minor to show that parental notification is not in her
best interests, and requiring a minor to show that an abortion
(without such notification) is in her best interests. But the
Montana statute draws no such distinction, and respondents
cite no Montana state-court decision suggesting that the statute
permits a court to separate the question whether parental
notification is not in a minor's best interest from an inquiry into
whether abortion (without notification) is in the minor's best
interest. As with the Ohio statute in Akron, the challenge to the
Montana statute here is a facial one. Under these
circumstances, the Ninth Circuit was incorrect to assume that
Montana's statute “narrowed” the Bellotti test. The reasons
given by the District Court and the Ninth Circuit for striking down
the Act are inconsistent with our precedents.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the statute unconstitutionally restricts a minor's
right of privacy to obtain an abortion or to enter into a doctorpatient relationship.
H. L. v.
Matheson
450 U.S. 398
(1981)
Right to
Abortion:
Minors
A Utah statute requires a physician to “notify, if possible,” the
parents or guardian of a minor upon whom an abortion is to be
performed. Appellant, while an unmarried minor living with and
dependent on her parents, became pregnant. A physician
advised her that an abortion would be in her best medical
interest but, because of the statute, refused to perform the
abortion without first notifying her parents. Believing that she
should proceed with the abortion without notifying her parents,
appellant instituted a suit in state court seeking a declaration
that the statute is unconstitutional and an injunction against its
enforcement. She sought to represent a class consisting of
unmarried minors “who are suffering unwanted pregnancies
and desire to terminate the pregnancies but may not do so”
because of their physicians' insistence on complying with the
statute. The trial court upheld the statute as not
unconstitutionally restricting a minor's right of privacy to obtain
an abortion or to enter into a doctor-patient relationship. The
Utah Supreme Court affirmed.
Held: No. Affirmed.
1. Since appellant did not allege or offer evidence that either
she or any member of her class is mature or emancipated, she
lacks standing to challenge the Utah statute as being
unconstitutional on its face on the ground of overbreadth in that
it could be construed to apply to all unmarried minor girls,
including those who are mature and emancipated. Moreover,
the State is bound by a ruling in another case that the statute
does not apply to emancipated minors, and the Utah Supreme
court has had no occasion to consider the statute's application
to mature minors.
2. As applied to an unemancipated minor girl living with and
dependent upon her parents, and making no claim or showing
as to maturity or as to her relations with her parents, the Utah
statute serves important state interests, is narrowly drawn to
protect only those interests, and does not violate any
guarantees of the Constitution. (a) Although a state may not
constitutionally legislate a blanket, unreviewable power of
parents to veto their daughter's abortion, a statute setting out a
mere requirement of parental notice when possible does not
violate the constitutional rights of an immature, dependent
minor. (b) The Utah statute does not give parents a veto power
over the minor's abortion decision. As applied to immature and
dependent minors, the statute serves important considerations
of family integrity and protecting adolescents as well as
providing an opportunity for parents to supply essential medical
and other information to the physician. The statute is not
unconstitutional for failing to specify what information parents
may furnish to physicians, or to provide for a mandatory period
of delay after the physician notifies the parents; or because the
State allows a pregnant minor to consent to other medical
procedures without formal notice to her parents if she carries
the child to term; or because the notice requirement may inhibit
some minors from seeking abortions.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Minnesota statute violates the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.
Hodgson v.
Minnesota
497 U.S. 417
(1990)
Right to
Abortion:
Minors
Subdivision 2 of Minn.Stat. §144.343 provides that no abortion
shall be performed on a woman under 18 years of age until at
least 48 hours after both of her parents have been notified.
The two-parent notice requirement is mandatory unless, inter
alia, the woman declares that she is a victim of parental abuse
or neglect, in which event notice of her declaration must be
given to the proper authorities. Subdivision 6 provides that, if a
court enjoins the enforcement of subdivision 2, the same twoparent notice requirement is effective unless a court of
competent jurisdiction orders the abortion to proceed without
notice upon proof by the minor that she is “mature and
capable of giving informed consent” or that an abortion without
notice to both parents would be in her best interest. Two days
before the statute's effective date, a group consisting of
doctors, clinics, pregnant minors, and the mother of a
pregnant minor filed suit in the District Court, alleging that the
statute violated the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. The court declared
the statute unconstitutional in its entirety and enjoined its
enforcement. The Court of Appeals, sitting en banc, reversed.
Although it rejected the State's submission that subdivision 2's
two-parent notice requirement was constitutional without any
bypass procedure, the court held that subdivision 6 was valid
and that its bypass procedure saved the statute as a whole.
The court also rejected the argument that the 48-hour waiting
period imposed a significant burden on the minor's abortion
right.
Held: Yes, in part. Affirmed.
(a) Since none of this Court's abortion decisions dealing with parental consent or
notification statutes focused on the possible significance of making the consent or
notice applicable to both parents instead of just one, the District Court's extensive and
unchallenged findings on the question are significant. On the basis of extensive trial
testimony, the District Court found, inter alia, that the two-parent notification
requirement had particularly harmful effects on both the minor and the custodial
parent when the parents were divorced or separated, especially in the context of an
abusive or dysfunctional family; that the requirement also had adverse effects in
families in which the minor lives with both parents, particularly where family violence
is a serious problem; that the requirement actually impairs family communication in
many instances, since minors who otherwise would inform one parent were unwilling
to do so when such notification would involve going to court for a bypass in any
event; that few minors can take advantage of the abuse exception because of the
obligation to report the information to the authorities and the attendant loss of privacy;
and that the two-parent requirement did not further the State's interests in protecting
pregnant minors or assuring family integrity. The court also found that, in many
cases, the statutory 48-hour waiting period was extended to a week or more by
scheduling considerations, thereby increasing the risk associated with the abortion to
a statistically significant degree.
(b) The requirement that both parents be notified, whether or not both wish to be
notified or have assumed responsibility for the upbringing of the child, does not
reasonably further any legitimate state interest. Any such interest in supporting the
authority of a parent, who is presumed to act in the minor's best interest, to assure
that the abortion decision is knowing, intelligent, and deliberate, would be fully served
by a one-parent notification requirement as to functioning families, where notice to
either parent would normally constitute notice to both. As to the many families in
which the parent notified would not notify the other parent, the State has no legitimate
interest in questioning the first parent's judgment or in presuming him or her
incompetent to make decisions regarding the child's health and welfare. Moreover, as
the record demonstrates, the two-parent requirement actually disserves the state
interest in protecting and assisting the minor with respect to the thousands of
dysfunctional families affected by the statute, where the requirement proved positively
harmful. There is no merit to the argument that the two-parent requirement is justified
because, in the ideal family, the minor should make her decision only after
consultation with both parents, who should naturally be concerned with her welfare.
The State has no legitimate interest in conforming family life to a state-designed ideal
by requiring family members to talk together. Nor can the State's interest in protecting
a parent's interest in shaping a child's values and lifestyle overcome the liberty
interests of a minor acting with the consent of a single parent or court. The combined
force of the separate interest of one parent and the minor's privacy interest outweighs
the separate interest of the second parent, and the justification for any rule requiring
parental involvement in the abortion decision rests entirely on the best interests of the
child. The fact that the two-parent requirement is virtually an oddity among state and
federal consent provisions governing childrens' health, welfare, and education further
demonstrates its unreasonableness and the ease with which the State can adopt less
burdensome means to protect the minor's welfare.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether one charged with crime, who is unable to obtain
counsel, must be furnished counsel by the state.
Gideon v.
Wainwright
372 U.S. 335
(1963)
Right to
Counsel:
Criminal
Charges
The petitioner brought habeas corpus proceedings against the
Director of the Division of Corrections, alleging he had been
denied access to counsel. The Florida Supreme Court denied
all relief, and the petitioner brought certiorari.
Held: Yes. Judgment reversed and cause remanded
The Sixth Amendment to the federal Constitution providing that
in all criminal prosecutions the accused shall enjoy right to
assistance of counsel for his defense is made obligatory on the
states by the Fourteenth Amendment, and that an indigent
defendant in a criminal prosecution in a state court has the right
to have counsel appointed for him. In deciding that ‘appointment
of counsel is not a fundamental right, essential to a fair trial’-the
Court in Betts v. Brady made an abrupt break with its own wellconsidered precedents. In returning to these old precedents,
sounder we believe than the new, we but restore constitutional
principles established to achieve a fair system of justice. Not
only these precedents but also reason and reflection require us
to recognize that in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot
be assured a fair trial unless counsel is provided for him. This
seems to us to be an obvious truth. Governments, both state
and federal, quite properly spend vast sums of money to
establish machinery to try defendants accused of crime.
Lawyers to prosecute are everywhere deemed essential to
protect the public's interest in an orderly society. Similarly, there
are few defendants charged with crime, few indeed, who fail to
hire the best lawyers they can get to prepare and present their
defenses. That government hires lawyers to prosecute and
defendants who have the money hire lawyers to defend are the
strongest indications of the wide-spread belief that lawyers in
criminal courts are necessities, not luxuries. The right of one
charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it is in ours.
From the very beginning, our state and national constitutions
and laws have laid great emphasis on procedural and
substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the poor man
charged with crime has to face his accusers without a lawyer to
assist him. The Court in Betts v. Brady departed from the sound
wisdom upon which the Court's holding in Powell v. Alabama
rested. Florida, supported by two other States, has asked that
Betts v. Brady be left intact. Twenty-two States, as friends of the
Court, argue that Betts was ‘an anachronism when handed
down’ and that it should now be overruled.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the performance of Wiggins' attorneys at sentencing violated his Sixth Amendment
right to effective assistance of counsel.
Wiggins v.
Smith
539 U.S. 510
(2003)
Sentencing:
History of
Abuse as
Mitigating
Evidence
In 1989, petitioner Wiggins was convicted of capital murder by
a Maryland judge and subsequently elected to be sentenced
by a jury. His public defenders, Schlaich and Nethercott,
moved to bifurcate the sentencing, representing that they
planned to prove that Wiggins did not kill the victim by his own
hand and then, if necessary, to present a mitigation case. The
court denied the motion. At sentencing, Nethercott told the
jury in her opening statement that they would hear, among
other things, about Wiggins' difficult life, but such evidence
was never introduced. Before closing arguments and outside
the presence of the jury, Schlaich made a proffer to the court
to preserve the bifurcation issue for appeal, detailing the
mitigation case counsel would have presented. Schlaich never
mentioned Wiggins' life history or family background. The jury
sentenced Wiggins to death, and the Maryland Court of
Appeals affirmed. Represented by new counsel, Wiggins
sought postconviction relief, arguing that his trial counsel had
rendered ineffective assistance by failing to investigate and
present mitigating evidence of his dysfunctional background.
He presented expert testimony by a forensic social worker
about the severe physical and sexual abuse he had suffered
at the hands of his mother and while under the care of a
series of foster parents. Schlaich testified that he did not
remember retaining a forensic social worker to prepare a
social history before sentencing, even though state funds
were available for that purpose, and explained that he and
Nethercott had decided to focus on retrying the factual case
and disputing Wiggins' direct responsibility for the murder. The
trial court denied the petition, and the State Court of Appeals
affirmed, concluding that trial counsel had made a reasoned
choice to proceed with what they considered their best
defense. Subsequently, the Federal District Court granted
Wiggins relief on his federal habeas petition, holding that the
Maryland courts' rejection of his ineffective assistance claim
involved an unreasonable application of clearly established
federal law. In reversing, the Fourth Circuit found trial
counsel's strategic decision to focus on Wiggins' direct
responsibility to be reasonable.
Held: Yes. Reversed and Remanded.
(a) A federal writ can be granted only if a state court decision “was contrary to, or involved an
unreasonable application of, clearly established” precedents of this Court. This “unreasonable
application” prong permits the writ to be granted when a state court identifies the correct governing
legal principle but unreasonably applies it to the facts of a petitioner's case. For this standard to be
satisfied, the state court decision must have been “objectively unreasonable,” not just incorrect or
erroneous. An ineffective assistance claim has two components: A petitioner must show that
counsel's performance was deficient, and that the deficiency prejudiced the defense. Performance
is deficient if it falls below an objective standard of reasonableness, which is defined in terms of
prevailing professional norms. Here, as in Strickland, counsel claim that their limited investigation
into petitioner's background reflected a tactical judgment not to present mitigating evidence and to
pursue an alternative strategy instead. In evaluating petitioner's claim, this Court's principal
concern is not whether counsel should have presented a mitigation case, but whether the
investigation supporting their decision not to introduce mitigating evidence of Wiggins' background
was itself reasonable. The Court thus conducts an objective review of their performance,
measured for reasonableness under professional norms, including a consideration of the
challenged conduct as seen from counsel's perspective at the time of that conduct.
(b) Counsel did not conduct a reasonable investigation. Their decision not to expand their
investigation beyond a presentence investigation (PSI) report and Baltimore City Department of
Social Services (DSS) records fell short of the professional standards prevailing in Maryland in
1989. Standard practice in Maryland capital cases at that time included the preparation of a social
history report. Although there were funds to retain a forensic social worker, counsel chose not to
commission a report. Their conduct similarly fell short of the American Bar Association's capital
defense work standards. Moreover, in light of the facts counsel discovered in the DSS records
concerning Wiggins' alcoholic mother and his problems in foster care, counsel's decision to cease
investigating when they did was unreasonable. Any reasonably competent attorney would have
realized that pursuing such leads was necessary to making an informed choice among possible
defenses, particularly given the apparent absence of aggravating factors from Wiggins'
background. Indeed, counsel discovered no evidence to suggest that a mitigation case would have
been counterproductive or that further investigation would have been fruitless, thus distinguishing
this case from precedents in which this Court has found limited investigations into mitigating
evidence to be reasonable. The record of the sentencing proceedings underscores the
unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly
stemmed from inattention, not strategic judgment. Until the trial court denied their bifurcation
motion, they had had every reason to develop the most powerful mitigation case possible. During
the sentencing process itself, counsel did not focus exclusively on Wiggins' direct responsibility for
the murder; rather they put on a halfhearted mitigation case instead. The Maryland Court of
Appeals' assumption that counsel's investigation was adequate reflected an unreasonable
application of Strickland. In deferring to counsel's decision not to present every conceivable
mitigation defense despite the fact that counsel based their alleged choice on an inadequate
investigation, the Maryland Court of Appeals further unreasonably applied Strickland. And the
court's conclusion that the social services records revealed incidences of sexual abuse, when they
in fact did not, reflects “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Contrary to the State's and the United States' contention,
the record as a whole does not support the conclusion that counsel conducted a more thorough
investigation than the one this Court describes. Ultimately, this Court's conclusion that counsel's
investigation was inadequate does not mean that Strickland requires counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing. Nor does Strickland require counsel to present such evidence at
sentencing in every case. Rather, the conclusion is based on the much more limited principle that
“strategic choices made after less than complete investigation are reasonable” only to the extent
that “reasonable professional judgments support the limitations on investigation.”
(c) Counsel's failures prejudiced Wiggins' defense. To establish prejudice, a defendant must
show that there is a reasonable probability that, but for counsel's unprofessional errors, the
proceeding's result would have been different. This Court assesses prejudice by reweighing the
aggravating evidence against the totality of the mitigating evidence adduced both at trial and in the
habeas proceedings. The mitigating evidence counsel failed to discover and present here is
powerful. Wiggins experienced severe privation and abuse while in the custody of his alcoholic,
absentee mother and physical torment, sexual molestation, and repeated rape while in foster care.
His time spent homeless and his diminished mental capacities further augment his mitigation case.
He thus has the kind of troubled history relevant to assessing a defendant's moral culpability.
Given the nature and extent of the abuse, there is a reasonable probability that a competent
attorney, aware of this history, would have introduced it at sentencing, and that a jury confronted
with such mitigating evidence would have returned with a different sentence. The only significant
mitigating factor the jury heard was that Wiggins had no prior convictions. Had it been able to place
his excruciating life history on the mitigating side of the scale, there is a reasonable probability that
at least one juror would have struck a different balance. Wiggins had no record of violent conduct
that the State could have introduced to offset this powerful mitigating narrative. Thus, the available
mitigating evidence, taken as a whole, might well have influenced the jury's appraisal of his moral
culpability.
Case
Williams v.
Hobbs
___ U.S. ___
(2010)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
Petitioner Marcel Wayne Williams was charged with capital
murder, kidnapping, rape, and aggravated robbery. At trial, his
attorneys conceded guilt in the opening statement, apparently
hoping to establish credibility with the jury and ultimately to
convince the jury to recommend a sentence of life without parole.
Despite adopting this strategy, however, Williams' attorneys
called only one witness at the penalty phase, an inmate who had
no personal relationship with Williams and who testified from his
own experience that life was more pleasant on death row than in
the general prison population. The jury unanimously
recommended a death sentence. The trial court sentenced
Williams to death by lethal injection, and the Arkansas Supreme
Court affirmed the conviction and sentence on direct appeal. After
the Arkansas courts denied his petition for collateral relief,
Williams filed a federal habeas petition under 28 U.S.C. §2254.
Williams alleged that he received ineffective assistance of
counsel under Strickland v. Washington, due to his attorneys'
failure to develop and present mitigating social history evidence
to the jury. As to Strickland's performance prong, the District
Court held that the state-court decision denying Williams'
ineffective-assistance claim was “based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.” As to prejudice, the court concluded that
the record was inconclusive and ordered an evidentiary hearing.
The testimony at the hearing established that Williams had been
“subject to every category of traumatic experience that is
generally used to describe childhood trauma”: sexual abuse by
multiple perpetrators; physical and psychological abuse by his
mother and step-father; gross medical, nutritional, and
educational neglect; exposure to violence in the childhood home
and neighborhood; and a violent gang-rape while in prison as an
adolescent. On the basis of that testimony, the District Court
found that Williams had been prejudiced by counsel's ineffective
assistance, granted habeas relief, and ordered the State to afford
Williams a new trial at the penalty phase or to reduce his
sentence to life without parole. The Court of Appeals reversed,
reinstating the sentence of death by lethal injection. Concluding
that Williams was not entitled to a federal evidentiary hearing in
the first place and entirely disregarding the evidence introduced
at the hearing as a result, the court held that Williams had failed
to prove prejudice “on the factual record he developed in state
court.” Thus, although the District Court found that the State
never “objected to the court's decision to conduct an evidentiary
hearing” nor “argued that it should not consider that evidence” in
ruling on Williams' petition, the Court of Appeals held that the
State had in fact objected to the hearing. “In the alternative, the
Court of Appeals concluded that it would exercise its discretion to
review the district court's non-compliance with §2254(e)(2)” even
if the State had not objected.
Issue Presented and Holding
Issue: Whether a State may withhold an objection to a federal
habeas evidentiary hearing until after the hearing is complete,
the constitutional violation established, and habeas relief
granted.
Held: Court denies the petition for a writ of certiorari.
Case
Porter v.
McCollum
____ U.S. _____
(2009)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
In July 1986, Porter’s relationship with his former girlfriend,
Evelyn Williams was ending, Porter threatened to kill her and
then left town. When he returned to Florida three months later,
he attempted to see Williams but her mother told him that
Williams did not want to see him. He drove past Williams'
house each of the two days prior to the shooting, and the night
before the murder he visited Williams, who called the police.
Porter then went to two cocktail lounges and spent the night
with a friend, who testified Porter was quite drunk by 11pm
Early the next morning, Porter shot Williams in her house.
Walter Burrows, Williams boyfriend, struggled with Porter and
forced him outside where Porter shot him. Porter was
convicted of two counts of first-degree murder for the shooting
of Williams and Burrows. He was sentenced to death on the
first count but not the second.
Porter alleged In his post-conviction petition that his counsel
failed to investigate and present mitigating evidence
describing in part his abusive childhood, his heroic military
service and the trauma he suffered because of it, his longterm substance abuse, and his impaired mental health and
mental capacity. The depositions of his brother and sister
described that Porter routinely witnessed his father beat his
mother, one time so severely that she had to go to the hospital
and lost a child. Porter's father was violent every weekend,
and Porter was his father's favorite target, particularly when
Porter tried to protect his mother. On one occasion, Porter's
father shot at him for coming home late, but missed and just
beat Porter instead. In addition to this testimony regarding his
life history, Porter presented an expert in neuropsychology,
Dr. Dee, who had examined Porter and administered a
number of psychological assessments. Dr. Dee concluded
that Porter suffered from brain damage that could manifest in
impulsive, violent behavior. The postconviction court held that Porter had not been prejudiced by
the failure to introduce any of that evidence. The Florida
Supreme Court affirmed. Porter thereafter filed his federal
habeas petition. The District Court held Porter's penalty-phase
counsel had been ineffective. The Eleventh Circuit reversed,
holding that he District Court failed to appropriately defer to
the state court's factual findings with respect to Porter's
alcohol abuse and his mental health. The Court of Appeals
then separately considered each category of mitigating
evidence and held it was not unreasonable for the state court
to discount each category as it did.
Issue Presented and Holding
Issue: (1) Whether defense counsel's failure to uncover and
present during penalty phase any mitigating evidence regarding
defendant's mental health, family background, or military service
was deficient, and (2) Whether Florida Supreme Court's
decision that defendant was not prejudiced by such failure was
unreasonable application of federal law, warranting federal
habeas relief
Held: The petition for certiorari is granted in part, and the
motion for leave to proceed in forma pauperis is granted. The
judgment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opinion.
(1) Yes, defense counsel's failure to uncover and present
during penalty phase any mitigating evidence regarding
defendant's mental health, family background, or military service
was deficient, and
(2) Yes, Florida Supreme Court's decision that defendant was
not prejudiced by such failure was unreasonable application of
federal law, warranting federal habeas relief. Had the judge and
jury been able to place Porter's life history “on the mitigating
side of the scale,” and appropriately reduced the ballast on the
aggravating side of the scale, there is clearly a reasonable
probability that the advisory jury-and the sentencing judge“would have struck a different balance,” and it is unreasonable
to conclude otherwise. Furthermore, the Florida Supreme Court,
following the state post-conviction court, unreasonably
discounted the evidence of Porter's childhood abuse and
military service. It is unreasonable to discount to irrelevance the
evidence of Porter's abusive childhood, especially when that
kind of history may have particular salience for a jury evaluating
Porter's behavior in his relationship with Williams. Although the
burden is on petitioner to show he was prejudiced by his
counsel's deficiency, the Florida Supreme Court's conclusion
that Porter failed to meet this burden was an unreasonable
application of our clearly established law. We do not require a
defendant to show “that counsel's deficient conduct more likely
than not altered the outcome” of his penalty proceeding, but
rather that he establish “a probability sufficient to undermine
confidence in that outcome.” This Porter has done.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Belmontes was deprived of effective assistance
of counsel during penalty phase of his capital murder trial.
Wong v.
Belmontes
____ U.S. _____
(2009)
Sentencing:
History of
Abuse as
Mitigating
Evidence
In in the course of a burglary, Belmontes bludgeoned Steacy
McConnell to death, striking her in the head 15 to 20 times
with a steel dumbbell bar. After the murder, Belmontes and his
accomplices stole McConnell's stereo, sold it for $100, and
used the money to buy beer and drugs for the night.
Belmontes was convicted of murder and sentenced to death in
state court. Unsuccessful on direct appeal and state collateral
review, Belmontes sought federal habeas relief, which the
District Court denied. The Court of Appeals reversed, finding
instructional error, but we overturned that decision. On
remand, the Court of Appeals again ruled for Belmontes, this
time finding that Belmontes suffered ineffective assistance of
counsel during the sentencing phase of his trial. The District
Court had previously denied relief on that ground, finding that
counsel for Belmontes had performed deficiently under Ninth
Circuit precedent, but that Belmontes could not establish
prejudice under Strickland v. Washington. The Court of
Appeals agreed that counsel's performance was deficient, but
disagreed with the District Court with respect to prejudice,
determining that counsel's errors undermined confidence in
the penalty phase verdict.
Held: No. Reversed and Remanded.
Belmontes argues that his counsel was constitutionally
ineffective for failing to investigate and present sufficient
mitigating evidence during the penalty phase of his trial. The
challenge confronting Belmontes' lawyer, John Schick, was very
specific. Substantial evidence indicated that Belmontes had
committed a prior murder, and the prosecution was eager to
introduce that evidence during the penalty phase of the
McConnell trial. Schick understood the gravity of this
aggravating evidence, and he built his mitigation strategy
around the overriding need to exclude it. The Ninth Circuit
determined that a reasonably competent lawyer would have
introduced more mitigation evidence, on top of what Schick had
already presented. For purposes of our prejudice analysis, we
accept that conclusion and proceed to consider whether there is
a reasonable probability that a jury presented with this
additional mitigation evidence would have returned a different
verdict. Schick put nine witnesses on the stand over a span of
two days, and elicited a range of testimony on Belmontes'
behalf. A number of those witnesses highlighted Belmontes'
“terrible” childhood. They testified that his father was an
alcoholic and extremely abusive. Belmontes' grandfather
described the one-bedroom house where Belmontes spent
much of his childhood as a “chicken coop.” Belmontes did not
do well in school; he dropped out in the ninth grade. His
younger sister died when she was only 10 months old. And his
grandmother died tragically when she drowned in her swimming
pool. The sentencing jury was thus “well acquainted” with
Belmontes' background and potential humanizing features.
Additional evidence on these points would have offered an
insignificant benefit, if any at all. It is hard to imagine expert
testimony and additional facts about Belmontes' difficult
childhood outweighing the facts of McConnell's murder. It
becomes even harder to envision such a result when the
evidence that Belmontes had committed another murder-“the
most powerful imaginable aggravating evidence,” as Judge Levi
put it -is added to the mix. Schick's mitigation strategy failed, but
the notion that the result could have been different if only Schick
had put on more than the nine witnesses he did, or called expert
witnesses to bolster his case, is fanciful.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, in light of historical practice and the States' authority over
administration of their criminal justice systems, the Sixth Amendment inhibits States
from assigning to judges, rather than to juries, the finding of facts necessary to the
imposition of consecutive, rather than concurrent, sentences for multiple offenses.
Oregon v. Ice
555 U.S. 160
(2009)
Sentencing:
History of
Abuse as
Mitigating
Evidence
Respondent Ice twice entered an 11–year–old girl's residence
and sexually assaulted her. For each of the incidents, an
Oregon jury found Ice guilty of first-degree burglary for
entering with the intent to commit sexual abuse; first-degree
sexual assault for touching the victim's vagina; and firstdegree sexual assault for touching her breasts. Ice was
sentenced under a state statute providing, generally, for
concurrent sentences, but allowing the judge to impose
consecutive sentences in these circumstances: (1) when “a
defendant is simultaneously sentenced for offenses that do
not arise from the same course of conduct,” and (2) when
offenses arise from the same course of conduct, if the judge
finds either “(a) that the offense was an indication of
defendant's willingness to commit more than one criminal
offense; or (b) the offense caused or created a risk of causing
greater or qualitatively different harm to the victim.” The trial
judge first found that the two burglaries constituted separate
incidents and exercised his discretion to impose consecutive
sentences for those crimes under §137.123(2). The court then
found that each offense of touching the victim's vagina met
§137.123(5)'s two criteria, giving the judge discretion to
impose the sentences for those offenses consecutive to the
two associated burglary sentences. The court elected to do
so, but ordered that the sentences for touching the victim's
breasts run concurrently with the other sentences. On appeal,
Ice argued, inter alia, that the sentencing statute was
unconstitutional under Apprendi v. New Jersey, and Blakely v.
Washington, holding that the Sixth Amendment's jury-trial
guarantee requires that the jury, rather than the judge,
determine any fact (other than the existence of a prior
conviction) that increases the maximum punishment
authorized for a particular crime. The appellate court affirmed,
but the Oregon Supreme Court reversed, holding that the
Apprendi rule applied because the imposition of consecutive
sentences increased Ice's quantum of punishment.
Held: No. Reversed and Remanded.
(a) The Court declines to extend the Apprendi and Blakely line of decisions beyond
the offense-specific context that supplied the historic grounding for the decisions. The
Court's application of Apprendi's rule must honor the “longstanding common-law
practice” in which the rule is rooted. The rule's animating principle is the preservation
of the jury's historic role as a bulwark between the State and the accused at the trial
for an alleged offense. Because the Sixth Amendment does not countenance
legislative encroachment on the jury's traditional domain, the Court considers whether
the finding of a particular fact was understood as within the jury's domain by the Bill of
Rights' Framers. In so doing, the Court is also cognizant that administration of a
discrete criminal justice system is among the basic sovereign prerogatives States
retain. These twin considerations—historical practice and respect for state
sovereignty—counsel against extending Apprendi to the imposition of sentences for
discrete crimes.
(b) The historical record demonstrates that both in England before this Nation's
founding and in the early American States, the common law generally entrusted the
decision whether sentences for discrete offenses should be served consecutively or
concurrently to judges' unfettered discretion, assigning no role in the determination to
the jury. Thus, legislative reforms regarding the imposition of multiple sentences do
not implicate the core concerns that prompted the Court's decision in Apprendi. There
is no encroachment here by the judge upon facts historically found by the jury, nor
any threat to the jury's domain as a bulwark at trial between the State and the
accused. Instead, the defendant—who historically may have faced consecutive
sentences by default—has been granted by some modern legislatures statutory
protections meant to temper the harshness of the historical practice. Ice's argument
that he is “entitled” to concurrent sentences absent the factfindings Oregon law
requires is rejected. Because the scope of the federal constitutional jury right must be
informed by the jury's historical common-law role, that right does not attach to every
contemporary state-law “entitlement” to predicate findings. For similar reasons,
Cunningham, upon which Ice heavily relies, does not control here. In holding that the
facts permitting imposition of an elevated “upper term” sentence for a particular crime
fell within the jury's province rather than the sentencing judge's, Cunningham had no
occasion to consider the appropriate inquiry when no erosion of the jury's traditional
role was at stake.
(c) States' interest in the development of their penal systems, and their historic
dominion in this area, also counsel against the extension of Apprendi that Ice
requests. This Court should not diminish the States' sovereign authority over the
administration of their criminal justice systems absent impelling reason to do so.
Limiting judicial discretion to impose consecutive sentences serves the “salutary
objectives” of promoting sentences proportionate to “the gravity of the offense,” and
of reducing disparities in sentence length. All agree that a scheme making
consecutive sentences the rule, and concurrent sentences the exception, encounters
no Sixth Amendment shoal. To hem in States by holding that they may not choose to
make concurrent sentences the rule, and consecutive sentences the exception, would
make scant sense. Neither Apprendi nor the Court's Sixth Amendment traditions
compel strait-jacketing the States in that manner. Further, the potential intrusion of
Apprendi's rule into other state initiatives on sentencing choices or accoutrements—
for example, permitting trial judges to find facts about the offense's nature or the
defendant's character in determining the length of supervised release, required
attendance at drug rehabilitation programs or terms of community service, and the
imposition of fines and restitution—would cut the rule loose from its moorings.
Moreover, the expansion Ice seeks would be difficult for States to administer, as the
predicate facts for consecutive sentences could substantially prejudice the defense at
the trial's guilt phase, potentially necessitating bifurcated or trifurcated trials.
Case
Abdul-Kabir v.
Quarterman
550 U.S. 233
(2007)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
Petitioner Abdul–Kabir (fka Cole) was convicted of capital murder. At sentencing, the trial judge
asked the jury to answer two special issues, affirmative answers to which would require the
judge to impose a death sentence: whether Cole's conduct was committed deliberately and with
the reasonable expectation it would result in his victim's death and whether it was probable he
would commit future violent acts constituting a continuing threat to society. The prosecutor
introduced evidence that Cole pleaded guilty to an earlier murder when he was only 16. Shortly
after being released on parole, Cole pleaded guilty to charges of aggravated sexual assault on
two boys and was sentenced to 15 more years in prison. As evidence of Cole's propensity for
future dangerousness, the State introduced Cole's diary which, according to the State's expert
psychiatrist, Dr. Richard Coons, revealed a compulsive attraction to young boys and an
obsession with criminal activity. Dr. Coons described Cole as a sociopath who lacked remorse
and would not profit or learn from his experiences. In response, Cole presented two categories
of mitigating evidence. The first consisted of testimony from his mother and his aunt, who
described his unhappy childhood. Cole's parents lived together “off and on” for 10 years, over
the course of which they had two children, Cole, and his younger sister, Carla. Shortly after Cole
was born, his father was arrested for robbing a liquor store. Cole's father deserted the family
several times, abandoning the family completely before Cole was 5 years old. On the last
occasion that Cole saw his father, he dropped Cole off a block from where he thought Cole's
mother lived, told Cole to “go find her,” and drove off. Cole had no contact with his father during
the next 10 years. After Cole's father left, his mother found herself unable to care for Cole and
his sister and took the children to live with her parents in Oklahoma. Cole's grandparents were
both alcoholics—Cole's mother was herself a self-described “drunk”—and lived miles away from
other children. Eventually, because Cole's grandparents did not want their daughter or her
children living with them, Cole's mother placed him in a church-run children's home, although
she kept her daughter with her. Over the next five years Cole's mother visited him only twice.
Cole's aunt, who visited him on holidays, testified that Cole seemed incapable of expressing any
emotion and that his father never visited him at all. The second category of mitigating evidence
came from two expert witnesses—a psychologist and the former chief mental health officer for
the Texas Department of Corrections—who discussed the consequences of Cole's childhood
neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to 10 hours interviewing
Cole and administering an “extensive battery of psychological tests.” He testified that Cole had
“real problems with impulse control” apparently resulting from “central nervous damage”
combined with “all the other factors of his background.” He also testified that Cole had likely
been depressed for much of his life, that he had a “painful” background, and that he had “never
felt loved and worthwhile in his life.” Providing an analogy for Cole's early development, Dr.
Wright stated that “the manufacturing process had botched the raw material horribly.” When
specifically asked about future dangerousness, Dr. Wright acknowledged that “if Ted were
released today on the street, there's a much greater probability of dangerous behavior than with
the rest of us.” Although he acknowledged the possibility of change or “burn out,” he admitted
that Cole would likely pose a threat of future dangerousness until “years from now.” Except for
his prediction that Cole would change as he grew older, Dr. Wright's testimony did not contradict
the State's claim that Cole was a dangerous person, but instead sought to provide an
explanation for his behavior that might reduce his moral culpability. Dr. Wendell Dickerson, a
psychologist who had not previously examined Cole, observed that it was difficult to predict
future dangerousness, but that “violent conduct is predominantly, overwhelmingly the province
of the young” with the risk of violence becoming rare as people grow older. On crossexamination, in response to a hypothetical question about a person with Cole's character and
history, Dr. Dickerson acknowledged that he would be “alarmed” about the future conduct of
such a person because “yes, there absolutely is a probability that they would commit future acts
of violence.” In sum, the strength of Cole's mitigating evidence was not its potential to contest
his immediate dangerousness, but its tendency to prove that his violent propensities were
caused by factors beyond his control—namely, neurological damage and childhood neglect and
abandonment. After the trial judge's refusal to give Cole's requested instructions, which would
have authorized a negative answer to either of the special issues on the basis of any evidence
the jury perceived as mitigating, the jury answered both issues in the affirmative, and Cole was
sentenced to death. The Texas Court of Criminal Appeals (CCA) affirmed on direct appeal, and
Cole applied for habeas relief in the trial court, which ultimately recommended denial of the
application. Adopting the trial court's findings of fact and conclusions of law with respect to all of
Cole's claims, including his argument that the special issues precluded the jury from properly
considering and giving effect to his mitigating evidence, the CCA denied Cole collateral relief.
Cole then filed a federal habeas petition, asserting principally that the sentencing jury was
unable to consider and give effect to his mitigating evidence in violation of the Constitution.
Recognizing that Penry required that juries be given instructions allowing them to give effect to
a defendant's mitigating evidence and to express their reasoned moral response to that
evidence in determining whether to recommend death, the District Court nevertheless relied on
the Fifth Circuit's analysis for evaluating Penry claims, requiring a defendant to show a nexus
between his uniquely severe permanent condition and the criminal act attributed to that
condition. After the Fifth Circuit denied Cole's application for a certificate of appealability this
Court held that the Circuit's test for determining the constitutional relevance of mitigating
evidence had “no foundation in the decisions of this Court,” and therefore vacated the COA
denial. On remand, the Fifth Circuit focused primarily on Cole's expert testimony rather than that
of his family, concluding that the special issues allowed the jury to give full consideration and full
effect to his mitigating evidence, and affirming the denial.
Issue Presented and Holding
Issue: Whether there is a reasonable likelihood that the state trial court's instructions prevented jurors from
giving meaningful consideration to constitutionally relevant mitigating evidence, the CCA's merits
adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by this Court,” and thereby warranted federal habeas relief.
Held: Yes. Reversed and remanded.
(a) This Court has long recognized that sentencing juries must be able to give meaningful consideration
and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a
particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in
the future. Among other things, however, the Lockett plurality distinguished the Ohio statute there
invalidated from the Texas statute upheld in Jurek v. Texas, on the ground that the latter Act did not
“clearly operate at that time to prevent the sentencer from considering any aspect of the defendant's
character and record or any circumstances of his offense as an independently mitigating factor.”
Nevertheless, the Court later made clear that sentencing under the Texas statute must accord with the
Lockett rule. In Franklin v. Lynaugh, Justice O'Connor's opinion concurring in the judgment expressed the
view of five Justices when she emphasized that “the right to have the sentencer consider and weigh
relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect
to its consideration” in imposing sentence. Justice O'Connor's opinion for the Court in Penry I, which
unquestionably governs the facts of this case, endorsed the same views she had expressed in Franklin. In
Penry I, the Court first held that in contending that his mental-retardation and abusive-childhood mitigating
evidence provided a basis for a life sentence rather than death and that the sentencing jury should have
been instructed to consider that evidence, Penry was not asking the Court to make new law because he
was relying on a rule “dictated” by earlier cases, as defined by Justice O'Connor's concurrence in Franklin
v. Lynaugh. Applying that standard, Penry I held that neither of Texas' special issues allowed the jury to
give meaningful effect to Penry's mitigating evidence. The Penry I Court emphasized with respect to Texas'
“future dangerousness” special issue (as composed at the time of both Penry's and Cole's sentencing
proceedings) that Penry's mitigating evidence functioned as a “two-edged sword” because it might
“diminish his blameworthiness even as it indicated a probability that he [would] be dangerous.” The Court
therefore required an appropriate instruction directing a jury to consider fully the mitigating evidence as it
bears on the extent to which a defendant is undeserving of death. Thus, where the evidence is double
edged or as likely to be viewed as aggravating as it is as mitigating, the statute does not allow it to be given
adequate consideration.
(b) The Texas trial judge's recommendation to the CCA to deny collateral relief in this case was
unsupported by either the text or the reasoning in Penry I. Under Penry I, Cole's family members'
testimony, as well as the portions of his expert testimony suggesting that his dangerousness resulted from
a rough childhood and neurological damage, were not relevant to either of the special verdict questions,
except, possibly, as evidence of future dangerousness. Because this would not satisfy Penry I's
requirement that the evidence be permitted its mitigating force beyond the special issues' scope, it would
have followed that those issues failed to provide the jury with a vehicle for expressing its “reasoned moral
response” to Cole's mitigating evidence. In denying Cole relief, however, the Texas trial judge relied not on
Penry I, but on three later Texas cases and Graham v. Collins, defining the legal issue whether the
mitigating evidence could be sufficiently considered as one to be determined on a case-by-case basis,
depending on the evidence's nature and on whether its consideration was enabled by other evidence in the
record. The state court's primary reliance on Graham was misguided. In concluding that granting collateral
relief to a defendant sentenced to death in 1984 would require the announcement of a new constitutional
rule, the Graham Court, relied heavily on the fact that in 1984 it was reasonable for judges to rely on the
Franklin plurality's categorical reading of Jurek, which, in its view, expressly and unconditionally upheld the
manner in which mitigating evidence is considered under the special issues. But in both Franklin and Penry
I, a majority ultimately rejected that interpretation. While neither Franklin nor Penry I was inconsistent with
Graham's narrow holding, they suggest that later decisions—including Johnson v. Texas, which refused to
adopt the rule Graham sought—are more relevant to Cole's case. The relevance of those cases lies not in
their results, but in their failure to disturb the basic legal principle that continues to govern such cases: The
jury must have a “meaningful basis to consider the relevant mitigating qualities” of the defendant's
proffered evidence. Several other reasons demonstrate that the CCA's ruling was not a reasonable
application of Penry I. First, the ruling ignored the fact that Cole's mitigating evidence of childhood
deprivation and lack of self-control was relevant to his moral culpability for precisely the same reason as
Penry's: It did not rebut either deliberateness or future dangerousness but was intended to provide the jury
with an entirely different reason for not imposing death. Second, the trial judge's assumption that it would
be appropriate to look at other testimony to determine whether the jury could give mitigating effect to Cole's
family testimony is neither reasonable nor supported by Penry I. Third, simply because the jury could give
mitigating effect to the experts' predictions that Cole should become less dangerous as he aged does not
mean that the jury understood it could give such effect to other portions of the experts' testimony or that of
other witnesses.
(c) Four of the Court's more recent cases support the conclusion that the CCA's decision was
unsupported by Penry I's text or reasoning. Although holding in Johnson, that the Texas special issues
allowed adequate consideration of petitioner's youth as a mitigating circumstance, the Court also declared
that “Penry remains the law and must be given a fair reading.” Arguments like those of Cole's prosecutor
that the special issues require jurors to disregard the force of evidence offered in mitigation and rely only
on the facts are at odds with the Johnson Court's understanding that juries could and would reach
mitigating evidence proffered by a defendant. Further, evidence such as that presented by Cole is not like
the evidence of youth offered in Johnson and Graham, which easily could have supported a negative
answer to the question of future dangerousness, and is instead more like the evidence offered in Penry I,
which compelled an affirmative answer to the same question, despite its mitigating significance. That fact
provides further support for the conclusion that in a case like Cole's, there is a reasonable likelihood that
the special issues would preclude the jury from giving meaningful consideration to such mitigating
evidence, as required by Penry I. In three later cases, the Court gave Penry I the “fair reading” Johnson
contemplated, repudiating several Fifth Circuit precedents providing the basis for its narrow reading of
Penry I.
Case
Penry v.
Lynaugh
492 U. S. 302
(1989)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
Petitioner was charged with capital murder in Texas state
court. He was found competent to stand trial, although a
psychologist testified that he was mildly to moderately
retarded and had the mental age of a 6 1/2-year-old. At the
guilt-innocence phase of the trial, petitioner raised an insanity
defense and presented psychiatric testimony that he suffered
from a combination of organic brain damage and moderate
retardation which resulted in poor impulse control and an
inability to learn from experience. His evidence also indicated
that he had been abused as a child. The State introduced
testimony that petitioner was legally sane, but had an
antisocial personality. The jury rejected petitioner’s insanity
defense and found him guilty of capital murder. At the penalty
phase of the trial, the sentencing jury was instructed to
consider all the evidence introduced at trial in answering the
following “special issues”: (1) whether petitioner’s conduct was
committed deliberately and with the reasonable expectation
that death would result; (2) whether there was a probability
that he would be a continuing threat to society; and (3)
whether the killing was unreasonable in response to any
provocation by the victim. The trial court rejected petitioner’s
request for jury instructions defining the terms in the special
issues and authorizing a grant of mercy based upon the
existence of mitigating circumstances. The jury answered
“yes” to each special issue, and, as required by Texas law, the
court therefore sentenced petitioner to death. A “no” answer to
any of the special issues would have required a sentence of
life imprisonment. The Texas Court of Criminal Appeals
affirmed, rejecting petitioner’s contentions that his death
sentence violated the Eighth Amendment first, because the
jury was not adequately instructed to consider all of his
mitigating evidence and because the special issues’ terms
were not defined in such a way that the jury could consider
and give effect to that evidence in answering them; and,
second, because it is cruel and unusual punishment to
execute a mentally retarded person with petitioner’s mental
ability. After this Court denied certiorari on direct review, the
Federal District Court and the Court of Appeals upheld
petitioner’s death sentence in habeas corpus proceedings.
Although it denied him relief, the Court of Appeals
nevertheless found considerable merit in petitioner’s claim that
his mitigating evidence of mental retardation and childhood
abuse could not be given effect by the jury, under the
instructions given, in answering the special issues.
Issue Presented and Holding
Issue: when mitigating evidence of mental retardation and an abused childhood is presented, whether juries must,
upon request, be given instructions that allow them to give effect to that mitigating evidence in determining whether
to impose the death penalty.
Held: Affirmed in part and Reversed in part, Remanded.
(a) The Teague rule of non-retroactivity and its two exceptions are applicable in the capital sentencing context. A
criminal judgment includes the sentence imposed, and collateral challenges to sentences foster delay and
undermine the finality concerns underlying Teague’s rule of non-retroactivity.
(b) Under Teague, a case announces a “new rule” when it breaks new ground or imposes a new obligation on the
States or the Federal Government, or if the result is not dictated by precedent which existed at the time the
defendant’s conviction became final. Here, since Lockett v. Ohio, and Eddings v. Oklahoma, were decided before
petitioner’s conviction became final when this Court denied his certiorari petition on direct review, he is entitled to the
benefit of those decisions under Griffith v. Kentucky. The rule that petitioner seeks does not impose a new obligation
on Texas, because Jurek v. Texas, upheld the Texas death penalty statute on the basis of assurances that the
special issues would be interpreted broadly enough to permit the jury to consider all of the relevant mitigating
evidence a defendant might present in imposing sentence. Moreover, the rule that petitioner seeks in this case is
dictated by Eddings and Lockett, which established that a State cannot, consistent with the Eighth and Fourteenth
Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s
background or character or to the circumstances of the offense that mitigates against imposing the death penalty.
The absence of instructions informing the jury that it could consider and give effect to petitioner’s mitigating
evidence of mental retardation and abused background by declining to impose the death penalty compels the
conclusion that the jury was not provided with a vehicle for expressing its “reasoned moral response” to that
evidence in rendering its sentencing decision, as is required by the Eighth and Fourteenth Amendments under
Lockett, Eddings, and subsequent decisions. Those decisions are based on the principle that punishment must be
directly related to the defendant’s personal culpability, and that a defendant who commits crimes attributable to a
disadvantaged background or emotional and mental problems may be less culpable than one who has no such
excuse. Here, although petitioner was permitted to introduce and argue the significance of his mitigating evidence to
the jury, the jury instructions did not permit the jury to give effect to that evidence in answering the three special
issues. As to the first such issue, without a special instruction defining “deliberately” in a way that would clearly direct
the jury to fully consider petitioner’s mitigating evidence as it bears on his moral culpability, a juror who believed that
that evidence made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if
the juror also believed that petitioner committed the crime “deliberately.” Nor did the second special issue provide a
vehicle for the jury to give mitigating effect to petitioner’s evidence of mental retardation and childhood abuse; to the
contrary, the evidence concerning his inability to learn from his mistakes by virtue of his mental retardation actually
suggests that he will be dangerous in the future. Although such evidence may lessen his blameworthiness, it made
an affirmative answer to the second issue more likely. Furthermore, a juror who believed that petitioner lacked the
moral culpability to be sentenced to death could not express that view in answering the third special issue if the juror
also believed that his conduct was not a reasonable response to provocation by the victim. There is no merit to the
State’s contention that to instruct the jury that it could decline to impose the death penalty based on petitioner’s
mitigating evidence would allow it the sort of unbridled discretion prohibited by Furman v. Georgia. As Gregg v.
Georgia, made clear, so long as the class of murderers subject to capital punishment is narrowed, there is no
constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence
introduced by a defendant. Furthermore, because the punishment imposed should be directly related to the personal
culpability of the defendant, the sentencer must be allowed to consider and give effect to mitigating evidence
relevant to a defendant’s background, character, and crime. Full consideration of such mitigating evidence enhances
the reliability of the jury’s sentencing decision.
The Eighth Amendment does not categorically prohibit the execution of mentally retarded capital murderers of
petitioner’s reasoning ability. (a) Although granting petitioner relief on this issue would create a “new rule” within the
meaning of Teague, supra, that rule would fall within the first exception to Teague’s general rule of nonretroactivity.
That exception applies not only to new rules that place certain kinds of primary, private individual conduct beyond the
power of the criminal lawmaking authority to proscribe. It also applies to new rules prohibiting a certain category of
punishment for a class of defendants because of their status or offense. (b) The Eighth Amendment’s categorical
prohibition upon the infliction of cruel and unusual punishment applies to practices condemned by the common law
at the time the Bill of Rights was adopted, as well as to punishments which offend our society’s evolving standards of
decency as expressed in objective evidence of legislative enactments and the conduct of sentencing juries. Since
the common law prohibited the punishment of “idiots” – which term was generally used to describe persons totally
lacking in reason, understanding, or the ability to distinguish between good and evil – it may indeed be “cruel and
unusual punishment” to execute persons who are profoundly or severely retarded and wholly lacking in the capacity
to appreciate the wrongfulness of their actions. Such persons, however, are not likely to be convicted or face the
prospect of punishment today, since the modern insanity defense generally includes “mental defect” as part of the
legal definition of insanity, and since Ford v. Wainwright, supra, prohibits the execution of persons who are unaware
of their punishment and why they must suffer it. Moreover, petitioner is not such a person, since the jury (1) found
him competent to stand trial, and therefore to have a rational as well as factual understanding of the proceedings;
and (2) rejected his insanity defense, thereby reflecting the conclusion that he knew his conduct was wrong and was
capable of conforming it to the requirements of law. Nor is there sufficient objective evidence today of a national
consensus against executing mentally retarded capital murderers, since petitioner has cited only one state statute
that explicitly bans that practice, and has offered no evidence of the general behavior of juries in this regard. Opinion
surveys indicating strong public opposition to such executions do not establish a societal consensus, absent some
legislative reflection of the sentiment expressed therein. It cannot be said that executing capital murderers who are
mentally retarded violates the Eighth Amendment’s proportionality requirement. To be sure, retardation has long
been regarded as a factor that may diminish culpability, and, in its most severe form, may result in complete
exculpation. Moreover, most States with death penalty statutes that list mitigating factors include reduced mental
capacity as a mitigating circumstance, and this Court holds today that the sentencing body must be allowed to
consider retardation in making the individualized determination whether the death penalty is appropriate. Mentally
retarded persons, however, are individuals whose abilities and behavioral deficits can vary greatly depending on the
degree of their retardation, their life experience, and the ameliorative effects of education and habilitation. On the
present record, it cannot be said that all mentally retarded people of petitioner’s ability – by virtue of their mental
retardation alone, and apart from any individualized consideration of their personal responsibility – inevitably lack the
cognitive, volitional, and moral capacity to act with the degree of culpability associated with the death penalty.
Moreover, the concept of “mental age” is an insufficient basis for a categorical Eighth Amendment rule, since it is
imprecise, does not adequately account for individuals’ varying experiences and abilities, ceases to change after a
person reaches the chronological age of 15 or 16, and could have a disempowering effect if applied to retarded
persons in other areas of the law, such as the opportunity to enter contracts or to marry.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether House has met actual-innocence exception and his federal habeas action may
proceed and whether his imprisonment is unconstitutional.
House v. Bell
547 U.S. 518
(2006)
Sentencing:
Actual
Innocence
Exception
A Tennessee jury convicted petitioner House of Carolyn
Muncey's murder and sentenced him to death. The State's
case included evidence that FBI testing showed semen
consistent (or so it seemed) with House's on Mrs. Muncey's
clothing and small bloodstains consistent with her blood but
not House's on his jeans. In the sentencing phase, the jury
found, inter alia, the aggravating factor that the murder was
committed while House was committing, attempting to commit,
or fleeing from the commission of rape or kidnapping. In
affirming, the State Supreme Court described the evidence as
circumstantial but strong. House was denied state
postconviction relief. Subsequently, the Federal District Court
denied habeas relief, deeming House's claims procedurally
defaulted and granting the State summary judgment on most
of his claims. It also found, after an evidentiary hearing at
which House attacked the blood and semen evidence and
presented other evidence, including a putative confession,
suggesting that Mr. Muncey committed the crime, that House
did not fall within the “actual innocence” exception to
procedural default recognized in Schlup v. Delo, and Sawyer
v. Whitley. The Sixth Circuit ultimately affirmed.
Held: Reversed and Remanded.
(a) To implement the general principle that “comity and finality must yield to the imperative of
correcting a fundamentally unjust incarceration,” this Court has ruled that prisoners asserting
innocence as a gateway to defaulted claims must establish that, in light of new evidence, “it is
more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Several features of Schlup's standard bear emphasis here. First, while the
gateway claim requires “new reliable evidence not presented at trial,” the habeas court must
assess the likely impact of “all the evidence” on reasonable jurors. Second, rather than requiring
absolute certainty about guilt or innocence, a petitioner's burden at the gateway stage is to
demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt. Finally, this standard is “by no means equivalent to the
standard of Jackson v. Virginia,” which governs insufficient evidence claims. Rather, because a
Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal
court to assess how reasonable jurors would react to the overall, newly supplemented record.
Contrary to the State's arguments, the standard of review in two provisions of the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. §§2244(b)(2)(B)(ii) and 2254(e)(2), is inapplicable
here. In addition, because the standard does not address a “district court's independent judgment
as to whether reasonable doubt exists,” a ruling in House's favor does not require the showing of
clear error as to the District Court's specific findings. It is with these principles in mind that the
evidence developed in House's federal habeas proceedings should be evaluated.
(b) In direct contradiction of evidence presented at trial, DNA testing has established that semen
on Mrs. Muncey's clothing came from her husband, not House. While the State claims that the
evidence is immaterial since neither sexual contact nor motive were elements of the offense at the
guilt phase, this Court considers the new disclosure of central importance. This case is about who
committed the crime, so motive is key, and the prosecution at the guilt phase referred to evidence
at the scene suggesting that House committed, or attempted to commit, an indignity on Mrs.
Muncey. Apart from proving motive, this was the only forensic evidence at the scene that would
link House to the murder. Law and society demand accountability for a sexual offense, so the
evidence was also likely a factor in persuading the jury not to let him go free. At sentencing,
moreover, the jury concluded that the murder was committed in the course of a rape or kidnapping.
A jury acting without the assumption that the semen could have come from House would have
found it necessary to establish some different motive, or, if the same motive, an intent far more
speculative.
(c) The evidentiary disarray surrounding the other forensic evidence, the bloodstains on House's
pants, taken together with the testimony of an Assistant Chief Medical Examiner for the State of
Tennessee, would prevent reasonable jurors from placing significant reliance on the blood
evidence. The medical examiner who testified believes the blood on the jeans must have come
from the autopsy samples. In addition, a vial and a quarter of autopsy blood is unaccounted for; the
blood was transported to the FBI together with the pants in conditions that could have caused the
vials to spill; some blood did spill at least once during the blood's journey from Tennessee
authorities through FBI hands to a defense expert; the pants were stored in a plastic bag bearing a
large bloodstain and a label from a Tennessee Bureau of Investigation agent; and the box
containing the blood samples may have been opened before arriving at the FBI lab. None of this
evidence was presented to the trial jury. Whereas the bloodstains seemed strong evidence of
House's guilt at trial, the record now raises substantial questions about the blood's origin.
(d) In the post-trial proceedings, House presented troubling evidence that Mr. Muncey could
have been the murderer. Two witnesses described a confession by Mr. Muncey; two others
described suspicious behavior (a fight between the couple and Mr. Muncey's attempt to construct a
false alibi) around the time of the crime; and others described a history of spousal abuse.
Considered in isolation, a reasonable jury might well disregard this evidence, but in combination
with the challenges to the blood evidence and lack of motive with respect to House, evidence
pointing to Mr. Muncey likely would reinforce other doubts as to House's guilt.
(e) The Assistant Chief Medical Examiner further testified that certain injuries discovered on
House after the crime likely did not result from involvement in the murder. Certain other evidence—
Mrs. Muncey's daughter's recollection of the night of the murder, and the District Court's finding at
the habeas proceeding that House was not a credible witness—may favor the State.
(f) While this is not a case of conclusive exoneration, and the issue is close, this is the rare case
where—had the jury heard all the conflicting testimony—it is more likely than not that no
reasonable juror viewing the record as a whole would lack reasonable doubt. House has not
shown freestanding innocence that would render his imprisonment and planned execution
unconstitutional under Herrera v. Collins, in which the Court assumed without deciding that “in a
capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render
the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no
state avenue open to process such a claim.” The threshold showing for such a right would be
extraordinarily high, and House has not satisfied whatever burden a hypothetical freestanding
innocence claim would require. He has cast doubt on his guilt sufficient to satisfy Schlup's gateway
standard for obtaining federal review, but given the closeness of the Schlup question here, his
showing falls short of the threshold implied in Herrera.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether, since the ACA does not make Louisiana's first-degree murder statute part
of federal law, the federal second-degree murder statute, §1111, governs the crime at
issue.
Lewis v. United
States
523 U.S. 155
(1998)
Sentencing:
Penalties
A federal indictment charged petitioner Lewis and her
husband with beating and killing his 4-year-old daughter while
they lived at an Army base in Louisiana. Relying on the
federal Assimilative Crimes Act, 18 U.S.C. §13(a)-which
provides that “whoever within any federal enclave is guilty of
any act or omission which, although not made punishable by
any enactment of Congress, would be punishable within the
jurisdiction of the State in which such place is situated, shall
be guilty of a like offense and subject to like punishment”-the
indictment charged the defendants under a Louisiana statute
defining first-degree murder to include “killing when the
offender has the specific intent to kill or harm a victim under
the age of twelve.”
Upon her conviction of Louisiana first-degree murder, the
District Court sentenced Lewis to life imprisonment without
parole. The Fifth Circuit held that the Louisiana statute was
not assimilated into federal law under the ACA because the
federal second-degree murder statute applicable to federal
enclaves, 18 U.S.C. §1111, governed the crime at issue. The
court nonetheless affirmed Lewis' conviction on the ground
that, in finding her guilty of the state charge, the jury had
necessarily found all of the requisite elements of federal
second-degree murder. And it affirmed her sentence on the
ground that it was no greater than the maximum sentence
(life) permitted by §1111.
Held: Yes. Vacated and Remanded.
(a) The basic question before this Court is the meaning of the ACA phrase “not made
punishable by any enactment of Congress.” The Court rejects an absolutely literal reading
of the italicized words because that would dramatically separate the ACA from its basic
purpose of borrowing state law to fill gaps in the federal criminal law applicable on federal
enclaves, and would conflict with the ACA's history and features. On the other hand, the
Court cannot find a convincing justification in language, purpose, or precedent for the
Government's narrow interpretation that “any enactment” refers, with limited exceptions,
only to federal enactments that share the same statutory elements as the relevant state law.
Rather, the ACA's language and its gap-filling purpose taken together indicate that, to
determine whether a particular state statute is assimilated, a court must first ask the
question that the ACA's language requires: Is the defendant's “act or omission made
punishable by any enactment of Congress.” If the answer is “no,” that will normally end the
matter because the ACA presumably would assimilate the state statute. If the answer is
“yes,” however, the court must ask the further question whether the federal statutes that
apply to the “act or omission” reveal a legislative intent to preclude application of the state
law in question, say, because the federal statutes reveal an intent to occupy so much of a
field as would exclude use of the particular state statute.
(b) Application of these principles to this case reveals that federal law does not assimilate
the child murder provision of Louisiana's first-degree murder statute. Among other things,
§1111 defines first-degree murder to include “willful, deliberate, malicious, and
premeditated killing,” as well as certain listed felony murders and instances of transferred
intent, and says that “murder in the second degree” is “any other murder” and is punishable
by imprisonment for “any term of years or for life.” In contrast, the Louisiana statute defines
first-degree murder as, inter alia, the killing of someone under 12 with a “specific intent to
kill or harm,” and makes it punishable by “death or life imprisonment” without parole. Here,
the defendant's “act or omission” is “made punishable by an enactment of Congress”
because §1111 makes Lewis' “act punishable” as second-degree murder. Moreover,
applicable federal law indicates an intent to punish conduct such as the defendant's to the
exclusion of the state statute at issue. Even though the two statutes cover different forms of
behavior, other §1111 features, taken together, demonstrate Congress' intent to completely
cover all types of federal enclave murder as an integrated whole. These features include
the fact that §1111 is drafted in a detailed manner to cover all variants of murder; the way in
which its “first-degree” and “second-degree” provisions are linguistically interwoven; the fact
that its “first-degree” list is detailed; the fact that that list sets forth several circumstances at
the same level of generality as does the Louisiana law; and the extreme breadth of the
possible federal sentences, ranging all the way from any term of years, to death. Also
supporting preclusive intent are the circumstances that Congress has recently focused
directly several times upon the §1111 first-degree list's content, subtracting certain specified
felonies or adding others; that, by drawing the line between first and second degree,
Congress has carefully decided just when it does, and does not, intend for murder to be
punishable by death, a major way in which the Louisiana statute (which provides the death
penalty) differs from the federal second-degree provision (which does not); that, when
writing and amending the ACA, Congress has referred to murder as an example of a crime
covered by, not as an example of a gap in, federal law; that §1111 applies only on federal
enclaves, so that assimilation of Louisiana law would treat enclave residents differently from
those living elsewhere in that State, by subjecting them to two sets of “territorial” criminal
laws in addition to the general federal criminal laws that apply nationwide; and that there
apparently is not a single reported case in which a federal court has used the ACA to
assimilate a state murder law. Given all these considerations, there is no gap for
Louisiana's statute to fill.
Lewis is entitled to resentencing. As she argues and the Government concedes, the Fifth
Circuit erred in affirming her life sentence because §1111, unlike the Louisiana statute,
does not make such a sentence mandatory for second-degree murder, but provides for a
sentence of “any term of years or life.” Moreover, the federal Sentencing Guidelines provide
for a range of 168 to 210 months' imprisonment for a first-time offender like her who
murders a “vulnerable victim.” Although a judge could impose a higher sentence by
departing from the Guidelines range, it is for the District Court to make such a determination
in the first instance.
Case
Dobbert v.
Florida
432 U.S. 282
(1977)
Subject
Sentencing:
Penalties
Facts
Petitioner was convicted of first-degree murder of his daughter
Kelly Ann, aged 9, and second-degree murder of his son
Ryder Scott, aged 7. He was also found guilty of torturing his
son Ernest John III, aged 11, and of abusing his daughter
Honore Elizabeth, aged 5. The brutality and heinousness of
these crimes are relevant both to petitioner's motion for a
change of venue due to pretrial publicity and to the trial
judge's imposition of the sentence of death. The Florida death
penalty statute, which was upheld in Proffitt v. Florida,
requires, upon the conviction of a capital felon, a separate
sentencing hearing before the trial judge and jury, at which
certain evidence relating to aggravating or mitigating
circumstances must be admitted. The jury, based on such
circumstances, then renders an advisory decision, not binding
on the judge, who must then also weigh the circumstances,
and if he imposes a death sentence, he must set forth written
findings of fact. The judgment of conviction and death
sentence are thereafter subject to an automatic priority review
by the Florida Supreme Court. Petitioner was convicted in a
Florida court of first-degree murder of one of his children.
Pursuant to the above statute the jury, after the required
sentencing hearing, recommended a life sentence, but the
judge overruled that recommendation and sentenced
petitioner to death. The Florida Supreme Court affirmed.
Petitioner makes three claims based on the constitutional
prohibition against ex post facto laws: (1) the change in the
role of the judge and jury in imposing the death sentence, in
that under the statute in effect at the time of the murder a
recommendation of mercy by the jury was not reviewable by
the judge, constituted an ex post facto violation because the
change deprived him of a substantial right to have the jury
determine, without review by the judge, whether the death
penalty should be imposed; (2) there was no death penalty “in
effect” in Florida at the time of the murder because the earlier
statute in effect at such time was later held invalid by the
Florida SC under Furman v. GA; and (3) the current statute
requires anyone sentenced to life imprisonment to serve at
least 25 years before becoming eligible for parole, whereas
the prior statute contained no such limitation. Petitioner also
makes a related claim that since after Furman and its own
decision invalidating the prior death penalty statute the Florida
SC resentenced to life imprisonment all prisoners then under
death sentences pursuant to the old statute, and since his
crimes were committed prior to Furman, the imposition of the
death sentence upon him pursuant to the new statute denied
him equal protection of the laws. He further claims that pretrial
publicity concerning his crimes deprived him a fair trial.
Issue Presented and Holding
Issue: Whether it was proper for the judge to overrule the jury
recommendation and sentence petitioner to death.
Held: Yes. Affirmed.
1. The changes in the death penalty statute between the time
of the murder and the time of the trial are procedural and on the
whole ameliorative, and hence there is no ex post facto
violation. (a) The new statute simply altered the methods
employed in determining whether the death penalty was to be
imposed, and there was no change in the quantum of
punishment attached to the crime. (b) The new statute provides
capital defendants with more, rather than less, judicial protection
than the old statute. Death is not automatic, absent a jury
recommendation of mercy, as it was under the old statute; a jury
recommendation of life may be overridden by the trial judge only
under exacting standards, but, unlike the old statute, a jury
recommendation of death is not binding. Defendants have a
second chance for life with the trial judge and a third, if
necessary, with the Florida Supreme Court.
2. The existence of the earlier statute at the time of the murder
served as an “operative fact” to warn petitioner of the penalty
which Florida would seek to impose on him if he were convicted
of first-degree murder, and this was sufficient compliance with
the ex post facto provision of the Constitution, notwithstanding
the subsequent invalidation of the statute.
3. Petitioner, having been sentenced to death, may not
complain of burdens attached to a life sentence under the new
statute which may not have attached to the old.
4. The imposition of the death sentence upon petitioner
pursuant to the new statute did not deny him equal protection of
the laws. Having been neither tried nor sentenced prior to
Furman, he was not similarly situated to those whose death
sentences were commuted, and it was not irrational for Florida
to relegate him to the class of those prisoners whose acts could
properly be punished under the new statute that was in effect at
the time of his trial and sentence.
5. Absent anything in the record, in particular with respect to
the voir dire examination of the jurors, that would require a
finding of constitutional unfairness as to the method of jury
selection or as to the character of the jurors actually selected,
petitioner has failed to show that under the “totality of
circumstances” extensive pretrial news media coverage of his
case denied him a fair trial.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime
did not result, and was not intended to result, in the victim’s death
Kennedy v.
Louisiana
554 U.S. 407
(2008)
Sentencing:
Penalties
Louisiana charged petitioner with the aggravated rape of his
then-8-year-old stepdaughter. He was convicted and
sentenced to death under a state statute authorizing capital
punishment for the rape of a child under 12. The State
Supreme Court affirmed, rejecting petitioner’s reliance on
Coker v. Georgia, which barred the use of the death penalty
as punishment for the rape of an adult woman but left open
the question which, if any, other non-homicide crimes can be
punished by death consistent with the Eighth Amendment.
Reasoning that children are a class in need of special
protection, the state court held child rape to be unique in
terms of the harm it inflicts upon the victim and society and
concluded that, short of first-degree murder, there is no crime
more deserving of death. The court acknowledged that
petitioner would be the first person executed since the state
law was amended to authorize the death penalty for child rape
in 1995, and that Louisiana is in the minority of jurisdictions
authorizing death for that crime. However, emphasizing that
four more States had capitalized child rape since 1995 and at
least eight others had authorized death for other non-homicide
crimes, as well as that, under Roper v. Simmons and Atkins v.
Virginia, it is the direction of change rather than the numerical
count that is significant, the court held petitioner’s death
sentence to be constitutional.
Held: Yes. Reversed and remanded.
1. The Amendment’s Cruel and Unusual Punishment Clause “draw[s] its meaning from the evolving standards of decency that
mark the progress of a maturing society.” The standard for extreme cruelty “itself remains the same, but its applicability must
change as the basic mores of society change.” Under the precept of justice that punishment is to be graduated and proportioned
to the crime, informed by evolving standards, capital punishment must “be limited to those offenders who commit ‘a narrow
category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ” Applying
this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the
Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the
death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim’s
death. In making its determination, the Court is guided by “objective indicia of society’s standards, as expressed in legislative
enactments and state practice with respect to executions.” Consensus is not dispositive, however. Whether the death penalty is
disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court’s own
understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.
2. A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other
nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a
national consensus against capital punishment for the crime of child rape. (a) The Court follows the approach of cases in which
objective indicia of consensus demonstrated an opinion against the death penalty for juveniles, mentally retarded offenders, and
vicarious felony murderers. Thirty-seven jurisdictions—36 States plus the Federal Government—currently impose capital
punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be executed for
child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited the death
penalty under the circumstances those cases considered. (b) Respondent’s argument that Coker’s general discussion
contrasting murder and rape, has been interpreted too expansively, leading some States to conclude that Coker applies to child
rape when in fact it does not, is unsound. Coker’s holding was narrower than some of its language read in isolation indicates.
The Coker plurality framed the question as whether, “with respect to rape of an adult woman,” the death penalty is
disproportionate punishment, and it repeated the phrase “adult woman” or “adult female” eight times in discussing the crime or
the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker’s reasoning, including
its analysis of legislative consensus. There is little evidence to support respondent’s contention that state legislatures have
understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not
address that crime. Accordingly, the small number of States that have enacted the death penalty for child rape is relevant to
determining whether there is a consensus against capital punishment for the rape of a child. (c) A consistent direction of change
in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, but no
showing of consistent change has been made here. That five States may have had pending legislation authorizing death for
child rape is not dispositive because it is not this Court’s practice, nor is it sound, to find contemporary norms based on
legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five
States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last
two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting
the execution of mentally retarded persons. Respondent argues that this case is like Roper because, there, only five States had
shifted their positions between 1989 and 2005, one less State than here. But the Roper Court emphasized that the slow pace of
abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders.
Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction
comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national
consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. (d) Execution statistics also
confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment
for adult or child rape for some length of time between the Court’s 1972 Furman decision and today; yet no individual has been
executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted
since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for child rape, and petitioner and
another man so sentenced are the only individuals now on death row in the United States for nonhomicide offenses.
3. Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in
its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape. (a) The Court’s own
judgment should be brought to bear on the death penalty’s acceptability under the Eighth Amendment. Rape’s permanent and
devastating impact on a child suggests moral grounds for questioning a rule barring capital punishment simply because the
crime did not result in the victim’s death, but it does not follow that death is a proportionate penalty for child rape. The
constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment “be exercised within
the limits of civilized standards.” Evolving standards of decency counsel the Court to be most hesitant before allowing extension
of the death penalty, especially where no life was taken in the commission of the crime.. Consistent with those evolving
standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first degree
murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes
may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” they
cannot compare to murder in their “severity and irrevocability.” The Court finds significant the substantial number of executions
that would be allowed for child rape under respondent’s approach. Although narrowing aggravators might be used to ensure the
death penalty’s restrained application in this context, as they are in the context of capital murder, all such standards have the
potential to result in some inconsistency of application. The Court, for example, has acknowledged that the requirement of
general rules to ensure consistency of treatment, and the insistence that capital sentencing be individualized, have resulted in
tension and imprecision. This approach might be sound with respect to capital murder but it should not be introduced into the
justice system where death has not occurred. The Court has spent more than 32 years developing a foundational jurisprudence
for capital murder to guide the States and juries in imposing the death penalty. Beginning the same process for crimes for which
no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would
result in the execution of individuals undeserving of death. (b) The Court’s decision is consistent with the justifications offered for
the death penalty, retribution and deterrence. Among the factors for determining whether retribution is served, the Court must
look to whether the death penalty balances the wrong to the victim in nonhomicide cases. It is not at all evident that the child
rape victim’s hurt is lessened when the law permits the perpetrator’s death, given that capital cases require a long-term
commitment by those testifying for the prosecution. Society’s desire to inflict death for child rape by enlisting the child victim to
assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to
make that choice. There are also relevant systemic concerns in prosecuting child rape, including the documented problem of
unreliable, induced, and even imagined child testimony, which creates a “special risk of wrongful execution” in some cases. As to
deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk
of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And,
by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not
to kill his victim.
4. The concern that the Court’s holding will effectively block further development of a consensus favoring the death penalty for
child rape overlooks the principle that the Eighth Amendment is defined by “the evolving standards of decency that mark the
progress of a maturing society.” Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital
punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of
crimes against individuals, take the victim’s life.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders
who were under the age of 18 when their crimes were committed.
Roper v.
Simmons
543 U.S. 551
(2005)
Sentencing:
Penalties
At age 17, respondent Simmons planned and committed a
capital murder. After he had turned 18, he was sentenced to
death. His direct appeal and subsequent petitions for state
and federal post-conviction relief were rejected. This Court
then held, in Atkins v. Virginia, that the Eighth Amendment,
applicable to the States through the Fourteenth Amendment,
prohibits the execution of a mentally retarded person.
Simmons filed a new petition for state post-conviction relief,
arguing that Atkins’ reasoning established that the
Constitution prohibits the execution of a juvenile who was
under 18 when he committed his crime. The Missouri
Supreme Court agreed and set aside Simmons’ death
sentence in favor of life imprisonment without eligibility for
release. It held that, although Stanford v. Kentucky, rejected
the proposition that the Constitution bars capital punishment
for juvenile offenders younger than 18, a national consensus
has developed against the execution of those offenders since
Stanford.
Held: Yes. Affirmed.
(a) The Eighth Amendment’s prohibition against “cruel and unusual punishments” must be interpreted
according to its text, by considering history, tradition, and precedent, and with due regard for its purpose
and function in the constitutional design. To implement this framework this Court has established the
propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the
progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and
unusual.” In 1988, in Thompson v. Oklahoma, a plurality determined that national standards of decency did
not permit the execution of any offender under age 16 at the time of the crime. The next year, in Stanford, a
5-to-4 Court referred to contemporary standards of decency, but concluded the Eighth and Fourteenth
Amendments did not proscribe the execution of offenders over 15 but under 18 because 22 of 37 death
penalty States permitted that penalty for 16-year-old offenders, and 25 permitted it for 17-year-olds,
thereby indicating there was no national consensus. A plurality also “emphatically rejected” the suggestion
that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. That
same day the Court held, in Penry v. Lynaugh, that the Eighth Amendment did not mandate a categorical
exemption from the death penalty for mentally retarded persons because only two States had enacted laws
banning such executions. Three Terms ago in Atkins, however, the Court held that standards of decency
had evolved since Penry and now demonstrated that the execution of the mentally retarded is cruel and
unusual punishment. The Atkins Court noted that objective indicia of society’s standards, as expressed in
pertinent legislative enactments and state practice, demonstrated that such executions had become so
truly unusual that it was fair to say that a national consensus has developed against them. The Court also
returned to the rule, established in decisions predating Stanford, that the Constitution contemplates that the
Court’s own judgment be brought to bear on the question of the acceptability of the death penalty. After
observing that mental retardation diminishes personal culpability even if the offender can distinguish right
from wrong, and that mentally retarded offenders’ impairments make it less defensible to impose the death
penalty as retribution for past crimes or as a real deterrent to future crimes, the Court ruled that the death
penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, and that
the Eighth Amendment places a substantive restriction on the State’s power to take such an offender’s life.
(b) Both objective indicia of consensus, as expressed in particular by the enactments of legislatures that
have addressed the question, and the Court’s own determination in the exercise of its independent
judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles. (1) As in
Atkins, the objective indicia of national consensus here–the rejection of the juvenile death penalty in the
majority of States; the infrequency of its use even where it remains on the books; and the consistency in
the trend toward abolition of the practice–provide sufficient evidence that today society views juveniles, in
the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average
criminal.” The evidence of such consensus is similar, and in some respects parallel, to the evidence in
Atkins: 30 States prohibit the juvenile death penalty, including 12 that have rejected it altogether and 18
that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach.
Moreover, even in the 20 States without a formal prohibition, the execution of juveniles is infrequent.
Although, by contrast to Atkins, the rate of change in reducing the incidence of the juvenile death penalty,
or in taking specific steps to abolish it, has been less dramatic, the difference between this case and Atkins
in that respect is counterbalanced by the consistent direction of the change toward abolition. Indeed, the
slower pace here may be explained by the simple fact that the impropriety of executing juveniles between
16 and 18 years old gained wide recognition earlier than the impropriety of executing the mentally retarded.
(2) Reject ion of the imposition of the death penalty on juvenile offenders under 18 is required by the Eighth
Amendment. Capital punishment must be limited to those offenders who commit “a narrow category of the
most serious crimes” and whose extreme culpability makes them “the most deserving of execution.” Three
general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with
reliability be classified among the worst offenders. Juveniles’ susceptibility to immature and irresponsible
behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own
vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a
greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.
The reality that juveniles still struggle to define their identity means it is less supportable to conclude that
even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. The
Thompson plurality recognized the import of these characteristics with respect to juveniles under 16. The
same reasoning applies to all juvenile offenders under 18. Once juveniles’ diminished culpability is
recognized, it is evident that neither of the two penological justifications for the death penalty–retribution
and deterrence of capital crimes by prospective offenders provides adequate justification for imposing that
penalty on juveniles. Although the Court cannot deny or overlook the brutal crimes too many juvenile
offenders have committed, it disagrees with petitioner’s contention that, given the Court’s own insistence
on individualized consideration in capital sentencing, it is arbitrary and unnecessary to adopt a categorical
rule barring imposition of the death penalty on an offender under 18. An unacceptable likelihood exists that
the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on
youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack
of true depravity should require a sentence less severe than death. When a juvenile commits a heinous
crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is
subject to the objections always raised against categorical rules, that is the point where society draws the
line for many purposes between childhood and adulthood and the age at which the line for death eligibility
ought to rest. Stanford should be deemed no longer controlling on this issue.
(c) The overwhelming weight of international opinion against the juvenile death penalty is not controlling
here, but provides respected and significant confirmation for the Court’s determination that the penalty is
disproportionate punishment for offenders under 18. The United States is the only country in the world that
continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or
pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other
nations and peoples underscores the centrality of those same rights within our own heritage of freedom.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether executions of mentally retarded criminals are “cruel and unusual
punishments” prohibited by the Eighth Amendment.
Atkins v.
Virginia
536 U.S. 304
(2002)
Sentencing:
Penalties
Petitioner Atkins was convicted of capital murder and related
crimes by a Virginia jury and sentenced to death. Affirming,
the Virginia Supreme Court relied on Penry v. Lynaugh, in
rejecting Atkins’ contention that he could not be sentenced to
death because he is mentally retarded.
Held: Yes. Reversed and Remanded.
(a) A punishment is “excessive,” and therefore prohibited by the Amendment,
if it is not graduated and proportioned to the offense. An excessiveness claim is
judged by currently prevailing standards of decency. Proportionality review
under such evolving standards should be informed by objective factors to the
maximum possible extent, the clearest and most reliable of which is the
legislation enacted by the country’s legislatures. In addition to objective
evidence, the Constitution contemplates that this Court will bring its own
judgment to bear by asking whether there is reason to agree or disagree with
the judgment reached by the citizenry and its legislators.
(b) Much has changed since Penry’s conclusion that the two state statutes
then existing that prohibited such executions, even when added to the 14 States
that had rejected capital punishment completely, did not provide sufficient
evidence of a consensus. Subsequently, a significant number of States have
concluded that death is not a suitable punishment for a mentally retarded
criminal, and similar bills have passed at least one house in other States. It is
not so much the number of these States that is significant, but the consistency
of the direction of change. Given that anticrime legislation is far more popular
than legislation protecting violent criminals, the large number of States
prohibiting the execution of mentally retarded persons (and the complete
absence of legislation reinstating such executions) provides powerful evidence
that today society views mentally retarded offenders as categorically less
culpable than the average criminal. The evidence carries even greater force
when it is noted that the legislatures addressing the issue have voted
overwhelmingly in favor of the prohibition. Moreover, even in States allowing the
execution of mentally retarded offenders, the practice is uncommon.
(c) An independent evaluation of the issue reveals no reason for the Court to
disagree with the legislative consensus. Clinical definitions of mental retardation
require not only subaverage intellectual functioning, but also significant
limitations in adaptive skills. Mentally retarded persons frequently know the
difference between right and wrong and are competent to stand trial, but, by
definition, they have diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and to
understand others’ reactions. Their deficiencies do not warrant an exemption
from criminal sanctions, but diminish their personal culpability. In light of these
deficiencies, the Court’s death penalty jurisprudence provides two reasons to
agree with the legislative consensus. First, there is a serious question whether
either justification underpinning the death penalty–retribution and deterrence of
capital crimes–applies to mentally retarded offenders. As to retribution, the
severity of the appropriate punishment necessarily depends on the offender’s
culpability. If the culpability of the average murderer is insufficient to justify
imposition of death, the lesser culpability of the mentally retarded offender
surely does not merit that form of retribution. As to deterrence, the same
cognitive and behavioral impairments that make mentally retarded defendants
less morally culpable also make it less likely that they can process the
information of the possibility of execution as a penalty and, as a result, control
their conduct based upon that information. Nor will exempting the mentally
retarded from execution lessen the death penalty’s deterrent effect with respect
to offenders who are not mentally retarded. Second, mentally retarded
defendants in the aggregate face a special risk of wrongful execution because
of the possibility that they will unwittingly confess to crimes they did not commit,
their lesser ability to give their counsel meaningful assistance, and the facts that
they are typically poor witnesses and that their demeanor may create an
unwarranted impression of lack of remorse for their crimes.
Case
Subject
Facts
Defendant was convicted of first-degree murder, forcible rape
and first-degree burglary, and, following change of venue, was
sentenced to death. On automatic appeal, the California
Supreme Court affirmed.
In a separate case, another defendant was convicted of firstdegree murder and attempted robbery, and was sentenced to
death. On automatic appeal, the California Supreme Court
affirmed. Petitions for writs of certiorari were granted in both
cases.
Tuilaepa v.
California
512 U.S. 967
(1994)
Sentencing:
Penalties
A defendant in California is eligible for the death penalty when
a jury finds him guilty of first-degree murder and finds one or
more of the special circumstances listed in Cal.Penal Code
Ann. §190.2. The case then proceeds to the penalty phase,
where the jury is instructed to consider numerous other factors
listed in §190.3 in deciding whether to impose death.
Petitioners Tuilaepa and Proctor were convicted of firstdegree murder in separate cases. At the penalty phase of
each trial, the jury was instructed to consider the relevant
sentencing factors in §190.3. Both petitioners were sentenced
to death, and the State Supreme Court affirmed. Here, they
challenge the constitutionality of penalty-phase factor (a),
which requires the sentencer to consider the “circumstances
of the crime of which the defendant was convicted and the
existence of any special circumstances found to be true.”
Tuilaepa also challenges factor (b), which requires the
sentencer to consider the “presence or absence of criminal
activity [involving] the use or attempted use of force or
violence or the express or implied threat to use force or
violence,” and factor (i), which requires the sentencer to
consider the defendant's age at the time of the crime.
Issue Presented and Holding
Issue: Whether the factors in question are unconstitutionally
vague under this Court's decisions construing the Cruel and
Unusual Punishments Clause.
Held: No. Affirmed.
(a) The Court's vagueness review is quite deferential, and
relies on the basic principle that a factor is not unconstitutional if
it has some “common-sense core of meaning that criminal juries
should be capable of understanding.” Petitioners' challenge to
factor (a) is at some odds with settled principles, for the
circumstances of the crime are a traditional subject for
consideration by the sentencer, and factor (a) instructs the jury
in understandable terms. Factor (b) is framed in conventional
and understandable terms as well. Asking a jury to consider
matters of historical fact is a permissible part of the sentencing
process. Tuilaepa's challenge to factor (i) is also unusual in light
of the Court's precedents. While determining the bearing age
ought to have in fixing the penalty can pose a dilemma for the
jury, difficulty in application is not the equivalent of vagueness.
(b) This Court's precedents also foreclose petitioners'
remaining arguments. Selection factors need not require
answers to factual questions. The States are not confined to
submitting to the jury specific propositional questions, and there
is no constitutional problem where an instruction directs
consideration of a crime's facts and circumstances. Nor must a
capital sentencer be instructed how to weigh any particular fact
in the sentencing decision.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the imposition and carrying out of the death
penalty in these cases constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments.
Furman v.
Georgia
408 U.S. 238
(1972)
Sentencing:
Penalties
Petitioner in No. 69-5003 was convicted of murder in Georgia,
and was sentenced to death. Petitioner in No. 69-5030 was
convicted of rape in Georgia, and was sentenced to death.
Petitioner in No. 69-5031 was convicted of rape in Texas, and
was sentenced to death.
Held: Yes. Reversed and Remanded.
The Court holds that the imposition and carrying out of the
death penalty in these cases constitute cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments. The judgment in each case is therefore reversed
insofar as it leaves undisturbed the death sentence imposed,
and the cases are remanded for further proceedings.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the imposition and carrying out of the death
penalty in these cases constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments.
Coker v.
Georgia
433 U.S. 584
(1977)
Sentencing:
Penalties
While serving various sentences for murder, rape, kidnapping,
and aggravated assault, petitioner escaped from a Georgia
prison and, in the course of committing an armed robbery and
other offenses, raped an adult woman. He was convicted of
rape, armed robbery, and the other offenses and sentenced to
death on the rape charge, when the jury found two of the
aggravating circumstances present for imposing such a
sentence, that the rape was committed (1) by a person with
prior capital felony convictions and (2) in the course of
committing another capital felony, armed robbery. The
Georgia Supreme Court affirmed both the conviction and
sentence.
Held: Yes. Reversed and Remanded.
(a) The Eighth Amendment bars not only those punishments
that are "barbaric," but also those that are "excessive" in relation
to the crime committed, and a punishment is "excessive" and
unconstitutional if it (1) makes no measurable contribution to
acceptable goals of punishment, and hence is nothing more
than the purposeless and needless imposition of pain and
suffering; or (2) is grossly out of proportion to the severity of the
crime.
(b) That death is a disproportionate penalty for rape is strongly
indicated by the objective evidence of present public judgment,
as represented by the attitude of state legislatures and
sentencing juries, concerning the acceptability of such a
penalty, it appearing that Georgia is currently the only State
authorizing the death sentence for rape of an adult woman, that
it is authorized for rape in only two other States, but only when
the victim is a child, and that, in the vast majority (9 out of 10) of
rape convictions in Georgia since 1973, juries have not imposed
the death sentence.
(c) Although rape deserves serious punishment, the death
penalty, which is unique in its severity and irrevocability, is an
excessive penalty for the rapist who, as such and as opposed to
the murderer, does not unjustifiably take human life.
(d) The conclusion that the death sentence imposed on
petitioner is disproportionate punishment for rape is not affected
by the fact that the jury found the aggravating circumstances of
prior capital felony convictions and occurrence of the rape while
committing armed robbery, a felony for which the death
sentence is also authorized, since the prior convictions do not
change the fact that the rape did not involve the taking of life,
and since the jury did not deem the robbery itself deserving of
the death penalty, even though accompanied by the
aggravating circumstances of prior capital felony convictions.
(e) That, under Georgia law, a deliberate killer cannot be
sentenced to death, absent aggravating circumstances, argues
strongly against the notion that, with or without such
circumstances, a rapist who does not take the life of his victim
should be punished more severely than the deliberate killer.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the subsequent prosecutions were barred by double jeopardy.
United States v.
Dixon
509 U.S. 688
(1993)
Sentencing:
Double
Jeopardy
Based on respondent Dixon's arrest and indictment for
possession of cocaine with intent to distribute, he was
convicted of criminal contempt for violating a condition of his
release on an unrelated offense forbidding him to commit “any
criminal offense.” The trial court later dismissed the cocaine
indictment on double jeopardy grounds. Conversely, the trial
court in respondent Foster's case ruled that double jeopardy
did not require dismissal of a five-count indictment charging
him with simple assault (Count I), threatening to injure another
on three occasions (Counts II–IV), and assault with intent to
kill (Count V), even though the events underlying the charges
had previously prompted his trial for criminal contempt for
violating a civil protection order (CPO) requiring him not to
“assault or in any manner threaten” his estranged wife. The
District of Columbia Court of Appeals consolidated the two
cases on appeal and ruled that both subsequent prosecutions
were barred by the Double Jeopardy Clause under Grady v.
Corbin. In both of these cases, respondents were tried for
criminal contempt of court for violating court orders that
prohibited them from engaging in conduct that was later the
subject of a criminal prosecution.
Held: The judgment is affirmed in part and reversed in part. Remanded.
1. The Double Jeopardy Clause's protection attaches in nonsummary criminal
contempt prosecutions just as it does in other criminal prosecutions. In the
contexts of both multiple punishments and successive prosecution, the double
jeopardy bar applies if the two offenses for which the defendant is punished or
tried cannot survive the “same-elements” or “Blockburger” test. That test
inquires whether each offense contains an element not contained in the other; if
not, they are the “same offence” within the Clause's meaning, and double
jeopardy bars subsequent punishment or prosecution. The Court recently held
in Grady that in addition to passing the Blockburger test, a subsequent
prosecution must satisfy a “same-conduct” test to avoid the double jeopardy bar.
That test provides that, “if, to establish an essential element of an offense
charged in that prosecution, the government will prove conduct that constitutes
an offense for which the defendant has already been prosecuted,” a second
prosecution may not be had.
2. Although prosecution under Counts II–V of Foster's indictment would
undoubtedly be barred by the Grady “same-conduct” test, Grady must be
overruled because it contradicted an unbroken line of decisions, contained less
than accurate historical analysis, and has produced confusion. Unlike
Blockburger analysis, the Grady test lacks constitutional roots. It is wholly
inconsistent with this Court's precedents and with the clear common-law
understanding of double jeopardy. In re Nielsen and subsequent cases stand for
propositions that are entirely in accord with Blockburger and that do not
establish even minimal antecedents for the Grady rule. In contrast, two postNielsen cases, Gavieres v. United States and Burton v. United States, upheld
subsequent prosecutions because the Blockburger test (and only the
Blockburger test) was satisfied. Moreover, the Grady rule has already proved
unstable in application. Although the Court does not lightly reconsider
precedent, it has never felt constrained to follow prior decisions that are
unworkable or badly reasoned.
3. Because Dixon's drug offense did not include any element not contained in
his previous contempt offense, his subsequent prosecution fails the Blockburger
test. Dixon's contempt sanction was imposed for violating the order through
commission of the incorporated drug offense. His “crime” of violating a condition
of his release cannot be abstracted from the “element” of the violated condition.
Here, as in Harris, the underlying substantive criminal offense is a “species of
lesser-included offense,” whose subsequent prosecution is barred by the
Double Jeopardy Clause. The same analysis applies to Count I of Foster's
indictment, and that prosecution is barred. However, the remaining four counts
of Foster's indictment are not barred under Blockburger. Foster's first
prosecution for violating the CPO provision forbidding him to assault his wife
does not bar his later prosecution under Count V, which charges assault with
intent to kill. That offense requires proof of specific intent to kill, which the
contempt offense did not. Similarly, the contempt crime required proof of
knowledge of the CPO, which the later charge does not. The two crimes were
different offenses- Counts II, III, and IV are likewise not barred.
4. Because the Double Jeopardy Clause bars prosecution for an offense if the
defendant already has been held in contempt for its commission, both Dixon's
prosecution for possession with intent to distribute cocaine and Foster's
prosecution for simple assault were prohibited. Even if the Blockburger test is
satisfied, a second prosecution is not permitted for conduct comprising the
criminal act charged in the first. Because Dixon's contempt prosecution proved
beyond a reasonable doubt that he had possessed cocaine with intent to
distribute it, his prosecution for possession with intent to distribute cocaine
based on the same incident is barred. Similarly, since Foster has already been
convicted in his contempt prosecution for the act of simple assault charged in
Count I, his subsequent prosecution for simple assault is barred.
Case
Bailey v. Noot
503 U.S. 952
(1992)
Subject
Sentencing:
Ex Post Facto
Clause
Facts
Petitioner pleaded guilty to the 1976 kidnap, sexual abuse,
and murder of a young girl; he was sentenced to three
concurrent jail terms, the longest of which was 40 years. In
1981, the Minnesota Corrections Board determined that,
because of the severity of petitioner's crimes, the target date
for his release should be the expiration of his sentence. In a
letter to petitioner, the board stated that it would “not consider
any form of release prior to the expiration of your sentence
unless psychiatric, psychological, and correctional staff can
certify that you are no longer a danger to the public in general
and/or young females specifically.”
A year later, the Minnesota Legislature abolished the
corrections board and transferred parole responsibility to the
commissioner of corrections. The commissioner enacted new
parole regulations, including a rule that “all release dates
established by the Minnesota corrections board will be left in
full force and effect by the commissioner.” Petitioner was
informed that this new regulation effectively froze his release
date.
Petitioner filed this civil rights action under Rev.Stat. §1979,
42 U.S.C. §1983, asserting that application of the new parole
regulation to his case violated the Ex Post Facto Clause. The
United States District Court for the District of Minnesota
entered summary judgment for respondents. A divided panel
of the Court of Appeals for the Eighth Circuit affirmed, holding
that “the Minnesota parole regulations are not ‘laws' for ex
post facto purposes” The court, again divided, denied
rehearing en banc.
Issue Presented and Holding
Issue: Whether the Ex Post Facto Clause of the Constitution,
Art. I, § 9, cl. 3, is violated when a newly modified state parole
regulation is applied to a prisoner who began serving his
sentence prior to the rule change.
Held: The petition for a writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the application of the Texas statute to
respondent is prohibited by the Ex Post Facto Clause.
Collins v.
Youngblood
497 U.S. 37
(1990)
Sentencing:
Ex Post Facto
Clause
Respondent was convicted in a Texas state court of
aggravated sexual abuse and sentenced to life imprisonment
and a $10,000 fine. After his conviction and sentence were
affirmed on direct appeal, he applied for a writ of habeas
corpus in state court, arguing that Texas law did not authorize
both a fine and prison term for his offense, and thus that his
judgment and sentence were void and he was entitled to a
new trial. The court, bound by a State Court of Criminal
Appeals' decision, recommended that the writ be granted.
Before the writ was considered by the Court of Criminal
Appeals, however, a new statute was passed allowing an
appellate court to reform an improper verdict assessing a
punishment not authorized by law. Thus, the Court of Criminal
Appeals reformed the verdict by ordering that the fine be
deleted and denied the request for a new trial. Arguing that
the new Texas law's retroactive application violated the Ex
Post Facto Clause of Art. 1, §10 of the Federal Constitution,
respondent sought a writ of habeas corpus in Federal District
Court, which was denied. The Court of Appeals reversed.
Relying on the statement in Thompson v. Utah, that
retroactive procedural statutes violate the Ex Post Facto
Clause unless they “leave untouched all the substantial
protections with which existing law surrounds the accused,”
the court held that respondent's right to a new trial under
former Texas law was a “substantial protection.”
Held: No. Reversed.
1. Although the rule of Teague v. Lane-which prohibits the
retroactive application of new rules to cases on collateral
review-is grounded in important considerations of federal-state
relations, it is not jurisdictional in the sense that this Court,
despite a limited grant of certiorari, must raise and decide the
issue sua sponte. Since Texas has chosen not to rely on
Teague, the merits of respondent's claim will be considered.
2. The application of the Texas statute to respondent is not
prohibited by the Ex Post Facto Clause. (a) The definition of an
ex post facto law as one that (1) punishes as a crime an act
previously committed, which was innocent when done, (2)
makes more burdensome the punishment for a crime, after its
commission, or (3) deprives one charged with a crime of any
defense available according to law at the time when the act was
committed, Beazell v. Ohio, is faithful to this Court's best
knowledge of the original understanding of the Clause:
Legislatures may not retroactively alter the definition of crimes
or increase the punishment for criminal acts. Respondent
concedes that Texas' statute does not fall within the Beazell
categories, since it is a procedural change in the law. However,
he errs in arguing that this Court's decisions have not limited the
Clause's scope to those categories, but have stated more
broadly that retroactive legislation contravenes the Clause if it
deprives an accused of a “substantial protection” under law
existing at the time of the crime, and that the new trial
guaranteed by Texas law is such a protection. When cases
have described as “procedural” those changes that do not
violate the Clause even though they work to the accused's
disadvantage, it is logical to presume that “procedural” refers to
changes in the procedures by which a criminal case is
adjudicated as opposed to substantive changes in the law. The
“substantial protection” discussion in Beazell, Duncan v.
Missouri, and Malloy v. South Carolina, has imported confusion
into the Clause's interpretation and should be read to mean that
a legislature does not immunize a law from scrutiny under the
Clause simply by labeling the law “procedural.” It should not be
read to adopt without explanation an undefined enlargement of
the Clause. (b) Kring v. Missouri, and Thompson v. Utah, are
inconsistent with the understanding of the term “ex post facto
law” at the time the Constitution was adopted, rely on reasoning
that this Court has not followed since Thompson was decided,
and have caused confusion in state and lower federal courts
about the Clause's scope. Kring and Thompson are overruled.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the court’s imposition of an exceptional
sentence violated Blakely’s Sixth Amendment right to trial by
jury since the facts supporting the exceptional sentence were
neither admitted by petitioner nor found by a jury.
Blakely v.
Washington
524 U.S. 296
(2004)
Sentencing:
Penalties
Petitioner pleaded guilty to kidnapping his estranged wife. The
facts admitted in his plea, standing alone, supported a
maximum sentence of 53 months, but the judge imposed a
90-month sentence after finding that petitioner had acted with
deliberate cruelty, a statutorily enumerated ground for
departing from the standard range. The Washington Court of
Appeals affirmed, rejecting petitioner’s argument that the
sentencing procedure deprived him of his federal
constitutional right to have a jury determine beyond a
reasonable doubt all facts legally essential to his sentence.
Held: Yes. Reversed and Remanded.
(a) This case requires the Court to apply the rule of Apprendi
v. New Jersey, that, “other 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 relevant statutory
maxi-mum for Apprendi purposes is the maximum a judge may
impose based solely on the facts reflected in the jury verdict or
admitted by the defendant. Here, the judge could not have
imposed the 90-month sentence based solely on the facts
admitted in the guilty plea, be-cause Washington law requires
an exceptional sentence to be based on factors other than
those used in computing the standard-range sentence.
Petitioner’s sentence is not analogous to those upheld in
McMillan v. Pennsylvania, and Williams v. New York, which
were not greater than what state law authorized based on the
verdict alone. Regardless of whether the judge’s authority to impose the enhanced sentence depends on a judge’s finding a
specified fact, one of several specified facts, or any aggravating
fact, it remains the case that the jury’s verdict alone does not
authorize the sentence.
(b) This Court’s commitment to Apprendi in this context
reflects not just respect for longstanding precedent, but the
need to give intelligible content to the fundamental constitutional
right of jury trial.
(c) This case is not about the constitutionality of determinate
sentencing, but only about how it can be implemented in a way
that respects the Sixth Amendment. The Framers’ paradigm for
criminal justice is the common-law ideal of limited state power
accomplished by strict division of authority between judge and
jury. That can be preserved without abandoning determinate
sentencing and at no sacrifice of fairness to the defendant.
Case
Burger v. Zant
510 U.S. 1020
(1993)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
Burger applied to SCOTUS for a Stay of Execution of
Sentence of Death after the Georgia Supreme Court declined
to set aside or to stay his execution. Burger contends he was
denied the effective assistance of counsel during both the guilt
and sentencing phases of his trial. His lawyer's direct conflict
of interest prevented him from representing Burger effectively
in plea negotiations and on appeal. Counsel also failed to
investigate and to present mitigating evidence-evidence that
would have shown that 17-year-old Chris Burger had a
diminished mental capacity, functioning at the level of a 12year-old child, and that the unspeakable physical and
psychological abuse he suffered as a child left him a troubled
adolescent, with recurring psychological problems. These
shortcomings by counsel, which were never remedied, leave
me convinced that Mr. Burger's conviction, sentencing
proceeding, and appeal cannot “be relied on as having
produced a just result.”
Issue Presented and Holding
Issue: Whether the Stay of Execution for Sentence of Death
should be granted based on ineffective assistance of counsel.
Held. No.
Since the decision rests on adequate and independent state
grounds, it presents this Court with no basis on which to grant
relief.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the instruction given to petitioner's jury satisfied
in substance his request for a charge on such ineligibility.
Simmons v.
South Carolina
512 U.S. 154
(1994)
Sentencing:
History of
Abuse as
Mitigating
Evidence
During the penalty phase, the defense brought forward
mitigating evidence tending to show that petitioner's violent
behavior reflected serious mental disorders that stemmed
from years of neglect and extreme sexual and physical abuse
petitioner endured as an adolescent. While there was some
disagreement among witnesses regarding the extent to which
petitioner's mental condition properly could be deemed a
“disorder,” witnesses for both the defense and the prosecution
agreed that petitioner posed a continuing danger to elderly
women. During the penalty phase of petitioner's South
Carolina trial, the State argued that his future dangerousness
was a factor for the jury to consider when deciding whether to
sentence him to death or life imprisonment for the murder of
an elderly woman. In rebuttal, petitioner presented evidence
that his future dangerousness was limited to elderly women
and thus there was no reason to expect violent acts from him
in prison. However, the court refused to give the jury his
proposed instruction that under state law he was ineligible for
parole. When asked by the jury whether life imprisonment
carried with it the possibility of parole, the court instructed the
jury not to consider parole in reaching its verdict and that the
terms life imprisonment and death sentence were to be
understood to have their plain and ordinary meaning. The jury
returned a death sentence. On appeal, the State Supreme
Court concluded that regardless of whether a trial court's
refusal to inform a sentencing jury about a defendant's parole
ineligibility might ever be error, the instruction given to
petitioner's jury satisfied in substance his request for a charge
on such ineligibility.
Held: No. Reversed and Remanded.
1. Where a defendant's future dangerousness is at issue, and
state law prohibits his release on parole, due process requires
that the sentencing jury be informed that the defendant is parole
ineligible. An individual cannot be executed on the basis of
information which he had no opportunity to deny or explain.
Petitioner's jury reasonably may have believed that he could be
released on parole if he were not executed. To the extent that
this misunderstanding pervaded its deliberations, it had the
effect of creating a false choice between sentencing him to
death and sentencing him to a limited period of incarceration.
The trial court's refusal to apprise the jury of information so
crucial to its determination, particularly when the State alluded
to the defendant's future dangerousness in its argument, cannot
be reconciled with this Court's well-established precedents
interpreting the Due Process Clause.
2. The trial court's instruction that life imprisonment was to be
understood in its plain and ordinary meaning did not satisfy
petitioner's request for a parole ineligibility charge, since it did
nothing to dispel the misunderstanding reasonable jurors may
have about the way in which any particular State defines “life
imprisonment.” Where the State puts a defendant's future
dangerousness in issue, and the only available alternative
sentence to death is life imprisonment without possibility of
parole, due process entitles the defendant to inform the
sentencing jury-either by argument or instruction-that he is
parole ineligible. If the prosecution does not argue future
dangerousness, a State may appropriately decide that parole is
not a proper issue for the jury's consideration even if the only
alternative sentence to death is life imprisonment without the
possibility of parole. Here, the trial court's instruction did not
satisfy petitioner's request for a parole ineligibility charge, since
the rejection of parole is a recent development displacing the
longstanding practice of parole availability, and since common
sense dictates that many jurors might not know whether a life
sentence carries with it the possibility of parole.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Texas capital sentencing statute, as interpreted by
the CCA, impermissibly prevented Brewer’s jury from giving meaningful
consideration and effect to constitutionally relevant mitigating evidence.
Brewer v.
Quarterman
550 U.S. 286
(2007)
Sentencing:
History of
Abuse as
Mitigating
Evidence
Petitioner Brewer was convicted of murder committed during
the course of a robbery. At sentencing, he introduced
mitigating evidence of his mental illness, his father’s extensive
abuse of him and his mother, and his substance abuse. His
counsel made the strategic decision not to present any expert
psychological or psychiatric testimony. The trial judge rejected
all of Brewer’s proposed instructions designed to give effect to
the mitigating evidence he presented, instructing the jury
instead to answer only two special issues: whether his
conduct was committed deliberately and with the reasonable
expectation it would result in his victim’s death and whether it
was probable he would commit future violent acts constituting
a continuing threat to society. In closing argument, the
prosecutor emphasized that Brewer’s violent response to
physical abuse by his father supported an affirmative answer
to the “future dangerousness” special issue; he deemphasized
any mitigating effect such evidence should have, stressing
that the jurors lacked the power to exercise moral judgment
and, in determining Brewer’s sentence, must answer the
questions according to the evidence. Ultimately, the jury
answered both special issues in the affirmative, and Brewer
was sentenced to death. The Texas Court of Criminal Appeals
(CCA) affirmed on direct appeal and denied Brewer’s
application for state post-conviction relief. He then filed a
federal habeas petition. Following supplemental briefing
concerning Tennard v. Dretke, the District Court granted
conditional relief, but the Fifth Circuit reversed and rendered
its own judgment denying the petition.
Held: Yes. Reversed.
(a) Brewer’s trial was infected with the same constitutional error that
occurred in Penry I, where the Court held that jury instructions that
merely articulated the Texas special issues, without directing the
sentencing jury “to consider fully Penry’s mitigating evidence as it
bears on his personal culpability,” did not provide an adequate
opportunity for the jury to decide whether that evidence might provide a
legitimate basis for imposing a sentence other than death. The Court
characterized Penry’s mental-retardation and childhood-abuse
evidence as a “two-edged sword” that “diminished his blameworthiness
for his crime even as it indicated a probability” of future
dangerousness. Brewer’s mitigating evidence similarly served as a
“two-edged sword.” Even if his evidence was less compelling than
Penry’s, that does not justify the CCA’s refusal to apply Penry I here. It
is reasonably likely the jurors accepted the prosecutor’s argument to
limit their decision to whether Brewer had acted deliberately and was
likely a future danger, disregarding any independent concern that his
troubled background might make him undeserving of death. Also
unpersuasive is the Fifth Circuit’s explanation that Brewer’s lack of
expert evidence and that court’s precedents holding that mental
retardation, but not mental illness, can give rise to a Penry I violation
prompted the Circuit’s reversal of the grant of habeas relief. This Court
has never suggested that the question whether the jury could have
adequately considered mitigating evidence is a matter purely of
quantity, degree, or immutability. Rather, the Court has focused on
whether such evidence has mitigating relevance to the special issues
and the extent to which it may diminish a defendant’s moral culpability
for the crime.
(b) Under the narrowest possible reading of Penry I, Texas’ special
issues do not provide for adequate jury consideration of mitigating
evidence that functions as a “two-edged sword.” The Fifth Circuit’s
mischaracterization of the law as demanding only that such evidence
be given “sufficient mitigating effect,” and improperly equating
“sufficient effect” with “full effect,” is not consistent with the reasoning of
Penry v. Johnson (Penry II), which issued after Penry’s resentencing
(and before the Fifth Circuit’s opinion in this case).Like the
“constitutional relevance” standard rejected in Tennard, a “sufficient
effect” standard has “no foundation” in this Court’s decisions. For the
reasons explained in this case and in Abdul-Kabir, the Circuit’s
conclusions that Brewer’s mental-illness and substance-abuse
evidence could not constitute a Penry violation, and that troubledchildhood evidence may, because of its temporary character, fall
sufficiently within the special issues’ ambit, fail to heed this Court’s
repeated warnings about the extent to which the jury must be allowed
not only to consider mitigating evidence, or to have such evidence
before it, but to respond to it in a reasoned, moral manner and assign it
weight in deciding whether a defendant truly deserves death.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether attorney violated professional standards by failing
to investigate mitigating evidence timely.
Bobby v. Van
Hook
558 U.S. ___
(2009)
Sentencing:
History of
Abuse as
Mitigating
Evidence
On February 18, 1985, Van Hook went to a Cincinnati bar that
catered to homosexual men, hoping to find someone to rob.
He approached David Self, and after the two spent several
hours drinking together they left for Self’s apartment. There
Van Hook “lured Self into a vulnerable position” and attacked
him, first strangling him until he was unconscious, then killing
him with a kitchen knife and mutilating his body. Before fleeing
with Self’s valuables, Van Hook attempted to cover his tracks,
stuffing the knife and other items into the body and smearing
fingerprints he had left behind. Six weeks later, police found
him in Florida, where he confessed. Van Hook was indicted in
Ohio for aggravated murder, with one capital specification,
and aggravated robbery. He waived his right to a jury trial, and
a three-judge panel found him guilty of both charges and the
capital specification. At the sentencing hearing, the defense
called eight mitigation witnesses, and Van Hook himself gave
an unsworn statement. After weighing the aggravating and
mitigating circumstances, the trial court imposed the death
penalty. The Ohio courts affirmed on direct appeal, and we
denied certiorari. Van Hook also sought state post-conviction
relief, which the Ohio courts denied. Van Hook filed this
federal habeas petition in 1995. The District Court denied
relief on all 17 of his claims. On remand, the panel granted
Van Hook habeas relief again, holding that his attorneys were
ineffective during the penalty phase because they did not
adequately investigate and present mitigating evidence,
neglected to secure an independent mental-health expert, and
requested and relied on a presentence investigation report
without objecting to damaging evidence it contained. The
panel—relying on guidelines published by the American Bar
Association (ABA) in 2003—granted relief to Van Hook on the
sole ground that his lawyers performed deficiently in
investigating and presenting mitigating evidence. The State
petitioned for a writ of certiorari.
Held: No. Reversed and remanded.
Van Hook first contends that his attorneys began their mitigation
investigation too late, waiting until he was found guilty—only days
before the sentencing hearing—to dig into his background. But the
record shows they started much sooner. They spoke nine times
with his mother (beginning within a week after the indictment), once
with both parents together, twice with an aunt who lived with the
family and often cared for Van Hook as a child, and three times
with a family friend whom Van Hook visited immediately after the
crime. Nor was the scope of counsel’s investigation unreasonable.
The Sixth Circuit said Van Hook’s attorneys found only “a little
information about his traumatic childhood experience,” but that is a
gross distortion. The trial court learned that Van Hook (whose
parents were both “heavy drinkers”) started drinking as a toddler,
began “barhopping” with his father at 9, drank and used drugs
regularly with his father from 11 forward, and continued abusing
drugs and alcohol into adulthood. The court also heard that Van
Hook grew up in a “combat zone”: He watched his father beat his
mother weekly, saw him hold her at gun and knife-point, “observed”
episodes of “sexual violence” while sleeping in his parents’
bedroom, and was beaten himself at least once. It learned that Van
Hook, who had “fantasies about killing and war” from an early age,
was deeply upset when his drug and alcohol abuse forced him out
of the military, and attempted suicide five times (including a month
before the murder). Despite all the mitigating evidence the defense
did present, Van Hook and the Court of Appeals fault his counsel
for failing to find more. What his counsel did discover gave them
“reason to suspect that much worse details existed,” and that
suspicion should have prompted them to interview other family
members—his stepsister, two uncles, and two aunts—as well as a
psychiatrist who once treated his mother, all of whom “could have
helped his counsel narrate the true story of Van Hook’s childhood
experiences.” But there comes a point at which evidence from more
distant relatives can be only cumulative, and the search for it
distractive from more important duties. What is more, even if Van
Hook’s counsel performed deficiently by failing to dig deeper, he
suffered no prejudice as a result. As the Ohio court that rejected
Van Hook’s state habeas petition found, the affidavits submitted by
the witnesses not interviewed shows their testimony would have
added nothing of value. Only two witnesses even arguably would
have added new, relevant information: One of Van Hook’s uncles
noted that Van Hook’s mother was temporarily committed to a
psychiatric hospital, and Van Hook’s stepsister mentioned that his
father hit Van Hook frequently and tried to kill Van Hook’s mother.
But the trial court was already aware that his father had a violent
nature, had attacked Van Hook’s mother, and had beaten Van
Hook at least once.
Case
Woodford v.
Visciotti
537 U.S. 19
(2002)
Subject
Sentencing:
History of
Abuse as
Mitigating
Evidence
Facts
Respondent and a co-worker, Brian Hefner, devised a plan to
rob two fellow employees on their payday. They invited the
pair to join them at a party. As the four were driving to that
supposed destination in Wolbert's car, respondent asked
Wolbert to stop in a remote area so that he could relieve
himself. When all four men had left the car, respondent pulled
a gun, demanded the victims' wallets (which turned out to be
almost empty), and got Wolbert to tell him where in the car the
cash was hidden. After Hefner had retrieved the cash,
respondent walked over to the seated Dykstra and killed him
with a shot in the chest from a distance of three or four feet.
Respondent then raised the gun in both hands and shot
Wolbert three times, in the torso and left shoulder, and finally,
from a distance of about two feet, in the left eye. Respondent
and Hefner fled the scene in Wolbert's car. Wolbert
miraculously survived to testify against them. Respondent was
convicted by a California jury of first-degree murder,
attempted murder, and armed robbery, with a specialcircumstance finding that the murder was committed during
the commission of a robbery. The same jury determined that
respondent should suffer death. The California Supreme Court
affirmed the conviction and sentence. Respondent filed a
petition for a writ of habeas corpus in the California Supreme
Court, alleging ineffective assistance of counsel. That court
appointed a referee to hold an evidentiary hearing and make
findings of fact-after which, and after briefing on the merits, it
denied the petition in a lengthy opinion. The California
Supreme Court assumed that respondent's trial counsel
provided constitutionally inadequate representation during the
penalty phase, but concluded that this did not prejudice the
jury's sentencing decision. Respondent filed a federal habeas
petition in the United States District Court for the Central
District of California. That court determined that respondent
had been denied effective assistance of counsel during the
penalty phase of his trial, and granted the habeas petition as
to his sentence. The State appealed to the Court of Appeals
for the Ninth Circuit. The Court of Appeals correctly observed
that a federal habeas application can only be granted if it
meets the requirements of 28 U.S.C. §2254(d). The Court of
Appeals found that the California Supreme Court decision ran
afoul of both the “contrary to” and the “unreasonable
application” conditions of §2254(d)(1), and affirmed the District
Court's grant of relief. The State of California petitioned for a
writ of certiorari.
Issue Presented and Holding
Issue: Whether the California Supreme Court's decision was “contrary
to” Strickland v. Washington.
Held: Reversed.
Strickland held that to prove prejudice the defendant must establish a
“reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” It specifically
rejected the proposition that the defendant had to prove it more likely
than not that the outcome would have been altered. The Court of
Appeals read the State Supreme Court opinion in this case as applying
the latter test-as requiring respondent to prove, by a preponderance of
the evidence, that the result of the sentencing proceedings would have
been different. That is, in our view, a mischaracterization of the statecourt opinion, which expressed and applied the proper standard for
evaluating prejudice.
The California Supreme Court then focused on counsel's failure to
introduce mitigating evidence about respondent's background,
including expert testimony that could have been presented about his
“growing up in a dysfunctional family in which he suffered continual
psychological abuse.” This discussion referred back to a lengthy,
detailed discussion about the undiscovered mitigating evidence that
trial counsel might have presented during the penalty phase. The
California Supreme Court concluded that despite the failure to present
evidence of respondent's “troubled family background,” which included
his being “berated,” being “markedly lacking in self-esteem and
depressed,” having been “born with club feet,” having “feelings of
inadequacy, incompetence, inferiority,” and the like, moving “20 times”
while he was growing up, and possibly suffering a “seizure disorder,”
the aggravating factors were overwhelming. In the state court's
judgment, the circumstances of the crime (a cold-blooded executionstyle killing of one victim and attempted execution-style killing of
another, both during the course of a preplanned armed robbery)
coupled with the aggravating evidence of prior offenses (the knifing of
one man, and the stabbing of a pregnant woman as she lay in bed
trying to protect her unborn baby) was devastating. The California
Supreme Court found these aggravating factors to be so severe that it
concluded respondent suffered no prejudice from trial counsel's
(assumed) inadequacy.
The Court of Appeals disagreed with this assessment, suggesting
that the fact that the jury deliberated for a full day and requested
additional guidance on the meaning of “moral justification” and
“extreme duress” meant that the “aggravating factors were not
overwhelming.” it is not enough to convince a federal habeas court
that, in its independent judgment, the state-court decision applied
Strickland incorrectly.” The federal habeas scheme leaves primary
responsibility with the state courts for these judgments, and authorizes
federal-court intervention only when a state-court decision is objectively
unreasonable. It is not that here. Whether or not we would reach the
same conclusion as the California Supreme Court, “we think at the very
least that the state court's contrary assessment was not
‘unreasonable.” Habeas relief is therefore not permissible under
§2254(d).
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a lawyer is bound to make reasonable efforts to obtain and review material
that counsel knows the prosecution will probably rely on as evidence of aggravation at the
trial’s sentencing phase, even when a capital defendant and his family members have
suggested that no mitigating evidence is available.
Rompilla v.
Beard
545 U.S. 374
2005
Sentencing:
History of
Abuse as
Mitigating
Evidence
Petitioner Rompilla was convicted of murder and other crimes.
During the penalty phase, the jury found the aggravating
factors that the murder was committed during a felony, that it
was committed by torture, and that Rompilla had a significant
history of felony convictions indicating the use or threat of
violence. In mitigation, five members of Rompilla’s family
beseeched the jury for mercy. He was sentenced to death,
and the Pennsylvania Supreme Court affirmed. His new
lawyers filed for state post-conviction relief, claiming
ineffective assistance by his trial counsel in failing to present
significant mitigating evidence about Rompilla’s childhood,
mental capacity and health, and alcoholism. The state courts
found that trial counsel had sufficiently investigated the
mitigation possibilities. Rompilla then raised inadequate
representation in a federal habeas petition. The District Court
found that the State Supreme Court had unreasonably applied
Strickland v. Washington, concluding that trial counsel had not
investigated obvious signs that Rompilla had a troubled
childhood and suffered from mental illness and alcoholism,
unjustifiably relying instead on Rompilla’s own description of
an unexceptional background. In reversing, the Third Circuit
found nothing unreasonable in the state court’s application of
Strickland, given defense counsel’s efforts to uncover
mitigation evidence from Rompilla, certain family members,
and three mental health experts. The court distinguished
Wiggins v. Smith, in which counsel had failed to investigate
adequately to the point of ignoring the leads their limited
enquiry yielded, noting that, although trial counsel did not
unearth useful information in Rompilla’s school, medical,
police, and prison records, their investigation had gone far
enough to give them reason to think that further efforts would
not be a wise use of their limited resources.
Held: Yes. Reversed.
(a) Rompilla’s entitlement to federal habeas relief turns on showing that the state court’s
resolution of his ineffective-assistance claim under Strickland “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by” this Court. The state court’s result must be not only incorrect but also
objectively unreasonable. In judging the defense’s investigation in preparing for a capital
trial’s sentencing phase, hindsight is discounted by pegging adequacy to “counsel’s
perspective at the time” investigative decisions were made and by giving deference to
counsel’s judgments.
(b) Here, the lawyers were deficient in failing to examine the court file on Rompilla’s prior
rape and assault conviction. They knew that the Commonwealth intended to seek the death
penalty by proving that Rompilla had a significant history of felony convictions indicating the
use or threat of violence, that it would attempt to establish this history by proving the prior
conviction, and that it would emphasize his violent character by introducing a transcript of
the rape vic-tim’s trial testimony. Although the prior conviction file was a public record,
readily available at the courthouse where Rompilla was to be tried, counsel looked at no
part of it until warned by the prosecution a second time, and even then did not examine the
entire file. With every effort to view the facts as a defense lawyer would have at the time, it
is difficult to see how counsel could have failed to realize that not examining the file would
seriously compromise their opportunity to respond to an aggravation case. Their duty to
make all reasonable efforts to learn what they could about the offense the prosecution was
going to use certainly included obtaining the Commonwealth’s own readily available file to
learn what it knew about the crime, to discover any mitigating evidence it would downplay,
and to anticipate the details it would emphasize. The obligation to examine the file was
particularly pressing here because the violent prior offense was similar to the crime charged
and because Rompilla’s sentencing strategy stressed residual doubt. This obligation is not
just common sense, but is also described in the American Bar Association Standards for
Criminal Justice, which are “‘guides to determining what is reasonable.’” The state court’s
conclusion that defense counsel’s efforts to find mitigating evidence by other means were
enough to free them from further enquiry fails to answer the considerations set out here, to
the point of being objectively unreasonable. No reasonable lawyer would forgo examination
of the file thinking he could do as well by asking the defendant or family relations what they
recalled. Nor would a reasonable lawyer compare possible searches for school reports,
juvenile records, and evidence of drinking habits to the opportunity to take a look at a file
disclosing what the prosecutor knows and plans to read from in his case.
(c) Because the state courts found counsel’s representation adequate, they never
reached the prejudice element of a Strickland claim, whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result . . . would have been
different.” A de novo examination of this element shows that counsel’s lapse was
prejudicial. Had they looked at the prior conviction file, they would have found a range of
mitigation leads that no other source had opened up. The imprisonment records contained
in that file pictured Rompilla’s childhood and mental health very differently from anything
they had seen or heard. The accumulated en-tries—e.g., that Rompilla had a series of
incarcerations, often related to alcohol; and test results that would have pointed the
defense’s mental health experts to schizophrenia and other disorders—would have
destroyed the benign conception of Rompilla’s upbringing and mental capacity counsel had
formed from talking to five family members and from the mental health experts’ reports.
Further effort would presumably have unearthed much of the material post-conviction
counsel found. Alerted to the school, medical, and prison records that trial counsel never
saw, post-conviction counsel found red flags pointing up a need for further testing, which
revealed organic brain damage and childhood problems probably related to fetal alcohol
syndrome. These findings in turn would probably have prompted a look at easily available
school and juvenile records, which showed additional problems, including evidence of a
highly abusive home life. The evidence adds up to a mitigation case bearing no relation to
the few naked pleas for mercy actually put before the jury. The undiscovered “mitigating
evidence, taken as a whole, ‘might well have influenced the jury’s appraisal’ of Rompilla’s
culpability,” and the likelihood of a different result had the evidence gone in is “sufficient to
undermine confidence in the outcome” actually reached at sentencing.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Williams' constitutional right to the effective assistance of
counsel was violated, and whether the judgment of the Virginia Supreme
Court refusing to set aside his death sentence “was contrary to, or involved
an unreasonable application of, clearly established Federal law.”
Williams v.
Taylor
529 U.S. 362
(2000)
Sentencing:
History of
Abuse as
Mitigating
Evidence
Williams was convicted of robbery and capital murder, found a
probability of future dangerousness and sentenced to death.
Concluding that such punishment was “proper” and “just,” the
trial judge imposed the death sentence. The Virginia Supreme
Court affirmed. In state habeas corpus proceedings, the same
trial judge found, on the evidence adduced after hearings, that
Williams' conviction was valid, but that his counsel's failure to
discover and present significant mitigating evidence violated
his right to the effective assistance of counsel under Strickland
v. Washington. In rejecting the trial judge's recommendation
that Williams be resentenced, the State Supreme Court held,
inter alia, that the trial judge had failed to recognize that
Strickland had been modified by Lockhart v. Fretwell, and that
Williams had not suffered sufficient prejudice to warrant relief.
In habeas corpus proceedings, the federal trial judge agreed
with the state trial judge that the death sentence was
constitutionally infirm on ineffective-assistance grounds. The
federal judge identified five categories of mitigating evidence
that counsel had failed to introduce and rejected the argument
that such failure had been a strategic decision to rely primarily
on the fact that Williams had confessed voluntarily. As to
prejudice, the judge determined, among other things, that
there was a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. Applying an amended version of §2254(d)(1)
enacted in the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), the judge concluded that the Virginia
Supreme Court's decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
The Fourth Circuit reversed, construing §2254(d)(1) to prohibit
federal habeas relief unless the state court had interpreted or
applied the relevant precedent in a manner that reasonable
jurists would all agree is unreasonable. The court declared
that it could not say that the Virginia Supreme Court's decision
on prejudice was an unreasonable application of the
Strickland or Lockhart standards established by the Supreme
Court.
Held: Yes. Reversed and remanded.
(a) The threshold question under AEDPA-whether Williams seeks to apply
a rule of law that was clearly established at the time his state-court
conviction became final-is easily answered because the merits of his claim
are squarely governed by Strickland. To establish ineffective assistance of
counsel, the defendant must prove: (1) that counsel's performance fell
below an objective standard of reasonableness, and (2) that the deficient
performance prejudiced the defense, which requires a showing that there is
a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. Because the Strickland
test qualifies as “clearly established Federal law, as determined by the
Supreme Court,” this Court's precedent “dictated” that the Virginia Supreme
Court apply that test in entertaining Williams' ineffective-assistance claim.
(b) Williams is entitled to relief because the Virginia Supreme Court's
decision rejecting his ineffective-assistance claim both is “contrary to, and
involved an unreasonable application of, clearly established Federal law.”
Strickland provides sufficient guidance for resolving virtually all ineffectiveassistance claims, and the Virginia Supreme Court erred in holding that
Lockhart modified or in some way supplanted Strickland. Although there
are a few situations in which the overriding focus on fundamental fairness
may affect the analysis, cases such as Lockhart and Nix v. Whiteside, do
not justify a departure from a straightforward application of Strickland when
counsel's ineffectiveness deprives the defendant of a substantive or
procedural right to which the law entitles him. Here, Williams had a
constitutionally protected right to provide mitigating evidence that his trial
counsel either failed to discover or failed to offer. Moreover, the Virginia trial
judge correctly applied both components of the Strickland standard to
Williams' claim. The record establishes that counsel failed to prepare for
sentencing until a week beforehand, to uncover extensive records
graphically describing Williams' nightmarish childhood, to introduce
available evidence that Williams was “borderline mentally retarded” and did
not advance beyond sixth grade, to seek prison records recording Williams'
commendations for helping to crack a prison drug ring and for returning a
guard's missing wallet, and to discover the testimony of prison officials who
described Williams as among the inmates least likely to act violently,
dangerously, or provocatively, and of a prison minister that Williams
seemed to thrive in a more regimented environment. Although not all of the
additional evidence was favorable to Williams, the failure to introduce the
comparatively voluminous amount of favorable evidence was not justified
by a tactical decision and clearly demonstrates that counsel did not fulfill
their ethical obligation to conduct a thorough investigation of Williams'
background. Moreover, counsel's unprofessional service prejudiced
Williams within Strickland's meaning. The Virginia Supreme Court's
prejudice analysis was unreasonable in at least two respects: (1) It was not
only “contrary to,” but also-inasmuch as it relied on the inapplicable
Lockhart exception-an “unreasonable application of,” the clear law as
established in Strickland; and (2) it failed to evaluate the totality of, and to
accord appropriate weight to, the available mitigation evidence.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Eighth Amendment requires that a jury be instructed as to the
consequences of their failure to agree.
Jones v. United
States
527 U.S. 373
(1999)
Sentencing:
Jury
Instructions
Petitioner Louis Jones, Jr., kidnapped Private Tracie Joy
McBride at gunpoint from the Goodfellow Air Force Base in
San Angelo, Texas. He brought her to his house and sexually
assaulted her. Soon thereafter, petitioner drove Private
McBride to a bridge just outside of San Angelo, where he
repeatedly struck her in the head with a tire iron until she died.
Petitioner administered blows of such severe force that, when
the victim's body was found, the medical examiners observed
that large pieces of her skull had been driven into her cranial
cavity or were missing. Petitioner was sentenced to death for
the crime of kidnapping resulting in the victim's death.
Petitioner's sentence was imposed pursuant to the Federal
Death Penalty Act of 1994, 18 U.S.C. §3591 et seq. At the
sentencing hearing, the District Court instructed the jury and
provided it with four decision forms on which to record its
sentencing recommendation. The court refused petitioner's
request to instruct the jury as to the consequences of jury
deadlock. The jury unanimously recommended that petitioner
be sentenced to death. The District Court imposed sentence
in accordance with the jury's recommendation, and the Fifth
Circuit affirmed.
Held: No. Affirmed.
1. The Eighth Amendment does not require that a jury be instructed as to the
consequences of their failure to agree. (a) As petitioner argues, the Federal Death
Penalty Act requires judge sentencing when the jury, after retiring for deliberations,
reports itself as unable to reach a unanimous verdict. In such a case, the sentencing
duty falls upon the District Court pursuant to 18 U.S.C. §3594. (b) The Eighth
Amendment, however, does not require that a jury be instructed as to the
consequences of a breakdown in the deliberative process. Such an instruction has no
bearing on the jury's role in the sentencing process. Moreover, the jury system's very
object is to secure unanimity, and the Government has a strong interest in having the
jury express the conscience of the community on the ultimate life or death question. A
charge of the sort petitioner suggests might well undermine this strong governmental
interest. In addition, Congress chose not to require such an instruction be given. The
Court declines to invoke its supervisory powers over the federal courts and require
that such an instruction be given in every capital case in these circumstances.
2. There is no reasonable likelihood that the jury was led to believe that petitioner
would receive a court-imposed sentence less than life imprisonment in the event they
could not recommend unanimously a sentence of death or life imprisonment without
the possibility of release. (a) Petitioner claims that the instruction pertaining to the
jury's sentencing recommendation, in combination with the Decision Forms, led to
confusion warranting reversal of his sentence under the Due Process Clause, the
Eighth Amendment, and the Act. Because petitioner did not voice the objections that
he now raises before the jury retired, his claim of error is subject to a limited appellate
review for plain error. (b) Under that review, relief is not warranted unless there has
been (1) error, (2) that is plain, and (3) affects substantial rights. Petitioner's argument
falls short of satisfying even the first requirement, for no error occurred. The proper
standard for reviewing claims that allegedly ambiguous instructions caused jury
confusion is whether there is a reasonable likelihood that the jury applied the
challenged instruction in a way that violates the Constitution. There is no such
likelihood here. The District Court gave no explicit instructions on the consequences
of nonunanimity; and the passages that petitioner argues led to jury confusion, when
viewed in the context of the entire instructions, lack any ambiguity. Nor did the
Decision Forms or their accompanying instructions create a reasonable likelihood of
confusion over the effect of nonunanimity. The District Court's explicit instruction that
the jury had to be unanimous and its exhortation to the jury to discuss the punishment
and to attempt to reach agreement make it doubtful that the jury thought it was
compelled to recommend a lesser sentence in the event of a disagreement. Even
assuming, arguendo, that a plain error occurred, petitioner cannot show that it
affected his substantial rights. The District Court admonished the jury not to concern
itself with the effect of a lesser sentence recommendation. Moreover, assuming that
the jurors were confused over the consequences of deadlock, petitioner cannot show
the confusion necessarily worked to his detriment. It is just as likely that the jurors,
loathe to recommend a lesser sentence, would have compromised on a life
imprisonment sentence as on a death sentence.
3. Assuming, arguendo, that the District Court erred in allowing the jury to consider
nonstatutory aggravating factors that were vague, overbroad, or duplicative in
violation of the Eighth Amendment, such error was harmless beyond a reasonable
doubt. An appellate court may conduct harmless-error review by considering either
whether absent an invalid factor, the jury would have reached the same verdict or
whether the result would have been the same had the invalid aggravating factor been
precisely defined. The Fifth Circuit performed the first sort of analysis, and its
explanation appears sufficient. Even if its analysis was too perfunctory, it is plain,
under the alternative mode of harmless-error analysis, that the error indeed was
harmless. Had the nonstatutory aggravating factors been precisely defined in writing,
the jury would have reached the same recommendation as it did. The Government's
argument to the jury cured the factors of any infirmity as written.
Case
Robertson v.
California
498 U.S. 1004
(1990)
Subject
Sentencing:
Judicial
Recusal
Facts
In 1978, a California jury convicted petitioner Andrew Edward
Robertson on two counts of first-degree murder and
sentenced him to death. On appeal, the Supreme Court of
California reversed that judgment as to the penalty. The
second sentencing proceeding was assigned to Judge Roy E.
Chapman. Robertson waived his right to be sentenced by a
jury, and Judge Chapman sat as trier of fact during the second
penalty phase. Robertson introduced evidence in mitigation.
Among this was the testimony of his mother and sister
concerning Robertson's difficult childhood, during which he
allegedly suffered abuse at the hands of his father and
stepfather. Through these witnesses, Robertson presented
evidence that he had had developmental difficulties as a
young child and was slow to walk and talk; that his parents
were divorced when he was young; that his father
subsequently had kidnapped him; that, upon being returned
from the kidnapping, he had been cared for by a disturbed
mother and a strict grandmother; and that at age nine he had
been diagnosed as suffering from mild mental retardation with
possible brain damage. Robertson, however, was again
sentenced to death, and the California Supreme Court, by a
divided vote, affirmed.
In December 1989, Robertson's counsel for the first time
learned that Judge Chapman, prior to his going on the bench,
had represented Robertson's mother, Lillian Goodin, in her
divorce from Robertson's stepfather. The divorce proceeding
was initiated by Robertson's stepfather in 1963 and involved
extensive allegations by both parties of domestic violence and
child abuse. In March 1963, Judge Chapman, then Lillian
Goodin's attorney, sought a temporary restraining order
against Robertson's stepfather, prohibiting him from
“threatening, molesting, injuring, harassing, or annoying
Goodin and Goodin's children.” In support of the request for a
temporary restraining order, Robertson's mother executed a
declaration attesting that Robertson's stepfather “has struck
and beat Goodin, the minor child, and Goodin's children by a
prior marriage.” Judge Chapman withdrew from his
representation of Robertson's mother on November 16, 1967.
When interviewed by Robertson's counsel in 1989, Judge
Chapman acknowledged that “the court documents
demonstrated that he had represented” Goodin, but stated
that he had no present recollection of the divorce proceeding,
and that he believed that he had no independent recollection
of them at the time of Robertson's sentencing. Immediately
upon learning of the past representation, Robertson filed a
petition for a writ of habeas corpus in state court. The
California Supreme Court denied Robertson's petition.
Issue Presented and Holding
Issue: Whether petitioner's capital sentence was imposed in
violation of the Eighth and Fourteenth Amendments.
Held: The petition for a writ of certiorari is denied.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Rule 32(h) applies to a variance from a
recommended Guidelines range.
Irizarry v.
United States
553 U.S. 708
(2008)
Sentencing:
Penalties
Petitioner pleaded guilty to making a threatening interstate
communication to his ex-wife, in violation of federal law.
Although the pre-sentence report recommended a Federal
Sentencing Guidelines range of 41-to-51 months in prison, the
court imposed the statutory maximum sentence—60 months
in prison and 3 years of supervised release—rejecting
petitioner’s objection that he was entitled to notice that the
court was contemplating an upward departure. The Eleventh
Circuit affirmed, reasoning that Federal Rule of Criminal
Procedure 32(h), which states that “before the court may
depart from the applicable sentencing range on a ground not
identified either in the pre-sentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure,”
did not apply because the sentence was a variance, not a
Guidelines departure.
Held: No. Affirmed.
At the time that Burns v. United States, was decided,
prompting Rule 32(h)’s promulgation, the Guidelines were
mandatory; the Sentencing Reform Act of 1984 prohibited
district courts from disregarding most of the Guidelines’
“mechanical dictates.” Confronted with the constitutional
problems that might otherwise arise, the Burns Court held that
the Rule 32 provision allowing parties to comment on the
appropriate sentence—now Rule 32(i)(1)(C)—would be
“rendered meaningless” unless the defendant were given notice
of a contemplated departure. Any constitutionally protected
expectation that a defendant will receive a sentence within the
presumptively applicable Guidelines range did not, however,
survive United States v. Booker, which invalidated the
Guidelines’ mandatory features. Faced with advisory
Guidelines, neither the Government nor the defendant may
place the same degree of reliance on the type of “expectancy”
that gave rise to a special need for notice in Burns. Indeed, a
sentence outside the Guidelines carries no presumption of
unreasonableness. Thus, the due process concerns motivating
the Court to require notice in a mandatory Guidelines world no
longer provide a basis for extending the Burns rule either
through an interpretation of Rule 32(h) itself or through Rule
32(i)(C)(1). Nor does the rule apply to 18 U.S.C. §3553
variances by its terms. Although the Guidelines, as the “starting
point and the initial benchmark,” continue to play a role in the
sentencing determination, there is no longer a limit comparable
to the one in Burns on variances from Guidelines ranges that a
district court may find justified. This Court is confident that
district judges and counsel have the ability—especially in light of
Rule 32’s other procedural protections—to make sure that all
relevant matters relating to a sentencing decision have been
considered before a final determination is made.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the DSL, by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right
to trial by jury safeguarded by the Sixth and Fourteenth
Amendments.
Cunningham v.
California
549 U.S. 270
(2007)
Sentencing:
Penalties
Petitioner Cunningham was tried and convicted of continuous
sexual abuse of a child under 14. Under California’s
determinate sentencing law (DSL), that offense is punishable
by one of three precise terms of imprisonment: a lower term
sentence of 6 years, a middle term sentence of 12 years, or
an upper term sentence of 16 years. The DSL obliged the trial
judge to sentence Cunningham to the 12-year middle term
unless the judge found one or more additional “circumstances
in aggravation.” Court Rules adopted to implement the DSL
define “circumstances in aggravation” as facts that justify the
upper term. Those facts, the Rules provide, must be
established by a preponderance of the evidence. Based on a
post-trial sentencing hearing, the judge found by a
preponderance of the evidence six aggravating facts,
including the particular vulnerability of the victim, and one
mitigating fact, that Cunningham had no record of prior
criminal conduct. Concluding that the aggravators outweighed
the sole mitigator, the judge sentenced Cunningham to the
upper term of 16 years. The California Court of Appeal
affirmed. The State Supreme Court denied review, but in a
decision published nine days earlier, People v. Black, that
court held that the DSL survived Sixth Amendment inspection.
Held: Yes. Reversed in part and remanded.
(a) In Apprendi v. New Jersey, this Court held that, under the
Sixth Amendment, any fact (other than a prior conviction) that
exposes a defendant to a sentence in excess of the relevant
statutory maximum must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a
preponderance of the evidence.
(b) In all material respects, California’s DSL resembles the
sentencing systems invalidated in Blakely and Booker.
Following the reasoning in those cases, the middle term
prescribed under California law, not the upper term, is the
relevant statutory maximum. Because aggravating facts that
authorize the upper term are found by the judge, and need only
be established by a preponderance of the evidence, the DSL
violates the rule of Apprendi. Asking whether a defendant’s
basic jury-trial right is preserved, though some facts essential to
punishment are reserved for determination by the judge, is the
very inquiry Apprendi’s bright-line rule was designed to exclude.
(c) As to the adjustment of California’s sentencing system in
light of the Court’s ruling, “the ball lies in California’s court.”
Several States have modified their systems in the wake of
Apprendi and Blakely to retain determinate sentencing, by
calling upon the jury to find any fact necessary to the imposition
of an elevated sentence. Other States have chosen to permit
judges genuinely “to exercise broad discretion within a statutory
range,” which, “everyone agrees,” encounters no Sixth
Amendment shoal. California may follow the paths taken by its
sister States or otherwise alter its system, so long as it observes
Sixth Amendment limitations declared in this Court’s decisions.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the death sentence violated state law and was deemed to be an arbitrary
punishment under the Eighth Amendment.
Wainwright v.
Goode
464 U.S. 78
(1983)
Sentencing:
Penalties
On March 5, 1976, respondent, Arthur Goode, took a 10-yearold boy Jason from a school bus stop in Florida, sexually
assaulted him, and strangled him with a belt. Respondent then
went to Maryland where he had previously escaped from a
mental hospital. While in Maryland, he kidnapped two young
boys, one of whom he killed in Virginia. The State of Virginia
tried and convicted respondent of the Virginia murder and
sentenced him to life imprisonment. Goode was returned to
Florida to stand trial for the murder he committed there.
Although he entered a plea of “not guilty,” there was never a
question whether Goode committed the crime, since at trial he
testified in graphic detail as to the circumstances of the killing.
He was found guilty by a jury of first-degree murder.
At the sentencing phase of the trial, Goode again took the
witness stand. He stated that he was “extremely proud” of
having murdered Jason “for the fun of it,” that he had
“absolutely no remorse” over the murder, and that he would
do it again if given the chance. The jury recommended the
death penalty. Prior to the issuance of the trial court's
judgment, Smith, an attorney who had assisted in Goode's
defense, made a statement on Goode's behalf to the effect
that society would gain more if Goode were given a life
sentence and subjected to scientific study to determine the
causes of sexual abuse of children. After Smith's statement,
the trial judge issued his findings on factors in aggravation and
mitigation. He found that three statutory aggravating
circumstances had been proved beyond a reasonable doubt.
He also found two mitigating circumstances but determined
that they did not outweigh the aggravating circumstances. He
concluded that Goode should be sentenced to death.
The conviction and sentence were affirmed on direct appeal
to the Florida Supreme Court. The Court of Appeals for the
Eleventh Circuit granted Goode's motion for stay of execution.
The court concluded that such an “arbitrary and capricious
manner” of execution cannot be countenanced under the
Eighth Amendment.
Held: Yes. Reversed.
Whether the asserted reliance by the sentencing court on a nonstatutory aggravating
circumstance is considered to be an issue of law or one of fact, we are quite sure that the
Court of Appeals gave insufficient deference to the Florida Supreme Court's resolution of
that issue. We first assume that the issue is one of law. It is axiomatic that federal courts
may intervene in the state judicial process only to correct wrongs of a constitutional
dimension. Section 2254 is explicit that a federal court is to entertain an application for a
writ of habeas corpus “only on the ground that [the petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.” The Eleventh Circuit's ultimate
conclusion was that the sentencing proceeding violated the Eighth Amendment, but it is
critical to understand the reasoning it employed in reaching that result. It acknowledged that
the Federal Constitution does not prohibit consideration of a defendant's future
dangerousness. In fact, the court described the factor as “highly relevant to the purposes
underlying capital sentencing.” Nevertheless, future dangerousness was a nonstatutory
aggravating circumstance that could not be relied upon to impose the death sentence
without violating Florida law. Because the Court of Appeals was of the view that the
sentencing judge had relied on future dangerousness, the death sentence violated state law
and was deemed to be an arbitrary punishment under the Eighth Amendment. The difficulty
with all of this is that the Florida Supreme Court had concluded that the trial judge had not
improperly relied on future dangerousness in imposing the death penalty. If the
interpretation of the trial court's remarks is deemed a legal issue, it is surely an issue of
state law that the Court of Appeals should have accepted, since the views of the state's
highest court with respect to state law are binding on the federal courts. If the Florida
Supreme Court's conclusion that the death sentence was consistent with state law is
accepted, the constitutional violation found by the Court of Appeals dissolves.
If, on the other hand, the issue of whether the sentencing judge relied upon future
dangerousness in imposing the death sentence is characterized as an issue of historical
fact to be decided on the transcript of the judge's remarks at the sentencing proceeding, we
are convinced that the Court of Appeals failed to give proper weight to the state court's
resolution of this factual issue. Under 28 U.S.C. § 2254(d)(8), a federal court, in ruling on a
petition for a writ of habeas corpus, is not to overturn a factual conclusion of a state court
unless the conclusion is not “fairly supported by the record.” That rule applies equally to
findings of trial courts and appellate courts. The seven justices of the Supreme Court of
Florida concluded from their review of the sentencing proceeding that the trial judge had not
relied upon the impermissible factor. On federal habeas review, the District Court likewise
concluded that the sentencing judge did not rely on future dangerousness, emphasizing that
its review of the record led it to the “same, independent conclusion” as that reached by the
Florida court. Consequently, eight judges have concluded from their review of the record
that the trial court did not rely on predictions of future dangerousness. A three-member
panel of the Court of Appeals for the Eleventh Circuit, on the other hand, concluded that the
state court's finding was not fairly supported by the record. At best, the record is
ambiguous. The trial judge might have been describing his consideration of Goode's future
dangerousness in the weighing process, or he might have been merely explaining, after
having imposed the death sentence in accordance with state standards and without regard
to future dangerousness, why he thought that application of the state standards to Goode
yielded an intuitively correct result. Because both of these conclusions find fair support in
the record, we believe the Court of Appeals erred in substituting its view of the facts for that
of the Florida Supreme Court.
Even if the Court of Appeals had been correct in concluding that the sentencing judge had
relied on a factor unavailable to him under state law, it erred in reversing the district court's
dismissal of Goode's habeas petition. Although recognizing that a state is free to enact a
system of capital sentencing in which a defendant's future dangerousness is considered,
the Court of Appeals believed that the Florida court's failure to follow Florida law constituted
a violation of the Eighth and Fourteenth Amendments because it would result in an
“arbitrary” and “freakish” execution. We have great difficulty concluding that the balancing
process was so infected. A properly instructed jury recommended a death sentence. On
direct appeal to the Florida Supreme Court, the court stated that “comparing the
aggravating and mitigating circumstances with those shown in other capital cases and
weighing the evidence in the case sub judice, our judgment is that death is the proper
sentence.” Whatever may have been true of the sentencing judge, there is no claim that in
conducting its independent reweighing of the aggravating and mitigating circumstances the
Florida Supreme Court considered Goode's future dangerousness. Consequently, there is
no sound basis for concluding that the procedures followed by the State produced an
arbitrary or freakish sentence forbidden by the Eighth Amendment.
Case
Subject
McCune v. Lile
536 U.S. 24
(2002)
Sentencing:
Treatment
Facts
Respondent was convicted of rape and related crimes. A few
years before his scheduled release, Kansas prison officials
ordered respondent to participate in a Sexual Abuse
Treatment Program (SATP). As part of the program,
participating inmates are required to complete and sign an
“Admission of Responsibility” form, in which they accept
responsibility for the crimes for which they have been
sentenced, and complete a sexual history form detailing all
prior sexual activities, regardless of whether the activities
constitute uncharged criminal offenses. The information
obtained from SATP participants is not privileged, and might
be used against them in future criminal proceedings. There is
no evidence, however, that incriminating information has ever
been disclosed under the SATP. Officials informed respondent
that if he refused to participate in the SATP, his prison
privileges would be reduced, resulting in the automatic
curtailment of his visitation rights, earnings, work
opportunities, ability to send money to family, canteen
expenditures, access to a personal television, and other
privileges. He also would be transferred to a potentially more
dangerous maximum-security unit. Respondent refused to
participate in the SATP on the ground that the required
disclosures of his criminal history would violate his Fifth
Amendment privilege against compelled self-incrimination. He
brought this action for injunctive relief under 42 U.S.C. §1983.
The District Court granted him summary judgment. Affirming,
the Tenth Circuit held that the compelled self-incrimination
prohibited by the Fifth Amendment can be established by
penalties that do not constitute deprivations of protected
liberty interests under the Due Process Clause; ruled that the
automatic reduction in respondent's prison privileges and
housing accommodations was such a penalty because of its
substantial impact on him; declared that respondent's
information would be sufficiently incriminating because an
admission of culpability regarding his crime of conviction
would create a risk of a perjury prosecution; and concluded
that, although the SATP served Kansas' important interests in
rehabilitating sex offenders and promoting public safety, those
interests could be served without violating the Constitution by
treating inmate admissions as privileged or by granting
inmates use immunity.
Issue Presented and Holding
Issue: Whether the SATP serves a vital penological purpose, and offering inmates minimal
incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth
Amendment.
Held: No. Reversed and Remanded.
(a) The SATP is supported by the legitimate penological objective of rehabilitation. The SATP
lasts 18 months; involves substantial daily counseling; and helps inmates address sexual
addiction, understand the thoughts, feelings, and behavior dynamics that precede their offenses,
and develop relapse prevention skills.
(b) The mere fact that Kansas does not offer legal immunity from prosecution based on
statements made in the course of the SATP does not render the program invalid. No inmate has
ever been charged or prosecuted for any offense based on such information, and there is no
contention that the program is a mere subterfuge for the conduct of a criminal investigation.
Rather, the refusal to offer use immunity serves two legitimate state interests: (1) The potential for
additional punishment reinforces the gravity of the participants' offenses and thereby aids in their
rehabilitation; and (2) the State confirms its valid interest in deterrence by keeping open the option
to prosecute a dangerous sex offender.
(c) The SATP, and the consequences for nonparticipation in it, do not combine to create a
compulsion that encumbers the constitutional right not to incriminate oneself. (1) The prison
context is important in weighing respondent's constitutional claim: A broad range of choices that
might infringe constitutional rights in a free society fall within the expected conditions of
confinement of those lawfully convicted. The limitation on prisoners' privileges and rights also
follows from the need to grant necessary authority and capacity to officials to administer the
prisons. The Court's holding in Sandin v. Conner, that challenged prison conditions cannot give
rise to a due process violation unless they constitute “atypical and significant hardships on inmates
in relation to the ordinary incidents of prison life,” may not provide a precise parallel for determining
whether there is compelled self-incrimination, but does provide useful instruction. A prison clinical
rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological
objective, does not violate the privilege against compelled self-incrimination if the adverse
consequences an inmate faces for not participating are related to the program objectives and do
not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.
(2) Respondent's decision not to participate in the SATP did not extend his prison term or affect his
eligibility for good-time credits or parole. He instead complains about his possible transfer from the
medium-security unit where the program is conducted to a less desirable maximum-security unit.
The transfer, however, is not intended to punish prisoners for exercising their Fifth Amendment
rights. Rather, it is incidental to a legitimate penological reason: Due to limited space, inmates who
do not participate in their respective programs must be moved out of the facility where the
programs are held to make room for other inmates. The decision where to house inmates is at the
core of prison administrators' expertise. Respondent also complains that his privileges will be
reduced. An essential tool of prison administration, however, is the authority to offer inmates
various incentives to behave. The Constitution accords prison officials wide latitude to bestow or
revoke these perquisites as they see fit. Respondent fails to cite a single case from this Court
holding that the denial of discrete prison privileges for refusal to participate in a rehabilitation
program amounts to unconstitutional compulsion. Instead, he relies on the so-called penalty cases,
which involved free citizens given the choice between invoking the Fifth Amendment privilege and
sustaining their economic livelihood. Those cases did not involve legitimate rehabilitative programs
conducted within prison walls, and they are not easily extended to the prison context, where
inmates surrender their rights to pursue a livelihood and to contract freely with the State. (3)
Determining what constitutes unconstitutional compulsion involves a question of judgment: Courts
must decide whether the consequences of an inmate's choice to remain silent are closer to the
physical torture against which the Constitution clearly protects or the de minimis harms against
which it does not. The Sandin framework provides a reasonable means of assessing whether the
response of prison administrators to correctional and rehabilitative necessities are so out of the
ordinary that one could sensibly say they rise to the level of unconstitutional compulsion.
(d) Prison context or not, respondent's choice is marked less by compulsion than by choices the
Court has held give no rise to a self-incrimination claim. The cost to respondent of exercising his
privilege-denial of certain perquisites that make his life in prison more tolerable-is much less than
that borne by the defendant in McGautha v. California, where the Court allowed statements made
by a criminal defendant to mitigate his responsibility to be used against him as evidence of his
guilt. The hard choices faced by the defendants in Baxter v. Palmigiano further illustrate that the
consequences respondent faced did not amount to unconstitutional compulsion. Respondent's
attempt to distinguish the latter cases on dual grounds-that (1) the penalty here followed
automatically from his decision to remain silent, and (2) his participation in the SATP was
involuntary-is unavailing. Neither distinction would justify departing from this Court's precedents.
(e) Were respondent's position to prevail, there would be serious doubt about the constitutionality
of the federal sex offender treatment program, which is comparable to the Kansas program.
Respondent is mistaken as well to concentrate on a so-called reward/penalty distinction and an
illusory baseline against which a change in prison conditions must be measured.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a law enacted after expiration of a previously
applicable limitations period violates the Ex Post Facto Clause
when it is applied to revive a previously time-barred prosecution.
Stogner v.
California
539 U.S. 607
(2003)
Sentencing:
Ex Post Facto
Clause
In 1993, California enacted a new criminal statute of
limitations permitting prosecution for sex-related child abuse
where the prior limitations period has expired if, inter alia, the
prosecution is begun within one year of a victim's report to
police. A subsequently added provision makes clear that this
law revives causes of action barred by prior limitations
statutes. In 1998, petitioner Stogner was indicted for sexrelated child abuse committed between 1955 and 1973. At the
time those crimes were allegedly committed, the limitations
period was three years. Stogner moved to dismiss the
complaint on the ground that the Ex Post Facto Clause forbids
revival of a previously time-barred prosecution. The trial court
agreed, but the California Court of Appeal reversed. The trial
court denied Stogner's subsequent dismissal motion, in which
he argued that his prosecution violated the Ex Post Facto and
Due Process Clauses. The Court of Appeal affirmed.
Held: Yes. Reversed.
California's law extends the time in which prosecution is
allowed, authorizes prosecutions that the passage of time has
previously barred, and was enacted after prior limitations
periods for Stogner's alleged offenses had expired. Such
features produce the kind of retroactivity that the Constitution
forbids. First, the law threatens the kinds of harm that the
Clause seeks to avoid, for the Clause protects liberty by
preventing governments from enacting statutes with “manifestly
unjust and oppressive” retroactive effects. Second, the law falls
literally within the categorical descriptions of ex post facto laws
that Justice Chase set forth more than 200 years ago in Calder
v. Bull, which this Court has recognized as an authoritative
account of the Clause's scope. It falls within the second
category, which Justice Chase understood to include a new law
that inflicts punishments where the party was not, by law, liable
to any punishment. Third, numerous legislators, courts, and
commentators have long believed it well settled that the Clause
forbids resurrection of a time-barred prosecution. The
Reconstruction Congress of 1867 rejected a bill that would have
revived time-barred treason prosecutions against Jefferson
Davis and others, passing instead a law extending unexpired
limitations periods. Roughly contemporaneous State Supreme
Courts echoed the view that laws reviving time-barred
prosecutions are ex post facto. Even courts that have upheld
extensions of unexpired statutes of limitations have consistently
distinguished situations where the periods have expired, often
using language that suggests a presumption that reviving timebarred criminal cases is not allowed. This Court has not
previously spoken decisively on this matter. Neither its
recognition that the Fifth Amendment's privilege against selfincrimination does not apply after the relevant limitations period
has expired, nor its holding that a Civil War statute retroactively
tolling limitations periods during the war was valid as an
exercise of Congress' war powers, dictates the outcome here.
Instead, that outcome is determined by the nature of the harms
that the law creates, the fact that the law falls within Justice
Chase's second category, and a long line of authority.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a party may appeal a denial of summary
judgment after a district court has conducted a full trial on the
merits.
Ortiz v. Jordan
562 U.S. __
(2011)
Sentencing:
Summary
Judgment
Petitioner Ortiz, a former inmate in an Ohio reformatory,
brought a civil rights action under 42 U.S.C. §1983 seeking a
judgment for damages against superintending prison officers.
On two consecutive nights during her incarceration, Ortiz
stated, she was sexually assaulted by a corrections officer.
Although she promptly reported the first assault, she further
alleged, respondent Jordan, a case manager in her living unit,
did nothing to ward off the second sexual assault, despite
Jordan’s awareness of the substantial risk of that occurrence.
Ortiz further charged that respondent Bright, a prison
investigator, retaliated against Ortiz for her accusations by
placing her, shackled and handcuffed, in solitary confinement
in a cell without adequate heat, clothing, bedding, or blankets.
The responses of both officers, she said, violated her right,
safeguarded by the Eighth and Fourteenth Amendments, to
reasonable protection from violence while in custody. Jordan
and Bright moved for summary judgment on pleas of “qualified
immunity.” The District Court, noting factual disputes material
to Ortiz’s claims and the officers’ qualified immunity defenses,
denied the summary judgment motion. The officers did not
appeal that ruling. The case proceeded to trial, and the jury
returned a verdict against Jordan and Bright. They sought
judgment as a matter of law, pursuant to FRCP 50(a), both at
the close of Ortiz’s evidence and at the close of their own
presentation. But they did not contest the jury’s liability finding
by renewing, under Rule 50(b), their request for judgment as a
matter of law. Nor did they request a new trial under Rule
59(a). The District Court entered judgment for Ortiz. On
appeal, Jordan and Bright urged, inter alia, that the District
Court should have granted their motion summary judgment
based on their qualified immunity defense. The Sixth Circuit
agreed and reversed the judgment entered on the jury’s
verdict, holding that both defendants were sheltered from
Ortiz’s suit by qualified immunity.
Held: No. reversed and remanded.
A qualified immunity plea, not upheld at the summary
judgment stage, may be pursued at trial, but at that stage, the
plea must be evaluated in light of the character and quality of
the evidence received in court. Ordinarily, orders denying
summary judgment are interlocutory and do not qualify as “final
decisions” subject to appeal under 28 U.S.C. §1291. Because a
qualified immunity plea can spare an official not only from
liability but from trial, this Court has recognized a limited
exception to the categorization of summary judgment denials as
non-appealable orders. The exception permits an immediate
appeal when summary judgment is denied to a defendant who
urges that qualified immunity shelters her from suit. Such an
immediate appeal is not available, however, when the district
court determines that factual issues genuinely in dispute
preclude summary adjudication. Here, Jordan and Bright sought
no immediate appeal from the denial of their summary judgment
motion. Nor did they avail themselves of Rule 50(b), which
permits the entry of judgment, post-verdict, for the verdict loser
if the court finds the evidence legally insufficient to sustain the
verdict. Absent such a motion, an appellate court is “powerless”
to review the sufficiency of the evidence after trial. This Court
need not address the officers’ argument that a qualified
immunity plea raising a “purely legal” issue is preserved for
appeal by an unsuccessful summary judgment motion even if
the plea is not reiterated in a Rule 50(b) motion. Cases fitting
that bill typically involve disputes about the substance and
clarity of preexisting law. In this case, however, what was
controverted was not the pre-existing law, but the facts that
could render Jordan and Bright answerable under §1983,
whether Jordan was adequately informed, after the first assault,
of the assailant’s identity and of Ortiz’s fear of a further assault.
Because the dispositive facts were disputed, the officers’
qualified immunity defenses did not present “neat abstract
issues of law.” To the extent that Jordan and Bright urge Ortiz
has not proved her case, they were, by their own account,
obliged to raise that sufficiency-of-the evidence issue by postverdict motion for judgment as a matter of law under Rule 50(b).
They did not do so. The Sixth Circuit, therefore, had no warrant
to upset the jury’s decision on their liability.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §2250 applies to sex offenders whose interstate travel occurred before
SORNA’s effective date.
Carr v. United
States
560 U.S. __
(2010)
Sex Offender
Regulation:
Relocation
Enacted in 2006, the Sex Offender Registration and
Notification Act (SORNA) makes it a federal crime for, inter
alia, any person (1) who “is required to register under
SORNA,” and (2) who “travels in interstate or foreign
commerce,” to (3) “knowingly fail to register or update a
registration.” Before SORNA’s enactment, petitioner Carr, a
registered sex offender in Alabama, relocated to Indiana
without complying with the latter State’s registration
requirements. Carr was indicted under §2250 post-SORNA.
The Federal District Court denied Carr’s motion to dismiss,
which asserted that the §2250 prosecution would violate the
Constitution’s Ex Post Facto Clause because he had traveled
to Indiana before SORNA’s effective date. Carr then pleaded
guilty and was sentenced to prison. Affirming the conviction,
the Seventh Circuit held that §2250 does not require that a
defendant’s travel postdate SORNA and that reliance on a
defendant’s pre-SORNA travel poses no ex post facto
problem so long as the defendant had a reasonable time to
register post-SORNA but failed to do so, as had Carr.
Held: No. Reversed and Remanded.
(a) The Court accepts Carr’s interpretation that the statute does not impose liability unless
a person, after becoming subject to SORNA’s registration requirements, travels across
state lines and then fails to register. That interpretation better accords with §2250(a)’s text,
the first element of which can only be satisfied when a person “is required to register under
SORNA.” That §2250 sets forth the travel requirement in the present tense (“travels”) rather
than in the past or present perfect (“traveled” or “has traveled”) reinforces this conclusion.
And because the Dictionary Act’s provision that statutory “words used in the present tense
include the future as well as the present,” implies that the present tense generally does not
include the past, regulating a person who “travels” is not readily understood to encompass a
person whose only travel occurred before the statute took effect. Indeed, there appears to
be no instance in which this Court has construed a present-tense verb in a criminal law to
reach pre-enactment conduct. The statutory context also supports a forward-looking
construction of “travels.” First, the word “travels” is followed in §2250(a)(2)(B) by a series of
other present tense verbs—“enters or leaves, or resides.” A statute’s “undeviating use of
the present tense” is a “striking indicator” of its “prospective orientation.” Second, the other
elements of a §2250 violation are similarly set forth in the present tense: Sections
2250(a)(1) and (a)(3) refer, respectively, to any person who “is required to register under
[SORNA]” and who “knowingly fails to register or update a registration.” Had Congress
intended pre-enactment conduct to satisfy§2250’s first two requirements but not the third, it
presumably would have varied the verb tenses, as it has in numerous other federal statutes.
(b) The Government’s two principal arguments for construing the statute to cover preSORNA travel are unpersuasive. The claim that such a reading avoids an “anomaly” in the
statute’s coverage of federal versus state sex offenders is rejected. Section 2250 imposes
criminal liability on two categories of persons who fail to adhere to SORNA’s registration
requirements: any person who is a sex offender “by reason of a conviction under Federal
law,” and any other person required to register under SORNA who “travels in interstate or
foreign commerce,” §2250(a)(2)(B). The Government’s assertion that §2250(a)(2)’s
jurisdictional reach should have comparable breadth as applied to both federal and state
sex offenders is little more than ipse dixit. It is entirely reasonable for Congress to have
assigned the Federal Government a special role in ensuring compliance with SORNA’s
registration requirements by federal sex offenders, who typically would have spent time
under federal criminal supervision. It is similarly reasonable for Congress to have given the
States primary responsibility for supervising and ensuring compliance among state sex
offenders and to have subjected such offenders to federal criminal liability only when, after
SORNA’s enactment, they use interstate commerce channels to evade a State’s reach. The
Seventh Circuit erred in analogizing §2250 to 18 U.S.C. §922(g), which prohibits convicted
felons from “possessing in commerce any firearm or ammunition.” According to the lower
court, §2250(a), like §922(g), uses movement in interstate commerce as a jurisdictional
element to establish a constitutional predicate for the statute, not to create a temporal
requirement. However, the proper analogy here is not between the travel of a sex offender
and the movement of a firearm, but between the sex offender who “travels” and the
convicted felon who “possesses.” The act of travel by a convicted sex offender may serve
as a jurisdictional predicate for §2250, but it is also, like the act of possession, the very
conduct at which Congress took aim. Also unavailing is the Government’s invocation of one
of SORNA’s purposes, to locate sex offenders who failed to abide by their registration
obligations. The Government’s argument confuses SORNA’s general goal with §2250’s
specific purpose. Section 2250 is not a stand-alone response to the problem of missing sex
offenders; it is embedded in a broader statutory scheme enacted to address deficiencies in
prior law that had enabled sex offenders to slip through the cracks. By facilitating the
collection of sex-offender information and its dissemination among jurisdictions, these other
provisions, not §2250, stand at the center of Congress’ effort to account for missing sex
offenders. While subjecting pre-SORNA travelers to punishment under §2250 may well be
consistent with the aim of finding missing sex offenders, a contrary construction in no way
frustrates that broad goal. Taking account of SORNA’s overall structure, there is little
reason to doubt that Congress intended §2250 to do exactly what it says: to subject to
federal prosecution sex offenders who elude SORNA’s registration requirements by
traveling in interstate commerce. None of the legislative materials the Government cites as
evidence of SORNA’s purpose calls this reading into question. To the contrary, the House
Judiciary Committee’s Report suggests not only that a prohibition on post-enactment travel
is consonant with Congress’ goals, but also that it is the rule Congress in fact chose to
adopt.
(c) Because §2250 liability cannot be predicated on pre-SORNA travel, the Court need
not address whether the statute violates the Ex Post Facto Clause.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Act's definition of “mental abnormality” satisfies “substantive” due
process requirements or violate double jeopardy.
Kansas v.
Hendricks
521 U.S. 346
(1997)
Sex Offender
Regulation:
Violent Child
Predators
Kansas' Sexually Violent Predator Act establishes procedures
for the civil commitment of persons who, due to a “mental
abnormality” or a “personality disorder,” are likely to engage in
“predatory acts of sexual violence.” Kansas filed a petition
under the Act in state court to commit respondent (and crosspetitioner) Hendricks, who had a long history of sexually
molesting children and was scheduled for release from prison.
The court reserved ruling on Hendricks' challenge to the Act's
constitutionality, but granted his request for a jury trial. After
Hendricks testified that he agreed with the state physician's
diagnosis that he suffers from pedophilia and is not cured and
that he continues to harbor sexual desires for children that he
cannot control when he gets “stressed out,” the jury
determined that he was a sexually violent predator. Finding
that pedophilia qualifies as a mental abnormality under the
Act, the court ordered him committed. On appeal, the State
Supreme Court invalidated the Act on the ground that the
precommitment condition of a “mental abnormality” did not
satisfy what it perceived to be the “substantive” due process
requirement that involuntary civil commitment must be
predicated on a “mental illness” finding. It did not address
Hendricks' ex post facto and double jeopardy claims.
Held: Reversed.
An individual's constitutionally protected liberty interest in avoiding physical restraint
may be overridden even in the civil context. This Court has consistently upheld
involuntary commitment statutes that detain people who are unable to control their
behavior and thereby pose a danger to the public health and safety, provided the
confinement takes place pursuant to proper procedures and evidentiary standards.
The Act unambiguously requires a precommitment finding of dangerousness either to
one's self or to others, and links that finding to a determination that the person suffers
from a “mental abnormality” or “personality disorder.” Generally, this Court has
sustained a commitment statute if it couples proof of dangerousness with proof of
some additional factor, such as a “mental illness” or “mental abnormality,” for these
additional requirements serve to limit confinement to those who suffer from a
volitional impairment rendering them dangerous beyond their control. The Act sets
forth comparable criteria with its precommitment requirement of “mental abnormality”
or “personality disorder.” Contrary to Hendricks' argument, this Court has never
required States to adopt any particular nomenclature in drafting civil commitment
statutes and leaves to the States the task of defining terms of a medical nature that
have legal significance. The legislature is therefore not required to use the specific
term “mental illness” and is free to adopt any similar term.
2. The Act does not violate the Constitution's double jeopardy prohibition or its ban
on ex post facto lawmaking. (a) The Act does not establish criminal proceedings, and
involuntary confinement under it is not punishment. The categorization of a particular
proceeding as civil or criminal is a question of statutory construction. Nothing on the
face of the Act suggests that the Kansas Legislature sought to create anything other
than a civil commitment scheme. That manifest intent will be rejected only if
Hendricks provides the clearest proof that the scheme is so punitive in purpose or
effect as to negate Kansas' intention to deem it civil. He has failed to satisfy this
heavy burden. Commitment under the Act does not implicate either of the two primary
objectives of criminal punishment: retribution or deterrence. Its purpose is not
retributive: It does not affix culpability for prior criminal conduct, but uses such
conduct solely for evidentiary purposes; it does not make criminal conviction a
prerequisite for commitment; and it lacks a scienter requirement, an important
element in distinguishing criminal and civil statutes. Nor can the Act be said to act as
a deterrent, since persons with a mental abnormality or personality disorder are
unlikely to be deterred by the threat of confinement. The conditions surrounding
confinement-essentially the same as conditions for any civilly committed patient-do
not suggest a punitive purpose. Although the commitment scheme here involves an
affirmative restraint, such restraint of the dangerously mentally ill has been historically
regarded as a legitimate nonpunitive objective. The confinement's potentially
indefinite duration is linked to the purpose of holding a person until his mental
abnormality no longer causes him to be a threat to others. He is thus permitted
immediate release upon a showing that he is no longer dangerous, and the longest
he can be detained pursuant to a single judicial proceeding is 1 year. The State's use
of procedural safeguards applicable in criminal trials does not turn the proceedings
into criminal prosecutions. The Act is not necessarily punitive if it fails to offer
treatment where treatment for a condition is not possible, or if treatment, though
possible, is merely an ancillary, rather than an overriding, state concern. The
conclusion that the Act is nonpunitive removes an essential prerequisite for both
Hendricks' double jeopardy and ex post facto claims. (b) Hendricks' confinement does
not amount to a second prosecution and punishment for the offense for which he was
convicted. Because the Act is civil in nature, its commitment proceedings do not
constitute a second prosecution. As this commitment is not tantamount to
punishment, the detention does not violate Double Jeopardy Clause, even though it
follows a prison term. Hendricks' argument that, even if the Act survives the “multiple
punishments” test, it fails the “same elements” test of Blockburger is rejected, since
that test does not apply outside of the successive prosecution context. (c) Hendricks'
ex post facto claim is similarly flawed. The Ex Post Facto Clause pertains exclusively
to penal statutes. Since the Act is not punishment, its application does not raise ex
post facto concerns. It does not criminalize conduct legal before its enactment or
deprive Hendricks of any defense that was available to him at the time of his crimes.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Alaska Sex Offender Registration Act is nonpunitive, and thus its retroactive application
violates the Ex Post Facto Clause.
Smith v. Doe
538 U.S. 84
(2003)
Sex Offender
Regulation:
Registration
Under the Alaska Sex Offender Registration Act (Act), any sex
offender or child kidnaper incarcerated in the State must
register with the Department of Corrections within 30 days
before his release, providing his name, address, and other
specified information. If the individual is at liberty, he must
register with local law enforcement authorities within a working
day of his conviction or of entering the State. If he was
convicted of a single, nonaggravated sex crime, the offender
must provide annual verification of the submitted information
for 15 years. If he was convicted of an aggravated sex offense
or of two or more sex offenses, he must register for life and
verify the information quarterly. The offender’s information is
forwarded to the Department of Public Safety, which maintains
a central registry of sex offenders. Some of the data, such as
fingerprints, driver’s license number, anticipated change of
address, and whether the offender has had medical treatment
afterwards is kept confidential. The offender’s name, aliases,
address, photograph, physical description, driver’s license
number, motor vehicle identification numbers, place of
employment, date of birth, crime, date and place of conviction,
length and conditions of sentence, and a statement as to
whether the offender is in compliance with the Act’s update
requirements or cannot be located are, however, published on
the Internet. Both the Act’s registration and notification
requirements are retroactive.
Respondents were convicted of aggravated sex offenses.
Both were released from prison and completed rehabilitative
programs for sex offenders. Although convicted before the
Act’s passage, respondents are covered by it. After the initial
registration, they are required to submit quarterly verifications
and notify the authorities of any changes. Both respondents,
along with the wife of one of them, also a respondent here,
brought this action under 42 U.S.C. §1983, seeking to declare
the Act void as to them under, inter alia, the Ex Post Facto
Clause, U.S. Const., Art. I, §10, cl. 1. The District Court
granted petitioners summary judgment. The Ninth Circuit
disagreed in relevant part, holding that, because its effects
were punitive, the Act violates the Ex Post Facto Clause.
Held: No. Reversed and Remanded.
(a) The determinative question is whether the legislature meant to establish “civil proceedings.” If the
intention was to impose punishment, that ends the inquiry. If, however, the intention was to enact a
regulatory scheme that is civil and nonpunitive, the Court must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil. E.g., ibid.
Because the Court ordinarily defers to the legislature’s stated intent, only the clearest proof will suffice to
override that intent and transform what has been denominated a civil remedy into a criminal penalty.
(b) The Alaska Legislature’s intent was to create a civil, nonpunitive regime. The Court first considers the
statute’s text and structure, asking whether the legislature indicated either expressly or impliedly a
preference for one label or the other, Here, the statutory text states the legislature’s finding that sex
offenders pose a high risk of reoffending, identifies protecting the public from sex offenders as the law’s
primary interest, and declares that release of certain information about sex offenders to public agencies
and the public will assist in protecting the public safety. This Court has already determined that an
imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive
governmental objective. Here, as in Hendricks, nothing on the statute’s face suggests that the legislature
sought to create anything other than a civil scheme designed to protect the public from harm.The contrary
conclusion is not required by the Alaska Constitution’s inclusion of the need to protect the public as one of
the purposes of criminal administration. Where a legislative restriction is an incident of the State’s power to
protect the public health and safety, it will be considered as evidencing an intent to exercise that regulatory
power, and not a purpose to add to the punishment. Other formal attributes of a legislative enactment, such
as the manner of its codification or the enforcement procedures it establishes, are probative of the
legislature’s intent, but are open to debate in this case. The Act’s notification provisions are codified in the
State’s Health, Safety, and Housing Code, confirming the conclusion that the statute was intended as a
nonpunitive regulatory measure. The fact that the Act’s registration provisions are codified in the State’s
Code of Criminal Procedure is not dispositive, since a statute’s location and labels do not by themselves
transform a civil remedy into a criminal one. The Code of Criminal Procedure contains many other
provisions that do not involve criminal punishment. The Court’s conclusion is not altered by the fact that the
Act’s implementing procedural mechanisms require the trial court to inform the defendant of the Act’s
requirements and, if possible, the period of registration required. That conclusion is strengthened by the
fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the
authority to promulgate implementing regulations with the Department of Public Safety, an agency charged
with enforcing both criminal and civil regulatory laws. Also telling is the fact that the Act does not require
the procedures adopted to contain any safeguards associated with the criminal process. By contemplating
distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal, sanction.
(c) Respondents cannot show, much less by the clearest proof, that the Act’s effects negate Alaska’s
intention to establish a civil regulatory scheme. In analyzing the effects, the Court refers to the seven
factors noted in Kennedy v. Mendoza-Martinez, as a useful framework. First, the regulatory scheme, in its
necessary operation, has not been regarded in the Nation’s history and traditions as a punishment. The
fact that sex offender registration and notification statutes are of fairly recent origin suggests that the Act
was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.
Respondents’ argument that the Act, particularly its notification provisions, resembles shaming
punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act’s stigma
results not from public display for ridicule and shaming but from the dissemination of accurate information
about a criminal record, most of which is already public. The fact that Alaska posts offender information on
the Internet does not alter this conclusion. Second, the Act does not subject respondents to an affirmative
disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the
paradigmatic affirmative disability or restraint. Moreover, its obligations are less harsh than the sanctions of
occupational debarment, which the Court has held to be nonpunitive. Contrary to the Ninth Circuit’s
assertion, the record contains no evidence that the Act has led to substantial occupational or housing
disadvantages for former sex offenders that would not have otherwise occurred. Also unavailing is that
court’s assertion that the periodic update requirement imposed an affirmative disability. The Act, on its
face, does not require these updates to be made in person. The holding that the registration system is
parallel to probation or supervised release is rejected because, in contrast to probationers and supervised
releasees, offenders subject to the Act are free to move where they wish and to live and work as other
citizens, with no supervision. While registrants must inform the authorities after they change their facial
features, borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so.
Third, the Act does not promote the traditional aims of punishment. That it might deter future crimes is not
dispositive. Moreover, the Ninth Circuit erred in concluding that the Act’s registration obligations were
retributive. While the Act does differentiate between individuals convicted of aggravated or multiple
offenses and those convicted of a single nonaggravated offense, these broad categories and the reporting
requirement’s corresponding length are reasonably related to the danger of recidivism, and this is
consistent with the regulatory objective. Fourth, the Act has a rational connection to a legitimate
nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in
their community. That the Act may not be narrowly drawn to accomplish the stated purpose is not
dispositive, since such imprecision does not suggest that the Act’s nonpunitive purpose is a “sham or mere
pretext.” Fifth, the regulatory scheme is not excessive with respect to the Act’s purpose. The State’s
determination to legislate with respect to convicted sex offenders as a class, rather than require individual
determination of their dangerousness, does not render the Act punitive. Moreover, the wide dissemination
of offender information does not render the Act excessive, given the general mobility of the population. The
question here is not whether the legislature has made the best choice possible to address the problem it
seeks to remedy, but whether the regulatory means chosen are reasonable in light of the nonpunitive
objective. The Act meets this standard. Finally, the two remaining Mendoza-Martinez factors–whether the
regulation comes into play only on a finding of scienter and whether the behavior to which it applies is
already a crime–are of little weight in this case.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether a sex offender’s due process rights are violated
by being required to post personal information on a sex offender
registry website.
Connecticut
Department of
Public Safety v.
Doe
538 U.S. 1
(2003)
Sex Offender
Regulation:
Release of
Information
Among other things, Connecticut’s “Megan’s Law” requires
persons convicted of sexual offenses to register with the
Department of Public Safety (DPS) upon their release into the
community, and requires DPS to post a sex offender registry
containing registrants’ names, addresses, photographs, and
descriptions on an Internet Website and to make the registry
available to the public in certain state offices. Respondent, a
convicted sex offender who is subject to the law, filed a 42
U.S.C. §1983 action on behalf of himself and similarly situated
sex offenders, claiming that the law violates, inter alia, the
Fourteenth Amendment’s Due Process Clause. The District
Court granted respondent summary judgment, certified a class
of individuals subject to the law, and permanently enjoined the
law’s public disclosure provisions. The Second Circuit
affirmed, concluding that such disclosure both deprived
registered sex offenders of a “liberty interest,” and violated the
Due Process Clause because officials did not afford
registrants a pre-deprivation hearing to determine whether
they are likely to be “currently dangerous.”
Held: No. Reversed.
The Second Circuit’s judgment must be reversed because due
process does not require the opportunity to prove a fact that is
not material to the State’s statutory scheme. Mere injury to
reputation, even if defamatory, does not constitute the
deprivation of a liberty interest. But even assuming, arguendo,
that respondent has been deprived of a liberty interest, due
process does not entitle him to a hearing to establish a fact–that
he is not currently dangerous–that is not material under the
statute. As the DPS Website explains, the law’s requirements
turn on an offender’s conviction alone–a fact that a convicted
offender has already had a procedurally safeguarded
opportunity to contest. Unless respondent can show that the
substantive rule of law is defective (by conflicting with the
Constitution), any hearing on current dangerousness is a
bootless exercise. Respondent expressly disavows any reliance
on the substantive component of the Fourteenth Amendment’s
protections, and maintains that his challenge is strictly a
procedural one. But States are not barred by principles of
“procedural due process” from drawing such classifications.
Such claims “must ultimately be analyzed” in terms of
substantive due process. Because the question is not properly
before the Court, it expresses no opinion as to whether the
State’s law violates substantive due process principles.
Case
United States v.
Juvenile Male
564 U.S. ___
(2011)
Subject
Sex Offender
Regulation:
Registration
Facts
Respondent Juvenile Male was 13 years old when he began sexually abusing a
10-year-old boy on the Fort Belknap Indian Reservation in Montana. The abuse
continued for approximately two years, until respondent was 15 and his victim 12.
In 2005, respondent was charged in the District of Montana with delinquency under
the Federal Juvenile Delinquency Act, 18 U. S. C.§5031. Respondent pleaded
“true” to charges that he knowingly engaged in sexual acts with a child under 12,
which would have been a federal crime had respondent been an adult. The court
sentenced respondent to two years of juvenile detention, followed by juvenile
supervision until his 21st birthday. Respondent was to spend the first six months of
his post-confinement supervision in a prerelease center. In 2006, while respondent
remained in juvenile detention, Congress enacted SORNA. Under SORNA, a sex
offender must “register, and keep the registration current, in each jurisdiction”
where the offender resides, is employed, or attends school. This registration
requirement extends to certain juveniles adjudicated as delinquent for serious sex
offenses. In addition, an interim rule issued by the Attorney General mandates that
SORNA’s requirements apply retroactively to sex offenders convicted before the
statute’s enactment. In July 2007, the District Court determined that respondent
had failed to comply with the requirements of his prerelease program. The court
revoked respondent’s juvenile supervision, imposed an additional 6-month term of
detention, and ordered that the detention be followed by supervision until
respondent’s 21st birthday. At the Government’s urging, and over respondent’s
objection, the court also imposed a “special condition” of supervision requiring
respondent to register and keep current as a sex offender. On appeal to the Ninth
Circuit, respondent challenged this “special condition” of supervision. He requested
that the Court of Appeals “reverse the portion of his sentence requiring Sex
Offender Registration and remand with instructions that the district court strike Sex
Offender Registration as a condition of juvenile supervision.” Then, in May 2008,
with his appeal still pending in the Ninth Circuit, respondent turned 21, and the
juvenile-supervision order requiring him to register as a sex offender expired.
Over a year after respondent’s 21st birthday, the Court of Appeals handed
down its decision. No party had raised any issue of mootness in the Ninth Circuit,
and the Court of Appeals did not address the issue sua sponte. The court’s opinion
discussed only the merits and concluded that applying SORNA to juvenile
delinquents who committed their offenses “before SORNA’s passage violates the
Ex Post Facto Clause.” On that basis, the court vacated the District Court’s
condition of supervision requiring sex-offender registration and reporting. The
United States petitioned for a writ of certiorari. While that petition was pending, this
Court entered a per curiam opinion in this case certifying a preliminary question of
Montana law to the Montana Supreme Court. The opinion noted that a “threshold
issue of mootness” might prevent us from reviewing the decision below on the
merits. We explained that, because respondent is “no longer subject” to the District
Court’s “sex-offender-registration conditions,” respondent must “show that a
decision invalidating” those conditions “would be sufficiently likely to redress
‘collateral consequences adequate to meet Article III’s injury-in-fact requirement.’”
We noted that by the time of the Ninth Circuit’s decision, “respondent had become
registered as a sex offender in Montana.” Thus, “perhaps the most likely potential
‘collateral consequence’ that might be remedied by a judgment in respondent’s
favor is the requirement that respondent remain registered as a sex offender under
Montana law.” In order to ascertain whether a decision invalidating the District
Court’s registration conditions would enable respondent to remove his name from
the Montana sex-offender registry, the Court certified the following question to the
Montana Supreme Court: “Is respondent’s duty to remain registered as a sex
offender under Montana law contingent upon the validity of the conditions of his
now-expired federal juvenile-supervision order that required him to register as a
sex offender, or is the duty an independent requirement of Montana law that is
unaffected by the validity or invalidity of the federal juvenile supervision
conditions?” The Montana Supreme Court has now responded to our certified
question. Its answer is that respondent’s “state law duty to remain registered as a
sex offender is not contingent upon the validity of the conditions of his federal
supervision order, but is an independent requirement of Montana law.”
Issue Presented and Holding
Issue: Whether Respondent should be held to the SORNA laws after he has
reached a certain age.
Held: No. Vacated and Remanded.
The Court of Appeals had no authority to enter that judgment because it had
no live controversy before it. It is a basic principle of Article III that a justiciable
case or controversy must remain “extant at all stages of review, not merely at
the time the complaint is filed.” “Throughout the litigation,” the party seeking
relief “‘must have suffered, or be threatened with, an actual injury traceable to
the defendant and likely to be redressed by a favorable judicial decision.’”
In criminal cases, this requirement means that a defendant wishing to
continue his appeals after the expiration of his sentence must suffer some
“continuing injury” or “collateral consequence” sufficient to satisfy Article III.
When the defendant challenges his underlying conviction, this Court’s cases
have long presumed the existence of collateral consequences. But when a
defendant challenges only an expired sentence, no such presumption applies,
and the defendant must bear the burden of identifying some ongoing “collateral
consequence” that is “traceable” to the challenged portion of the sentence and
“likely to be redressed by a favorable judicial decision.” At the time of the Ninth
Circuit’s decision in this case, the District Court’s order of juvenile supervision
had expired, and respondent was no longer subject to the sex offenderregistration conditions that he sought to challenge on appeal. As a result,
respondent’s challenge was moot before the Ninth Circuit unless he could “show
that a decision invalidating” the District Court’s order would likely redress some
collateral consequence of the registration conditions. As we noted in our prior
opinion, one “potential collateral consequence that might be remedied” by an
order invalidating the registration conditions “is the requirement that respondent
remain registered” under Montana law. But as the Montana Supreme Court has
now clarified, respondent’s “state law duty to remain registered as a sex
offender is not contingent upon the validity of the conditions of his federal
supervision order,” and continues to apply regardless of the outcome in this
case. True, a favorable decision in this case might serve as a useful precedent
for respondent in a hypothetical lawsuit challenging Montana’s registration
requirement on ex post facto grounds. But this possible, indirect benefit in a
future lawsuit cannot save this case from mootness.
Respondent also argues that this case “cannot be considered moot in any
practical sense” because, under current law, respondent may have “an
independent duty to register as a sex offender” under SORNA itself. But the
duty to register under SORNA is not a consequence—collateral or otherwise—of
the District Court’s special conditions of supervision. The statutory duty to
register is, as respondent notes, an obligation that exists “independent” of those
conditions. That continuing obligation might provide grounds for a preenforcement challenge to SORNA’s registration requirements. It does not,
however, render the current controversy regarding the validity of respondent’s
sentence any less moot. Respondent further argues that this case falls within
the established exception to mootness for disputes that are “‘capable of
repetition, yet evading review.’” This exception, however, applies only where “(1)
the challenged action is in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.” At the very least,
respondent cannot satisfy the second of these requirements. He has now turned
21, and he will never again be subject to an order imposing special conditions of
juvenile supervision. The capable-of-repetition exception to mootness thus does
not apply, and the Ninth Circuit lacked the authority under Article III to decide
this case on the merits.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Necessary and Proper Clause grants Congress authority to enact §4248.
United States v.
Comstock
560 U.S. ___
(2010)
Sex Offender
Regulation:
Congressional
Authority
Federal law allows a district court to order the civil
commitment of a mentally ill, sexually dangerous federal
prisoner beyond the date he would otherwise be released.
The Government instituted civil-commitment proceedings
under §4248 against respondents, each of whom moved to
dismiss on the ground that, in enacting the statute, Congress
exceeded its powers under the Necessary and Proper Clause,
U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court
granted dismissal, and the Fourth Circuit affirmed on the
legislative-power ground.
Held: Yes. Reversed and Remanded.
(1) The Clause grants Congress broad authority to pass laws in furtherance of its
constitutionally enumerated powers. It makes clear that grants of specific federal legislative
authority are accompanied by broad power to enact laws that are “convenient, or useful” or
“conducive” to the enumerated power’s “beneficial exercise,” and that Congress can
“legislate on that vast mass of incidental powers which must be involved in the constitution.”
In determining whether the Clause authorizes a particular federal statute, there must be
“means ends rationality” between the enacted statute and the source of federal power. The
Constitution “addresses” the “choice of means” “primarily to the judgment of Congress. If it
can be seen that the means adopted are really calculated to attain the end, the degree of
their necessity, the extent to which they conduce to the end, the closeness of the
relationship between the means adopted and the end to be attained, are matters for
congressional determination alone.” Thus, although the Constitution nowhere grants
Congress express power to create federal crimes beyond those specifically enumerated, to
punish their violation, to imprison violators, to provide appropriately for those imprisoned, or
to maintain the security of those who are not imprisoned but who may be affected by the
federal imprisonment of others, Congress possesses broad authority to do each of those
things under the Clause.
(2) Congress has long been involved in the delivery of mental health care to federal
prisoners, and has long provided for their civil commitment. A long standing history of
related federal action does not demonstrate a statute’s constitutionality, but can be “helpful
in reviewing the substance of a congressional statutory scheme,” and, in particular, the
reasonableness of the relation between the new statute and pre-existing federal interests.
Section 4248 differs from earlier statutes in that it focuses directly upon persons who, due
to a mental illness, are sexually dangerous. Many of these individuals, however, were likely
already subject to civil commitment under§4246, which, since 1949, has authorized the
post-sentence detention of federal prisoners who suffer from a mental illness and who are
thereby dangerous (whether sexually or otherwise). The similarities between §4246 and
§4248 demonstrate that the latter is a modest addition to a federal statutory framework.
(3) There are sound reasons for §4248’s enactment. The Federal Government, as
custodian of its prisoners, has the constitutional power to act in order to protect nearby (and
other) communities from the danger such prisoners may pose. Moreover, §4248 is
“reasonably adapted” to Congress’ power to act as a responsible federal custodian.
Congress could have reasonably concluded that federal inmates who suffer from a mental
illness that causes them to “have serious difficulty in refraining from sexually violent
conduct,” would pose an especially high danger to the public if released. And Congress
could also have reasonably concluded that a reasonable number of such individuals would
likely not be detained by the States if released from federal custody. Congress’ desire to
address these specific challenges, taken together with its responsibilities as a federal
custodian, supports the conclusion that §4248 satisfies “review for means-end rationality.”
(4) Respondents’ contention that §4248 violates the Tenth Amendment because it
invades the province of state sovereignty in an area typically left to state control is rejected.
That Amendment does not “reserve to the States” those powers that are “delegated to the
United States by the Constitution,” including the powers delegated by the Necessary and
Proper Clause. And §4248 does not “invade” state sovereignty, but rather requires
accommodation of state interests: Among other things, it directs the Attorney General to
inform the States where the federal prisoner “is domiciled or was tried” of his detention,
§4248(d),and gives either State the right, at any time, to assert its authority over the
individual, which will prompt the individual’s immediate transfer to State custody. In
Greenwood v. United States, the Court rejected a similar challenge to §4248’s predecessor,
the 1949 statute described above. Because the version of the statute at issue in
Greenwood was less protective of state interests than §4248, a fortiori, the current statute
does not invade state interests.
(5) Section 4248 is narrow in scope. The Court rejects respondents’ argument that, when
legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no
more than one step removed from a specifically enumerated power. Nor will the Court’s
holding today confer on Congress a general “police power, which the Founders denied the
National Government and reposed in the States.” Section §4248 has been applied to only a
small fraction of federal prisoners, and its reach is limited to individuals already “in the
custody of the” Federal Government. Thus, far from a “general police power,” §4248 is a
reasonably adapted and narrowly tailored means of pursuing the Government’s legitimate
interest as a federal custodian in the responsible administration of its prison system. The
Court does not reach or decide any claim that the statute or its application denies equal
protection, procedural or substantive due process, or any other constitutional rights.
Respondents are free to pursue those claims on remand, and any others they have
preserved.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether this case falls within the “domestic relations” exception
to diversity jurisdiction and whether its decision to dismiss was justified
under the abstention principles announced in Younger v. Harris.
Ankenbrandt v.
Richards
504 U.S. 689
(1992)
Tort Damages:
Physical and
Sexual Abuse
Petitioner brought this suit on behalf of her daughters in the
District Court, alleging federal jurisdiction based on the
diversity-of-citizenship provision of 28 U.S.C. §1332, and
seeking monetary damages for alleged torts (physical and
sexual abuse of children) committed against the girls by their
father and his female companion, the respondents here. The
court granted respondents' motion to dismiss without
prejudice, ruling in the alternative that it lacked jurisdiction
because the case fell within the “domestic relations” exception
to diversity jurisdiction and that its decision to dismiss was
justified under the abstention principles announced in Younger
v. Harris. The Court of Appeals affirmed.
Held: Reversed and Remanded.
1. A domestic relations exception to federal diversity jurisdiction
exists as a matter of statutory construction. (a) The exception stems
from Barber v. Barber, in which the Court announced in dicta, without
citation of authority or discussion of foundation, that federal courts have
no jurisdiction over suits for divorce or the allowance of alimony. The
lower federal courts have ever since recognized a limitation on their
jurisdiction based on that statement, and this Court is unwilling to cast
aside an understood rule that has existed for nearly a century and a
half. (b) An examination of Article III, §2, of the Constitution and of
Barber and its progeny makes clear that the Constitution does not
mandate the exclusion of domestic relations cases from federal-court
jurisdiction. Rather, the origins of the exception lie in the statutory
requirements for diversity jurisdiction. (c) That the domestic relations
exception exists is demonstrated by the inclusion of the defining
phrase, “all suits of a civil nature at common law or in equity,” in the
pre-1948 versions of the diversity statute, by Barber's implicit
interpretation of that phrase to exclude divorce and alimony actions,
and by Congress' silent acceptance of this construction for nearly a
century. Considerations of stare decisis have particular strength in this
context, where the legislative power is implicated, and Congress
remains free to alter what this Court has done. Furthermore, it may be
presumed that Congress amended the diversity statute in 1948 to
replace the law/equity distinction with §1332's “all civil actions” phrase
with full cognizance of the Court's longstanding interpretation of the
prior statutes, and absent any indication of an intent to the contrary,
Congress adopted that interpretation in reenacting the statute.
2. The domestic relations exception does not permit a district court to
refuse to exercise diversity jurisdiction over a tort action for damages.
The exception, as articulated by this Court since Barber, encompasses
only cases involving the issuance of a divorce, alimony, or child
custody decree. Because this lawsuit in no way seeks a divorce,
alimony, or child custody decree, the Court of Appeals erred by
affirming the District Court's invocation of the domestic relations
exception. Federal subject-matter jurisdiction pursuant to §1332 is
proper in this case.
3. The District Court erred in abstaining from exercising jurisdiction
under the Younger doctrine. This Court has never applied the notions
of comity so critical to Younger where no proceeding was pending in
state tribunals. Similarly, while it is not inconceivable that in certain
circumstances the abstention principles developed in Burford v. Sun Oil
Co., might be relevant in a case involving elements of the domestic
relationship even when the parties do not seek divorce, alimony, or
child custody, such abstention is inappropriate here, where the status
of the domestic relationship has been determined as a matter of state
law, and in any event has no bearing on the underlying torts alleged.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether he First Amendment shields Westboro from tort liability for its picketing in
this case
Snyder v.
Phelps
562 U.S. ___
(2011)
Tort Damages:
Intentional
Infliction of
Emotional
Distress
For the past 20 years, the congregation of the Westboro
Baptist Church has picketed military funerals to communicate
its belief that God hates the United States for its tolerance of
homosexuality, particularly in America's military. The church's
picketing has also condemned the Catholic Church for
scandals involving its clergy. Fred Phelps, who founded the
church, and six Westboro Baptist parishioners (all relatives of
Phelps) traveled to Maryland to picket the funeral of Marine
Lance Corporal Matthew Snyder, who was killed in Iraq in the
line of duty. The picketing took place on public land
approximately 1,000 feet from the church where the funeral
was held, in accordance with guidance from local law
enforcement officers. The picketers peacefully displayed their
signs-stating, e.g., “Thank God for Dead Soldiers,” “Fags
Doom Nations,” “America is Doomed,” “Priests Rape Boys,”
and “You're Going to Hell”-for about 30 minutes before the
funeral began. Matthew Snyder's father (Snyder), petitioner
here, saw the tops of the picketers' signs when driving to the
funeral, but did not learn what was written on the signs until
watching a news broadcast later that night. Snyder filed a
diversity action against Phelps, his daughters-who participated
in the picketing-and the church (collectively Westboro)
alleging, as relevant here, state tort claims of intentional
infliction of emotional distress, intrusion upon seclusion, and
civil conspiracy. A jury held Westboro liable for millions of
dollars in compensatory and punitive damages. Westboro
challenged the verdict as grossly excessive and sought
judgment as a matter of law on the ground that the First
Amendment fully protected its speech. The District Court
reduced the punitive damages award, but left the verdict
otherwise intact. The Fourth Circuit reversed, concluding that
Westboro's statements were entitled to First Amendment
protection because those statements were on matters of
public concern, were not provably false, and were expressed
solely through hyperbolic rhetoric.
Held: Yes. Affirmed.
(a) The Free Speech Clause of the First Amendment can serve as a defense in state tort
suits, including suits for intentional infliction of emotional distress. Whether the First
Amendment prohibits holding Westboro liable for its speech in this case turns largely on
whether that speech is of public or private concern, as determined by all the circumstances
of the case. “Speech on public issues occupies the “highest rung of the hierarchy of First
Amendment values” and is entitled to special protection.” Although the boundaries of what
constitutes speech on matters of public concern are not well defined, this Court has said
that speech is of public concern when it can “be fairly considered as relating to any matter
of political, social, or other concern to the community,” or when it “is a subject of general
interest and of value and concern to the public.” A statement's arguably “inappropriate or
controversial character is irrelevant to the question whether it deals with a matter of public
concern.” To determine whether speech is of public or private concern, this Court must
independently examine the “content, form, and context,” of the speech “as revealed by the
whole record.” In considering content, form, and context, no factor is dispositive, and it is
necessary to evaluate all aspects of the speech. The “content” of Westboro's signs plainly
relates to public, rather than private, matters. The placards highlighted issues of public
import-the political and moral conduct of the United States and its citizens, the fate of the
Nation, homosexuality in the military, and scandals involving the Catholic clergy-and
Westboro conveyed its views on those issues in a manner designed to reach as broad a
public audience as possible. Even if a few of the signs were viewed as containing
messages related to a particular individual, that would not change the fact that the dominant
theme of Westboro's demonstration spoke to broader public issues. The “context” of the
speech-its connection with Matthew Snyder's funeral-cannot by itself transform the nature of
Westboro's speech. The signs reflected Westboro's condemnation of much in modern
society, and it cannot be argued that Westboro's use of speech on public issues was in any
way contrived to insulate a personal attack on Snyder from liability. Westboro had been
actively engaged in speaking on the subjects addressed in its picketing long before it
became aware of Matthew Snyder, and there can be no serious claim that the picketing did
not represent Westboro's honestly held beliefs on public issues. Westboro may have
chosen the picket location to increase publicity for its views, and its speech may have been
particularly hurtful to Snyder. That does not mean that its speech should be afforded less
than full First Amendment protection under the circumstances of this case. That said, “even
protected speech is not equally permissible in all places and at all times.” Westboro's choice
of where and when to conduct its picketing is not beyond the Government's regulatory
reach-it is “subject to reasonable time, place, or manner restrictions.” The facts here are
quite different, however, both with respect to the activity being regulated and the means of
restricting those activities, from the few limited situations where the Court has concluded
that the location of targeted picketing can be properly regulated under provisions deemed
content neutral. Maryland now has a law restricting funeral picketing but that law was not in
effect at the time of these events, so this Court has no occasion to consider whether that
law is a “reasonable time, place, or manner restriction” under the standards announced by
this Court. The “special protection” afforded to what Westboro said, in the whole context of
how and where it chose to say it, cannot be overcome by a jury finding that the picketing
was “outrageous” for purposes of applying the state law tort of intentional infliction of
emotional distress. That would pose too great a danger that the jury would punish Westboro
for its views on matters of public concern. For all these reasons, the jury verdict imposing
tort liability on Westboro for intentional infliction of emotional distress must be set aside.
(b) Snyder also may not recover for the tort of intrusion upon seclusion. He argues that he
was a member of a captive audience at his son's funeral, but the captive audience doctrinewhich has been applied sparingly, should not be expanded to the circumstances here.
Westboro stayed well away from the memorial service, Snyder could see no more than the
tops of the picketers' signs, and there is no indication that the picketing interfered with the
funeral service itself.
(c) Because the First Amendment bars Snyder from recovery for intentional infliction of
emotional distress or intrusion upon seclusion-the allegedly unlawful activity Westboro
conspired to accomplish-Snyder also cannot recover for civil conspiracy based on those
torts.
(d) Westboro addressed matters of public import on public property, in a peaceful manner,
in full compliance with the guidance of local officials. It did not disrupt Mathew Snyder's
funeral, and its choice to picket at that time and place did not alter the nature of its speech.
Because this Nation has chosen to protect even hurtful speech on public issues to ensure
that public debate is not stifled, Westboro must be shielded from tort liability for its picketing
in this case.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the statute is unconstitutional under Fourteenth Amendment.
Chaplinsky v.
State of New
Hampshire
315 U.S. 568
(1942)
Verbal Abuse
Appellant, a member of the sect known as Jehovah's
Witnesses, was convicted in the municipal court of Rochester,
New Hampshire, for violation of Chapter 378, Section 2, of the
Public Laws of New Hampshire: ‘No person shall address any
offensive, derisive or annoying word to any other person who
is lawfully in any street or other public place, nor call him by
any offensive or derisive name, nor make any noise or
exclamation in his presence and hearing with intent to deride,
offend or annoy him, or to prevent him from pursuing his
lawful business or occupation.’
The complaint charged that appellant ‘with force and arms,
in a certain public place in said city of Rochester, to wit, on the
public sidewalk on the easterly side of Wakefield Street, near
unto the entrance of the City Hall, did unlawfully repeat, the
words following, addressed to the complainant, that is to say,
‘You are a God damned racketeer’ and ‘a damned Fascist and
the whole government of Rochester are Fascists or agents of
Fascists' the same being offensive, derisive and annoying
words and names'.
Upon appeal there was a trial de novo of appellant before a
jury in the Superior Court. He was found guilty and the
judgment of conviction was affirmed by the Supreme Court of
the State. By motions and exceptions, appellant raised the
questions that the statute was invalid under the Fourteenth
Amendment of the Constitution of the United States in that it
placed an unreasonable restraint on freedom of speech,
freedom of the press, and freedom of worship, and because it
was vague and indefinite. These contentions were overruled
and the case comes here on appeal.
Held: No. Affirmed.
Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at
all times and under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of which has
never been thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or ‘fighting’ wordsthose which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. ‘Resort to epithets or
personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act
would raise no question under that instrument.’ The state statute here
challenged comes to us authoritatively construed by the highest court of New
Hampshire. It has two provisions-the first relates to words or names addressed
to another in a public place; the second refers to noises and exclamations. The
court said: ‘The two provisions are distinct. One may stand separately from the
other. Assuming, without holding, that the second were unconstitutional, the first
could stand if constitutional.’ We accept that construction of severability and limit
our consideration to the first provision of the statute. On the authority of its
earlier decisions, the state court declared that the statute's purpose was to
preserve the public peace, no words being ‘forbidden except such as have a
direct tendency to cause acts of violence by the person to whom, individually,
the remark is addressed’. It was further said: ‘The word ‘offensive’ is not to be
defined in terms of what a particular addressee thinks. The test is what men of
common intelligence would understand would be words likely to cause an
average addressee to fight. The English language has a number of words and
expressions which by general consent are ‘fighting words' when said without a
disarming smile. Such words, as ordinary men know, are likely to cause a fight.
So are threatening, profane or obscene revilings. Derisive and annoying words
can be taken as coming within the purview of the statute as heretofore
interpreted only when they have this characteristic of plainly tending to excite
the addressee to a breach of the peace. The statute, as construed, does no
more than prohibit the face-to-face words plainly likely to cause a breach of the
peace by the addressee, words whose speaking constitute a breach of the
peace by the speaker-including ‘classical fighting words', words in current use
less ‘classical’ but equally likely to cause violence, and other disorderly words,
including profanity, obscenity and threats.' We are unable to say that the limited
scope of the statute contravenes the constitutional right of free expression. This
conclusion necessarily disposes of appellant's contention that the statute is so
vague and indefinite as to render a conviction thereunder a violation of due
process. A statute punishing verbal acts, carefully drawn so as not unduly to
impair liberty of expression, is not too vague for a criminal law. Nor can we say
that the application of the statute to the facts disclosed by the record
substantially or unreasonably impinges upon the privilege of free speech.
Argument is unnecessary to demonstrate that the appellations ‘damn racketeer’
and ‘damn Fascist’ are epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the peace. The refusal of the state
court to admit evidence of provocation and evidence bearing on the truth or
falsity of the utterances is open to no Constitutional objection. Whether the facts
sought to be proved by such evidence constitute a defense to the charge or may
be shown in mitigation are questions for the state court to determine. Our
function is fulfilled by a determination that the challenged statute, on its face and
as applied, does not contravene the Fourteenth Amendment.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether §26-6303 violates the First and Fourteenth Amendments because it is vague and
overbroad.
Gooding v.
Wilson
Verbal Abuse
405 U.S. 518
(1972)
Appellee was convicted in Superior Court, Fulton County,
Georgia, on two counts of using opprobrious words and
abusive language in violation of Georgia Code Ann. §26-6303,
which provides: ‘Any person who shall, without provocation,
use to or of another, and in his presence opprobrious words or
abusive language, tending to cause a breach of the peace
shall be guilty of a misdemeanor.’ Appellee appealed the
conviction to the Supreme Court of Georgia on the ground,
among others, that the statute violated the First and
Fourteenth Amendments because vague and overbroad. The
Georgia Supreme Court rejected that contention and
sustained the conviction. Appellee then sought federal habeas
corpus relief in the District Court for the Northern District of
Georgia. The District Court found that, because appellee had
failed to exhaust his available state remedies as to the other
grounds he relied upon in attacking his conviction, only the
contention that §26-6303 was facially unconstitutional was
ripe for decision. On the merits of that question, the District
Court, in disagreement with the Georgia Supreme Court, held
that §26-6303, on its face, was unconstitutionally vague and
broad and set aside appellee's conviction. The Court of
Appeals for the Fifth Circuit affirmed.
Held: Yes. Affirmed.
Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial
constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of
application to speech, although vulgar or offensive, that is protected by the First and Fourteenth
Amendments. Only the Georgia courts can supply the requisite construction, since of course ‘we lack
jurisdiction authoritatively to construe state legislation.’ It matters not that the words appellee used might
have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes
regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution,’ the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with the requisite narrow specificity.’ This is deemed necessary because persons whose expression
is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions
provided by a statute susceptible of application to protected expression.
Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct
charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional
overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be
applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The
statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued
existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights. The
constitutional guarantees of freedom of speech forbid the States to punish the use of words or language
not within narrowly limited classes of speech. Even as to such a class, however, because the line between
speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or
punished is finely drawn. In other words, the statute must be carefully drawn or be authoritatively construed
to punish only unprotected speech and not be susceptible of application to protected expression. Because
First Amendment freedoms need breathing space to survive, government may regulate in the area only
with narrow specificity. Appellant does not challenge these principles but contends that the Georgia statute
is narrowly drawn to apply only to a constitutionally unprotected class of words-‘fighting’ words-‘those which
by their very utterance inflict injury or tend to incite an immediate breach of the peace. In view of
Chaplinsky, we have continued to recognize state power constitutionally to punish ‘fighting’ words under
carefully drawn statutes not also susceptible of application to protected expression. We reaffirm that
proposition today. Appellant argues that the Georgia appellate courts have by construction limited the
proscription of §26-6303 to ‘fighting’ words, as the New Hampshire Supreme Court limited the New
Hampshire statute. ‘A consideration of the (Georgia) cases construing the elements of the offense makes it
clear that the opprobrious words and abusive language which are thereby prohibited are those which as a
matter of common knowledge and under ordinary circumstances will, when used to or of another person,
and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in
statutory language what this Court has previously denominated ‘fighting words.“ Neither the District Court
nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly
stated, ‘Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to
limit or properly define these terms.’ The District Judge and one member of the unanimous Court of
Appeals panel were Georgia practitioners before they ascended the bench. Their views of Georgia law
necessarily are persuasive with us. We have, however, made our own examination of the Georgia cases,
both those cited and others discovered in research. That examination brings us to the conclusion, in
agreement with the courts below, that the Georgia appellate decisions have not construed §26-6303 to be
limited in application, as in Chaplinsky, to words that ‘have a direct tendency to cause acts of violence by
the person to whom, individually, the remark is addressed.’ The dictionary definitions of ‘opprobrious' and
‘abusive’ give them greater reach than ‘fighting’ words. Webster's Third New International Dictionary
defined ‘opprobrious' as ‘conveying or intended to convey disgrace,’ and ‘abusive’ as including ‘harsh
insulting language.’ Georgia appellate decisions have construed §26-6303 to apply to utterances that,
although within these definitions, are not ‘fighting’ words as Chaplinsky defines them. The term ‘breach of
the peace’ is generic, and includes all violations of the public peace or order, or decorum; in other words, it
signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. By
‘peace,’ as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a
community where good order reigns among its members.' This definition makes it a ‘breach of peace’
merely to speak words offensive to some who hear them, and so sweeps too broadly. Accordingly, we
agree with the District Court that our decisions in Ashton v. Kentucky and Cox v. Louisiana, compel the
conclusion that §26-6303, as construed, does not define the standard of responsibility with requisite narrow
specificity. As the District Court observed, ‘(a)s construed by the Georgia courts, especially in the instant
case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute.’ We
conclude that ‘the separation of legitimate from illegitimate speech calls for more sensitive tools than
(Georgia) has supplied.’ Because earlier appellate decisions applied §26-6303 to utterances where there
was no likelihood that the person addressed would make an immediate violent response, it is clear that the
standard allowing juries to determine guilt ‘measured by common understanding and practice’ does not
limit the application of §26-6303 to ‘fighting’ words defined by Chaplinsky. Rather, that broad standard
effectively ‘licenses the jury to create its own standard in each case. Accordingly, we agree with the
conclusion of the District Court, ‘the fault of the statute is that it leaves wide open the standard of
responsibility, so that it is easily susceptible to improper application.’
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the ordinance is facially unconstitutional
Plummer v.
City of
Columbus,
Ohio
414 U.S. 2
(1973)
Verbal Abuse
Appellant is a Columbus cab driver. He had a female fare in
his cab who had requested to be taken to a certain address.
When he passed this address, the fare complained andaccording to the statement of the trial court-the cab driver's
response was a series of absolutely vulgar, suggestive and
abhorrent, sexually-oriented statements. The defendant was
convicted of violating Columbus City Code prohibiting any
person from abusing another by using menacing, insulting,
slanderous or profane language and he appealed. The Court
of Appeals of Franklin County affirmed. The Ohio Supreme
Court dismissed appeal on ground that no substantial
constitutional question existed. Certiorari was granted as well
as leave to proceed in forma pauperis.
Held: Yes. Reversed.
Notwithstanding fact that city ordinance providing that no person
shall abuse another by using menacing, insulting, slanderous,
or profane language might not be vague or overbroad as
applied to conduct charged against particular defendant, facially
unconstitutional ordinance could not be applied to defendant
until there was a satisfactory limiting construction thereof so as
to punish only unprotected speech and not to be susceptible of
application to protected expression.
On December 11, 1972, we held that Gooding v. Wilson,
required the reversal of a previous action of the Ohio Supreme
Court that dismissed an appeal from a conviction under
§2327.03. Section 2327.03 punishes only spoken words and, as
construed by the Ohio courts, is facially unconstitutional
because not limited in application ‘to punish only unprotected
speech’ but is ‘susceptible of application to protected
expression.’ In that circumstance, the Ohio Supreme Court
erred when it found no constitutional infirmity in the holding of
the Court of Appeals of Franklin County that the ordinance
might constitutionally reach appellant's conduct because ‘the
words as used by the appellant are in the nature of ‘fighting
words' and thereby fall within that limit of conduct proscribed by
the ordinance . For “although the ordinance may be neither
vague, overbroad, nor otherwise invalid as applied to the
conduct charged against a particular defendant, he is permitted
to raise its vagueness or unconstitutional overbreadth as
applied to others. And if the law is found deficient in one of
these respects, it may not be applied to him either, until and
unless a satisfactory limiting construction is placed on the
ordinance. The ordinance, in effect, is stricken down on its face.
Case
Subject
Rosenfeld v.
New Jersey
Verbal Abuse
408 U.S. 901
(1972)
Facts
Appellant addressed a public school board meeting attended
by about 150 people, approximately 40 of whom were children
and 25 of whom were women. In the course of his remarks he
used the adjective ‘M05q F05q’ on four occasions, to describe
the teachers, the school board, the town and his own country.
For using this language under these circumstances, appellant
was prosecuted and convicted under a New Jersey statute
which provides: ‘Any person who utters loud and offensive or
profane or indecent language in any public street or other
public place, public conveyance, or place to which the public
is invited is a disorderly person.’
Prior to appellant's prosecution, the Supreme Court of New
Jersey had limited the statute's coverage as follows: ‘the
words must be spoken loudly, in a public place and must be of
such a nature as to be likely to incite the hearer to an
immediate breach of the peace or to be likely, in the light of
the gender and age of the listener and the setting of the
utterance, to affect the sensibilities of a hearer. The words
must be spoken with the intent to have the above effect or
with a reckless disregard of the probability of the above
consequences.’
Issue Presented and Holding
Issue: Whether appellant's utterances fall within the proscription
of the New Jersey statute, and are protected by the First
Amendment.
Held: Case is vacated and remanded in light of Gooding v.
Wilson.
Case
Dickerson v.
New Banner
Institute, Inc.
460 U.S. 103
(1983)
Subject
Weapons:
Possession
Prohibition
Facts
Title IV of the Gun Control Act of 1968, 18 U.S.C. §§922(g)(1)
and (h)(1), makes it unlawful for any person “who has been
convicted of a crime punishable by imprisonment for a term
exceeding one year” to ship, transport, or receive any firearm
or ammunition in interstate commerce. Title IV also makes it
unlawful to engage in the business of importing,
manufacturing, or dealing in firearms without a license from
the Secretary of the Treasury. One ground for denial of a
license is where the applicant is under the prohibitions
imposed by §§ 922(g)(1) and (h)(1), and if the applicant is a
corporation, a license will be denied if a person with power to
direct the management of the corporation is under such
prohibitions. One Kennison, the chairman of the board and a
shareholder of respondent corporation, after plea negotiations,
pleaded guilty in an Iowa state court to the state crime of
carrying a concealed handgun. Because Kennison had “stable
employment” at home in South Carolina and no previous
conviction, he was placed on probation and allowed to go
home. Although he had no previous conviction, Kennison did
have prior arrests for “assault and battery of a high and
aggravated nature” and for “child abuse.” According to him,
his supervision during probation consisted of “occasionally
reporting that he had not been arrested.” In short, the
circumstances surrounding the expunction of his conviction
provide little, if any, assurance that Kennison is a person who
can be trusted with a dangerous weapon. This crime was
punishable by a fine or imprisonment for not more than five
years, or both. The state court, however, pursuant to an Iowa
statute, “deferred” entry of a formal judgment and placed
Kennison on probation. At the completion of his probation
term he was discharged, also pursuant to a state statute, and
his record with respect to the deferred judgment was
expunged. Subsequently, respondent applied to the Treasury
Department's Bureau of Alcohol, Tobacco, and Firearms
(Bureau) for licenses as a firearms and ammunition dealer
and manufacturer, but did not disclose Kennison's plea of
guilty to the Iowa concealed weapon charge. The licenses
were issued but were later revoked when the Bureau learned
of the Iowa charge. The District Court upheld the revocation,
but the Court of Appeals reversed, holding that although
Kennison had been “convicted” of an offense that triggered
firearms disabilities, that fact could not serve as a predicate
for a Gun Control Act violation or license revocation because
the conviction had been expunged under the Iowa deferred
judgment procedure.
Issue Presented and Holding
Issue: Whether a Gun Control Act violation is triggered if the
conviction had been expunged under the Iowa deferred
judgment procedure.
Held: No. Reversed.
The firearms disabilities imposed by §§922(g)(1) and (h)(1)
apply to Kennison and were not removed by the expunction of
the record of his guilty plea to the concealed weapon charge.
(a) For purposes of the federal gun control laws, a plea of
guilty to a disqualifying crime and its notation by a state court,
followed by a sentence of probation, is equivalent to being
“convicted” within the language of §§922(g)(1) and (h)(1).
(b) Iowa's expunction provisions, as carried out in Kennison's
case prior to respondent's license applications, did not nullify his
conviction for purposes of the federal statute. Expunction under
state law does not alter the legality of the previous conviction,
does not open the way to a license despite the conviction, and
does not signify that the defendant was innocent of the crime to
which he pleaded guilty. Expunction in Iowa means no more
than that the State has provided a means for the trial court not
to accord a conviction certain continuing effects under state law.
(c) Provisions of the federal gun control laws other than the
provisions in question, as well as related federal statutes,
support the conclusion that Congress did not intend expunction
of a state conviction automatically to remove the firearms
disabilities imposed by §§922(g)(1) and (h)(1).
(d) There is nothing in the legislative history of Title IV or
related federal statutes to suggest an opposite intent. Title IV's
purpose to curb crime by keeping firearms out of the hands of
those not legally entitled to possess them because of age,
criminal background, or incompetency, would be frustrated by a
ruling that gave effect to state expunctions. In the absence of a
plain indication to the contrary, it is assumed that Congress did
not intend to make the application of Title IV dependent on state
law. Title IV is carefully constructed gun control legislation.
Congress knew the significance and meaning of the language it
employed.
(e) A rule that would give effect to expunction under varying
state statutes would seriously hamper effective enforcement of
Title IV.
Case
United States v.
Hayes
555 U.S. 415
(2009)
Subject
Weapons:
Prior DV
Conviction
Facts
In 2004, law enforcement responded to a 911 call reporting
domestic violence at Hayes’ home. Hayes consented to a
search and a rifle was discovered. Hayes had been convicted
of battery against his then-wife in West Virginia in 1994. In
2005, a grand jury returned an indictment charging Hayes
under 18 U.S.C. §§922(g)(9) and 924(a)(2) with three counts
of possessing firearms after having been convicted of a
misdemeanor crime of domestic violence. Hayes moved to
dismiss the indictment on the ground that his 1994 conviction
did not qualify as a predicate offense under §922(g)(9)
because West Virginia’s generic battery law did not designate
a domestic relationship between aggressor and victim as an
element of the offense. When the District Court denied the
motion, Hayes entered a conditional guilty plea and appealed.
The Fourth Circuit reversed, holding that a §922(g)(9)
predicate offense must have as an element a domestic
relationship between offender and victim.
Issue Presented and Holding
Issue: Whether the definition of “misdemeanor crime of
domestic violence” contained in §921(a)(33)(A) covers a
misdemeanor battery and whether the possession ban is only
triggered if the predicate misdemeanor identifies a domestic
relationship between the aggressor and victim as an element of
the crime
Held: A domestic relationship, although it must be established
beyond a reasonable doubt in a §922(g)(9) firearms possession
prosecution, need not be a defining element of the predicate
offense. By extending the federal firearm prohibition to persons
convicted of misdemeanor crimes of domestic violence,
§922(g)(9)’s proponents sought to close a loophole: Existing
felon-in possession laws often failed to keep firearms out of the
hands of domestic abusers, for such offenders generally were
not charged with, or convicted of, felonies. Construing
§922(g)(9) to exclude the domestic abuser convicted under a
generic use-of-force statute would frustrate Congress’ manifest
purpose. The statute would have been a dead letter in some
two-thirds of the States because, in 1996, only about one-third
of them had criminal statutes specifically proscribing domestic
violence.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the jury instructions violated the Due Process
Clause by placing the burden on Dixon to establish duress by a
preponderance of the evidence.
Dixon v. United
States
548 U.S. 1
(2006)
Weapons:
Raising a
Duress Defense
Dixon was charged with receiving a firearm while under
indictment in violation of 18 U. S. C. §922(n) and with making
false statements in connection with the acquisition of a firearm
in violation of §922(a)(6). She admitted at trial that she knew
she was under indictment when she purchased the firearms
and knew that doing so was a crime, but claimed that she was
acting under duress because her boyfriend had threatened to
harm her and her daughters if she did not buy the guns for
him. Bound by Fifth Circuit precedent, the District Court
declined her request for a jury instruction placing upon the
Government the burden to disprove, beyond a reasonable
doubt, her duress defense. Instead, the jury was instructed
that Dixon had the burden to establish her defense by a
preponderance of the evidence. She was convicted, and the
Fifth Circuit affirmed.
Held: The jury instructions did not run afoul of the Due Process
Clause. The crimes of conviction require that Dixon acted
knowingly, which merely requires proof of knowledge of the
facts that constitute the offense, or willfully, which requires
acting with knowledge that the conduct was unlawful. The
Government bore the burden of proving beyond a reasonable
doubt that Dixon knew she was making false statements and
knew she was breaking the law when she acquired a firearm
while under indictment. It clearly met its burden when Dixon
testified to that effect. Dixon contends that she cannot have
formed the necessary mens rea because she did not freely
choose to commit the crimes. However, while the duress
defense may excuse conduct that would otherwise be
punishable, the existence of duress normally does not
controvert any of the elements of the offense itself. The longestablished common-law rule, which places the burden of
proving that defense on the defendant, was not upset by Davis
v. United States, 160 U. S. 469. There, the Court interpreted a
defendant’s insanity to controvert the necessary mens rea for a
murder committed feloniously, willfully, and of his malice
aforethought, and required the Government to prove the
defendant’s sanity beyond a reasonable doubt because the
evidence tending to prove insanity also tended to disprove an
essential element of the offense. The duress evidence that
Dixon adduced at trial does not contradict or tend to disprove
any element of her statutory offenses. Additionally, the Court
presumes that, in the context of the firearms offenses here and
the long-established common-law rule, Congress intended
Dixon to bear the burden of proving the duress defense by a
preponderance of the evidence.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the Gun-Free School Zones Act of 1990
exceeds Congress’ Commerce Clause authority
United States v.
Lopez
514 U.S. 549
(1995)
Weapons:
Congressional
Authority to
Regulate
After respondent, then a 12th-grade student, carried a
concealed handgun into his high school, he was charged with
violating the Gun-Free School Zones Act of 1990, which
forbids “any individual knowingly to possess a firearm at a
place that he knows is a school zone.” The District Court
denied his motion to dismiss the indictment, concluding that
§922(q) is a constitutional exercise of Congress’ power to
regulate activities in and affecting commerce. In reversing, the
Court of Appeals held that, in light of what it characterized as
insufficient congressional findings and legislative history,
§922(q) is invalid as beyond Congress’ power under the
Commerce Clause.
Held: Yes. Affirmed.
First, although this Court has upheld a wide variety of
congressional Acts regulating intrastate economic activity that
substantially affected interstate commerce, the possession of a
gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, have such a
substantial effect on interstate commerce. Section 922(q) is a
criminal statute that by its terms has nothing to do with
“commerce” or any sort of economic enterprise, however
broadly those terms are defined. Nor is it an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under the Court’s
cases upholding regulations of activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce.
Second, §922(q) contains no jurisdictional element that would
ensure, through case-by-case inquiry, that the firearms
possession in question has the requisite nexus with interstate
commerce. Respondent was a local student at a local school;
there is no indication that he had recently moved in interstate
commerce, and there is no requirement that his possession of
the firearm have any concrete tie to interstate commerce. To
uphold the Government’s contention that §922(q) is justified
because firearms possession in a local school zone does
indeed substantially affect interstate commerce would require
this Court to pile inference upon inference in a manner that
would bid fair to convert congressional Commerce Clause
authority to a general police power of the sort held only by the
States.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the 10-year mandatory minimum sentence
imposed under 924(c)(1)(A)(iii) applies if a gun is discharged
unintentionally in the course of a violent or drug trafficking
crime.
Dean v. United
States
556 U.S. ___
(2009)
Weapons:
Intent to
Discharge
Firearm
An individual convicted for using or carrying a firearm during
and in relation to any violent or drug trafficking crime, or
possessing a firearm in furtherance of such a crime, receives
a 5-year mandatory minimum sentence, in addition to the
punishment for the underlying crime. The mandatory minimum
increases to 7 years “if the firearm is brandished” and to 10
years “if the firearm is discharged.” Petitioner Dean was
convicted of conspiring to commit a bank robbery and
discharging a firearm during an armed robbery. Because the
firearm was “discharged” during the robbery, Dean was
sentenced to a 10-year mandatory minimum prison term on
the firearm count. On appeal, he contended that the discharge
was accidental, and that §924(c)(1)(A)(iii) requires proof that
the defendant intended to discharge the firearm. The Eleventh
Circuit affirmed, holding that no proof of intent is required.
Held: Yes. Affirmed.
(a) Subsection (iii) provides a minimum 10-year sentence “if
the firearm is discharged.” It does not require that the discharge
be done knowingly or intentionally, or otherwise contain words
of limitation. This Court “ordinarily resist[s] reading words or
elements into a statute that do not appear on its face.”
Congress expressly included an intent requirement for the 7year mandatory minimum for brandishing a firearm by
separately defining “brandish” to require that the firearm be
displayed “in order to intimidate” another person. Congress did
not, however, separately define “discharge” to include an intent
requirement. It is generally presumed that Congress acts
intentionally when including particular language in one section
of a statute but not in another. Contrary to Dean’s contention,
the phrase “during and in relation to” in the opening paragraph
of §924(c)(1)(A) does not modify “is discharged,” which appears
in a separate subsection and in a different voice than the
principal paragraph. “In relation to” is most naturally read to
modify only the nearby verbs “uses” and “carries.” This reading
will not lead to the absurd results posited by Dean.
(b) Dean argues that subsection (iii) must be limited to
intentional discharges in order to give effect to the statute’s
progression of harsher penalties for increasingly culpable
conduct. While it is unusual to impose criminal punishment for
the consequences of purely accidental conduct, it is not unusual
to punish individuals for the unintended consequences of their
unlawful acts. The fact that the discharge may be accidental
does not mean that the defendant is blameless. The sentencing
enhancement accounts for the risk of harm resulting from the
manner in which the crime is carried out, for which the
defendant is responsible. An individual bringing a loaded
weapon to commit a crime runs the risk that the gun will
discharge accidentally. A gunshot—whether accidental or
intended—increases the risk that others will be injured, that
people will panic, or that violence will be used in response. It
also traumatizes bystanders, as it did here.
(c) Because the statutory text and structure demonstrate that
the discharge provision does not contain an intent requirement,
the rule of lenity is not implicated in this case.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether the exemption contained in §921(a)(20) covers the case of an
offender who retained civil rights at all times, and whose legal status, postconviction,
remained in all respects unaltered by any state dispensation
Logan v. U.S.
552 U.S. 23
(2007)
Weapons:
Possession
Prohibition
Petitioner Logan pleaded guilty to being a felon in possession
of a firearm and received a 15-year sentence, the mandatory
minimum under ACCA. In imposing this sentence, the court
took account of three Wisconsin misdemeanor battery
convictions, each of them punishable by a 3-year maximum
sentence, and none of them revoking any of Logan's civil
rights. Logan challenged his sentence on the ground that his
state-court convictions fell within §921(a)(20)'s “civil rights
restored” exemption from ACCA's reach. Rights retained,
Logan argued, should be treated the same as rights revoked
but later restored. The District Court disagreed, holding that
the exemption applies only to defendants whose civil rights
were both lost and restored, and the Seventh Circuit affirmed.
Held: No. Affirmed.
(a) The ordinary meaning of the word “restored”-giving back something that has
been taken away-does not include retention of something never lost. Moreover, the
context in which “restored” appears in §921(a)(20) counsels adherence to the word's
ordinary meaning. In §921(a)(20), the words “civil rights restored” appear in the
company of “expunged,” “set aside,” and “pardoned.” Each of those terms describes
a measure by which the government relieves an offender of some or all of the
consequences of his conviction. In contrast, a defendant who retains rights is simply
left alone. He receives no status-altering dispensation, no token of forgiveness from
the government.
(b) Logan's dominant argument against a plain-meaning approach is not
persuasive. He relies on the harsh result a literal reading could yield: Unless retention
of rights is treated as legally equivalent to restoration of rights, he maintains, less
serious offenders will be subject to ACCA's enhanced penalties while more serious
offenders in the same State, who have had civil rights restored, may escape
heightened punishment. Logan urges that this result is not merely anomalous; it is
absurd, particularly in States where restoration of civil rights occurs automatically
upon release from prison.
Logan's harsh or absurd consequences argument overlooks §921(a)(20)'s “unless”
clause, under which an offender gains no exemption from ACCA's application through
an expungement, set-aside, pardon, or restoration of civil rights if the dispensation
“expressly provides that the offender may not ship, transport, possess, or receive
firearms.” Many States that restore felons' civil rights (or accord another measure of
forgiveness) nonetheless impose or retain firearms disabilities. Further, Wisconsin no
longer punishes misdemeanors by more than two years' imprisonment, and thus no
longer has any misdemeanors that qualify as ACCA predicates. The resolution Logan
proposes, in any event, would correct one potential anomaly while creating others.
Under Logan's proposed construction, all crimes, including first-degree murder, would
be treated as crimes for which “civil rights [have been] restored” in a State that does
not revoke any offender's civil rights, while less serious crimes committed elsewhere
would not. Accepting Logan's argument would also undercut §921(a)(20)(B), which
subjects to ACCA state misdemeanor convictions punishable by more than two years'
imprisonment. Because misdemeanors generally entail no revocation of civil rights,
reading the word “restored” to include “retained” would yield this curiosity: An offender
would fall within ACCA's reach if his three prior offenses carried potential prison terms
of over two years, but would be released from ACCA's grip by virtue of his retention of
civil rights. This Court is disinclined to say that what Congress imposed with one hand
(exposure to ACCA) it withdrew with the other (exemption from ACCA). Even
assuming that when Congress revised §921(a)(20) in 1986, it labored under the
misapprehension that all misdemeanants and felons at least temporarily forfeit civil
rights, and indulging the further assumption that courts may repair such a
congressional oversight or mistake, this Court is not equipped to say what statutory
alteration, if any, Congress would have made had its attention trained on offenders
who retained civil rights; nor can the Court recast §921(a)(20) in Congress' stead.
Section 922(g)(9)-which was adopted 10 years after §921(a)(20) was given its
current shape and which outlaws possession of a firearm by anyone “convicted of a
misdemeanor crime of domestic violence”-cautions against any assumption that
Congress did not mean to deny the §921(a)(20) exemption to offenders who retained
their civil rights. Tailored to §922(g)(9), Congress adopted a definitional provision,
§921(a)(33)(B)(ii), corresponding to §921(a)(20), which specifies expungement, setaside, pardon, or restoration of rights as dispensations that can cancel lingering
effects of a conviction. That provision also demonstrates that the words “civil rights
restored” do not cover a person whose civil rights were never taken away. It provides
for restoration of civil rights as a qualifying dispensation only “if the law of the
applicable jurisdiction provides for the loss of civil rights” in the first place. Section
921(a)(33)(B)(ii) also rebuts Logan's argument. Statutory terms may be interpreted
against their literal meaning where the words could not conceivably have been
intended to apply to the case at hand. In §921(a)(33)(B)(ii), however, Congress
explicitly distinguished between “restored” and “retained.”
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether any of the Brady Act's interim provisions are unconstitutional.
Printz v. U.S.
521 U.S. 898
(1997)
Weapons:
Regulation
Brady Handgun Violence Prevention Act provisions require
the Attorney General to establish a national system for
instantly checking prospective handgun purchasers'
backgrounds, and command the “chief law enforcement
officer” (CLEO) of each local jurisdiction to conduct such
checks and perform related tasks on an interim basis until the
national system becomes operative. The Gun Control Act of
1968 (GCA), establishes a detailed federal scheme governing
the distribution of firearms. It prohibits firearms dealers from
transferring handguns to any person under 21, not resident in
the dealer's State, or prohibited by state or local law from
purchasing or possessing firearms. It also forbids possession
of a firearm by, and transfer of a firearm to, convicted felons,
fugitives from justice, unlawful users of controlled substances,
persons adjudicated as mentally defective or committed to
mental institutions, aliens unlawfully present in the United
States, persons dishonorably discharged from the Armed
Forces, persons who have renounced their citizenship, and
persons who have been subjected to certain restraining orders
or been convicted of a misdemeanor offense involving
domestic violence.
Petitioners, the CLEOs for counties in Montana and Arizona,
filed separate actions challenging the interim provisions'
constitutionality. In each case, the District Court held that the
background-check provision was unconstitutional, but
concluded that it was severable from the remainder of the Act,
effectively leaving a voluntary background-check system in
place. The Ninth Circuit reversed, finding none of the interim
provisions unconstitutional.
Held: Yes. Reversed.
1. The Brady Act's interim provision commanding CLEOs to conduct background checks,
is unconstitutional. Extinguished with it is the duty implicit in the background-check
requirement that the CLEO accept completed handgun-applicant statements (Brady Forms)
from firearms dealers. (a) Because there is no constitutional text speaking to the precise
question whether congressional action compelling state officers to execute federal laws is
unconstitutional, the answer to the CLEOs' challenge must be sought in historical
understanding and practice, in the Constitution's structure, and in this Court's jurisprudence.
(b) Relevant constitutional practice tends to negate the existence of the congressional
power asserted here, but is not conclusive. Enactments of the early Congresses seem to
contain no evidence of an assumption that the Federal Government may command the
States' executive power in the absence of a particularized constitutional authorization. The
early enactments establish, at most, that the Constitution was originally understood to
permit imposition of an obligation on state judges to enforce federal prescriptions related to
matters appropriate for the judicial power. The Government misplaces its reliance on
portions of The Federalist suggesting that federal responsibilities could be imposed on state
officers. None of these statements necessarily implies-what is the critical point here-that
Congress could impose these responsibilities without the States' consent. They appear to
rest on the natural assumption that the States would consent. Finally, there is an absence
of executive-commandeering federal statutes in the country's later history, at least until very
recent years. Even assuming that newer laws represent an assertion of the congressional
power challenged here, they are of such recent vintage that they are not probative of a
constitutional tradition. (c) The Constitution's structure reveals a principle that controls these
cases: the system of “dual sovereignty.” Although the States surrendered many of their
powers to the new Federal Government, they retained a residuary and inviolable
sovereignty that is reflected throughout the Constitution's text. The Framers rejected the
concept of a central government that would act upon and through the States, and instead
designed a system in which the State and Federal Governments would exercise concurrent
authority over the people. The Federal Government's power would be augmented
immeasurably and impermissibly if it were able to impress into its service-and at no cost to
itself-the police officers of the 50 States. (d) Federal control of state officers would also
have an effect upon the separation and equilibration of powers between the three branches
of the Federal Government itself. The Brady Act effectively transfers the President's
responsibility to administer the laws enacted by Congress, Art. II, §§ 2 and 3, to thousands
of CLEOs in the 50 States, who are left to implement the program without meaningful
Presidential control. The Federal Executive's unity would be shattered, and the power of the
President would be subject to reduction, if Congress could simply require state officers to
execute its laws. (e) The Brady Act's direction of the actions of state executive officials is
not constitutionally valid under Art. I, §8, as a law “necessary and proper” to the execution
of Congress's Commerce Clause power to regulate handgun sales. Where, as here, a law
violates the state sovereignty principle, it is not a law “proper for carrying into Execution”
delegated powers within the Necessary and Proper Clause's meaning. The Supremacy
Clause does not help the dissent, since it makes “Law of the Land” only “Laws of the United
States which shall be made in Pursuance of the Constitution.” (f) Finally, and most
conclusively in these cases, the Court's jurisprudence makes clear that the Federal
Government may not compel the States to enact or administer a federal regulatory
program. The attempts of the Government and Justice STEVENS' dissent to distinguish
New York-on grounds that the Brady Act's background-check provision does not require
state legislative or executive officials to make policy; that requiring state officers to perform
discrete, ministerial federal tasks does not diminish the state or federal officials'
accountability; and that the Brady Act is addressed to individual CLEOs while the provisions
invalidated in New York were directed to the State itself-are not persuasive. A “balancing”
analysis is inappropriate here, since the whole object of the law is to direct the functioning
of the state executive, and hence to compromise the structural framework of dual
sovereignty; it is the very principle of separate state sovereignty that such a law offends.
2. With the Act's background-check and implicit receipt-of-forms requirements invalidated,
the Brady Act requirements that CLEOs destroy all Brady Forms and related records, and
give would-be purchasers written statements of the reasons for determining their ineligibility
to receive handguns, require no action whatsoever on the part of CLEOs such as
petitioners, who are not voluntary participants in administration of the federal scheme. As to
them, these provisions are not unconstitutional, but simply inoperative.
3. The Court declines to address the severability question briefed and argued by the
parties: whether firearms dealers remain obliged to forward Brady Forms to CLEOs, and to
wait five business days thereafter before consummating a firearms sale. These provisions
burden only dealers and firearms purchasers, and no plaintiff in either of those categories is
before the Court.
Case
Meritor Savings
Bank v. Vinson
477 U.S. 57
(1986)
Subject
Workplace
Violence:
Sexual
Harassment
Facts
Respondent former employee of petitioner bank brought an
action against the bank and her supervisor at the bank,
claiming that, during her employment at the bank, she had
been subjected to sexual harassment by the supervisor in
violation of Title VII of the Civil Rights Act of 1964, and
seeking injunctive relief and damages. At the trial, the parties
presented conflicting testimony about the existence of a
sexual relationship between respondent and the supervisor.
The District Court denied relief without resolving the conflicting
testimony, holding that, if respondent and the supervisor did
have a sexual relationship, it was voluntary, and had nothing
to do with her continued employment at the bank, and that
therefore respondent was not the victim of sexual harassment.
The court then went on to hold that, since the bank was
without notice, it could not be held liable for the supervisor's
alleged sexual harassment. The Court of Appeals reversed
and remanded. Noting that a violation of Title VII may be
predicated on either of two types of sexual harassment: (1)
harassment that involves the conditioning of employment
benefits on sexual favors, and (2) harassment that, while not
affecting economic benefits, creates a hostile or offensive
working environment. The Court of Appeals held that, since
the grievance here was of the second type, and the District
Court had not considered whether a violation of this type had
occurred, a remand was necessary. The court further held that
the need for a remand was not obviated by the fact that the
District Court had found that any sexual relationship between
respondent and the supervisor was a voluntary one, a finding
that might have been based on testimony about respondent's
"dress and personal fantasies" that "had no place in the
litigation." As to the bank's liability, the Court of Appeals held
that an employer is absolutely liable for sexual harassment by
supervisory personnel, whether or not the employer knew or
should have known about it.
Issue Presented and Holding
Issue: Whether the employer is absolutely liable for sexual
harassment by supervisory personnel, whether or not the
employer knew or should have known about it.
Held: Yes. Affirmed and remanded.
1. A claim of "hostile environment" sexual harassment is a
form of sex discrimination that is actionable under Title VII. (a)
The language of Title VII is not limited to "economic" or
"tangible" discrimination. Equal Employment Opportunity
Commission Guidelines fully support the view that sexual
harassment leading to non-economic injury can violate Title VII.
Here, respondent's allegations were sufficient to state a claim
for "hostile environment" sexual harassment. (b) The District
Court's findings were insufficient to dispose of respondent's
"hostile environment" claim. The District Court apparently
erroneously believed that a sexual harassment claim will not lie
absent an economic effect on the complainant's employment,
and erroneously focused on the "voluntariness" of respondent's
participation in the claimed sexual episodes. The correct inquiry
is whether respondent by her conduct indicated that the alleged
sexual advances were unwelcome, not whether her participation
in them was voluntary. (c) The District Court did not err in
admitting evidence of respondent's sexually provocative speech
and dress. While "voluntariness" in the sense of consent is no
defense to a sexual harassment claim, it does not follow that
such evidence is irrelevant as a matter of law in determining
whether the complainant found particular sexual advances
unwelcome.
2. The Court of Appeals erred in concluding that employers
are always automatically liable for sexual harassment by their
supervisors. While common law agency principles may not be
transferable in all their particulars to Title VII, Congress'
decision to define "employer" to include any "agent" of an
employer evinces an intent to place some limits on the acts of
employees for which employers under Title VII are to be held
responsible. In this case, however, the mere existence of a
grievance procedure in the bank and the bank's policy against
discrimination, coupled with respondent's failure to invoke that
procedure, do not necessarily insulate the bank from liability.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether Respondent’s conduct meets the Title VII
standard.
Clark County v.
Breeden
532 U.S. 268
(2001)
Workplace
Violence:
Sexual
Harassment
On October 21, 1994, respondent's male supervisor met with
respondent and another male employee to review the
psychological evaluation reports of four job applicants. The
report for one of the applicants disclosed that the applicant
had once commented to a co-worker, “I hear making love to
you is like making love to the Grand Canyon.” At the meeting
respondent's supervisor read the comment aloud, looked at
respondent and stated, “I don't know what that means.” The
other employee then said, “Well, I'll tell you later,” and both
men chuckled. Respondent later complained about the
comment to the offending employee, to Assistant
Superintendent George Ann Rice, the employee's supervisor,
and to another assistant superintendent of petitioner. Her first
claim of retaliation asserts that she was punished for these
complaints. Under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a), it is unlawful “for an employer to
discriminate against any of his employees because the
employee has opposed any practice made an unlawful
employment practice by Title VII, or because the employee
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under Title
VII.” In 1997, respondent filed a § 2000e-3(a) retaliation claim
against petitioner Clark County School District. The claim as
eventually amended alleged that petitioner had taken two
separate adverse employment actions against her in response
to two different protected activities in which she had engaged.
The District Court granted summary judgment to petitioner,
but a panel of the Court of Appeals for the Ninth Circuit
reversed.
Held: No. Reversed.
Title VII forbids actions taken on the basis of sex that
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment.”
Just three Terms ago, we reiterated, what was plain from our
previous decisions, that sexual harassment is actionable under
Title VII only if it is “so severe or pervasive’ as to ‘alter the
conditions of the victim's employment and create an abusive
working environment.” Workplace conduct is not measured in
isolation; instead, “whether an environment is sufficiently hostile
or abusive” must be judged “by looking at all the circumstances,’
including the ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.” Hence, “a
recurring point in our opinions is that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and
conditions of employment.’” No reasonable person could have
believed that the single incident recounted above violated Title
VII's standard. The ordinary terms and conditions of
respondent's job required her to review the sexually explicit
statement in the course of screening job applicants. Her coworkers who participated in the hiring process were subject to
the same requirement, and indeed, in the District Court
respondent “conceded that it did not bother or upset her” to read
the statement in the file. Her supervisor's comment, made at a
meeting to review the application, that he did not know what the
statement meant; her co-worker's responding comment; and the
chuckling of both are at worst an “isolated incident” that cannot
remotely be considered “extremely serious,” as our cases
require. Neither the grounds that respondent presented to the
District Court, nor the ground she added on appeal, nor even
the ground the Court of Appeals developed on its own, sufficed
to establish a dispute substantial enough to withstand the
motion for summary judgment.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to
an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim.
Faragher v.
Boca Raton
524 U.S. 775
(1988)
Workplace
Violence:
Sexual
Harassment
After resigning as a lifeguard with respondent City of Boca
Raton (City), petitioner Beth Ann Faragher brought an action
against the City and her immediate supervisors, Bill Terry and
David Silverman, for nominal damages and other relief,
alleging, among other things, that the supervisors had created
a “sexually hostile atmosphere” at work by repeatedly
subjecting Faragher and other female lifeguards to “uninvited
and offensive touching,” by making lewd remarks, and by
speaking of women in offensive terms, and that this conduct
constituted discrimination in the “terms, conditions, and
privileges” of her employment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e-2(a)(1). Following
a bench trial, the District Court concluded that the supervisors'
conduct was discriminatory harassment sufficiently serious to
alter the conditions of Faragher's employment and constitute
an abusive working environment. The District Court then held
that the City could be held liable for the harassment of its
supervisory employees because the harassment was
pervasive enough to support an inference that the City had
“knowledge, or constructive knowledge,” of it; under traditional
agency principles Terry and Silverman were acting as the
City's agents when they committed the harassing acts; and a
third supervisor had knowledge of the harassment and failed
to report it to City officials. The Eleventh Circuit, sitting en
banc, reversed. The Court of Appeals held that Terry and
Silverman were not acting within the scope of their
employment when they engaged in the harassing conduct,
that their agency relationship with the City did not facilitate the
harassment, that constructive knowledge of it could not be
imputed to the City because of its pervasiveness or the
supervisor's knowledge, and that the City could not be held
liable for negligence in failing to prevent it.
Held: Yes. Reversed and Remanded.
(a) While the Court has delineated the substantive contours of the hostile environment Title VII forbids, its cases
have established few definitive rules for determining when an employer will be liable for a discriminatory environment
that is otherwise actionably abusive. The Court's only discussion to date of the standards of employer liability came
in Meritor, supra, where the Court held that traditional agency principles were relevant for determining employer
liability. Although the Court cited the Restatement §§219-237 with general approval, the Court cautioned that
common-law agency principles might not be transferable in all their particulars.
(b) Restatement §219(1) provides that “a master is subject to liability for the torts of his servants committed while
acting in the scope of their employment.” Although Title VII cases in the Courts of Appeals have typically held, or
assumed, that supervisory sexual harassment falls outside the scope of employment because it is motivated solely
by individual desires and serves no purpose of the employer, these cases appear to be in tension with others
defining the scope of the employment broadly to hold employers vicariously liable for employees' intentional torts,
including sexual assaults, that were not done to serve the employer, but were deemed to be characteristic of its
activities or a foreseeable consequence of its business. This tension is the result of differing judgments about the
desirability of holding an employer liable for his subordinates' wayward behavior. The proper analysis here, then,
calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, but rather an
inquiry into whether it is proper to conclude that sexual harassment is one of the normal risks of doing business the
employer should bear. An employer can reasonably anticipate the possibility of sexual harassment occurring in the
workplace, and this might justify the assignment of the costs of this behavior to the employer rather than to the
victim. Two things counsel in favor of the contrary conclusion, however. First, there is no reason to suppose that
Congress wished courts to ignore the traditional distinction between acts falling within the scope of employment and
acts amounting to what the older law called frolics or detours from the course of employment. Second, the lower
courts, by uniformly judging employer liability for co-worker harassment under a negligence standard, have implicitly
treated such harassment outside the scope of employment. It is unlikely that such treatment would escape efforts to
render them obsolete if the Court held that harassing supervisors necessarily act within the scope of their
employment. The rationale for doing so would apply when the behavior was that of coemployees, because the
employer generally benefits from the work of common employees as from the work of supervisors. The answer to
this argument might be that the scope of supervisory employment may be treated separately because supervisors
have special authority enhancing their capacity to harass and the employer can guard against their misbehavior
more easily. This answer, however, implicates an entirely separate category of agency law, considered in the next
section. Given the virtue of categorical clarity, it is better to reject reliance on misuse of supervisory authority (without
more) as irrelevant to the scope-of-employment analysis.
(c) The Court of Appeals erred in rejecting a theory of vicarious liability based on §219(2)(d) of the Restatement,
which provides that an employer “is not subject to liability for the torts of his servants acting outside the scope of their
employment unless the servant purported to act or speak on behalf of the principal and there was reliance on
apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.” It makes sense
to hold an employer vicariously liable under Title VII for some tortious conduct of a supervisor made possible by use
of his supervisory authority, and the aided-by-agency-relation principle of §219(2)(d) provides an appropriate starting
point for determining liability for the kind of harassment presented here. In a sense a supervisor is always assisted in
his misconduct by the supervisory relationship; however, the imposition of liability based on the misuse of
supervisory authority must be squared with Meritor's holding that an employer is not “automatically” liable for
harassment by a supervisor who creates the requisite degree of discrimination. There are two basic alternatives to
counter the risk of automatic liability. The first is to require proof of some affirmative invocation of that authority by
the harassing supervisor; the second is to recognize an affirmative defense to liability in some circumstances, even
when a supervisor has created the actionable environment. The problem with the first alternative is that there is not a
clear line between the affirmative and merely implicit uses of supervisory power; such a rule would often lead to
close judgment calls and results that appear disparate if not contradictory, and the temptation to litigate would be
hard to resist. The second alternative would avoid this particular temptation to litigate and implement Title VII
sensibly by giving employers an incentive to prevent and eliminate harassment and by requiring employees to take
advantage of the preventive or remedial apparatus of their employers. Thus, the Court adopts the following holding in
this case and in Burlington Industries, Inc. v. Ellerth, also decided today. An employer is subject to vicarious liability
to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee. When no tangible employment action is taken, a defending
employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the
evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary
in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may
appropriately be addressed in any case when litigating the first element of the defense. And while proof that an
employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is
available, however, when the supervisor's harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.
(d) Under this standard, the Eleventh Circuit's judgment must be reversed. The District Court found that the degree
of hostility in the work environment rose to the actionable level and was attributable to Silverman and Terry, and it is
clear that these supervisors were granted virtually unchecked authority over their subordinates and that Faragher
and her colleagues were completely isolated from the City's higher management. While the City would have an
opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from
the record that any such avenue is closed. The District Court found that the City had entirely failed to disseminate its
sexual harassment policy among the beach employees and that its officials made no attempt to keep track of the
conduct of supervisors, and the record makes clear that the City's policy did not include any harassing supervisors
assurance that could be bypassed in registering complaints. Under such circumstances, the Court holds as a matter
of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing
conduct. Although the record discloses two possible grounds upon which the City might seek to excuse its failure to
distribute its policy and to establish a complaint mechanism, both are contradicted by the record. The City points to
nothing that might justify a conclusion by the District Court on remand that the City had exercised reasonable care.
Nor is there any reason to remand for consideration of Faragher's efforts to mitigate her own damages, since the
award to her was solely nominal.
(e) There is no occasion to consider whether the supervisors' knowledge of the harassment could be imputed to
the City. Liability on that theory could not be determined without further factfinding on remand, whereas the reversal
necessary on the supervisory harassment theory renders any remand for consideration of imputed knowledge (or of
negligence as an alternative to a theory of vicarious liability) entirely unjustifiable
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a
supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing
the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an
affirmative defense.
Burlington
Industries, Inc.
v. Ellerth
524 U.S. 742
(1998)
Workplace
Violence:
Sexual
Harassment
Respondent Kimberly Ellerth quit her job after 15 months as a
salesperson in one of petitioner Burlington Industries' many
divisions, allegedly because she had been subjected to
constant sexual harassment by one of her supervisors, Ted
Slowik. Slowik was a midlevel manager who had authority to
hire and promote employees, subject to higher approval, but
was not considered a policymaker. Against a background of
repeated boorish and offensive remarks and gestures
allegedly made by Slowik, Ellerth places particular emphasis
on three incidents where Slowik's comments could be
construed as threats to deny her tangible job benefits. Ellerth
refused all of Slowik's advances, yet suffered no tangible
retaliation and was, in fact, promoted once. Moreover, she
never informed anyone in authority about Slowik's conduct,
despite knowing Burlington had a policy against sexual
harassment. In filing this lawsuit, Ellerth alleged Burlington
engaged in sexual harassment and forced her constructive
discharge, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e et seq. The District Court granted
Burlington summary judgment. The Seventh Circuit en banc
reversed in a decision that produced eight separate opinions
and no consensus for a controlling rationale. Among other
things, those opinions focused on whether Ellerth's claim
could be categorized as one of quid pro quo harassment, and
on whether the standard for an employer's liability on such a
claim should be vicarious liability or negligence.
Held: Yes. Affirmed.
(a) The Court assumes an important premise yet to be established: A trier of fact could find in Slowik's remarks
numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not
carried out. Cases based on carried-out threats are referred to often as “quid pro quo” cases, as distinct from
bothersome attentions or sexual remarks sufficient to create a “hostile work environment.” Those two terms do not
appear in Title VII, which forbids only “discrimination against any individual with respect to his terms or conditions of
employment, because of sex.” This Court distinguished between the two concepts, saying both are cognizable under
Title VII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor did not discuss
the distinction for its bearing upon an employer's liability for discrimination, but held, with no further specifics, that
agency principles controlled on this point. Nevertheless, in Meritor's wake, Courts of Appeals held that, if the plaintiff
established a quid pro quo claim, the employer was subject to vicarious liability. This rule encouraged Title VII
plaintiffs to state their claims in quid pro quo terms, which in turn put expansive pressure on the definition. For
example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of
real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own
negligence. This Court nonetheless believes the two terms are of limited utility. To the extent they illustrate the
distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when
there is a threshold question whether a plaintiff can prove discrimination. Hence, Ellerth's claim involves only
unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. This
Court accepts the District Court's finding that Ellerth made such a showing. When discrimination is thus proved, the
factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of
vicarious liability.
(b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law
principles, for Title VII defines the term “employer” to include “agents.” Given this express direction, the Court
concludes a uniform and predictable standard must be established as a matter of federal law. The Court relies on the
general common law of agency, rather than on the law of any particular State.
(c) A master is subject to liability for the torts of his servants committed while acting in the scope of their
employment. Restatement §219(1). Although such torts generally may be either negligent or intentional, sexual
harassment under Title VII presupposes intentional conduct. An intentional tort is within the scope of employment
when actuated, at least in part, by a purpose to serve the employer. Courts of Appeals have held, however, a
supervisor acting out of gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives
unrelated and even antithetical to the employer's objectives. Thus, the general rule is that sexual harassment by a
supervisor is not conduct within the scope of employment.
(d) However, scope of employment is not the only basis for employer liability under agency principles. An employer
is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the
employer itself was negligent or reckless, Restatement §219(2)(b), or the employee purported to act or to speak on
behalf of the employer and there was reliance upon apparent authority, or he was aided in accomplishing the tort by
the existence of the agency relation. An employer is negligent, and therefore subject to liability under §219(2)(b), if it
knew or should have known about sexual harassment and failed to stop it. Negligence sets a minimum standard for
Title VII liability; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) makes
an employer vicariously liable for sexual harassment by an employee who uses apparent authority (the apparent
authority standard), or who was “aided in accomplishing the tort by the existence of the agency relation” (the aided in
the agency relation standard).
(e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she
does not have, as distinct from threatening to misuse actual power. Because supervisory harassment cases involve
misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. When
a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's
aided in the agency relation rule provides the appropriate analysis.
(f) That rule requires the existence of something more than the employment relation itself because, in a sense,
most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing their tortious objective by
the employment relation: Proximity and regular contact afford a captive pool of potential victims. Such an additional
aid exists when a supervisor subjects a subordinate to a significant, tangible employment action, i.e., a significant
change in employment status, such as discharge, demotion, or undesirable reassignment. Every Federal Court of
Appeals to have considered the question has correctly found vicarious liability in that circumstance. This Court
imports the significant, tangible employment action concept for resolution of the vicarious liability issue considered
here. An employer is therefore subject to vicarious liability for such actions. However, where, as here, there is no
tangible employment action, it is not obvious the agency relationship aids in commission of the tort. Moreover,
Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Limiting
employer liability is also consistent with Title VII's purpose to the extent it would encourage the creation and use of
antiharassment policies and grievance procedures. Thus, in order to accommodate the agency principle of vicarious
liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of
encouraging forethought by employers and saving action by objecting employees, the Court adopts, in this case the
following holding: An employer is subject to vicarious liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate (or successively higher) authority over the employee. When no
tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages,
subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the
employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy
with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable
to the employment circumstances may appropriately be addressed in any case when litigating the first element of the
defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid
harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a
demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the
defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible
employment action.
(g) Given the Court's explanation that the labels quid pro quo and hostile work environment are not controlling for
employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which
would result in vicarious liability. Although she has not alleged she suffered a tangible employment action at Slowik's
hands, which would deprive Burlington of the affirmative defense, this is not dispositive. In light of the Court's
decision, Burlington is still subject to vicarious liability for Slowik's activity, but should have an opportunity to assert
and prove the affirmative defense.
Case
Subject
Facts
Issue Presented and Holding
Issue: Whether to be actionable as “abusive work environment”
harassment, conduct must “seriously affect an employee's
psychological well-being” or lead the plaintiff to “suffer injury.”
Harris v.
Forklift
Systems, Inc.
510 U.S. 17
(1993)
Workplace
Violence:
Abusive Work
Environment
Petitioner Harris sued her former employer, respondent
Forklift Systems, Inc., claiming that the conduct of Forklift's
president toward her constituted “abusive work environment”
harassment because of her gender in violation of Title VII of
the Civil Rights Act of 1964. Declaring this to be “a close
case,” the District Court found, among other things, that
Forklift's president often insulted Harris because of her gender
and often made her the target of unwanted sexual innuendos.
However, the court concluded that the comments in question
did not create an abusive environment because they were not
“so severe as to seriously affect Harris' psychological wellbeing” or lead her to “suffer injury.” The Court of Appeals
affirmed.
Held: No. Reversed and Remanded.
(a) The applicable standard, here reaffirmed, is stated in
Meritor Savings Bank, FSB v. Vinson: Title VII is violated when
the workplace is permeated with discriminatory behavior that is
sufficiently severe or pervasive to create a discriminatorily
hostile or abusive working environment. This standard requires
an objectively hostile or abusive environment-one that a
reasonable person would find hostile or abusive-as well as the
victim's subjective perception that the environment is abusive.
(b) Whether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances, which may
include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance. The effect on the employee's
psychological well-being is relevant in determining whether the
plaintiff actually found the environment abusive. But while
psychological harm, like any other relevant factor, may be taken
into account, no single factor is required.
(c) Reversal and remand are required because the District
Court's erroneous application of the incorrect legal standard
may well have influenced its ultimate conclusion that the work
environment was not intimidating or abusive to Harris, especially
given that the court found this to be a “close case.”