High Court’s New Term to Reshape Criminal Justice

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The New York Sun

WASHINGTON – The Supreme Court opens a new term Monday that could shape the future of the American criminal-justice system.


The autumn docket begins with a constitutional challenge to federal sentencing rules, potentially throwing into doubt thousands of sentences across the country. And in a case watched closely around the world, the judges will hear a challenge to imposing the death penalty for a crime committed by a juvenile.


Other issues coming before the court involve the medicinal use of marijuana, the direct marketing of wine, and a disgruntled former client who wants to picket the celebrity lawyer Johnnie Cochrane.


The court is rushing to hear oral arguments Monday afternoon in two cases that will clarify the question of whether the constitutional right to a jury trial prevents judges from making decisions that increase the length of sentences. The court threw the federal sentencing system into confusion early this summer when it struck down similar rules in a Washington State case known as Blakely.


Speaking of federal judges, a professor emeritus at Columbia Law School, Richard Uviller, said: “Some refused to sentence at all. Some sentenced as if the guidelines had been repealed. It has been total disorder and consternation right and left.”


The disputed federal rules allow a judge to lengthen a sentence based on aggravating facts that are not found by a jury “beyond a reasonable doubt,” but rather by a judge under the less demanding standard of “preponderance of the evidence.”


The cases involve Freddie Booker, a Wisconsin man whose sentence was thrown out by an appellate court because it was a federal judge who had decided the amount of drugs that were involved, and Ducan Fanfan, a Massachusetts man convicted of conspiracy to distribute cocaine and sentenced based on facts that were not presented to the jury.


If the rules are invalidated, lawmakers may rewrite them and pass more severe sentencing rules. Thus, critics of the federal rules may “win the battle but lose the war,” the legal director of the American Civil Liberties Union, Steven Shapiro, said.


In another criminal case that is drawing congressional interest and intense worldwide attention, the court is to consider whether the Constitution’s prohibition on cruel and unusual punishment bars the government from executing convicted murderers who were between ages 16 and 18 at the time of the crime.


The court ruled in 1988 that children under 16 could not be executed but allowed the death penalty for older youths. The following year it upheld the death penalty for mentally retarded convicts. It reversed that position three years later in a case called Atkins v. Virginia, finding that a “national consensus” against the practice had evolved. The Missouri Supreme Court cited that opinion in its decision to hold unconstitutional the death sentence of Christopher Simmons, who was 17 at the time of the murder of Shirley Crook, whom he allegedly bound, gagged, and drowned in a river after breaking into her home.


Foreign governments including the European Union, Canada, and Mexico, and individuals including Mikhail Gorbachev and President Carter, have submitted briefs in the case, arguing that the world is reaching the conclusion that children must not be executed for their crimes.


“There is no doubt that U.S. policy on capital punishment and on juveniles in particular has made us an outcast in the international community, and the court is aware of that and is concerned about that,” the ACLU’s Mr. Shapiro said.


The international involvement comes at a time when some federal lawmakers are mobilizing against what they see as increasing foreign influence on the court’s reasoning, particularly in socially sensitive areas such as the death penalty and gay rights. Congress is considering a nonbinding resolution that would condemn the use of foreign law in the interpretation of the American Constitution.


“The majority’s reasoning matters to me as much as the result. … The Constitution itself says it is the supreme law of the land and it is inappropriate to read into it what the international community desires in their own country,” the director of the center for legal studies and judicial studies at the conservative Heritage Foundation, Todd Gaziano, said.


Four members of the court – Justices Souter, Ginsburg, Breyer, and Stevens – have stated they would end juvenile executions. Already, 30 states the federal government do not allow the execution of juveniles.


Oral arguments in Roper v. Simmons are scheduled for October 13.


In another closely watched constitutional dispute, the court is to decide when governments can legally seize people’s homes and businesses to use the land for economic-development projects to improve the local tax base.


In the case of Kelo v. City of New London, Conn., homeowners are fighting plans by city officials to destroy their homes to clear the way for a commercial development.


“This case presents a very important challenge to government power and corporate welfare,” Mr. Gaziano said.


While the court’s previous term was marked by landmark opinions in the war on terrorism that required the Bush administration to provide hearings to suspected terrorists held in indefinite detention, the court has not yet accepted any new terrorism-related cases. But the issue of indefinite detentions is coming before the court in another context.


Two Cuban nationals who have served criminal sentences in this country and remain in indefinite custody awaiting deportation say they should be released even though Cuba has refused to take them back. Civil-rights lawyers said they hope the case will lead the court to condemn indefinite detentions as contrary to the Constitution and American values. The cases, Clark v. Martinez and Benitez v. Ramos, are scheduled to be heard October 13.


The court will also hear a constitutional challenge to a California prison policy that requires the routine segregation by race of newly arrived inmates for 60 days. In that case, Johnson v. California, the state says the policy is necessary to prevent gang violence. The policy, unique to California, is being challenged as discriminatory.


The power of police to use drug-sniffing dogs in a routine traffic stop, without any prior suspicion about the individual driver, is at issue in the case of Illinois v. Caballes, scheduled to be heard on November 10.


Dogs sniffing the trunk of a car pulled over for speeding led to the discovery of marijuana valued at $250,000. Civil libertarians worry the practice will be used disproportionately against visible minorities.


The medicinal use of marijuana comes before the court in the case of a California woman who uses the drug to relieve the symptoms of more than 10 medical conditions, including an inoperable brain tumor. Her caregivers have been cultivating the substance, which is allowed for medicinal purposes under California law but forbidden by federal law. A lower court found that federal marijuana laws violate the Commerce Clause because the substance is grown and consumed at the homes of the woman and her caregivers and they do not transport it across state lines.


In another case involving federalism, the court is to decide whether states can ban the importation of wine across state lines.


Besides the California prison case, other bias cases made the docket:


* The court is scheduled to consider whether people who believe they are victims of age discrimination must prove that their employers intentionally discriminated against them, or whether they need only show that an employer’s actions have “disparate impact” on people of different ages.


* In a suit against Norwegian Cruise Lines Ltd., the court will decide whether foreign-flagged vessels are subject to the Americans with Disabilities Act. The case would affect the entire cruise ship industry, since most cruise ships operate under foreign flags.


* The court will hear a gender-discrimination case, involving a high school girls basketball coach in Birmingham, Ala. Roderick Jackson claims he was fired in retaliation for complaining that women’s sports received more money than men’s, under a law banning gender discrimination in schools. A lower court found that Mr. Jackson did not have the right to sue the school board, but civil-rights advocates say protection for whistleblowers is necessary to encourage people to report violations.


In a First Amendment case with potentially broad implications, a former client of Mr. Cochrane’s is challenging an injunction barring him from picketing outside the lawyer’s office. The court will consider whether a person can ever be barred from speaking on the grounds that he has defamed someone in the past.


The court will also decide whether former American spies can sue the director of central intelligence for breach of contract if the government fails to live up to a promise of lifelong financial support.


The court is expected to decide Monday whether to take up a number of religion-related cases, including five cases involving the display of the Ten Commandments in public places.


The New York Sun

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