Juvenile Sentences for Life in Prison without Parole

Recently, the Supreme Court heard oral arguments on two cases before this term considering the issue of sentencing juveniles to life imprisonment without the possibility of parole. The two cases are both from Florida, and have to do with juveniles who were sentenced to life in prison without parole for non-homicidal charges. The question before the court is whether or not incarcerating juveniles for a life term without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment.

I chose the topic for a Journal Note, because quite frankly I was astounded the first time I learned that it was even possible in the United States to incarcerate a juvenile for the rest of his or her natural life, with no hope of release. As I’ve researched the subject, I’ve discovered that the sentence is available in 44 states and is mandatory in many states (under mandatory sentencing guidelines). There are currently 2,574 juveniles in the United States serving such sentences as reported by Human Rights Watch.

Most of the scholarly literature on the subject advocates a ban on the sentence. One main reason given by advocates for banning the practice is the fact that juveniles have less culpability given their physical, mental and emotional immaturity. The advocates point to a wealth of medical and psychosocial data on the subject, but it hardly seems necessary given what we intuitively and experientially know to be true about children. Another reason that surfaces quickly is that it has become a standard of international law not to use this type of sentence for children. The United States is alone in the world in utilizing juvenile life without parole sentencing.

As I researched, I tried to keep a balanced view and to logically reason out why the sentence is or is not unconstitutional. However, no matter how much I reasoned, and even though my reasoning indicated that, because of the vagueness of the language in the Eighth Amendment, and because of the Court’s precedent, this constitutional challenge may fail, sentencing juveniles to life in prison without parole still feels fundamentally wrong. In reading the transcripts of the oral arguments for the cases, it’s apparent that there is the same uneasiness among some of the justices.

During oral arguments, the Court indicated it might prefer these cases be individually adjudicated on a proportionality basis, making a categorical ban unnecessary. Some justices feared the slippery slope of future challenges to the Eighth Amendment’s cruel and unusual punishment clause. While the slippery slope may be real, it is the duty of the Court to help bring the Constitution to life by struggling with the meaning when the words aren’t clear.

-Maxine Nash, JGRJ Student Writer 2009-10

Beaches, Hollywood, Disneyland, and A Right to Counsel in Civil Cases: California Has Got It All!

It is often said that what happens in California influences the rest of the nation. While other states may not want California’s massive debt or Schwarzenegger for their governor (hey, I respect him), I think they may be wise to follow California’s latest move. In California, poor litigants in civil cases now have a right to counsel. In response to this new law, the State created a pilot program to provide counsel to poor litigants in “key civil cases” that involve basic human needs, including evictions, loss of child custody, domestic abuse, and neglect of the elderly or disabled. The program garnered bipartisan support (I wish that could happen for the healthcare bill) and will be funded by a $10 increase in court fees for the prevailing party in civil cases.

Currently, the U.S. Constitution, as interpreted in Gideon v. Wainwright, 372 U.S. 335 (1963), guarantees any person facing criminal charges a right to legal counsel. In reading Gideon and Powell v. Alabama, 287 U.S. 45 (1932) (Scottsboro boys case which recognized the right in capital cases only), the Court seems concerned with maintaining the “fundamental human rights of life and liberty,” Gideon, 372 U.S. at 343, and ensuring due process. It’s not a stretch to conclude that these principles are also applicable to civil cases, especially when due process applies to all legal processes and the courts have already recognized many civil matters as liberty or property interests.

The committee notes for the law recognize that even if the laws are fair and the judiciary is unbiased, equal justice under the law requires that people have the ability to invoke the laws for their protection; without that, there is no real access to the legal system. Agreed. I am almost halfway through law school, and it is only because of interning with the Hon. Joseph Kreamer (great experience) and civil procedure class that I have a working knowledge of civil litigation. I did not understand how to use the legal system to my benefit before law school, and apparently, I won’t truly understand it until five to seven years into practice. Therefore, those without a legal education definitely need professional help to have meaningful access to the legal system.

There are other benefits. Pro se litigants are taxing on the court’s time. Judicial staff spends a significant amount of time interacting with pro se litigants who just need someone to talk to. Judges have to spend more time explaining the legal process and excusing mistakes when there’s a pro se party involved in a case. With licensed attorneys involved instead, hearings and trials will proceed more quickly, and judges and judicial staff will have more time for other matters. Also, with the economy the way it is, it is comforting to know that there are opportunities being created which may increase the need for lawyers.

There are many other reasons why this is a good idea. I am certain that legal minds more developed than mine have written about them, so I won’t attempt any additional analysis. It is the just thing to do. While visiting the trial courts in Cairo, Egypt this summer, I learned that Egypt recognizes a right to counsel in all civil and criminal cases. It gives Egyptians access to legal remedies that would not otherwise be available. If Egypt can do it, so can we.

There are legitimate concerns about why this is a bad move. Some critics are concerned about funding. Others argue that the money could be spent on addressing issues such as wrongful convictions, “law enforcement, quality day care, or lead paint eradication in low-income communities,” and that it may congest court dockets. Valid, but, since this movement began in 1966, there has been plenty of time to balance these interests. The need of a poor litigant to have representation in certain civil litigation is more compelling.

Funding is a legitimate issue, but California’s proposed plan is sound. Also, in Arizona, the Arizona Foundation for Legal Services and Education is working with banks to increase the interest rate on IOLTA accounts in order to create more money for legal aid. Other similarly innovative solutions that won’t increase taxes must exist.

While I am celebrating this amazing development in justice, I am aware that it is a pilot program. Even the best pilots may never take a long a flight (see tv shows Noah’s Arc, Firefly, & Conviction). However, California has from July 2011 to January 2016 to prove that the program is actually as beneficial as proponents hope that it will be. Hopefully it’s successful. Hopefully other states follow suit.

For more information, check out the text of the bill and committee findings (my heart smiled while reading it) and an L.A. Times article about the law.

-Kapri Saunders, JGRJ Student Writer 2009-10

Maine's Mistake

Yesterday, fifty-three percent of voters in Maine approved a repeal of the state’s recent law legalizing same-sex marriage. I can’t help but think that yesterday, fifty-three percent of voters in Maine demonstrated an utter lack of both compassion and understanding of basic human dignity.

The battle for equal rights for gays and lesbians is not new. What is (relatively) new is that this battle has, in recent years, begun to see its efforts transformed into action. Five states (including Iowa) currently allow same-sex marriage. Maine was number six until yesterday. Aside from this being a terrible blow to the fight for equality, it is a disturbing example of why the civil rights of a few should not be determined by public opinion.

By now, the arguments both for and against same-sex marriage have been repeated in the media ad nauseum. We know one side claims it wants to preserve “traditional marriage,” while the other wants equal rights. It’s pretty clear from the tone of this post which side I’m on. What isn’t clear (to me, at least) is how things turned out in Maine when it seems that the gay rights movement has had great triumphs lately all over the country.

Plenty of good things happened last night for equal rights. Washington State seems to have approved a measure to protect the domestic partnership law in the state. Houston is on its way to having its first openly gay mayor. Kalamazoo, MI extended protection against discrimination to LGBT individuals. Yet despite all of these steps forward, I can’t help but feel that what happened in Maine was a huge step back. This doesn’t mean I’m not happy or excited about the other victories; I suppose it just means that Maine is something of a reality check. It’s a reminder of the work that still needs to be done to ensure that people everywhere have the rights that so may of us take for granted.

Today I woke up with the same rights that I had yesterday. I'm deeply disturbed that I can't say the same for many people in Maine.

-Libby Skarin, JGRJ Student Writer 2009-10

Egyptian Women’s Freedom Curtailed

Americans often take it for granted that they will be able to express themselves through clothing. Whether the clothing choice be based on fashion choices, a political statement, or religious beliefs, rarely do Americans have to worry they will not be allowed to express their views or religious beliefs through clothing. However, women in Egypt who wear a "niqab," or burqa, the all-covering veil worn by conservative ultra-religious Muslim women, are now forbidden to wear the niqab in universities frequented primarily by women, such as all-women classes and women’s dormitories. The decision was handed down by an all-male committee convened by Egypt's Al-Azhar university that determined what women would be allowed to wear at Egyptian Universities.

Although the decision is more moderate than the original decision that banned the niqab from universities in general, this decision has sparked controversy throughout Egypt, where more women are turning to the niqab in order to cover themselves completely. Many moderates are viewing the decision as intrinsic to curbing the appeal of the strictest form of Islam, which has been gaining popularity in Egypt. However, women are rallying against the decision, viewing it not as a form of freedom but as a form of oppression.

Egypt is not the only country to face controversy over the niqab. Recently, the French President, Nicolas Sarkozy, banned the niqab from French classrooms, and British Justice Minister Jack Straw has asked women not to wear the niqab in his constituency office. These decisions show a growing desire to combat the most conservative form of Islam.

It is understandable that Egyptian Universities want to combat the most restrictive and conservative sect of Islam. However, the choice to combat this religious belief by outlawing women from wearing a niqab in certain settings does not seem to achieve the desired goal. Instead of restricting women from wearing niqab, it is more important to focus on teaching women that they are confident and capable individuals who are the masters of their own destiny. Any time a governmental body attempts to restrict a personal choice or civil liberty, it often has the opposite effect from that desired. Instead of encouraging women to gain an education and follow their own dreams, the Egyptian government is oppressing women’s personal choices. Now, those women are banding together, and others are joining the fight in order to protect their rights to wear what they want to wear.

One of the other major problems with this decision from a Western perspective is that the Al-Azhar should not have attempted to make a decision regarding the type of clothing women should be allowed to wear without asking women. By allowing an all-male committee to determine that a niqab could not be worn in certain areas, the committee continues to perpetuate the belief that women are not equal citizens. If they really want to combat the strict form of Islam they should not attempt to restrict personal choice and instead should focus on offering education and exposing those individuals to other options and forms of Islam.

Nations must be careful not to limit personal liberties in an effort to prevent extremists from gaining popularity. The only consequence that comes from limiting and banning a certain choice is that it creates an aura of mystery around the forbidden action. It is vital to allow women to make their own personal choice and to ensure women are empowered to make their own choices.

-Brooke Amos, JGRJ Student Writer 2009-10

Abortions in Oklahoma

Earlier this month, the Oklahoma state legislature passed a law which mandates publishing information about every abortion performed within the state on a public website. The law was intended to take effect on November 1, 2009. Under the law, a woman seeking to obtain an abortion in the state will have to reveal the following information: (1) date of the abortion; (2) county where abortion was performed; (3) age; (4) marital status; (5) race; (6) highest year of completed education; (7) state or foreign country of residence; and (8) total number of previous pregnancies including live births, miscarriages, and abortions. Doctors who fail to comply with reporting requirements face potential revocation of their medical license and criminal penalization. The law will cost almost $300,000 of taxpayer money to implement in the first year and an additional $250,000 for each subsequent year.

Opponents of the law argue that it is a blatant violation of women’s privacy rights. Though women are not required to reveal identifying information, such as their addresses or names, opponents of the law fear that the required information will be sufficient to reveal the identities of women seeking abortions in smaller communities. Keri Parks, Directors of External Affairs at Planned Parenthood of Central Oklahoma, stated, “They’re really just trying to frighten women out of having abortions.” Oklahoma resident Joyce Davis, who filed a lawsuit with Representative Wanda Jo Stapleton over the law, argued that the state should not be able to reveal such personal information about a woman in such a tragic predicament.

Dan Sullivan, the Oklahoma State Representative who wrote the law, stated that the data will help identify the demographic characteristics of the women in Oklahoma who are most at risk for unwanted pregnancies. Sullivan explained, “If there's something that we can do to positively impact that segment of that population -- and have a lowering effect on those rates -- then we want to be able to look at what policy decisions we can make.” Because abortion services are available in only three of the seventy-seven counties in Oklahoma, Sullivan argues that it will not be possible to determine a woman’s identity from the solicited information.

Following weeks of heated debate, Twyla Mason Gray, an Oklahoma County District Court Judge, placed a temporary restraining order on the law this week. The temporary ban comes just a year after the Center for Reproductive Rights successfully challenged an Oklahoma law requiring women to view an ultrasound prior to undergoing an abortion. Because the ban of the current law just occurred, it is unclear when or if the current form of the law will ever take effect.

The irony of the law in its current form is that, in each instance for which the state intends to collect information, the abortion will have already taken place. Thus, prevention is no longer possible in each specific instance. Collecting this information after the fact to obtain general statistics about women obtaining abortions in Oklahoma is virtually useless, given that the federal Centers for Disease Control and Prevention already collects similar statistical information on a state by state basis. With these potential purposes eliminated, it seems the only other possible justifications for the law relate to making it more burdensome and stressful for women to obtain abortions in Oklahoma.

For more information, check out this article and this article about the law, and this article and this article about the law's temporary restraint.

-Sarah Brandt, JGRJ Student Writer 2009-10

Release of Public Records Violates the First Amendment?!?

First Amendment arguments get tricky when the court must balance the rights of a small group of private citizens against the public interest. As a pursuer of justice, there is a natural inclination to protect the smaller group. Why not use the First Amendment as a shield to protect a small group of well-meaning individuals, just trying to preserve the sanctity of marriage? If the court does not protect these individuals, they may be "subjected to threats, harassment, and reprisals." Surely, there is no compelling government interest that would allow the government to put a group of their citizens at such a risk. At least, this is the reasoning that Protect Marriage Washington, a group of religious conservatives and individuals opposed to domestic-partner benefits, wanted the Ninth Circuit to adopt in reviewing their case. This assumes that their antagonists are the threatening type . . . unlikely. (This is me avoiding any comments about the correlation between religion and wars and also the absurdity in fearing a group of activists and individuals who are legally, as opposed to physically, fighting for equal rights.)

A U.S. District Court in Tacoma, Washington granted a preliminary injunction that forbade the state from releasing the names of citizens who signed petitions for Referendum 71. Referendum 71 is an attempt to get the public to reject Washington's law granting marriage-like benefits to same-sex couples who are registered as domestic partners and heterosexual couples where one partner is 62 or older. The judge found that it is likely Protect Marriage Washington will succeed on the merits of the case because it is likely that signing a referendum petition is protected free speech, which includes the right to speak anonymously. He also found that waiver of anonymity is not a required to participate in Washington's referendum process.

The State contended that blocking the State from making the petitions public would be a violation of public records laws. By allowing the injunction to remain in place, the Court "could eviscerate open government laws." Also, the public should have a right to know who signed the petition as a way to check the validity of the signatures. I did not do extremely well in political history, but isn't an open government a hallmark in our democratic system? I am not convinced that the district court judge got it right.

Fortunately, the Ninth Circuit wasn't either. On Wednesday, the Court ruled that the State can release the names of the individuals who signed the petition. The case will go back to the district court for the judge to lift the injunction. But until that happens, the names will not be released. So, the State, who already has electronic versions of the petitions ready to go, will hover over the send button until the judges says go.

Every day, individuals are at risk of harassment for values that they hold dear. If one does not want to subject oneself to harassment, than one should keep one's opinion to oneself . . . or at least not sign a public record which portrays their opinion.

The district court opinion may be found here.

The Ninth Circuit opinion may be found here.

-Kapri Saunders, JGRJ Student Writer 2009-10

The Debut of Supreme Court Justice Sonia Sotomayor

Monday marked the beginning of a new term for the Supreme Court of the United States with the addition of Justice Sonia Sotomayor. There has been a great deal of commentary, both positive and negative, following President Obama’s nomination of Justice Sotomayor in May and her confirmation to the Court on August 6th. She is the first Hispanic, and only the third female, Supreme Court Justice. Unfortunately, I am disheartened that this event, which I believe Americans should celebrate as a landmark in social progress, has been disparaged by many through sexist and racist comments. Below are a few of the more shocking remarks:

“She’s an angry woman, she’s a bigot.” –Rush Limbaugh, The Rush Limbaugh Show

“She’s an affirmative action appointment . . . there were no males in the final four. How do you come down to four women? . . . What were the criteria? One of them is that it’s got to be a woman, and the other got down to be—hey, it’s a Hispanic.” –Pat Buchanan, appearing on MSNBC Live

I do not understand why it is so hard for so many to believe that a Hispanic woman is capable of serving as a Supreme Court Justice. The media has made much of Justice Sotomayor’s joining in the controversial opinion in the New Haven, Connecticut firefighter case, Ricci v. DeStefano, and her “wise Latina woman” comment in 2001. Relying primarily on these two events, some have even gone so far as to label Justice Sotomayor as a racist and unqualified. However, I believe her
resume and long history of public service strongly refute such allegations.

As a female law student, I would hope that considerations such as race and gender would not infiltrate discussions in which commentators should focus on individual merit. However, the past few months have demonstrated that although race and gender relations have made much progress, there is still ample room for improvement. Numerous predictions have been made about what Sonia Sotomayor will do as Justice Sotomayor. Only time will tell. I can only hope that, in the future, individuals will hold themselves to a higher standard and not let prejudice become the basis for their evaluations.

For more information on Justice Sotomayor’s record, please visit this link.

-Rachelle Paquin, JGRJ Student Writer 2009-10