The Wonk Room

Supreme Court Preview Part III, Law and Order

(The following is the third in a multi-part series on the upcoming Supreme Court Term)

The Roberts Court has been particularly aggressive in imposing its vision on the criminal law, cutting back on longstanding precedents intended to hold police accountable for constitutional violations, while simultaneously denying potentially innocent inmates the opportunity to prove their innocence.  This Term, the Court will consider issues ranging from the rights of juvenile defendants to the power of prosecutors to fabricate evidence.

• Prosecutors Fabricating Evidence, Pottawattamie County v. McGhee

In 1977, a retired police captain was murdered, and, despite substantial evidence linking another suspect to the murder, investigators eventually turned their eyes towards Terry Harrington and Curtis McGhee.  Unable to prove their case, police and prosecutors not only hid evidence linking the other suspect to the murder from Harrington and McGhee, they threatened to prosecute a witness against these two men unless he gave perjured testimony linking them to the murder.  Harrington and McGhee spent more than twenty years in prison before the Iowa Supreme Court finally tossed out their convictions.

It’s difficult to imagine a clearer violation of due process than the fabricated case against these two men, but the prosecutors believe that they have an ace in the hole:  a longstanding rule giving prosecutors sweeping immunity from lawsuits.

At its heart, this case turns upon a hypertechnical issue of whether the defendants were acting “within the scope of their prosecutorial duties” or simply as “investigators” when they fabricated evidence, but it is ultimately a case about whether government officials endowed with the awesome power to initiate prosecutions should be able to do so without legal checks on their authority.  As the Court explained over thirty years ago, the purpose of prosecutorial immunity is to shield against the possibility that “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”  If prosecutors can be sued by anyone for any reason, the Court believed, they may act differently to avoid harassment suits.

This is undoubtedly correct, but are the costs of such suits so great that they exceed the costs of permitting prosecutors to fabricate evidence without consequence?

• Juveniles and Life Without Parole, Graham v. Florida and Sullivan v. Florida

In its last Term, the Rehnquist Court held that it is unconstitutional cruel and unusual punishment to execute juvenile offenders, with conservative Justice Kennedy casting the key fifth vote.  As the Court explained, the classic justification for execution–deterring other individuals from committing the same crime–does not apply to juveniles because they lack the maturity to be deterred by the possibility of death.  The Court also noted that juvenile personalities are still in flux, so a juvenile offender is far more likely to be rehabilitated than a more hardened adult.

With this in mind, the Court will turn its attention this Term to whether a juvenile can be sentenced to life without parole.  At it’s heart, life sentences are society’s way of giving up on an individual.  If you believe that someone will be rehabilitated, you don’t lock them up and throw away the key.  Similarly, deterrence is as much a factor in setting prison times as it is in killing offenders–we hope that other potential offenders will see their peers in prison and shy away from future criminal acts.  Yet juveniles, as the Court already acknowledged in rejecting the juvenile death penalty, are not easily motivated by the threat of harsh punishment.

In other words, the same rationale for not killing juvenile offenders also applies to life sentences without parole.  So the justices will be forced to determine whether or not there is some countervailing reason to lock juveniles up for life.  Traditionally, lengthy incarcerations have been justified by a need to “incapacitate” offenders–locking them away in a place where they cannot offend again, but Graham and Sullivan both involve non-homicide offenders, and the Court has long held that a sentence’s constitutionality is related to whether or not it is disproportionate to the crime committed.  In the end there is only one more classic justification for lengthy sentences, “retribution” against an offender.  One can only hope that the justices will not base their decision in these cases on a desire for vengeance.

• Animal Torture and the First Amendment, United States v. Stevens

Yesterday, the justices also convened to hear a case questioning whether videos depicting animal torture are excepted from the First Amendment’s protection.  The case analogized such videos to child pornography, which is not shielded by the First Amendment because it is impossible to create child porn without committing a criminal act of assault on a child.  Early reports of yesterday’s oral argument, however, suggest that the federal law at issue in this case will be struck down, on the grounds that it is written too broadly–punishing some speech that is not as harmful as child porn.