Graham v. Florida (08-7412), United States v. Comstock (08-1224) and Abbott v. Abbott (08-645)

May 25, 2010 Supreme Court Update

Greetings, Court fans!

A home-buying adventure delayed my report on last week's decisions, but there were some biggies: Graham v. Florida (08-7412), in which the Court held that the Constitution categorically forbids life sentences without the possibility of parole for minors who have committed non-homicide offenses; United States v. Comstock (08-1224), where the Court concluded that the federal government has authority under the Necessary and Proper Clause of Article I of the Constitution to civilly detail sexually dangerous federal prisoners beyond the period of criminal incarceration; and Abbott v. Abbott (08-645), in which the Court found that a parent's ne exeat right constituted a "right of custody" such that return of the child was an appropriate remedy under the Hague Convention on the Civil Aspects of International Child Abduction. The Court also issued an order list.

There are some cases where it would simply be unfair to say that the Court was (in the Chief's words) "call[ing] balls and strikes." Graham v. Florida is one of those cases, where the Court was called on to interpret the boundaries of the Eighth Amendment's prohibition against cruel and unusual punishment. At the age of 16, Graham and three other teenagers engaged in a failed attempt to rob a restaurant, during which one of the teens struck the restaurant manager in the head with a metal bar. Graham was charged with attempted armed robbery and armed burglary, the latter of which carried a maximum sentence of life without the possibility of parole. He pled guilty to both charges under a plea agreement and wrote a letter to the court asking for a second change. The judge gave him just that, withholding adjudication of guilt as to both charges and sentencing him to concurrent 3-year terms of probation, of which the first 12 months was spent in the county jail. Graham didn't do much with his second chance. Less then 6 months after he was released, Graham was arrested for participating in a home invasion, in which he held one of the occupant's at gun point while his accomplices ransacked the house looking for money. He was just shy of 18 years old. The court found that he had violated his probation, which resulted in his lenient sentence vanishing and the court revisiting just what sentence Graham should receive. Florida's Department of Corrections submitted a presentence report recommending that Graham receive a sentence of 4 years; the prosecution asked for 30. But the Court was giving no more second chances to Graham, finding that he "threw [his] life away" and "given the escalating pattern of criminal conduct . . . the only thing I can do now is to try and protect the community from [his] actions." The Court sentenced Graham to life without the possibility of parole. The Court of Appeal affirmed and the Florida Supreme Court denied review.

Six Justices found that Graham's sentence violated the Eighth Amendment and reversed. The majority, led by Justice Kennedy, who was joined by Justices Stevens, Ginsburg, Breyer and Sotomayor held that the Constitution categorically forbids life sentences without the possibility of parole for minors who have committed non-homicide offenses. They saw a national consensus against such sentences notwithstanding that 37 states and the federal government have statutes on the books that allow them because the punishment is either not actually used in those states or is used very infrequently. (Wading into what has become highly controversial waters, the majority also noted the international consensus against this penalty for juveniles.) In the majority's view, the unique characteristics of minors also rendered this sentence categorically inappropriate. Juveniles "lack maturity" and are more "susceptible to negative influences." They are also "more capable of change," so their actions are "less likely to be evidence of ‘irretrievably depraved character." These characteristics rendered juveniles less morally culpable for their conduct and more capable of rehabilitation. The majority recognized that a categorical rule will have its imperfections, but felt that it was necessary to remove the possibility that juveniles will receive life sentences with no possibility of parole based simply on the "subjective judgment that the defendant's crimes demonstrate an ‘irretrievably depraved character,'" which is exactly what occurred in Graham's case. In the end, the Court simply could not allow juvenile offenders to be sentenced to a lifetime without hope, where there would be no chance that they could ever reform themselves in a way that would allow their release. That is not to say, however, that states won't deny parole to the most severe juvenile offenders, it simply "forbids States from making the judgment at the outset that those offenders never will be fit to reenter society."

Chief Justice Roberts concurred in the judgment only. He disagreed with the majority's categorical approach – which he felt should not be extended beyond death penalty cases and also with the majority's argument that a consensus against this punishment existed notwithstanding that most states allowed it. Nevertheless, he found that in Graham's case (in which he engaged in serious criminal conduct, but did not personally injure anyone), the punishment was cruel and unusual. Justice Thomas authored the primary dissent, joined by Scalia in full and Alito in part. He argued first that the Eighth Amendment historically was directed only to banning particular methods of punishment, such as torture, not to reviewing the proportionality of sentences. Thomas also adamantly disagreed with extending the categorical approach to reviewing sentencing practices outside of the death penalty setting – feeling that prosecutors, judges and juries are better positioned to make the determination of who "deserves" a particular length of sentence. Like the Chief, Thomas also took issue with the majority's conclusion of a national consensus against these sentences, arguing that "there is a clear legislative consensus in favor of its availability." The fact that the sentence is not used often in the many states that allow it reveals little as the harshest punishments are likely to be meted out rarely, in only the most serious cases. (The dissent then reviewed the facts of some recent cases involving truly horrifying acts. Suffice it to say that they present a pretty compelling case that some teens may indeed be "irretrievably depraved.") The dissent agreed that juvenile characteristics may mitigate against imposition of a life sentence without parole, but this factor is already accorded weight by judges and juries during sentencing. In contrast to the Chief, Thomas (now not joined by Alito) also would not find Graham's individual sentence grossly disproportionate so as to render it unconstitutional. Justice Alito issued a separate dissent to note that (1) the Court did not prohibit a sentence of a term of years without parole – say 40 or 50 years (90?); and (2) that Graham's as-applied challenge (upon which the Chief based his concurrence) was not properly before the Court since it was not included in Graham's petition for cert or his merits briefs; thus Alito would not reach this issue. Not to be left out of the fun, Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurred to note that "evolving standards of decency" – the touchstone for Eighth Amendment analysis – really do evolve. "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law."

The Court DIG'd (dismissed the writ of cert as improvidently granted) Sullivan v. Florida (08-7621), a case raising nearly identical issues, but involving a child sentenced to life in prison without the possibility of parole at 13.

With that, we move on to the federal government's authority to detain prisoners beyond the period of criminal incarceration based on their ongoing dangerousness. As part of the Adam Walsh Child Protection and Safety Act of 2006, Congress enacted 18 U.S.C. § 4248, which authorized the federal government to civilly detain certain mentally ill, sexually dangerous federal prisoners after the end of their criminal incarceration. Specifically, the federal government may detain someone whom it proved by "clear and convincing evidence" had: previously engaged or attempted to engage in sexually violent conduct or child molestation; suffered from a serious mental illness, abnormality, or disorder; and was "sexually dangerous to others" in that "he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." The federal government was required to give the state(s) where the prisoner was tried or domiciled an opportunity to assume responsibility for his treatment – a responsibility that, predictably, few states were eager to assume. United States v. Comstock (08-1224) arose when the respondents moved to dismiss the initiation of civil confinement proceedings against them. The respondents raised a number of constitutional objections to § 4248, and the District Court granted dismissal on two grounds. The Fourth Circuit considered and affirmed dismissal on just one ground – that in enacting § 4248, Congress exceeded its powers under the Necessary and Proper Clause of Article I of the Constitution.

The Court reversed, with 5 justices in the majority, 2 concurring in the judgment, and 2 dissenting. Justice Breyer wrote for the majority, joined by the Chief, and Justices Stevens, Ginsburg, and Sotomayor. The Court took pains to emphasize that it was deciding just the Article I question, and that the respondents were free to pursue equal protection, due process, and other constitutional claims on remand. On the Article I question, the Court held that the Necessary and Proper Clause gave Congress sufficient authority to enact § 4248, for five reasons. First, the Court's precedents had established that the Necessary and Proper Clause granted Congress broad authority to enact legislation that was "rationally related," and not only legislation that was "absolutely necessary," to the exercise of its enumerated powers. Second, § 4248 was part of a long history of federal involvement in the mental health care and civil commitment for mentally ill prisoners, including a 1949 statute authorizing the civil commitment of individuals who were both mentally ill and dangerous. Third, § 4248 was a reasonable extension of the federal government's powers and responsibilities as a custodian. Just as it would be "necessary and proper" for the federal government to refuse to release a federal prisoner with a communicable disease that threatened others, it was necessary and proper for the federal government to refuse to release an individual whose mental illness threatened others to the same degree. Fourth, the Court saw no Tenth Amendment issue with § 4248 because if, as the Court believed, the statute fell within the powers delegated to the federal government, it would not be among the powers that the Constitution "reserved to the States." Moreover, § 4248 actually went out of its way to accommodate state interests, by giving states with an interest in the prisoner an opportunity to assert their authority. Fifth, the Court found that § 4248 was not too far removed from an enumerated power (i.e., whichever enumerated power or powers justified the defendant's statute of conviction). The Court rejected the dissent's argument that there could only be a single step between an enumerated power and a congressional act, listing several statutes previously blessed by the Court which fit that mold.

Justice Kennedy wrote an opinion concurring in the judgment to express his concern, first, that the Court had created a too-deferential test for whether legislation was "rationally related" to an enumerated power. In his view, application of the "rational basis" test under the Necessary and Proper Clause should be at least as exacting as it is under the Commerce Clause, where it requires a "tangible link" to commerce, not a mere conceivable rational relation. Justice Kennedy was also concerned that the Court's Tenth Amendment analysis, which appeared to start and end with an examination of the federal government's power, failed to consider "whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause." As for the civil commitment statute at issue in the case, however, Justice Kennedy agreed with the majority that Congress had acted within its constitutional powers in ensuring that an abrupt end to federal detention would not endanger third parties. Justice Alito also wrote an opinion concurring in the judgment. While he, too, was concerned about the majority's broad view of the Necessary and Proper Clause, he believed that, in this case, there was an "appropriate" link between § 4248 and one or more enumerated powers.

Justice Thomas dissented, joined in large part by Justice Scalia. As might be expected, the dissenters were distressed by the Court's broad upholding of federal government powers against states' rights. The dissenters observed that the text of the Necessary and Proper Clause empowered Congress to enact only those laws that "carr[y] into Execution" an enumerated power. Because the federal government could identify no specific enumerated power or powers as a constitutional predicate for § 4248, the civil commitment power must be reserved to the states. In a section not joined by Justice Scalia, Justice Thomas argued that that the Necessary and Proper Clause permitted only a single step between an enumerated power and the congressional act. Perhaps the most interesting aspect of the dissent was its determination to defend states' rights against the states' position of, "thank you, but no, thank you." 29 states appeared as amici in support of § 4248, and argued that they wanted the federal government to bear the expense of continued civil commitment. The dissent chided: "It is the States' duty to act as the ‘immediate and visible guardian' of [fundamental] liberties because federal powers extend no further than those enumerated in the Constitution. . . . The Constitution gives States no more power to decline this responsibility than it gives them to infringe upon those liberties in the first instance."

Finally, Abbott v. Abbott delivered a victory for Justice Sotomayor, as the Court – in a very odd split – adopted the position she had advocated in her dissent in a similar case while serving on the Second Circuit. At issue was whether a parent's authority to veto the other parent's decision to take the child to another country (referred to as a "ne exeat right") amounted to a right of custody warranting the remedy of return of the child to his former country of residence under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"). Timothy and Jacquelyn Abbott married in 1992, had a child in Hawaii in 1995 and relocated to Chile in 2002. They separated in 2003, and the Court granted Jacquelyn daily care and control of their child and Timothy direct and regular visitation rights. Chilean law automatically grants a ne exeat right to any parent with visitation rights. Thus, Timothy had the right to veto Jacquelyn's ability to take the child out of the country, subject to contrary court order. Nevertheless, Jacquelyn took the child to Texas in 2005 and was discovered there by a private investigator hired by Timothy in 2006. Under the Convention, the removal of a child from his country of residence is "wrongful" if it violates "rights of custody." The remedy for wrongful removal in violation of the convention is that the child shall be "promptly returned." However, the Convention does not provide for return as a remedy where the removal merely frustrates a parent's "rights of access." In that case, a court is limited to making orders to "promote the peaceful enjoyment of access rights," such as ordering the other parent to pay the costs of visiting the child. Just where the ne exeat right fell within the continuum of "rights of custody" and "rights of access" had divided U.S. courts and the courts of other signatories to the Convention.

Justice Kennedy led the Court (joined by the Chief, Scalia, Ginsburg, Alito and Sotomayor) in holding that a ne exeat right constitutes a right of custody. Under the Convention, "rights of custody" are defined 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." In the Court's view, the right to determine in which country a child grows up fits both parts of that definition. And the purpose of the Convention would be undermined if a signatory country provided ne exeat rights that could be circumvented simply by absconding from that country to a more favorable locale. The Court also took comfort that its conclusion was supported by the view of the State Department, the decisions of most courts in other signatory nations, and snippets of drafting history regarding the Convention's meaning.

The dissent, led by Justice Stevens (joined by the odd combination of Justices Thomas and Breyer), argued that a ne exeat right was merely a limitation on travel placed on the custodial parent in order to facilitate the noncustodial parent's visitation rights. The Convention clearly drew a distinction between access rights (i.e., visitation) and rights of custody, with only the latter being remediable by return of the child. By finding that ne exeat rights were rights of custody, the majority transformed every parent (at least every parent in Chile) with the most modest of visitation rights into a custodial parent who can demand return of the child. In the dissent's view, this was clearly not the result contemplated by the drafters.

The Court granted cert in one case, Wall v. Kholi (09-868), where the Court will determine whether a "state court sentence-reduction motion consisting of a plea for leniency" serves to the toll the one year period to file a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act.

The Court also invited the SG to weigh in on Louisiana Association of Timbermen v. Certain Underwriters at Lloyd's, London (09-945), where the Court is being asked to decide whether the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is a treaty or an Act of Congress for purposes of the McCarran-Ferguson Act.

The Court issued seven (yes 7!) more decisions today, so look for more Updates in your inbox soon.


From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400