Justice Sonia Sotomayor taking active role

New Justice Sonia Sotomayor was very much in evidence as the Supreme Court began its new term.


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WASHINGTON — A recast Supreme Court kicked off its new season Monday, with novice Justice Sonia Sotomayor immediately taking center stage.

In just an hour, the court’s newest justice asked more questions than Justice Clarence Thomas asks over the course of several years. Sotomayor’s aggressive role in a Fifth Amendment case, in turn, underscored how she could put her own stamp on a court whose 2009-2010 docket is still taking shape.

The 55-plus cases already scheduled for the coming months cover everything from gun rights and patent protection to free speech and the punishment of juveniles.

The court is likely to accept another 25 or so cases before the 2009-10 term ends next June.

As always, some cases are acutely technical; dry as dust pension disputes, for instance.

Others carry constitutional significance, a compelling set of facts or sometimes both.

On Tuesday, for instance, the court will consider the criminal conviction of a man who sold videotapes of pit bulls fighting. Virginia resident Robert J. Stevens was sentenced to 37 months in prison for violating a 1999 federal law that bans depictions of animal cruelty.

Stevens — joined by civil libertarians, book publishers and the entertainment industry, among others — argues that the law infringes on free speech.

The Obama administration defends the law as reasonable, saying that “the value of the speech” is outweighed by its “social costs.”

An equally anticipated set of cases from Florida question whether it’s cruel and unusual punishment to sentence a juvenile to life in prison without the possibility of parole.

Thirteen-year-old Joe Harris Sullivan, who already had a lengthy criminal record, was convicted in 1989 of raping a 72-year-old Pensacola woman.

Seventeen-year-old Terrance Jamar Graham, who likewise had a lengthy record, committed a home invasion robbery in Jacksonville while on probation for another violent offense. Both were sentenced to life without possibility of parole.

In a 2005 opinion written by Justice Anthony Kennedy, the court ruled out executions of individuals for crimes committed while they were minors. The new cases, to be heard Nov. 9, question whether the same reasoning about juvenile immaturity should apply to noncapital punishment.

Are life sentences for 13 year olds cruel and unusual punishment?

By Frank James

Is it constitutional to sentence a juvenile offender who commits an offense at age 13 to life in prison without the possibility of parole?

That’s the question facing the U.S. Supreme Court this term and it’s a riveting one. On one hand, a heinous crime is still a terrible crime, regardless of the age of the offender.

But a 13-year old is still a child. And it is arguably a cruel and unusual punishment to subject someone to life in prison without parole for a crime committed when he was a child.

The Equal Justice Initiative has a compelling way to frame these cases. It says 13- and 14-year olds are being sentenced to death in prison.

It’s point: the U.S. Supreme Court may have said executing people for crimes they committed as juveniles is unconstitutional. But these sentences are in their own way death sentences, according to EJI which says there are 73 individuals in the U.S. who are serving “death in prison” sentences.

The cases the Supreme Court will be deciding is Sullivan v. Florida and Graham v. Sullivan.

Sullivan was convicted of raping a 72-year old woman when he was 13 and of burglary as well. Graham was convicted of violating parole by conducting a strong-armed robbery in which he held the victim at gunpoint.

Among those supporting Sullivan, who is now 33, are former Sen. Alan K. Simpson of Wyoming and the actor Charles Dutton, both of whom were youthful offenders, with Dutton convicted of manslaughter.

In a friend of the court brief, Dutton is quoted as saying:

“I just talked in Florida to some kids with that sentence. It was just dawning on them after ten or twelve years that their lives were over. They were kids and now they’re finished. There’s a heart-wrenching sadness on their faces, and you can see the fight is out of them. If they were given a second chance, they’d be changed human beings.”

“As long as it’s a young mind,” he says, “they’re salvageable. At those tender ages, the mind is still pliable and can be shaped. It’s not too late.”

Five Supreme Court cases to watch this term

By Dan Fletcher

The U.S. Supreme Court reconvenes for its 2009-10 term on Oct. 5, with most of the attention going to the court’s freshest face, newly confirmed Justice Sonia Sotomayor. But Sotomayor and her eight colleagues won’t have a lot of time for orientation: the court will start immediately on a docket of controversial cases that will call on Justices to consider new facets of the Establishment Clause, gun ownership and prison terms for minors, among other issues. In total, the Justices have already agreed to hear 55 cases in the new term. Here are five to keep an eye on.

Salazar v. Buono
At issue: Whether the government can permit the display of a crucifix on public land as per the Establishment Clause.

An 8-ft.-tall crucifix has stood on an outcrop called Sunrise Rock on the Mojave National Preserve since 1934, but in one of the court’s earliest arguments of the term, the Justices will be asked to consider whether it should be removed. The battle has been brewing for a while — the cross, erected without government approval, was slated for removal by the U.S. National Park Service after a request from Buddhists to create their own memorial near the site was denied. But in 2000, Congress hastily passed a law prohibiting the use of public funds to remove the cross, in essence tying the National Park Service’s hands. Congress declared the cross a National Memorial in 2002, and in 2003 it gave the small parcel of land to the Veterans of Foreign Wars (VFW) — the group that constructed the original cross. (See TIME’s photo-essay “Sonia Sotomayor, the Making of a Judge.”)

The removal of the cross brings up the Establishment Clause, that long-debated line separating church and state that takes its name from the First Amendment (which begins, “Congress shall make no law respecting an establishment of religion”). This case has been in the court system since early 2000, before Congress’s involvement. The National Park Service’s attempt to transfer the land to the VFW, per the 2003 congressional order, has been viewed by the lower courts as an illegal way of circumventing repeated rulings compelling it to remove the cross. (Once the land is considered private property, the Establishment Clause no longer applies.) The Supreme Court will be asked to sort out the issue — and ownership of Sunrise Rock — once and for all.

Maryland v. Shatzer
At issue: The scope of the rights of police suspects, as given in the court’s landmark 1966 decision, Miranda v. Arizona.

In Maryland v. Shatzer, Michael Shatzer was questioned by police about sexual abuse of his 3-year-old child, and after being told he had the right to counsel as part of his Miranda rights, declined to answer any questions without an attorney present. The officer never pursued Shatzer further, but nearly three years later, a different detective questioned Shatzer, at which point he admitted abuse. Shatzer now argues this confession is inadmissible because the second police officer, who was unaware of Shatzer’s original Miranda request, questioned him without an attorney present. (Read “Four Enduring Myths About Supreme Court Nominees.”)

The court has already considered a similar case in 1981’s Edwards v. Arizona, in which the court found admissions made by a suspect without the presence of an attorney, which he had requested, inadmissible. But in Edwards, these admissions were made only a day after the suspect had been given his rights — not nearly three years later. The court will be asked to decide whether to treat their decision in Edwards as a so-called “bright-line” rule — that is, one that would create an absolute standard of police conduct in regard to the Miranda rights, regardless of how much time has passed.

Graham v. Florida / Sullivan v. Florida
At issue: Whether life imprisonment for juveniles on nonhomicide charges constitutes cruel and unusual punishment.

The Eighth Amendment precludes cruel and unusual punishment, but it has long been left to the Supreme Court to define exactly what that term means. This court will be asked to consider it again in a pair of cases on the docket. In Sullivan, the petitioner was 13 years old when he was indicted as an adult and sentenced to life in prison without parole in Florida for sexual assault of an elderly woman. In Graham, a 19-year-old violated his parole by committing attempted armed robbery while on parole for two previous robbery attempts he had committed while he was a minor. He too was subsequently sentenced to life in prison without the possibility of parole.

In making their decision, the court will review its logic in 2005’s Roper v. Simmons, which held that individuals could not be sentenced to death for crimes committed under the age of 18, as the court found that minors had a “lack of maturity.” The petitioners in Graham and Sullivan are arguing for a similar standard for their noncapital offenses.

National Rifle Association v. Chicago / McDonald v. Chicago
At issue: Second Amendment rights to gun ownership.

A pair of cases challenge Chicago’s 27-year-old ban on handgun sales within the city limits. Originally designed to curb violence in the city, the ban has long irked Second Amendment advocates, who take an expansive view of the amendment’s wording that the “right of the people to keep and bear arms shall not be infringed.” But the Supreme Court had long held that the Second Amendment pertained only to federal laws, until a 2008 decision in District of Columbia v. Heller struck down a ban on handguns in Washington, D.C. The ruling marked the first time the Supreme Court acknowledged an individual right to bear arms, and it opened the door for these challenges to the Chicago regulation.

American Needle v. National Football League
At issue: Whether sporting leagues should be exempt from antitrust regulations.

Experts say American Needle may turn out to be the most important legal decision in sporting history. The sportswear manufacturer contracted with NFL teams to produce hats and headgear with official team logos. But the NFL decided to give an exclusive leaguewide license to Reebok in 2000, leading American Needle to sue, claiming the NFL’s action violated the Sherman Antitrust Act by limiting the market for who could produce team-branded merchandise.

The fundamental question for the court to decide is whether the NFL should be considered a single entity or a collection of 32 individual businesses. The answer to this question has repercussions beyond the production of licensed merchandise. If the NFL is considered a single entity, it would largely be exempt from antitrust laws, giving the league not only continued right to grant exclusive licenses for team apparel but also the ability to make decisions on a leaguewide basis. This opens the door to the NFL — rather than individual teams — determining things like ticket prices and player salaries. Indeed, the bargaining power of the NFL Players Union is based on antitrust legislation that the league would largely be immune to if it receives a favorable ruling from the Supreme Court. Other sporting leagues are watching the American Needle case closely; many have filed briefs in favor of the NFL’s position.

Sending children to prison for life


Our laws make allowances for juveniles’ immaturity; judges should too.

By Bernard E. Harcourt

October 5, 2009

This term, the U.S. Supreme Court will hold oral arguments in two cases, Sullivan vs. Florida and Graham vs. Florida, that will decide whether it’s cruel and unusual punishment to sentence a 13-year-old or a 17-year-old to life in prison without the possibility of parole. The court should follow its prior reasoning in Roper vs. Simmons, a 2005 ruling that held the juvenile death penalty unconstitutional, and similarly draw a bright line at 18 years of age for imposing life sentences without parole.

The extreme rarity with which sentences of life in prison without parole are imposed on juveniles — particularly younger juveniles — shows that this punishment is out of step with American values and society. In the United States, only Joe Sullivan in Florida is serving a life-without-parole sentence for a non-homicide offense, committed at 13. That qualifies as “unusual” under any definition of the word.

The other case on this issue to be heard this term, also from Florida, involves a conviction for armed burglary, again not a homicide. Yet Terrance Graham, who was 17 at the time, was given the maximum sentence that a juvenile convicted for murder would receive.

To be sure, we might not always seek legal guidance abroad. But in this case, the international comparisons are telling. No country other than the United States incarcerates children for life without parole. We were the lone “no” vote against the 2006 U.N. General Assembly resolution calling on all nations to abolish such life sentences. Somalia is the only other nation that has not ratified Article 37 of the U.N. Convention of the Rights of the Child, prohibiting juvenile life-without-parole sentences.

The tough-on-crime rhetoric of “lock ’em up and throw away the key” is entirely inappropriate in the case of children. Children’s brains, bodies and personalities are still in the process of growing and changing. And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities. Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent. States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

So why should minors be treated like adults when it comes to sentencing?

Ironically, the same laws that are intended to protect children from exploitation and their own immature judgment — including restrictions on driving, working and leaving school grounds — prevent young teens from escaping an abusive parent, a violent household or a crime-ridden neighborhood. As the Supreme Court observed in the 2005 Roper decision, “juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.”

Juvenile offenders should be given the opportunity to have their sentences reviewed later in life. Parole authorities are equipped to determine whether adolescents have served a significant portion of their sentences, have been rehabilitated and pose no threat to others, and to decide whether they deserve the chance to complete their sentences in the community. As is true with adult offenders, juvenile offenders do not have a right to parole release; they should, however, have the right to be considered for that opportunity.

Under the best of circumstances, criminal sentencing is susceptible to mistakes. The better option is to sentence serious juvenile offenders to life sentences with the possibility of parole, and provide the hope that will encourage them to continue their education and take advantage of programs in prison to rehabilitate and reform themselves. It is cruel and unusual to pass a final judgment on a person whose character and identity are still forming.

Bernard E. Harcourt, a professor of law and of political science at the University of Chicago, is the author of “Language of the Gun: Youth, Crime, and Public Policy.”

Copyright © 2009, The Los Angeles Times

Questions surround start of new Supreme Court term

How will Sonia Sotomayor vote? Is John Paul Stevens soon to retire? Will John Roberts and Samuel Alito be more unabashedly conservative? The term begins Monday.

By Warren Richey | Staff writer of The Christian Science Monitor

from the October 4, 2009 edition

Welcome: Chief Justice John Roberts escorts Justice Sonia Sotomayor after her investiture.

Scott Applewhite / AP

Washington – Transition is the word that perhaps best describes the US Supreme Court’s 2009-10 term set to begin Monday.

The coming year offers an opportunity for court watchers to more clearly define the character of the emerging Roberts Court during Chief Justice John Roberts’s fifth term on the bench. And it presents a chance far superior to the wishy-washy Senate confirmation hearings to finally learn something of the real Sonia Sotomayor, the high court’s newest justice.

Will she be a liberal stalwart or a sometimes ally to the conservatives? If so, in which cases?

The term already includes potential blockbuster cases examining the applicability of Second Amendment gun rights to state and local governments, campaign-finance regulations, life sentences for juveniles, and whether Congress violated the separation of powers when it created an independent accounting oversight board.

The court’s options will reveal more than just legal winners and losers. How these disputes are analyzed and decided by the justices will offer legal scholars important clues about the evolving dynamics within the nation’s highest court.

In addition to the arrival of a new justice, Justice John Paul Stevens’s decision to hire only one law clerk (instead of the usual four) for the 2010-11 term has sparked speculation that he intends to leave the court in June.

Among key trends to watch will be whether Chief Justice Roberts and Justice Samuel Alito decide to put an unabashedly conservative stamp on the high court by joining their conservative colleagues to boldly overturn liberal legal precedents despite earlier pledges of a preference for judicial minimalism.

The broad internal dynamics at the Supreme Court are well established, with four liberal justices and four conservative justices. In the middle, often wielding a tiebreaking fifth vote, is Justice Anthony Ken­nedy, who leans conservative but sometimes swings to the liberal side in big, high-profile cases.

The arrival of Justice Sotomayor is not expected to significantly change this internal dynamic. Analysts say she should fit comfortably into the liberal wing and is expected to vote in ways similar to David Souter, the justice she replaced.

But she is not Souter. That has some liberals worried and some conservatives hopeful. Early in her legal career, Sotomayor worked as a prosecutor in New York City and later as a federal trial judge. Thus she knows intimately the challenges facing law enforcement officials.

When the high court hears a major case this term on whether police must give precise Miranda warnings before interrogating suspects, court watchers will want to see which Sotomayor votes in the case. Will it be the Latina civil rights activist concerned with defendants’ rights, or the former big-city prosecutor concerned with helping the system fight crime and protect victims?

Thomas Goldstein, a lawyer who has often argued before the Supreme Court, says the departure of Mr. Souter and potential retirement of Justice Stevens could result in the court being nudged to the right. This is because their liberal replacements may not command the same respect that allowed Stevens and Souter to sometimes persuade Justice Kennedy to swing to the left.

“When that relationship is broken and you introduce somebody new into the equation, they can’t possibly be as persuasive,” Mr. Goldstein said in a recent panel discussion at the Cato Institute. “I think the ironic effect of new appointments replacing Justices Stevens and Souter will be to see the court gravitate to the right.”

On Roberts and Justice Alito, analysts are awaiting the court’s decision in a potential landmark campaign-finance case heard during a special argument session Sept. 9.

At issue in Citizens United v. Federal Election Commission is whether corporations can be barred from spending their treasury money on politically related advertisements during federal election season. The FEC, citing a 2002 campaign-finance law, said yes. Citizens United, a conservative nonprofit advocacy group, said the move amounted to government censorship.

Roberts’s and Alito’s positions in the case are being scrutinized because the justices were confronted with a similar issue in 2006 and refused to join their conservative colleagues in overturning the underlying legal precedents. Now they are being encouraged to take that step again.

Any move to strike down a portion of Congress’s 2002 campaign-finance law and an earlier 1990 Supreme Court precedent will be portrayed by liberal critics as a particularly aggressive assertion of power by the high court’s conservative wing. And it could be a defining moment for the emerging Roberts Court.

But it won’t mean the conservatives will win every big battle at the Supreme Court. With the general 4-to-4 conservative-liberal split on hot-button cases, Kennedy continues to hold the power to decide many of America’s most contentious disputes.

One such case involves two Florida teens who are serving life sentences for crimes they committed as juveniles. At issue in Graham v. Florida and Sullivan v. Florida is whether the Eighth Amendment’s ban on cruel and unusual punishment bars Florida from keeping the young men imprisoned for the rest of their lives without any possibility for parole. At age 13, Joe Sullivan raped and robbed a 72-year-old woman. Terrance Graham committed a series of armed robberies at ages 16 and 17.

Kennedy will probably be the deciding vote in the case. In 2005, he provided the key vote to declare the juvenile death penalty unconstitutional. The question in the case is whether the same reasoning applies in the circumstances of the two Florida teens.

Free speech is also on the court’s radar this term. At issue in US v. Stevens is whether Congress has the power to ban possession and distribution of images of animal cruelty, such as pit bull fights. A Virginia man was charged under a 1999 federal statute for including footage of a dogfight in Japan (where such fights are legal) in a documentary film he produced and distributed in the US. The central question is whether the First Amendment protects such depictions.

In another Florida case, the justices have agreed to examine a property rights dispute in which owners of seafront property complain that the state used a beach renourishment program to strip them of their legal rights as waterfront property owners.

Under the Flor­ida plan, sand was pumped onto the beach and the state claimed the new dry land for itself. Private waterfront property suddenly became landlocked.

A state appeals court ruled that the owners were due just compensation from the state, but Florida’s Supreme Court upheld the state action.

In US v. Comstock, the court will examine a federal law that allows the government to hold alleged sexual predators indefinitely in protective custody once they are deemed to be “sexually dangerous,” even after they have served a full criminal sentence.

Major Supreme Court cases this term


Published: October 4, 2009

WASHINGTON — In addition to an outsize emphasis on business cases, the new Supreme Court term, starting Monday, will feature an array of other important cases, including ones concerning the First and Second Amendments, Congressional power and criminal law.

Joe Sullivan, 33, is 20 years into a life sentence. He is one of two from Florida asking the Supreme Court to review life sentences without parole that they received as teenagers.

Criminal Law

In a pair of cases from Florida, the court will consider whether the Eighth Amendment’s ban on cruel and unusual punishment forbids sentencing juvenile offenders to life in prison without the possibility of parole. In one of the cases, Sullivan v. Florida, No. 08-7621, the defendant was convicted of committing a rape at age 13; in the other, Graham v. Florida, No. 08-7412, the defendant was convicted of an armed robbery at age 16.

In 2005, the Supreme Court banned the execution of juvenile offenders on the theory that adolescents are unformed, susceptible to peer pressure and capable of change. The defendants in the new cases say that logic should also apply to sentences of life without parole.

The 2005 decision, Roper v. Simmons, drew on foreign and international law, finding that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Human rights groups say the United States is also alone in sentencing young teenagers to die in prison.

A case concerning the Constitution’s confrontation clause, Briscoe v. Virginia, No. 07-11191, will test the practical implications of a major decision from June. That decision, Melendez-Diaz v. Massachusetts, held that prosecutors may not rely on crime lab reports in criminal trials unless they also make the analysts who prepared the reports available to testify.

The Melendez-Diaz decision was decided by a 5-to-4 vote, and it featured some unusual alliances. Three of the court’s more liberal justices, including Justice David H. Souter, joined Justices Antonin Scalia and Clarence Thomas, the two justices committed to applying the original meaning of the Constitution. That coalition, in an opinion written by Justice Scalia, said the Sixth Amendment’s requirement that a defendant “be confronted with the witnesses against him” required testimony from the analysts.

The dissenters predicted that the ruling would create a “crushing burden” on the justice system. The new case concerns a challenge to a Virginia law that could limit the impact of Melendez-Diaz. The law allows prosecutors to present crime lab reports without accompanying testimony but gives defendants the right to call the analysts as their own witnesses.

The case will give an early indication of whether Justice Sonia Sotomayor, the court’s newest member and a former prosecutor, will diverge from the approach that her predecessor, Justice Souter, took to criminal cases.

Congressional Power

United States v. Comstock, No. 08-1224, concerns the practice of keeping sex offenders in federal prisons locked up after they have completed their sentences on the ground that they remain “sexually dangerous.”

The appeals court in the case ruled that none of the powers granted to Congress in the Constitution authorized it to call for the civil commitment of people said to be “sexually dangerous.” The case does not involve the separate question of whether state prisoners may be held on similar grounds after they have served their sentences.

First Amendment

A cross in the Mojave National Preserve in California that was erected more than 70 years ago as a war memorial is at the center of Salazar v. Buono, No. 08-472. After a federal judge ruled that the cross violated the Constitution’s ban on government establishment of religion, Congress transferred the acre of land on which it sits to private ownership, creating what an appeals court called “a little doughnut hole of land with a cross in the midst of a vast federal preserve.”

The Supreme Court case does not directly concern the fundamental question of the constitutional status of the cross. Instead, the justices will consider whether the plaintiff, Frank Buono, had standing to object and whether the transfer arrangement fixed the constitutional problem.

The most important free-speech case of the new term is United States v. Stevens, No. 08-769. It concerns a 1999 federal law that bans commercial trafficking in “depictions of animal cruelty.” The defendant in the case, Robert J. Stevens, was sentenced to 37 months in prison for selling videos of dogfights and of dogs attacking pigs. The court has not identified a category of speech beyond the protection of the First Amendment, since it upheld a law prohibiting the distribution of child pornography in 1982.

Second Amendment

The court on Wednesday agreed to decide a question left open in last year’s big Second Amendment case, District of Columbia v. Heller, which ruled that the amendment protects an individual right that the federal government may not abridge. The question in the new case, McDonald v. City of Chicago, No. 08-1521, is whether the amendment also applies to state and local governments.

The Supreme Court returns


Published: October 4, 2009

The Supreme Court starts its new session this week with cases on its docket that could reshape the law in campaign finance, gun control and sentencing for juvenile crimes, and with the first new Democratically appointed justice in 15 years. That newest member, Justice Sonia Sotomayor, has been getting a lot of attention, but Justice Anthony Kennedy is likely to continue to wield the real power, on the most controversial issues.

Among the most anticipated cases so far are two that raise the question of whether it is constitutional to sentence juvenile offenders to life without parole. One of the defendants was just 13 when he raped an elderly woman in her home — an appalling and brutal crime, but one that did not involve homicide. We should not be giving up on a person for an act committed at 13. A few years ago, the court ruled that the death penalty for juvenile offenders amounted to cruel and unusual punishment. It should extend that reasoning to these cases.

The court has also agreed to hear the case of a man prosecuted for selling videos of dogfights, in which he was not involved. A federal appeals court ruled that his conviction violated the First Amendment. Animal abuse videos are truly loathsome, but the right approach is to criminalize animal cruelty, as all 50 states do, and not to infringe on free speech.

Following on a major case from last year in which the court struck down parts of the District of Columbia’s gun control law, the justices have decided to consider whether state and local gun control laws can also be challenged under the Second Amendment. The court should not use the case to prevent states and localities from enacting reasonable restrictions on guns.

The court will hear a First Amendment challenge to a cross that stands on land in California that once belonged to the federal government. The government gave the land to a private group to get around a court order that the cross violated the prohibition on state support for religion. The court should rule that despite the land transfer, the cross is unconstitutional.

The docket is heavy with business cases. One asks whether a way of hedging financial risk can be patented. Patents should be limited to more physical creations.

The most important business case, however, is one the court heard last month. In Citizens United v. F.E.C., the court could wipe out a longstanding ban on corporate spending on federal elections, which would allow big business to swamp democracy. We hope the court will avoid such recklessness, and rule narrowly.

The Citizens United argument marked Justice Sotomayor’s debut and she asked several questions that cut to the heart of the matter. A new justice always changes the dynamic of the court, but in ideologically charged cases, Justice Sotomayor’s positions are likely to be similar to those of Justice David Souter, whom she replaced.

That means the court is likely to remain divided between four moderate-liberals and a very conservative bloc of four, with the moderate conservative Justice Kennedy providing the swing vote. Barring any new changes in the Supreme Court’s composition, or any sudden changes of heart among the sitting justices, the law on many issues is likely to be, as it has been for several years now, what Justice Kennedy says it is.

Justice Sotomayor, veteran justices face cases on a cross, juveniles

By Patricia Zapor – Catholic News Service

Friday, 02 October 2009

The Supreme Court opens its 2009 term Oct. 5 with a new justice and cases dealing with at least one religious rights issue — about a cross on a war memorial in a federal preserve — and other cases about the circumstances leading to deportation, about an immigrant in detention being denied medical care and several dealing with the sentencing of convicted criminals.

The court also agreed to take another case about gun rights, following last term’s ruling that overturned a Washington municipal ordinance prohibiting gun ownership.

Still up in the air before the first session of the new term was whether the court would hear an appeal by the Diocese of Bridgeport, Conn., of the Connecticut Supreme Court’s order in May that it release thousands of pages of documents related to settled lawsuits over charges of sexual abuse by priests.

Justice Sonia Sotomayor’s first day on the court actually came in September, when the justices reheard an election campaign spending law case carried over from the 2008 term. But her first day during a regular session Oct. 5 starts with cases dealing with a water dispute between the states of North Carolina and South Carolina, a question over attorney-client privilege, and interrogation of a criminal suspect.

Sotomayor was confirmed to the court this summer, replacing retired Justice David Souter. The New York native is the sixth Catholic currently sitting on the nine-member court. The child of parents who moved from Puerto Rico, she’s also the first Hispanic and just the third woman justice in the history of the high court.

In the first week of the new term, the court will hear Oct. 7 Salazar v. Buono, which challenges the 9th U.S. Circuit Court of Appeals decision ordering the federal government to no longer permit a cross, erected as a war memorial in 1934, to be displayed on public land.

The Veterans of Foreign Wars put a cross on a rock in an isolated part of the 1.6 million-acre Mojave National Preserve in San Bernardino County, Calif., as a memorial to those killed in World War I. The monument, which has been replaced several times by private organizations or individuals, is quite remote, visible only from a little-used side road.

But a retired National Park Service employee, Frank Buono, challenged the cross’s placement on federal land. Lower courts agreed with his argument that its presence in the reserve gives the inappropriate impression of government endorsement of a religious message. The cross remains on the rock but has been covered since the court ruling.

The case has attracted amicus, or friend of the court, briefs weighing in on one side or the other from dozens of groups representing religious, First Amendment, civil rights and veterans organizations, as well as those representing atheists, military and some police organizations.

An act of Congress in response to Buono’s lawsuit and other challenges provided for the land where the cross stands to be transferred to private ownership in a swap. The lower courts stopped that exchange from taking place, arguing that a “doughnut hole” of private land amid a vast tract of government property would not appear any different to a passer-by, who might conclude it was a federally sanctioned display.

The question of prison sentences for juveniles has also attracted interest from church-related organizations. Joe Harris Sullivan and Terrance Jamar Graham were both sentenced by Florida courts to life imprisonment without parole, for crimes committed when they were 13 and 17, respectively.

In separate cases being heard jointly by the court Nov. 9, Sullivan and Graham challenge their sentences as cruel and unusual punishment. A 2005 Supreme Court ruling struck down the death penalty for juveniles, finding in part that for young people, with more limited judgment than adults, the practice constitutes cruel and unusual punishment.

Among the groups advocating for the life sentences to be overruled are former juvenile offenders — including actor Charles Dutton, who first went to juvenile reform school at 13 and to prison for manslaughter at 17 — who argue that they are examples of the value of giving juveniles the chance to turn their lives around.

The American Catholic Correctional Chaplains Association is one of two dozen faith groups and religious leaders that submitted another brief arguing to overturn life sentences for juveniles.

A case being followed by immigrants’ advocates, many of whom are in Catholic and other faith-group-sponsored legal services offices, seeks to hold federal medical workers responsible for the care of a man whose cancer was allowed to advance untreated. Despite his complaints of pain, Francisco Castaneda, a Salvadoran immigrant, went untreated so long when he was in a California prison and then in federal immigration detention that he died at age 36, shortly after his release when a doctor finally diagnosed penile cancer.

The cases, Migliaccio v. Castaneda and Henneford v. Castaneda, also paired by the court, challenge the Federal Tort Claims Act, which bars damages against individuals working for the federal government and otherwise limits claims for negligence against the government. The paired case will be heard after the first of the year.

In the last few years, news reports have uncovered dozens of deaths and many other claims of poor medical care in immigration detention. Late in the Bush administration and again since President Barack Obama took office, changes in procedures and new oversight systems have been announced for how immigrants are treated in detention.

Two other cases deal more directly with immigration. Padilla v. Kentucky raises the question of whether immigrants must be provided with advice about the possible ramifications of criminal cases on their immigration status. It revolves around a Honduran immigrant’s criminal charges for drug-related crimes and his subsequent deportation proceedings.

On the advice of his attorney, Jose Padilla, a legal immigrant and veteran of the U.S. military, pleaded guilty to criminal charges. Although his attorney told him otherwise, the guilty plea triggered deportation proceedings. The court will be asked to consider the obligations of legal counsel in such cases and whether the faulty advice of Padilla’s attorney constitutes grounds for setting aside his guilty plea. The case will be heard Oct. 13.

In Kucana v. Holder, being argued Nov. 10, the court will be asked to evaluate the oversight procedures for government decisions in immigration cases.

Rulings in all the cases are expected before the court adjourns next summer.

Supreme Court to consider juvenile ‘lifers’

Does life without parole for minors who didn’t kill constitute cruel and unusual punishment?

By David G. Savage

September 28, 2009

Reporting from Washington –

Joe Sullivan was 13 years old when he and two older boys broke into a home, where they robbed and raped an elderly woman. After a one-day trial in 1989, Sullivan was sentenced to life in prison with no chance for parole.

Terrance Graham was 16 when he and two others robbed a restaurant. When he was arrested again a year later for a home break-in, a Florida judge said he was incorrigible. In 2005, Graham received a life term with no parole.

The two young convicts represent an American phenomenon, one the Supreme Court is set to reconsider in the fall term that opens Oct. 5. At issue is whether it is cruel and unusual punishment to imprison a minor until he or she dies when the crime does not involve murder.

According to Amnesty International, “The United States is the only country in the world that does not comply with the norm against imposing life-without-parole sentences on juveniles.”

Nearly all of the estimated 2,500 U.S. prisoners serving life terms for juvenile crimes, the group said, were guilty either of murder or of participating in a crime that led to a homicide. But 109 inmates are serving life sentences for other crimes committed when they were younger than 18.

Sullivan’s and Graham’s lawyers do not claim the young men deserve to go free.

“We are not asking for Mr. Graham to be released any time soon,” attorney Bryan Gowdy said. “We are asking the court to declare unconstitutional a sentence of life without parole for these crimes. It would be entirely different if Mr. Graham had a meaningful opportunity for parole.”

The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court’s tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.

Sullivan’s and Graham’s cases will be heard in November. Many lawyers and prosecutors said that until the Supreme Court agreed this year to take up the issue, they were unaware of juveniles receiving such sentences.

Sullivan, now 33, has been in prison for 20 years. The Florida appeals court and the state Supreme Court refused to review his sentence. When his case reached the U.S. Supreme Court, Florida Atty. Gen. Bill McCollum said the appeal should be dismissed on the grounds that it was too late to raise the issue of cruel and unusual punishment.

A lawyer for Graham has called his client’s life sentence freakish and unfair. A second youth who participated in the restaurant robbery hit an employee with a club. He was later arrested for robbing a gas station and sentenced to three years in prison. He has since been released.

Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one.

“This is a hidden group. They don’t get a lot of attention because there was no homicide,” said Paolo Annino, a law professor at Florida State University who has compiled national data on these prisoners.

California officials said they were unaware of having four such inmates until they checked their database at Annino’s request. Two years ago, California joined many other states in prohibiting the sentencing of young offenders to life in prison.

But that measure did not affect inmates who had already been sentenced.

Annino and others point to two trends in the 1980s that led to juveniles serving life terms. First was the national move to abolish parole, reflecting fears that violent criminals could not be safely released. Second was the increased prosecution of young criminals as adults.

In defense of its life-in-prison policy, Florida’s lawyers have pointed to several deadly attacks on European visitors carried out by young criminals.

These violent incidents were “threatening the state’s bedrock tourism industry,” Florida’s lawyers said in the opening paragraph of their brief to the Supreme Court in the Graham case.

Life Sentence for Juveniles? (Letter to the editor)

To the Editor:

Re “Justices Agree to Take Up Life-Without-Parole Sentences for Young Offenders” (news article, May 5):

There are currently almost 2,500 people serving sentences of life without parole for crimes committed before age 18. Fifty-nine percent received their sentences for their first-ever criminal conviction. Sixteen percent were between 13 and 15 when they committed their crimes, and 26 percent were sentenced under a felony murder charge where their offenses did not involve carrying a weapon or pulling a trigger.

Our society recognizes that juveniles differ from adults in their thinking, reasoning and decision-making capacities. Research also demonstrates that adolescents actually use their brains in fundamentally different ways from adults. As a result, they are more likely to act on impulse, without fully considering the consequences of their actions.

This fall, the Supreme Court will decide if juvenile offenders should be eligible for life without parole. One hopes they will concur with the growing public sentiment that it’s time to stop sentencing young people to die in jail.

David Fassler
Burlington, Vt., May 5, 2009

The writer is a clinical professor of psychiatry at the University of Vermont.

Original link: http://www.nytimes.com/2009/05/12/opinion/l12juvenile.html