Tuesday, April 26, 2016

Mental Culpability at Issue Before the NY Court of Appeals

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil...[It is] almost as instinctive as the child's familiar exculpatory 'But I didn't mean to.'
Morissette v. U.S. (1952), Justice Robert Jackson

[T]his established concept has influenced our interpretation of criminal statutes...'even where the statutory definition did not in terms include it.' ....[T]he Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state--ignorance of the characteristics of weapons in their possession--makes their actions entirely innocent.
Staples v. U.S. (1994), Justice Clarence Thomas

[A] "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability" (Penal Law § 15.15[2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability" only when a mental state "is required with respect to every material element of an offense" (id.).
People v. Ryan (1993), Chief Judge Judith Kaye

The case before the Court of Appeals, People v. Elliot Parrilla, argued on March 30th, raises precisely these concerns. The Court is reviewing a conviction for criminal possession of a gravity knife.
Not for possession of  a butter knife or a Boy Scout knife. But a gravity knife. It's the gravity aspect that makes it a crime.

Now, related to this Parrilla case, and with Morissette, Staples, and Ryan in mind, let's consider the following:
To be guilty of stealing, must the person be aware that the property belongs to someone else--that it's not free for the taking?
To be guilty of possessing stolen property, must the person be aware that the property is stolen--that it wasn't purchased from the owner?
To be guilty of possessing a narcotic drug, must the person be aware that it's a narcotic drug--that it's not simply aspirin?
To be guilty of possessing an automatic weapon, must the person be aware it's an automatic--that it's not a single shot firearm?

The answer to all of those, of course, is yes.
The person must be aware. Must know.
At the least, the person must be aware that there's a good chance, have a real suspicion.
The person must know, or know that there's a chance, that the property belongs to someone else. That the property is stolen. That it's not aspirin. That it's not a single shot firearm.

That is the point of the Morissette and Staples and Ryan decisions.
Mental culpability is an crucial component of criminality.
Crime is not just about "What was he doing?" But also, "What was he thinking?"

That's what lawyers refer to as mens rea, the mind thing. [The Latin, as usual, sounds alot better!] That mens rea, mental culpability, is just as necessary a component of criminality as the person's action.

This is true for the most serious crimes as well as for others.
So, for example, a hunter is not guilty of murder for shooting and killing what looked like a deer, but was actually a human in camouflage. Not if the hunter had no idea.
Yes, the hunter intended to shoot. Yes, the hunter intended to kill. Yes, the hunter's target was what turned out to be a human. But he didn't know it was a human. Not guilty!
(Indeed, even the least egregious forms of human killing--e.g., negligent homicide, however that crime might be labelled--at least requires the mental culpability that the person should have known.)

In Morissette, the defendant was found guilty of stealing government property.
Did he know that he was taking something? Yes.
Did he know (or was it shown that he knew) that the property belonged to the government? No.
But did the prosecution argue that the defendant only needed to know that he was taking the property in order to be guilty (but not that he knew that the property belonged to the government)? Yes.
Did the Supreme Court reverse and (speaking through Albany Law School's Justice Robert Jackson) forcefully reaffirm that mental culpability regarding an essential element--i.e., the gravamen of the crime, that the property belonged to the government--is necessary for criminal responsibility? Yes!
And that was so even though the statute was silent on that point.

In Staples, the defendant was convicted of illegal possession of an automatic firearm--one that fires repeatedly with a pull of the trigger.
Did he know he possessed the firearm? Yes.
Did he know (or was it shown that he knew) that it was an automatic? No.
But did the prosecution argue that the defendant only needed to know that he had the firearm in order to be guilty (but not that he knew that it was an automatic)? Yes.
Did the Supreme Court reverse and unanimously reaffirm that mental culpability regarding an essential element--i.e., the gravamen of the crime, that the firearm was an automatic--is necessary for criminal responsibility? Yes!
And that was so even though the statute was silent on that point.

In Ryan, the defendant was convicted of an aggravated drug offense, based on the large quantity of the illegal hallucinogen.
Did he know about the illegal hallucinogen? Yes.
Did he know (or was it shown that he knew) anything about the large quantity of hallucinogen, which made the crime an aggravated one? No.
But did the prosecution argue that the defendant only needed to know about the hallucinogen in order to be guilty (but not that he knew anything about the quantity)? Yes.
Did the New York Court of Appeals reverse and (speaking through Chief Judge Kaye) hold that mental culpability regarding an essential element--i.e., the large quantity of hallucinogen, which was the basis for the aggravated form of the crime--is necessary for criminal responsibility for that crime? Yes!
And that was so even though the statute was silent on any mens rea on that point.

In all 3 cases--Morissette, Staples, and Ryan--a mens rea, mental culpability, for the essential element at issue was considered especially imperative because of the heavy penalty attached to the crime, as well as the the stigma of a felony conviction. In each case, the crime involved was punishable by several years imprisonment, and a conviction was seriously stigmatizing.
(These factors distinguished those crimes from the quasi-criminal regulatory or public welfare offenses for which the penalties are relatively light, from which there is no such stigma, and which the courts have thus exempted from the mens rea requirement. [E.g., restaurant regulation infractions, routine traffic offenses, violation of a noise ordinance, etc.])

In Parrilla, the case currently before the Court of Appeals, the lower courts ruled that guilt of the possessory crime involved did not require any mens rea for the essential element--the element that actually made it a crime.
So, according to those courts, criminal possession of a gravity knife did not require that the defendant knew it was a gravity knife--or even that he knew it might be a gravity knife (i.e., recklessness) or should have known it might be a gravity knife (i.e., mere negligence). No, according to the trial judge and then the intermediate appeals court, a person could be guilty of that crime with absolutely no clue that it was a gravity knife.

Yes, according to those courts, a person must know that he possessed something (as opposed to someone else having secretly placed that something in his coat pocket).
Yes, a person must know that what he possessed was a knife (as opposed having no reason to believe that the item had a blade).
And yet no, according to those courts, a person does not have to know--or suspect or even should have suspected--that the knife was a gravity one.
That single element--that it is a gravity knife--which transforms the possession of a knife into a crime, i.e., the very gravamen of that crime, requires absolutely no mental culpability? It's a strict liability crime?

Consider also that the crime of which the defendant was convicted in Parrilla is a class D felony, punishable by up to 7 years imprisonment. (The fact that the defendant "ha[d] been previously convicted of any crime" elevated the crime from a class A misdemeanor and enhanced the punishment from 1 year imprisonment.)
Additionally, criminal possession of  a dangerous weapon, especially one like a gravity knife that is frequently associated with violent individuals and gangs, is precisely the sort of stigmatizing crime that, as Justice Jackson wrote in Morissette, "stir[s] a sense of insecurity in the whole community and arouse[s] public demand for retribution."

All in all, consideration of this crime raises the most fundamental questions about mental culpability as a essential component of criminal responsibility:
  • Possession (Knowledge required.)  + Knife (Knowledge required.) + Gravity type (Knowledge or even reason to know required?)
  • No clear indication by the legislature that strict liability was intended.
  • Serious punishment attached.
  • Stigmatizing crime.
The considerations seem pretty compelling for requiring mens rea, mental culpability, for the essential element of gravity type knife. That element is the gravamen of the crime. It's what makes the possession a crime. It's what makes the possession deserving of punishment. Mens rea, mental culpability for that element would certainly seem imperative. 

Of course, the Court of Appeals might view the issue quite differently.
If it does, however, it would seem that the Court must clearly set forth some overriding rationale and interests that justify dispensing with such a crucial component of our criminal law.

Monday, April 25, 2016

THE SEVEN: About the Court, By the Court - 2016 Cooke Symposium, April 26


See the 2015 Cooke Symposium - High Courts, Center Seat: Chief Justices at Albany Law 
NY Chief Judge Lippman Moderates Chief Justices at Albany Law, Monday, March 23, 2015. HERE

More information on State Constitutional Commentary and the Cooke Symposia in previous years, HERE.

Thursday, April 21, 2016

Justice Scalia's Record (Part 6: Technological Surveillance)

One additional look at Justice Scalia's record. Then we'll move on. Besides the Supreme Court, there's much to discuss about the New York Court of Appeals--now the "DiFiore Court" with a near total change in personnel. But first, let's conclude this series with a look at a particularly salient and--How should I say?--curious aspect of Scalia's jurisprudence.

photo:Sang H. Park/AP 
Any consideration of Justice Antonin Scalia's record must include his views on technology. More specifically, the positions he espoused on the use of technological devices by law enforcement in criminal investigations.

He was the author of the majority opinion in two of the Supreme Court's most important decisions in recent years on technological surveillance. The cases dealt with the validity of such surveillance undertaken without a warrant. If the surveillance in question constituted a "search" within the meaning of the 4th Amendment, then law enforcement was required to first obtain a warrant.

Each of Scalia's opinions was controversial. They raised questions not simply about the ultimate conclusions he reached, but much more so about the constitutional arguments he advanced. Let's take a look.

Surveillance
U.S. v. Jones (2012): the Court unanimously held that the government violated the 4th Amendment when it monitored a person's movements for 4 weeks, without a warrant, by means of a GPS (Global Positioning System) device that it surreptitiously attached to his vehicle.
Justice Scalia wrote the opinion for the Court, which 4 other Justices joined. He took the position that the surveillance in question was a "search"--thereby requiring a warrant--because 1) the government had engaged in a trespass on 2) an item specifically mentioned in the 4th Amendment. According to Scalia, the government trespassed on the defendant's vehicle when it attached the GPS device without his permission. And the item trespassed upon--i.e., a vehicle--is an "effect," which is a term specifically used in the 4th Amendment. [The 4th Amendment specifically mentions "persons, houses, papers, and effects."]
Justice Alito authored a separate concurring opinion which 3 other Justices joined. He harshly criticized Scalia for relying on the "18th century tort law" of trespass to decide a constitutional issue about 21st century technological surveillance. He argued that the case should have been decided on the basis of the Court's actual search and seizure jurisprudence which asks "whether [a person's] reasonable expectations of privacy [are] violated by the long-term monitoring of the vehicle he drove."
Alito emphasized that the Court had long ago rejected a trespass-based view of search and seizure rights, as well as a rigid limitation to the places enumerated in the 4th Amendment--that the landmark 1967 Katz decision (and the Court's case law ever since) repudiated the old doctrines and focused on the "unjustifiable intrusion by the government on the privacy of the individual" [quoting Justice Brandeis's venerated and vindicated dissent in the 1928 Olmstead case].
Most critically, perhaps, Alito highlighted the fact that much, if not most, technological monitoring can be accomplished today without any technical trespass--i.e., by electronic as opposed to any physical contact.
According to Alito and the Justices joining him, the government's warrantless surveillance violated constitutional search and seizure rights, not because there was some minimal "trespass" or "physical intrusion" on a vehicle, but because of the intrusion on legitimate privacy interests.
Responding to Alito's concurring opinion, Scalia repeated his position that the 4th Amendment "embod[ied] a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates." Moreover, the Court had "deviated from that exclusively property-based approach [my emphasis]" when it adopted the Katz expectation of privacy test and "said that 'the Fourth Amendment protects people not places.'"
Scalia also took issue with the notion that mere monitoring of a person's movements implicates the 4th Amendment. The Court, he insisted "has to date not deviated from the understanding that mere visual observation does not constitute a search [again, my emphasis]." To prove his point, Scalia referred to previous decisions where the Court had held that surveillance of a driver's movements did not constitute a 4th Amendment "search." The reason, according to Scalia, was that in those cases the technological device was actually attached to property that did not belong to the driver--so there was no trespass.
Finally, as to his insistence on limiting constitutional protection to trespasses upon the items or places explicitly mentioned in the 4th Amendment, Scalia argued that the text of that Amendment itself "reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers, and effects' would have been superfluous." By way of example, he noted that the Court has repeatedly refused to apply the 4th Amendment to privately owned land away from one's home (i.e., so-called "open fields")--but only to the "houses," which the text does mention.

Florida v. Jardines (2013): in this case, Scalia employed the same analysis to police use of a drug-detection dog. In a 5-4 decision, the Court ruled that the 4th Amendment was violated when the police, without a warrant, brought the dog to a homeowner's porch to investigate the presence of marijuana--which the dog did detect.
Writing for the majority, Scalia relied on his Jones opinion. As with the GPS device attached to someone's vehicle in that case, Scalia explained that the police had "physically intru[ded]" with the canine on a place "enumerated in the [4th] Amendment's text." Although the Court had repeatedly held that canine-sniffs themselves were not "searches" withing the meaning of the 4th Amendment [among other reasons because they only detected contraband, not anything constitutionally protected], in this case the government had "gather[ed] information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself."
Scalia contrasted the search in this case with others which the Court had deemed outside the 4th Amendment's protections. One was the investigation of private property beyond the immediate area of a home, and another was the visual observation of the home from airspace. The first was not constitutionally restricted because private lands are not "houses;" the second because there was no physical intrusion, i.e., no trespass.
Justice Kagan, writing for herself and two other Justices, concurred in Scalia's opinion. But she explained that the case could--seems like she meant should--have been decided under the Katz rubric of "reasonable expectation of privacy." Aiming "high-powered binoculars" at a home to discover what's inside would be a search because, even without a trespass, it would still be an invasion of protected privacy.
Justice Alito, in a dissenting opinion joined by 3 other Justices, argued that the use of the drug-detection dogs did not violate the 4th Amendment. Indeed, the Court had already decided that a canine-sniff was not a "search" under Katz, because it did not invade a legitimate expectation of privacy.
But beyond that, Alito contended that Scalia's majority opinion "is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence." According to Alito, Scalia was "unable to find a single case—from the United States or any other common-law nation—that supports the rule on which its decision is based. Thus, trespass law provides no support for the Court’s holding today."

Technological Devices
Kyllo v. U.S. (2001): the Court, 5-4, held that the warrantless use of a thermal-imaging device, aimed at the marijuana-growing suspect's house from across the street, in order to detect heat emanating from his the roof, violated the 4th Amendment. [The division among the Justices was actually over the esoteric question of whether the information being obtained by the device was outside the house (the heat coming off the roof) or inside the house (the marijuana-operation that was creating the heat). The latter scored one more vote than the former.]
In his majority opinion, Scalia relied on a few major premises. First, a house is a constitutionally protected area, i.e., specifically enumerated in the 4th Amendment. Quoting from prior Supreme Court case law, he emphasized that "'the very core' of the Fourth Amendment was 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'”
Second, Scalia analogized the use of the thermal imaging device to a trespass into the house. He insisted that the device was being used to obtain "information regarding the interior of the home," information that "could not otherwise be obtained without physical 'intrusion' into" the home [my emphases].
Finally, Scalia expressed concern that the "degree of privacy secured" by the 4th Amendment was being eroded by advancing technology. He nevertheless drew the line of constitutional protection at "technology [that] is not [yet] in general public use." And "on the basis of this criterion," the government's use of a thermal imager was a search.
Putting it all together, Scalia concluded that, "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant [my emphases]."

[Disclosure: I agree with the result reached by Justice Scalia in each of these cases. But the analysis used by the Justices to support a decision is typically far more important than the particular result reached in a particular case. It is the analysis that will then be applied by lower courts and by the Supreme Court itself in resolving related issues that they confront thereafter. And with regard to Scalia's analysis, I disagree with it in every case.
His trespass analysis dangerously limits the constitutional protection of privacy under the 4th Amendment--the protection that the Supreme Court expressly outlined in its landmark Katz decision a half century ago. [And which Justice Brandeis did 40 years before that.] Indeed, as Justice Alito stressed in his concurring opinion in Jones (the GPS case), most technological surveillance that intrudes on individual privacy does not require any trespass or any other physical intrusion. Just consider: tracking by means of cell phone towers, following by means of drones or helicopters, scrutiny by means of cameras, snooping by means of high-powered binoculars, eavesdropping by means of audio amplifiers, etc., etc., etc. If trespass analysis was ever an adequate basis for constitutional adjudication, it certainly is not in the modern world.
Similarly, Scalia's insistence on the textual limits of the 4th Amendment's enumerated items undermines what has long been recognized as the fundamental principle underlying search and seizure rights--protecting "people not places." That is, securing the personal privacy essential in a free society, not merely protecting the physical interests in the items specifically mentioned. Note well, private property--other than "house"--is not mentioned. Likewise, private conversation is not mentioned. Neither is a person's movements or whereabouts. Indeed most of what people in a free society would consider to be private, whether places or conduct, is not mentioned.
Then there's Scalia's limited protection to technology that is "not in general public use." Of course, the technology that is in common use has been expanding exponentially and will continue to do so. May any of it be used by the government with impunity? Yes, according to Scalia's formula. From binoculars and other visual enhancing devices, to audio amplifying devices (regularly advertised, readily available, and widely used), to drones, etc., etc., etc.--as technologies advance and become more readily available, personal privacy protection under the Constitution diminishes drastically under Scalia's formula. 
Personally, I do not foresee any of these analytical approaches of Scalia enduring.]

So this concludes the series on Justice Scalia's record.
As I said at the outset, I certainly hope he is resting in peace and that he has reached the heavenly afterlife in which he apparently believed.
Beyond that, if there is such an afterlife, I presume that Justices Louis Brandeis (Olmstead dissent) and John Marshall Harlan II (Katz concurring opinion) are explaining to him, much better than I could, the errors of his privacy jurisprudence.

Monday, March 28, 2016

Justice Scalia's Record (Part 5: Punishment)

Back from spring break and the Easter holiday. Yes, the big news concerning the high court is President Obama's nomination of federal appeals court judge Merrick Garland to fill the Scalia vacancy. As we continue with the examination of  Justice Scalia's record, readers who are eager to learn more about Judge Garland might want to take a look at 2 posts on New York Court Watcher from 2010 (Merrick Garland [1] & Merrick Garland [2]) and listen to an interview last week on Susan Arbetter's Capitol Pressroom [@ ~21:50 mins]).

photo: AP/Manuel Balce Ceneta
The 8th Amendment prohibits "cruel and unusual" punishments. Justice Antonin Scalia viewed that prohibition as outlawing only punishments that are both extremely gruesome and extremely rare. Applying those criteria, he voted to uphold the 8th Amendment constitutionality of whatever sentence came to the Court for review.

A look at a few cases in which Scalia participated and wrote an opinion will illustrate his rather narrow and unyielding perspective on what qualifies as "cruel and unusual."

Punishment
Harmelin v. Michigan (1991): the 5-4 majority held that a life sentence, without the possibility of parole, for possession of 650 grams of cocaine was not unconstitutionally excessive.
Three Justices in the majority concluded that the sentence was not so excessive as to be "cruel and unusual."
Four dissenting Justices viewed the sentence as so disproportionate that it did violate the 8th Amendment.
That made 7 of the 9 Justices who agreed that the "cruel and unusual" prohibition of the 8th Amendment did include an excessiveness component.
Justice Scalia, on the other hand, had a different view. Writing for himself and Chief Justice Rehnquist [The majority joined only part 5 of his 5-part opinion.], he took the position that the sentence was clearly constitutional. But that was so, according to him [I.e., in the 4 of 5 parts of his opinion that the majority did NOT join.], because "the Eighth Amendment contains no proportionality guarantee." Instead, the "cruel and unusual" prohibition only "disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed." Quoting with approval from some historical studies, Scalia insisted that the "cruel and unusual" prohibition referred only to such punishments as "[b]reaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death to punishments."

Atkins v. Virginia (2002): the 6-3 majority held that the death penalty for a severely mentally disabled murder defendant--an IQ of 59--was unconstitutionally "cruel and unusual."
In his dissent, Scalia protested that "mental retardation does not render the offender morally blameless." Moreover, according to Scalia, "[t]he fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders."

Roper v. Simmons (2005): the 5-4 majority held that it was unconstitutional to impose the death penalty for a murder committed by a juvenile.
In his dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas [Justice O'Connor wrote her own dissent.], Scalia berated the majority for "reach[ing] this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to 'the evolving standards of decency.'"

Baze v. Rees (2008): the 7-2 majority upheld the constitutionality of a common method of lethal injection.
In his opinion for the Court, Chief Justice Roberts explained that a "method of execution is unconstitutional if it entails an 'intolerable risk' of 'severe pain.'" He concluded that lethal injection was acceptable under that standard.
In dissent, Justice Ginsburg refused to approve lethal injection until those seeking to impose it proved that any risk of pain was actually unavoidable.
Scalia agreed with the Court's decision to uphold lethal injection, but disagreed with the intolerable-risk-of-severe-pain standard. He authored a separate concurring to criticize Justice Stevens for generally questioning the justification for the death penalty. Beyond that, Scalia explicitly stated at the outset that he was joining Justice Thomas's own concurring opinion.
In that opinion, Thomas repeated the view shared by him and Scalia about the very limited contours of the "cruel and unusual" prohibition. To them, the 8th Amendment was only "intended to prohibit torturous modes of punishment." And in accord with early case law and commentary, this meant that the constitutional prohibition was confined to "burning at the stake, crucifixion, breaking on the wheel, or the like.”

Kennedy v. Louisiana (2008): the 5-4 majority held that the death penalty for raping a child is unconstitutional; that capital punishment is almost exclusively reserved for homicidal crimes.
Justice Alito, in his opinion for the 4 dissenters including Scalia, posed the following question: Consider "a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that [any murder] defendant is more morally depraved than the [child rapist]?"
Subsequently, Scalia himself authored a "Statement" when the Court refused to rehear the case. He mocked the majority's initial decision in the case, and specifically its view that "the Constitution contemplates that in the end [the Court's] own judgment will be brought to bear on questions about the death penalty." Scalia's retort: "Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' But that is what the majority opinion said."

[Disclosure: I disagree with the positions argued by Scalia in every one of these cases. I actually do agree with his votes in 2 of these cases: in Baze v. Rees (to uphold the constitutionality of lethal injection) and Kennedy v. Louisiana (to uphold the constitutionality of the death penalty for child rape--at least in the worst cases). But in those cases, I agree with the positions taken by others in their opinions, not Scalia in his.
So, in Baze v. Rees, I agree with Roberts' view that the "cruel and unusual" prohibition does outlaw "intolerable risk[s]'' of "severe pain;" and in Kennedy v. Louisiana, with Alito's view that some crimes of child rape are even more morally depraved than some homicides and, thus, justify the death penalty even more than some homicides (if, of course, the death penalty is ever justified).
I find Scalia's and Thomas's position in Baze v. Rees (which Scalia had previously expressed), that the 8th Amendment only prohibits punishments such a crucifixion, burning alive, disemboweling, etc., absolutely repugnant to any civilized and enlightened view of criminal justice.
And I find Scalia's view in Kennedy v. Louisiana, criticizing the Court for actually believing that the Constitution calls for the exercise of judgement, to be an astonishingly puerile--or disingenuous--denial of the judicial role.
I disagree with his position, expressed in Harmelin v. Michigan, that the "cruel and unusual" prohibition can never be violated by an excessive sentence, regardless of how extremely disproportionate to the crime. The death penalty for blasphemy? For gay sex? Both were imposed in the past. For that reason, or for the rejection of any disproportionality consideration in "cruel and unusual," must such punishments really be upheld?
I also strenuously disagree with Scalia's positions in Atkins v. Virginia and Roper v. Simmons that a defendant's mental disability or youth have no bearing on the constitutionality of the death penalty.
Scalia's positions on punishment--much like his consistent rejection of racial minority protection and gay rights--were, in my view, among the most unattractive (i.e., deplorable and antediluvian--ok, maybe immediately post-diluvian) aspects of his jurisprudence.]

In the next and final post on Scalia's record, we'll take a look at his positions in search and seizure cases involving technology.

Friday, March 11, 2016

Justice Scalia's Record (Part 4: Racial Justice)

We have previously explored Justice Antonin Scalia's positions on 1st Amendment religious liberty, 2nd Amendment gun rights, and women's rights and gay rights both as a matter of equal protection and fundamental liberty. Let's now turn our attention to the positions he took on issues of race. The cases involve claims of racial discrimination, racial preferences, race-based conduct, and racism.

photo: Rex Shutterstock
As with women's rights and gay rights, Scalia's record on issues of racial justice is not terribly surprising to those who follow the Court. His opinions and votes evince little support for laws or other government action intended to protect racial minorities and, in fact, precious little sympathy for the interests of racial minorities generally. Whatever the issue, he invariably sided with the competing interests or concerns.

Let's take a look at cases in which he authored an opinion.

Racial Justice
Alabama Legislative Black Caucus v. Alabama (2015): the majority held that racial gerrymandering in specific voting districts cannot be excused by considering the state "as a whole." The majority ordered the lower court to re-evaluate the claims of racial gerrymandering, this time by considering individual districts.
In his dissenting opinion, Scalia protested that the majority had undermined "the primacy of the State in managing its own elections." He also argued that the complainants had not clearly "proved (or even pleaded) district-specific claims," that the Court's majority had refocused the complainants' "flawed litigation strategy," and that, by doing so, the majority was "discourag[ing] careful litigation."

Schuette v. Coalition to Defend Affirmative Action (2014): the majority upheld a voter adopted state law prohibiting the use of race-based preferences in state university admissions.
In the opinion for the Court, a plurality of the Justices took the position that voters are free to end race-conscious policies. Such policies may be constitutionally permissible, but they are not required.
In her dissenting opinion, Justice Sotomayor protested that the law effectively established "two very different processes" for admissions to the state's universities: "one for persons interested in race-sensitive admissions policies and one for everyone else."
Justice Scalia sided with the plurality to uphold the law, but he did so in a separate concurring opinion. He argued that the only issue in the case was whether the law "reflects a racially discriminatory purpose," and he insisted that the challengers "do not have a prayer of proving it here." His explanation was that any law requiring state universities "to afford all persons equal protection of the laws...does not--cannot--deny" equal protection of the laws.

Fisher v. University of Texas (2013): the Court reversed the decision of the lower court that had approved the state university's race-conscious admissions process. The majority opinion held that the university has the burden to demonstrate that the consideration of race as a "plus factor" is actually necessary to achieve a diverse student body.
In her dissenting opinion, Justice Ginsburg argued that the admissions process was correctly approved by the lower court, because state universities "need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.'"
Scalia joined the majority opinion to reverse the lower court's approval of the admissions process. But he penned a short concurring opinion of his own to repeat his unqualified view that "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."

League of United Latin American Citizens v. Perry (2006): among other things, the majority held that the state's redistricting plan violated the Voting Rights Act. The plan diluted the voting strength of Latino voters in a congressional district in which they had become increasingly powerful.
Dissenting from that part of the majority opinion, Scalia took the position that the voter-dilution claim should be dismissed, because there is no such legal claim specifically recognized by the Voting Rights Act. In his view, the sole purpose of the relevant provision of the Act was to "ensur[e] minority voters equal electoral opportunities," not to protect the electoral strength of any group.
With regard to the race-based equal protection claims (which the majority opinion did not need to discuss), Scalia dismissed them as well. He explained that "Congressional redistricting is primarily a responsibility of state legislatures, and [w]e presume, moreover, that legislatures fulfill this responsibility in a constitutional manner. Although a State will almost always be aware of racial demographics when it redistricts, it does not follow from this awareness that the State redistricted on the basis of race."

To be sure, there have been other significant cases involving issues of race during Scalia's tenure on the Court. In virtually all of those, he joined someone else's opinion rather than writing his own.

Here are a few such cases in recent years:
Texas Dept. of Housing v. Inclusive Communities Project (2015): the majority ruled that the Fair Housing Act protects against practices that have racially discriminatory consequences.
Scalia joined the dissenting opinion which argued that the law's protection was narrower: it only prohibits housing practices where an intent to discriminate has been proven.

Davis v. Ayala (2015): the majority upheld a death penalty conviction in a case where the prosecutor had dismissed all seven potential Hispanic and Black jurors. (The prosecutor was using his "peremptory challenges"--i.e., discretionary strikes permitted to each side, but not on the basis of race or other forbidden categories.) The trial judge had conducted hearings for the prosecutor to explain his actions, but the judge did not permit the defendant's lawyers to attend and, thus, they had no opportunity to challenge the prosecutor's explanations.
The majority of the Justices took the position that the trial judge's exclusion of the defense counsel was a harmless error--i.e., it did not prejudice the defendant.
The dissenters argued that, given the strong indications that the prosecutor's actions were racial, there is little doubt that the defense lawyers' "exclusion from [the] hearings substantially influenced the outcome."
Scalia joined the majority's holding of harmless error.

Walker v. Texas Sons of Confederate Veterans (2015): the majority upheld the state's decision to reject the proposed Confederate Flag design for a vanity license plate. The state had decided that the design was offensive to many citizens, and a majority of the Justices ruled that the state was within its right to pick and choose designs for the vanity plates it produces.
The dissenters argued that the state, which had accepted many proposed vanity plates, violated the free speech rights of those who proposed the Confederate Flag design.
Scalia joined the dissenters opinion that the state must accept the Confederate Flag proposal.

Shelby County, Ala. v. Holder (2013): the majority invalidated the pre-clearance provision of the Voting Rights Act which required certain states to obtained federal approval before enacting changes to their election laws and procedures. The majority reasoned that the data on which the pre-clearance provision was based were outdated.
The dissenters argued that the pre-clearance provision was recently renewed because the discriminatory conditions that led to its initial enactment persisted.
Scalia joined the majority opinion that the pre-clearance provision was no longer justified.

CBOCS v. Humphries (2008): the majority ruled that civil rights law (sec. 1981) not only protects employees from racial discrimination in hiring, firing, and promotion, but it also protects them from retaliation for making a civil rights complaint. The majority thus upheld the retaliation claim of an African-American employee who was fired after he complained that another employee had been fired for race-based reasons.
In his dissenting opinion, Justice Thomas argued that the civil rights law did not protect against retaliation.
Scalia joined Justice Thomas in taking the view that the law is a "straightforward ban on racial discrimination," but "[r]etaliation is not discrimination."

There are still others, but the pattern is the same. Indeed, over the past ten years since John Roberts was appointed Chief Justice, it is difficult to find a case in which Scalia favored protecting racial minorities. As noted at the outset, Scalia invariably sided with the interest or concern that opposed that of racial minorities.
[In my review of divided decisions involving an issue of race over the past ten years, I found that Scalia took the position opposite that of racial minorities in every case.] 

[Disclosure: I disagree with virtually every position taken by Justice Scalia in these cases.
So, for example, in the Alabama Legislative Black Caucus case, eliminating racial gerrymandering seems far more important than Scalia's interest in promoting careful litigation strategy.
In Schuette, Scalia was simply wrong that the law prohibiting the consideration of race in university admissions was nothing more than equal protection. That law was a mean-spirited reaction to attempts to redress a long history of racial discrimination. It was disguised as promoting admission-by-merit. In fact, the law had little to do with either equality or merit in admissions. Racial preferences were prohibited, but a myriad of other preferences were not: legacies (a family connection to the university), wealth (the family generously donated to the university), athletics (the applicant could help one of the sports teams), geography (the applicant might come from an underrepresented state or a foreign country), influence (the applicant's family might be politically or otherwise influential), fame (the applicant might bring some celebrity to the university), etc., etc., etc. None of those preferences were outlawed. Any one of those preferences were still permitted to outweigh actual merit. So, again, the law had little or nothing to do with promoting equality or merit. Only distaste for any consideration of minority race.
In Fisher, the Court was presented with the very difficult issue of the constitutional validity of affirmative action. Ideologues on both sides of the issue insist that it's easy and that their respective opposing positions are clearly correct. Scalia was on one ideological side of the issue. To him the issue was easy and the answer clear: equal protection means equal treatment, period; at least with regard to race; no exceptions. I strongly disagree. No constitutional right or guarantee is absolute. There are exceptions to every one: free speech, religious liberty, free press, gun rights, etc. When there is a legitimate reason of the highest order that necessitates an exception--a "compelling government interest" is the term of art--then some compromise of the right or guarantee is justified. That is a basic and essential principle of constitutional law. Scalia would treat racial equality as an absolute--at least as an instrument to oppose preference or protection for racial minorities. Yes, affirmative action is a very difficult matter. But, in my view, some compelling reasons do justify the consideration of race--as the majority opinion held.
In League of United Latin American Citizens, I disagree with Scalia's contention that diluting the voting strength of racial-minority voters is not a violation of the Voting Rights Act. Such dilution seems clearly to contravene the overarching purpose of that law.
In the Texas Dept. of Housing case, I disagree with Scalia's opposition to claims based on disparate racial impact, and his insistence that claims must be based on demonstrated discriminatory intent. Sometimes it is only the consequences of an activity that evince its discriminatory nature.
In Davis v. Ayala, I disagree with Scalia that a prosecutor's dismissal of racial minorities from a jury, combined with a judge's exclusion of the defense counsel from the hearing to investigate the prosecutor's action, should be treated as a mere technical error that may be overlooked.
In Texas Sons of Confederate Veterans, I think that a state may reject hateful designs and slogans on the vanity license plates that it produces--e.g., "Heil Hitler" or a swastika or "Bring Back Slavery" or the N word--and that includes the Confederate Battle Flag which symbolizes somethings just as heinous for many people. So I disagree with Scalia--who again took a rather absolutest position, this time in support of a free speech right to have a Confederate Battle Flag design on a vanity plate.
In Shelby County, Ala, I actually agree with the majority opinion which Scalia joined--but only to an extent. I do agree that the pre-clearance provision of the Voting Rights Act should not stand when it is based on data that is long overdue for updating. But because pre-clearance is still a necessary antidote to discriminatory changes in voting laws, I would not have discarded the pre-clearance provision then in existence until it could be updated with more current data.
In CBOCS, I think the argument made in the dissenting opinion joined by Scalia was absurd. I.e., racial discrimination in employment is prohibited, but retaliation for seeking to enforce that prohibition is permitted. Again, in my view, that's absurd.]

Well there it is. Scalia in cases involving issues of race.
Connect the dots.
His record shows little or no sympathy for the interests of racial minorities. Indeed, it does show hostility for laws and practices intended to benefit them.

Next, we'll look at Scalia's position on cruel and unusual punishment.