Continuing a Discussion of the Supreme Court's Term: Criminal Justice

This is the third in our four part discussion of the Supreme Court's October 2018 term, recently concluded.

It has been a big year for the constitutional treatment of the criminal justice system, and we'll deal with four cases in that line here. We will ignore others that might have fit this theme, among them Gundy v. US (where the Court passed over an attempt to reinvigorate the nondelegation doctrine in this area) and Mitchell v. Wisconsin (involving a blood alcohol test on an unconscious man).  As always, my decisions on exclusion and inclusion in this review are final and unappealable.

Excessive Fines

The Bill of Rights did not originally limit the actions of state governments, only those of the federal government. That, at least, has been the reigning wisdom at least since Barron v. Baltimore (1833). As it happens, I now and then feel compelled to question the rightness of Barron, but I'll leave that aside.

The various provisions of the Bill have, nonetheless, been applied to the states by judicial precedents that link that application to the 14th amendment, so that even the one that begins with the word Congress is understood to have been "incorporated" in that amendment's limits on states.

So far as I can tell, the process of "selective incorporation" has now been completed. Every clause of the first 8 amendments (the issue does not apply on its face to the 9th or 10th) now has a Supreme Court decision of which one can say, THAT was incorporated by THIS. So we have arrived at the end of total incorporation through the means of selective incorporation.

That is the significance of Timbs v. Indiana, decided on February 20 this year. The til-now unincorporated provision was the reference to "excessive fines" in the 8th amendment. The state involved was Indiana.

It's also a cutting-back-on-the-war-on-drugs decision. And I heartily approve of that genre.

Sex Offenders

Under this regime,  Andre Hammond was convicted of the possession of child porn in 2010. He served three years and then received "supervised release." Normally, a violation of the conditions of "supervised release" can send the violator back to prison without further constitutional ado. Indeed, there are 17,000 revocation proceedings per year. Constitutionalizing all of those proceedings would mean either mammoth new expenditures for the new jury trials or an end to the supervised release system altogether.

Hammond was found, at such a non-trial proceeding to have violated the conditions of release and assigned another five years.

In this instance, a five to four court decided that he should have had a jury trial. Neither of the two opinions on the majority side made of this a new universal rule applicable to all such revocations. But they did differ importantly as to how they saw it. Gorsuch emphasized that the Adam Walsh bill under which Hammond was convicted was a relatively recent statute, "enacted little more than a decade ago." It seems as if more venerable supervised-release programs might have better luck before him in retaining their administrative revocations.

Stephen Breyer, who provided the critical fifth vote here, offered another distinction in his concurrence. The statutory clause authorizing this revocation "applies only when a defendant commits a discrete set of federal offenses," which makes it a punishment for a new offense, not a return to punishment for the original offense. 

Capital Punishment and Jury Selection

Mississippi has put Curtis Flowers on trial SIX TIMES, on the allegation that he killed four employees of a furniture store. The first three convictions were overturned on appeal within the state court system. The fourth and fifth trials resulted in hung juries.

The same lead prosecutor has worked on each of those trials. "Javert" does keep on keeping on.

At the sixth trial, the prosecution used its "peremptory challenges" six times. This is part of the process of seating a jury. Ideally, prosecution and defense counsel agree on the fitness of all 12 eventual jurors. States generally give both counsel the right to a fixed number of "peremptory challenges," that is, they can dismiss that number from jury service without giving a reason.

In the sixth trial of Flowers, the State exercised six peremptory strikes—five against black prospective jurors. The eventual composition of the jury included only one black juror. Flowers is a black man, three of the four victims of the murder he is alleged to have committed were white.

So ... was the prosecutor deliberately looking for as bleached a jury as he could manage?

Kavanaugh, writing for the court and applying the notion that there is a higher level of due process due for capital offenses than for others, found that a prima facie case had been made for racial discrimination in those challenges, that the state had failed to rebut this prima facie case with race neutral reasons for their use, and that accordingly the latest conviction can not stand.

And by the way (the court didn't say this but I will) Flowers probably didn't do it, and the state should look at the suspect list again.

Cruel and Unusual Punishment

Our last thoughts for today, though, go to the deceased Christopher Lee Price.

Price was executed this May for a murder he committed in 1991.

In the final weeks of his life, Price through his attorneys sought to get the Supreme Court to decide whether the specific means of execution here should be deemed cruel and unusual under the constitution.

They contended that the midazolam, used as the anaesthetic part of the lethal injection cocktail, doesn't work properly. It doesn't maintain unconsciousness throughout the execution, with the consequence that Price's death would feel like "being suffocated and burned at the stake at the same time."

Three years ago, another convict put to death with the same cocktail, Ronald Bert Smith, gasped and coughed in a grisly display lasting for about 13 minutes during his execution.

The US Supreme Court allowed Price's execution to proceed, though it did so over the objection of Justice Breyer, who wrote, "To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate."

We will let that be our understated last word.