End of Term United States Supreme Court Review
By G. Flint Taylor and Ben H. Elson
(This article was first published in the September/October 2012 Police Misconduct and Civil Rights Law Report, Vol. 10, No. 11.)
In the concluding months of its 2011-2012 term, the Supreme Court decided a number of cases that are pertinent to police misconduct litigators. These cases included two qualified immunity cases, one of which extended qualified immunity to Secret Service agents in a retaliatory arrest case, (Reichle v. Howards) and the other to a private lawyer on contract with the City (Filarsky v. Delia) and a case which extended blanket absolute immunity to grand jury witnesses (Rehberg v. Paulk). These cases are discussed in this article.
Earlier in the term, the Court decided Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) in which it held that police officers who obtained and executed an overly broad search warrant that was approved by two prosecutors and a magistrate judge were entitled to qualified immunity; Minneci v. Pollard, 132 S. Ct. 617 (2012) in which the Court declined to imply the existence of an Eighth Amendment based Bivens action against employees of a privately operated federal prison, and Florence v. Board of Chosen Freeholders, 132 S. Ct. (2012), in which the Court upheld a strip search of an arrestee who was wrongfully arrested on a misdemeanor warrant. For discussions of Florence and Minneci, see PMCRLR, Vol. 10, No.7 (Jan/Feb 2012) and Vol. 10, No 9 (May/June 2012).
Because of its importance to the related areas of death penalty and juvenile justice litigation, we also discuss in this article the companion cases of Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012) in which the Supreme Court held that the Eighth Amendment forbids mandatory life without parole sentences in juvenile homicide cases.
Qualified Immunity: Reichle v. Howards
On June 4, 2012, the U.S. Supreme Court, in a unanimous decision from which Justice Kagan recused herself, decided the case of Reichle v. Howards, 132 S. Ct. 2088 (2012), holding that two Secret Service agents were entitled to qualified immunity in a case where they were alleged to have made a retaliatory arrest in violation of the First Amendment.
Respondent Howards brashly stated at a public appearance by then Vice President Dick Cheney that he was going to ask him “how many kids he has killed today” in reference to the U.S. Government’s role in the Iraq war. Reichle v. Howards, 132 S. Ct. at 2091. This statement was overheard by Secret Service Agent Doyle. Howards later approached Cheney while he was greeting the public and told him that his “policies in Iraq are disgusting.” Id. At this time he either touched Cheney’s right shoulder with his open hand, or pushed him. Neither of the Secret Service Agents guarding Cheney believed that Howards’ touch of the Vice President provided probable cause for his arrest. Secret Service Agent Reichle subsequently questioned Howards who denied that he either assaulted or even touched Cheney, and further stated that “if you don’t want other people sharing their opinions, you should have him [the Vice President] avoid public places.” Id. Reichle then arrested Howards who was subsequently transferred to local custody, and was charged under Colorado law with harassment. This charge was later dropped and no federal charges were ever filed.
Howards brought a 42 U.S.C. § 1983 and Bivens action against several Secret Service Agents, including Respondents Reichle and Doyle, for arrest without probable cause and in retaliation for his exercise of his right to free speech. The District Court denied Reichle and Doyle’s motion for summary judgment on the basis of qualified immunity. The Tenth Circuit reversed the denial of qualified immunity on the Fourth Amendment claim, holding that Howards’ false denial that he had touched Cheney provided probable cause to arrest under 18 U.S.C. § 1001. Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011). While recognizing that the Circuits were split on the question, the Tenth Circuit affirmed the denial of qualified immunity to Reichle and Doyle on Howards’ First Amendment retaliation claim. In so doing, the Court distinguished the Supreme Court’s decision in Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006) which held that probable cause to prosecute defeated a retaliatory prosecution claim, holding that a retaliatory arrest, unlike a prosecution, presented an “ordinary,” rather than a “complex” causation claim, and therefore was not defeated by Hartman. Howards v. McLaughlin, 634 F.3d at 1148-49.
The Supreme Court granted certiorari on two questions: “whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held,” 132 S. Ct at 2093, and reversed and remanded in an opinion written by Justice Thomas. Justice Thomas first noted that the Court was not reaching the question of whether a First Amendment claim was actionable at all under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971). In accordance with Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808 (2009), Justice Thomas chose to address the issue of whether the lower court properly granted qualified immunity on the ground that “a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all.” Reichle v. Howards, 132 S.Ct. at 2093.
Addressing that issue, Justice Thomas articulated the highly particularized standard first articulated by the Court in Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034 (1987) and refined in Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) that: to be clearly established, a right must be sufficiently clear that every “reasonable official would [have understood] that what he is doing violates that right,” . . . in other words “existing precedent must have placed the statutory or constitutional question beyond debate.” 132 S. Ct. at 2093.
Rejecting Howards’ argument that prior Supreme Court precedent which established a generalized right to be free from retaliation for exercise of First Amendment rights clearly established the right in question, Justice Thomas found that “this Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.” 132 S. Ct. at 2093. Justice Thomas then analyzed Tenth Circuit precedent and determined that its pre-Hartman decisions were no longer sufficient to clearly establish the right in question:
At the time of Howards’ arrest, Hartman’s impact on the Tenth Circuit’s precedent governing retaliatory arrests was far from clear. Although the facts of Hartman involved only a retaliatory prosecution, reasonable officers could have questioned whether the rule of Hartman also applied to arrests. 132 S. Ct. at 2095. This was so, according to Justice Thomas, because:
like retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case. Such evidence could be thought similarly fatal to a plaintiff’s claim that animus caused his arrest, given that retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury. An officer might bear animus toward the content of a suspect’s speech. But the officer may decide to arrest the suspect because his speech provides evidence of a crime or suggests a potential threat. … Like retaliatory prosecution cases, then, the connection between alleged animus and injury may be weakened in the arrest context by a police officer’s wholly legitimate consideration of speech. 132 S. Ct. at 2095-96. To further demonstrate that the particular right in question was not clearly established, Justice Thomas noted that post-Hartman decisions in several Circuit Courts of Appeals – – – both before and after Howards’ arrest – – – held that Hartman applied to probable cause arrest cases. See Barnes v. Wright, 449 F.3d 709, (6th Cir. 2006); McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010); Phillips v. Irvin, 222 Fed. Appx. 928, 929 (11th Cir. 2007) (per curiam).
Justice Ginsburg, joined by Justice Sotomayor, wrote a concurring opinion which joined in the judgment. Justice Ginsburg first analyzed the Hartman holding in order to conclude that it “does not support” an “ordinary law enforcement officer[s’]” “entitlement to qualified immunity”:
Hartman involved a charge of retaliatory prosecution. As the Court explains, the defendant in such a case cannot be the prosecutor who made the decision to pursue charges. See ante, at ___, 182 L. Ed. 2d, at 992; Hartman, 547 U.S., at 262, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (noting that prosecutors are “absolutely immune from liability for the decision to prosecute”). Rather, the defendant will be another government official who, motivated by retaliatory animus, convinced the prosecutor to act. See ibid.; ante, at ___, 182 L. Ed. 2d, at 993. Thus, the “causal connection [a plaintiff must establish in a retaliatory-prosecution case] is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another.” Hartman, 547 U.S., at 262, 126 S. Ct. 1695, 164 L. Ed. 2d 441. This “distinct problem of causation” justified the absence-of-probable-cause requirement we recognized in Hartman. Id., at 263, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (Proof of an absence of probable cause to prosecute is needed “to bridge the gap between the non prosecuting government agent’s motive and the prosecutor’s action.”). See also id., at 259, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (“[T]he need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, . . . provides the strongest justification for the no-probable-cause requirement.” (emphasis added)). 132 S. Ct. at 2097.
In contrast, “because, in the usual retaliatory-arrest case, there is no gap to bridge between one government official’s animus and a second government official’s action,” Justice Ginsburg concluded that “Hartman’s no-probable-cause requirement is inapplicable.” 132 S. Ct. at 2097.
Nonetheless, Justice Ginsburg concurred in the judgment because the defendants seeking qualified immunity were “officers assigned to protect public officials” and must thereby “make swift on the spot decisions whether the safety of the person they are guarding is in jeopardy.” Id. Hence, in performing those duties “they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge.” Id. Therefore, “whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq” happened to be, they “were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security.” Id. Consequently, in Justice Ginsburg’s view, “retaliatory animus cannot be inferred from the assessment they made in that regard. If rational, that assessment should not expose them to claims for civil damages.” Id. at 2098.
Qualified Immunity: Filarsky v. Delia
In Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court, in a unanimous decision written by Chief Justice Roberts, ruled that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit, even though that individual does not work for the government on a permanent or full‑time basis.
Nicholas Delia, a firefighter employed by the City of Rialto, California, became ill while responding to a toxic spill in August 2006. Id. at 1660. Under a doctor’s orders, Delia missed three weeks of work. Id. Suspicious of Delia’s extended absence, the City hired a private investigation firm to conduct surveillance on him. Id. The private investigators observed Delia purchasing building supplies – including several rolls of fiberglass insulation – from a home improvement store. Id. The City suspected that Delia was missing work to do construction on his home rather than because of illness, and it initiated a formal internal investigation of him. Id.
Delia was ordered to appear for an administrative investigation interview. Id. The City hired Steve Filarsky to conduct the interview. Id. Filarsky was an experienced employment lawyer who had previously represented the City in several investigations. Id. Delia and his attorney attended the interview, along with Filarsky and two fire department officials. Id. During the interview, Filarsky questioned Delia about the building supplies. Id. Delia explained that he had not yet done the work on his home. Id. During a break, Filarsky met with Fire Chief Stephen Wells and the two fire department officials and recommended asking Delia to produce the building materials. Id. Chief Wells approved the plan. Id.
When the interview resumed, Filarsky requested permission for one of the fire department officials to enter Delia’s home to view the materials. Id. On the advice of counsel, Delia refused. Id. Filarsky then asked Delia if he would be willing to bring the materials out onto his lawn, so that the fire department officials could observe them without entering his home. Id. Delia again refused to consent. Id. Filarsky then ordered Delia to produce the materials for inspection. Id. Delia’s counsel objected to the order, asserting that it would violate the Fourth Amendment and threatened to sue the City and Filarsky. Id. Despite these threats, Filarsky prepared an order, which Chief Wells signed, directing Delia to bring the materials out of his house and place them on his lawn for inspection. Id. at 1661. Filarsky recommended this course mindful that an individual does not have an expectation of privacy in items exposed to the public, thereby eliminating the need for a search warrant. Id.
As soon as the interview concluded, the fire department officials followed Delia to his home. Id. Once there, Delia complied with Chief Wells’ order by producing the materials, all of them unused, after which the investigation into the legitimacy of Delia’s absence from work apparently ended. Id.
Delia brought an action under 42 U.S.C. § 1983 against the City, the Fire Department, Filarsky, and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. Id. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. Id. The court held that Delia “had not demonstrated the violation of a clearly established constitutional right,” because Delia was not threatened with insubordination or termination if he did not comply with any order given and none of these defendants entered [his] house.” Id. The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky. Id. The Court of Appeals concluded that the order violated the Fourth Amendment, but agreed with the District Court that Delia had not demonstrated that a constitutional right was clearly established as of the date of the order, such that the defendants would have known that their actions were unlawful. Id. As to Filarsky, however, the court concluded that because he was a private attorney and not a City employee, he was not entitled to seek qualified immunity. Id. Filarsky filed a petition for certiorari. Id.
In determining whether Filarsky was entitled to seek qualified immunity, the Court looked to the general principles of tort immunities and defenses applicable at common law as it existed when Congress passed § 1983 in 1871. Id. at 1662. Using numerous examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis, the Court explained that the common law as it existed in 1871 did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities. Id. at 1662-65. Since § 1983 should be read “in harmony” with the common law of torts and immunities in 1871, the Court held that “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis.” Id. at 1665.
The Court noted that the policy reasons it has given for recognizing immunity under § 1983 – – avoiding “unwarranted timidity” on the part of those engaged in the public’s business; and ensuring that talented candidates are not deterred by the threat of damages suits from entering public service – – support carrying forward the common law rule regardless of whether the individual sued as a state actor works for the government full-time or on some other basis. Id. at 1665-66.
Justice Ginsburg concurred, saying that, on remand, the Ninth Circuit should address the issue of whether Filarsky’s conduct violated clearly established law:
First, if it is “clearly established” as the Ninth Circuit thought it was, that “the warrantless search of a home is presumptively unreasonable,” [Delia v. Rialto, 621 F.3d 1069, 1075 (CA9 2010)], and that a well-trained investigating officer would so comprehend, may an official circumvent the warrant requirement by ordering the person under investigation to cart his personal property out of the house for inspection? And if it is “clearly established” that an employee may not be fired for exercising a constitutional right, see id., at 1079, is it not equally plain that discipline or discharge may not be threatened to induce surrender of such a right? Id. at 1669.
Justice Sotomayor also concurred, but she observed that it did not necessarily follow from the Court’s holding “that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. § 1983.” Id. at 1669. Such cases, she explained, should be decided “as they arise, as is our longstanding practice in the field of immunity law.” Id. at 1670.
Witness Immunity: Rehberg v. Paulk
In Rehberg v. Paulk, 132 S. Ct. 1497 (2012), the Supreme Court, in a unanimous decision written by Justice Alito, held that a government official who acts as a “complaining witness” in a grand jury proceeding by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a § 1983 claim for civil damages.
Charles Rehberg, a certified public accountant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticizing the hospital’s management and activities. Id. at 1500. In response, the local district attorney’s office, with the assistance of its chief investigator, James Paulk, launched a criminal investigation of Rehberg, allegedly as a favor to the hospital’s leadership. Id.
Paulk testified before a grand jury, and Rehberg was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls. Id. at 1501. The indictment charged that Rehberg had assaulted a hospital physician, Dr. James Hotz, after unlawfully entering the doctor’s home. Id. Rehberg challenged the sufficiency of the indictment, and it was dismissed. Id. A few months later, Paulk returned to the grand jury, and Rehberg was indicted again, this time for assaulting Dr. Hotz on August 22, 2004, and for making harassing telephone calls. Id. On this occasion, both the doctor and Paulk testified. Id. Rehberg challenged the sufficiency of this second indictment, claiming that he was “nowhere near Dr. Hotz” on the date in question and that “[t]here was no evidence whatsoever that [he] committed an assault on anybody.” Id. Again, the indictment was dismissed. Id. While the second indictment was still pending, Paul appeared before a grand jury for a third time, and yet another indictment was returned. Id. Rehberg was charged with assault and making harassing phone calls. Id. This final indictment was ultimately dismissed as well. Id.
Rehberg then brought this action against Paulk under 42 U.S.C. § 1983, alleging that Paulk conspired to present and did present false testimony to the grand jury. Id. Paulk moved to dismiss, arguing that he was entitled to absolute immunity for his grand jury testimony. Id. The District Court denied Paulk’s motion to dismiss, but the Eleventh Circuit Court of Appeals reversed, holding that Paulk was absolutely immune from a § 1983 claim based on his grand jury testimony. Id. The Court of Appeals noted Rehberg’s allegation that Paulk was the sole “complaining witness” before the grand jury, but declined to recognize a “complaining witness” exception to its precedent on grand jury witness immunity. Id. “[A]llowing civil suits for false grand jury testimony,” the court reasoned, “would . . . emasculate the confidential nature of grand jury testimony, and eviscerate the traditional absolute immunity for witness testimony in judicial proceedings.” Id. The Court of Appeals went on to hold that Paulk was entitled to absolute immunity, not only with respect to claims based directly on his grand jury testimony, but also with respect to the claim that he conspired to present such testimony. Id.
The Court began its analysis by looking to the common law background in 1871 for guidance in determining the scope of the immunities available in a § 1983 action:
We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed with independence and without fear of consequences. Id. at 1503.
The Court identified the following functions that are absolutely immune from liability for damages under § 1983: actions taken by legislators within the legitimate scope of legislative authority; actions taken by judges within the legitimate scope of judicial authority; actions taken by prosecutors in their role as advocates; and the giving of testimony by witnesses at trial. Id. The Court then noted that this functional approach to immunities did not simply duplicate the scope of common law immunities. Id. Using prosecutorial immunity as an example, the Court pointed out that in 1871 prosecutors were private and were not protected by absolute immunity, but when prosecutors later became public officials, the Court had held in Imbler v. Pachtman, 424 U.S. 409 (1976), that they were protected by absolute immunity for their prosecutorial conduct. Id. at 1504.
Turning to the merits, the Court found that the factors that justify absolute immunity for trial witnesses as set forth in Briscoe v. Lahue, 460 U.S. 352 (1983), apply with equal force to grand jury witnesses:
When a witness is sued because of his testimony, the Court wrote [in Briscoe], “the claims of the individual must yield to the dictates of public policy.” 460 U.S., at 332-333, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)). Without absolute immunity for witnesses, the Court concluded, the truth-seeking process at trial would be impaired. Witnesses “might be reluctant to come forward and testify,” and even if a witness took the stand, the witness “might be inclined to shade his testimony in favor of the potential plaintiff” for “fear of subsequent liability.” 460 U.S. at 333, 103 S. Ct. 1108, 75 L. Ed. 2d 96 . . . In both contexts a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In Briscoe, the Court concluded that the possibility of civil liability was not needed to deter false testimony at trial because other sanctions – chiefly, prosecution for perjury – provided a sufficient deterrent. Id., at 342, 103 S. Ct. 1108, 75 L. Ed. 2d 96. Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, see, e.g., 18 U.S.C. § 1623(a), there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony. Id. at 1505.
The Court concluded that “grand jury witnesses should enjoy the same immunity as witnesses at trial.” Id. at 1506. The Court further held that “this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.” Id.
The Court noted that its decision was not at odds with Malley v. Briggs, 475 U.S. 335 (1986) and Kalina v. Fletcher, 522 U.S. 118 (1997). Id. at 1507. In those cases, law enforcement officials who submitted affidavits in support of applications for arrest warrants were denied absolute immunity because they “performed the function of a complaining witness.” Id. at 1507. The Court explained that the “complaining witness” exception of Malley and Kalina did not apply to grand jury testimony because the term “complaining witness” had a distinct meaning in 1871 – – “complaining witnesses” did not ordinarily testify before grand juries or at criminal trials; rather, they were parties who procured arrests and initiated criminal prosecutions, as the law enforcement officer did in Malley. Id. Once the distinctive function performed by a “complaining witness” is understood, the Court said, it is apparent that a law enforcement officer who testifies before a grand jury is not comparable to a “complaining witness” because it is not the officer who makes the critical decision to press criminal charges, but the prosecutor. Id.
Juvenile Justice: Miller v. Alabama
On June 25, 2012, a sharply divided Court, in a 5-4 decision written by Justice Elena Kagan, decided the companion cases of Miller v. Alabama and Jackson v. Hobbs, ___ U.S. ___132 S. Ct. 2455 (2012). The Petitioner in each case was a 14 year old juvenile who had been convicted of murder and been given a mandatory life without parole sentence, one by the State of Alabama, the other by the State of Arkansas.
In November of 1999 Kuntrell Jackson, together with two other young boys, set out to rob an Arkansas video store, but when Jackson learned that one of the boys had a sawed off shotgun concealed in his sleeve, Jackson chose to stay outside of the store and stand lookout. He later entered the store, where the clerk was refusing to turn over the money demanded by the robbers. Jackson said either “we ain’t playin’,” or “I thought you all was playin’.” 2012 U.S. LEXIS 4873 at *10. When the clerk threatened to call the police, the boy with the sawed-off shotgun shot and killed her.
Evan Miller was a mentally disturbed 14 year old whose mother was an addict, whose stepfather physically abused him, and who had repeatedly attempted suicide, the first time being when he was six years old. In 2003, Miller and a friend robbed a neighbor after he passed out in his Alabama trailer, and when the neighbor awoke and resisted, they viciously beat him unconscious with a baseball bat, then later returned to the trailer and set it on fire to cover up their crimes. The neighbor died from his injuries and smoke inhalation from the fire.
Both boys were transferred to adult court pursuant to statute. Miller’s attorney had unsuccessfully attempted to call a mental health expert at his transfer hearing. Both boys were convicted of capital murder, Jackson on an accountability theory, Miller after his co-defendant turned state’s evidence. Both boys were sentenced to mandatory life without parole. After their convictions and sentences were affirmed on direct appeal, and the dismissal of Jackson’s habeas petition was likewise affirmed, Miller and Jackson filed separate petitions for certiorari to the U.S. Supreme Court, which were granted in tandem, and the Court consolidated the cases for argument. Jackson v. Hobbs, 132 S. Ct. 548 (2011).
The five Justice majority, which included Justice Kennedy, held that mandatory life without parole sentences for juveniles in homicide cases transgressed the “evolving standards of decency that mark the progress of a maturing society,” and therefore violated the Eighth Amendment. 2012 U.S. LEXIS 4873 at *17. The majority relied heavily on two of the Court’s prior decisions concerning juvenile offenders – – – Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, (2005), which held that the Eighth Amendment bars the death penalty for juveniles, and Graham v. Florida, 560 U.S. ___, ___, 130 S. Ct. 2011 (2010), which held that the Eighth Amendment forbids the imposition of a life without parole sentence on a juvenile for a non-homicide offense.
Justice Kagan, who wrote the majority opinion, first noted that the cases before the Court “implicate two strands of precedent” – – – the first “has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” while the second requires “individualized sentencing when imposing the death penalty.” 2012 U.S. LEXIS 4873 at *17-18, 28. With regard to the first strand, Justice Kagan made a compelling case for the evolving proposition that juveniles are different than adults when it comes to culpability, intent, and prospects for positive rehabilitation:
First, children have a “‘lack of maturity and an underdeveloped sense of responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1. Second, children “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1.
2012 U.S. LEXIS 4873 at *20-21.
Justice Kagan pointed to “developments in psychology and brain science” that “continue to show fundamental differences between juvenile and adult minds,” and that the “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 2012 U.S. LEXIS 4873 at *21, 23. Hence “by removing youth from the balance–by subjecting a juvenile to the same life-without-parole sentence applicable to an adult”
these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. 2012 U.S. LEXIS 4873 at *26-27.
Justice Kagan then pointed to the “share[d] characteristics” of a sentence of death and one for life without parole that are not shared by any other sentences:
Imprisoning an offender until he dies alters the remainder of his life “by a forfeiture that is irrevocable.”… And this lengthiest possible incarceration is an “especially harsh punishment for a juvenile,” because he will almost inevitably serve “more years and a greater percentage of his life in prison than an adult offender.” Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825. 2012 U.S. LEXIS 4873 at *27.
Justice Kagan next turned to the second set of precedents – – – those that require that the sentencer “have the ability to consider the “mitigating qualities of youth.” Id. at 29. Noting that youth are often immature, irresponsible, impetuous and reckless, and further that these “‘signature qualities’ are all ‘transient,’” she found that mandatory life without parole penalties
by their nature, preclude a sentence from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other–the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses–but really, as Graham noted, a greater sentence than those adults will serve. In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.
2012 U.S. LEXIS 4873 at *30-31.
Summing up on this point, Justice Kagan wrote:
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features–among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him–and from which he cannot usually extricate himself–no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth–for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U.S. ___, ___, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.
2012 U.S. LEXIS 4873 at *32-33.
For the majority, Justice Kagan then articulated the Court’s holding:
We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.
2012 U.S. LEXIS 4873 at *35.
She then stated what the majority did not reach:
Because [our] holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S., at 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1; Graham, 560 U.S., at ___, 130 S. Ct. 2011, 176 L. Ed. 2d 825. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.
2012 U.S. LEXIS 4873 at *35-36.
Justice Breyer joined fully in the majority’s opinion, but wrote separately to emphasize, with Justice Sotomayor, that a life without parole sentence should not be imposed on a juvenile in a transferred intent case, such as Petitioner Jackson’s, where he neither killed nor intended to kill:
At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. See 2 LaFave, supra, §14.5(c). Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively. Ante, at 8-9.
2012 U.S. LEXIS 4873 at *59.
Quoting Justice Felix Frankfurter, Justice Breyer concluded with regard to Kuntrell Jackson:
“Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a State’s duty toward children.” May v. Anderson, 345 U.S. 528, 536, 73 S. Ct. 840, 97 L. Ed. 1221, 67 Ohio Law Abs. 468 (1953) (concurring opinion [of Justice Frankfurter]). To apply the doctrine of transferred intent here, where the juvenile did not kill, to sentence a juvenile to life without parole would involve such “fallacious reasoning.” Ibid.
2012 U.S. LEXIS 4873 at *59.
Chief Justice Roberts, and Justices Alito, Thomas and Scalia dissented, with all but Scalia writing opinions. Their dissents in many respects parroted the arguments of the Respondent states of Arkansas and Alabama. Justice Thomas, joined by Scalia, bemoaned the fact that disproportionate punishment and evolving standards of decency were not contemplated by the framers of the Eighth Amendment. Chief Justice Roberts played lip service to the “grave and challenging questions of morality and social policy” presented when “determining the appropriate sentence for a teenager convicted of murder,” but went on to attempt to show that life without parole for juveniles convicted for murder was not “unusual” within the meaning of the Eighth Amendment. 2012 U.S. LEXIS 4873 at *61. In conclusion, the Chief Justice played the law and order card, shifting the focus from the juvenile offenders to the victims of their crimes and society’s supposed shift towards harsher prison sentences:
It is a great tragedy when a juvenile commits murder–most of all for the innocent victims. But also for the murderer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another. In recent years, our society has moved toward requiring that the murderer, his age notwithstanding, be imprisoned for the remainder of his life. Members of this Court may disagree with that choice. Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again. See ante, at 8-11. But that is not our decision to make. Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole.
2012 U.S. LEXIS 4873 at *75-76.
Justice Alito, joined by Justice Scalia, dropped all pretense of even handedness, and instead argued a hardline law and order position. Conjuring up a worst case scenario, Justice Alito intoned that, under the majority’s decision, “even a 17 1/2-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a ‘child’ and must be given a chance to persuade a judge to permit his release into society.” 2012 U.S. LEXIS 4873 at *89-90. In his view “nothing in the Constitution supports this arrogation of legislative authority.” Id. at *90. He also attacked the Eighth Amendment “evolving standard of decency” standard stating:
Both the provenance and philosophical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?) But at least at the start, the Court insisted that these “evolving standards” represented something other than the personal views of five Justices.
2012 U.S. LEXIS 4873 at *90-91.
Justice Alito then predicted that the majority may soon further extend its holding in order to ban life without parole sentences in all juvenile homicide cases. In conclusion, Justice Alito raised the specter of depraved juvenile murderers being released on parole only to murder again later in life, and darkly warned that
unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey.
2012 U.S. LEXIS 4873 at *99.
Justice Kagan persuasively and painstakingly rebutted these arguments and their rationales throughout her majority opinion. See, e.g., 2012 U.S. LEXIS 4873 at *19 n. 6 (pointing out that the dissenters also dissented in Graham and Roper and were attempting to reargue many of the same issues that were rejected there and in other previous Eighth Amendment cases); Id., at *25, n. 6 (asserting that the dissents “essentially ignore” Graham’s rationale concerning youth being different than adults); Id. at *36-37; (criticizing as “ironic” Justice Alito’s use of the most heinous crimes committed by 17½ year olds to make his point); and Id. at 38 (calling Justice Thomas’ argument concerning the Eighth Amendment “myopic”). Justice Kagan saved her sharpest and most frequent criticisms for Chief Justice Roberts and his dissenting opinion. See, Id. at 44 n. 10 (Chief Justice’s analysis concerning statistics “carries little weight”); Id. at *46, n 10 (his characterization of the majority’s opinion “no way resembles” what it truly says); and Id. at *47-48 n. 12.
Once again, Justice Kennedy joined the moderate block of four Justices to push back against the Draconian forces that have fought so hard to keep the United States in the dark ages when it comes to the death penalty and juvenile justice. Hopefully, Justice Kagan’s powerful brief for our country’s troubled youth will, as Justice Alito fears, be another step in an unstoppable progression that results in the elimination of the death penalty and in a sentencing system that is more humane and less vindictive for children and adults alike.
Conclusion
In its 2011-2012 term, the Court continued its disturbing trend of expanding absolute and qualified immunity for law enforcement, making it ever more difficult for victims of police misconduct to have their claims decided by a jury. Although Miller v. Alabama represents the one bright spot in an otherwise dismal term for police misconduct and criminal justice litigators, the case is also very troubling, as its dissenting opinions provide another chilling glimpse into the heartless agenda of the Court’s ultraconservative majority, who will no doubt continue to apply their merciless worldview to cases involving victims of police violence, other police misconduct, and the criminal justice system. Except for the infrequent occasions when Justice Kennedy abandons their cause, this conservative block promises to inflict further irreparable harm on those who already bear the brunt of this county’s runaway inequality.
