Graham v. Florida

Kagan Shirked Duty to Defend Federal Laws Protecting Crime Victims

by Hans Bader on May 19, 2010

in Culture, International, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Zeitgeist

Federal law authorizes life sentences without parole for particularly heinous violent crimes committed by 16 and 17-year olds.  But Solicitor General Elena Kagan was nowhere to be found when life imprisonment without parole was challenged in the U.S. Supreme Court last fall.  That’s true despite the fact that as solicitor general, “Kagan has an obligation to defend federal laws against constitutional challenges.”

In a 5-to-4 ruling Monday, the Supreme Court struck down such sentences, relying partly on their alleged conflict with international legal norms and “international opinion.”

(Since international norms are hostile both to civil liberties and to life imprisonment even for adult murderers, the Supreme Court’s reliance on them set a dangerous precedent).

Despite Kagan’s dereliction of duty, she was nominated to the serve on the Supreme Court by President Obama.

As Solicitor General, she zealously defended the most censorious aspects of the McCain-Feingold law, which violated the First Amendment, and her office argued that the federal government could even ban books advocating the defeat of a politician using it.

As dean of Harvard Law School, she banned the military from Harvard, challenging a federal law that granted equal access to military recruiters.  She claimed the law, which applied to recipients of federal funds, was unconstitutional — a position unanimously rejected by the Supreme Court.

Too bad she didn’t have similar zeal for protecting crime victims in Monday’s Graham v. Florida case, which may well result in dangerous criminals being released who will go on to commit more acts of violence. (Solicitors General have broad authority to intervene in Supreme Court cases, which they have exercised even in cases not involving the federal government.  But Kagan, who is literally a limousine liberal, could not even be bothered to defend federal laws protecting crime victims).

Curiously, as dean of Harvard Law, Kagan pushed through changes in the curriculum that included dropping constitutional law as a requirement and adding international law as a requirement. (This was a misguided change. I attended Harvard Law before these changes, and not taking an international law class did not in any way hamper my subsequent ability to practice international trade law. My constitutional law class did, however, leave me better equipped to bring lawsuits against government agencies.)

Other Obama judicial nominees have also attracted controversy over their views on the death penalty and criminal sentencing, like the radical law professor Goodwin Liu, and a Connecticut judge who tried to block the execution of the Roadside Strangler, arguing that his “sexual sadism” was a mitigating factor.

Legal Elites Chip Away at Protections Against Violent Crime

by Hans Bader on May 19, 2010

in Culture, International, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Zeitgeist

On Monday, the Supreme Court, citing “international opinion,” outlawed life imprisonment without parole for juveniles who commit rape, torture, and other non-homicide crimes.

Earlier, New Zealand was pressured to end life without parole for adults who commit “the worst” murders, based on a supposed rule of “customary international law” against life imprisonment without parole.

Citing Spanish law and supposed international human-rights norms, Spain now refuses to extradite terrorists who plot mass murder to the United States unless the U.S. agrees not to seek life imprisonment without parole.

Victims of torture, sexual mutilation, and attempted murder cannot have peace of mind unless their attacker is kept in jail for life without parole.  A scary example is “Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock.”  This evil, violent thug will apparently be eligible to seek release under the Supreme Court’s decision Monday in Graham v. Florida.  Why should that little girl, scarred for life, have to face the terrifying possibility of one day being attacked again by her would-be murderer?

The Supreme Court’s ruling sets a terrible precedent for civil liberties as well, since foreign legal systems and international lawyers are often hostile to free speech, religious freedom, and the right of homeowners to defend themselves against burglars and other intruders who may commit violence by wielding a knife or gun in self-defense.  The U.N. Human Rights Council says there is no human right to self-defense, and that, quite the contrary, international human rights norms require “very severe gun control.”

Accordingly, CEI and the Cato Institute joined an amicus brief filed with the Supreme Court asking it not to rely on international norms in deciding the Graham case.

If America got rid of the death penalty tomorrow, the army of lawyers who today relentlessly delay and block executions would simply turn around and fight life without parole for violent criminals (liberal judges like Ninth Circuit Judge Harry Pregerson have argued that life without parole is unconstitutional even for serious adult crimes).  Opposing strict penalties for criminals sets liberal lawyers and judges apart from ordinary people who believe in “vengeance,” and thus helps them feel morally superior and holier-than-thou.  It makes them feel sophisticated and refined to argue that society should forgive violent criminals who have supposedly “rehabilitated” themselves by claiming to be sorry for their victims (even though many “model inmates” have gone on to commit horrible crimes after being released on parole–seldom against wealthy lawyers).   Many of those lawyers were trained at my alma mater, Harvard Law School, where moral vanity can be found in abundance.

These sanctimonious lawyers and judges have forgotten the wisdom of the great Athenian lawgiver Solon, who observed that true justice will not be achieved until those who have not been victimized by crime are just as indignant as those who were victimized.  As Midrash sagely notes, “He who is kind to the cruel is cruel to the kind.”

(Unlike what you may have gleaned from watching “L.A. Law,” when a death sentence is overturned by the courts, it is very seldom because of the convict’s alleged innocence; the reason is usually something like a failure to consider some obscure supposedly mitigating factor, or the fact that the defendant was sentenced to death by a judge rather than a jury.  Most innocent people in jail are there for drug, sex-crime, or regulatory offenses, not capital crimes that carry the death penalty.)

The Obama administration is busy packing the courts with people who will block the death penalty and strict sentences for violent crime at every turn, like the radical law professor Goodwin Liu, and a judge who tried to block the execution of the Roadside Strangler based on the unbelievable ground that his “sexual sadism” was a mitigating factor–even though the Roadside Strangler admitted his execution was appropriate.  Whether or not the death penalty is good public policy (admittedly, death is different because it is irrevocable), it is obviously not unconstitutional, and should not be judicially nullified, since it is expressly contemplated in the Constitution, such as in the language of the Fifth Amendment.

Supreme Court Overturns Life Sentences Without Parole for Violent Juveniles, Citing “International Opinion”

by Hans Bader on May 17, 2010 · 3 comments

in Culture, International, Legal, Nanny State, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Zeitgeist

The Supreme Court has just held that violent juveniles cannot be given a life sentence without the opportunity for parole, unless they succeed in killing their victim. Even torturers and rapists who attempt to commit murder cannot be denied the opportunity for release under the Court’s decision today in Graham v. Florida.

Most states have long authorized life sentences without parole for vicious 17-year-olds who commit rape and attempted murder. But the Court looked instead to “international opinion” to declare such sentences “cruel and unusual,” writing that “The United States adheres to a sentencing practice rejected the world over,” illustrating “the climate of international opinion” against life without parole.

The Court’s opinion was joined in by all the liberal Supreme Court justices–including Obama’s appointee, Sonia Sotomayor–and authored by swing vote Anthony Kennedy.  Conservative justices Alito, Thomas, and Scalia dissented.

Chief Justice Roberts agreed with the liberal majority only that the defendant in this particular case deserved a chance for parole.  But he disagreed with its sweeping ruling that all violent juveniles must be given a chance for parole unless they succeeded in killing their victim. He cited the examples of nightmarishly evil people who will now be given an opportunity for parole thanks to the Supreme Court:

“But what about Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill?” asked the Chief Justice. “Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son?”  These vicious predators will now be free to seek parole.

The Court’s decision today illustrates that the Supreme Court is a liberal court, not a moderate or conservative court. The great majority of states–even “Blue States” like California–permit life without parole for violent juvenile torturers and rapists.  The Court ignored the wisdom of the sages, such as the ancient maxim that “he who is kind to the cruel is cruel to the kind.”

In relying on “international opinion” to decide the case, the Supreme Court ignored the pleas of civil libertarians and libertarian think tanks like the Cato Institute not to smuggle international standards into the interpretation of the American Constitution, since doing so is a dangerous precedent: international law and opinion are often hostile to important American civil liberties like free speech, freedom of the press, and freedom of religion; the right to self-defense against home intruders; and laws designed to secure those protections.

The libertarian Cato Institute, which frequently files amicus briefs in the Supreme Court seeking to promote civil liberties and privacy rights, filed an amicus brief in today’s case asking the court not to rely on “international norms,” since doing so would “undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.” (Disclosure: Competitive Enterprise Institute joined that brief.)  Sadly, the Court ignored that brief.

Courts should not rely on “international opinion” to decide cases, since it is vague and manipulable.  So-called international law is applied selectively by lawyers and judges, who cite real or imagined ”international law”  to push the ideological goals they support, while ignoring actual international court rulings they don’t like.

Left-wing lawyers take vague international treaties and interpret them as mandating liberals’ ideological wishlists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.” Never mind that most countries don’t even have affirmative action.

But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden.  But you will never see a liberal Supreme Court justice talk about “international law” or “international opinion” when it comes to punitive damages, which are sacrosanct in the eyes of many liberal judges.

Ultimately, even liberals may come to regret the reliance on “international opinion” by today’s Supreme Court decision, which sets a dangerous precedent for civil liberties.

In USA Today, liberal law professor Jonathan Turley earlier criticized the Obama administration for foolishly endorsing a “blasphemy” exception to free speech at the UN, in an effort to curry favor with Muslim countries: “Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.”

Turley says Western blasphemy cases have included the arrest of a Dutch cartoonist for depicting Christian and Muslim fundamentalists as zombies; the investigation of an Italian comedian for joking that in 20 years, the Pope will be in hell; the exclusion of a Dutch politician from Britain because he made a movie describing Islam’s holy book as “fascist”; and the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).

Earlier, conservatives and civil libertarians criticized the Obama administration for endorsing restrictions on so-called “hate speech” at the United Nations in an effort to ingratiate itself with other countries. The Administration is backing proposals to classify hate speech as a violation of international human rights law.  Some left-wing lawyers are now likely to argue that these proposals constitute “customary international law” binding on the U.S., as a consensus interpretation of treaties the U.S. has already signed, like the CEDAW equal rights treaty. The U.S. courts are unlikely to accept such arguments in the near future, although if Obama manages to appoint enough left-wing judges, the chances of such arguments prevailing will increase.

In Canada, hate speech laws have been used to punish ministers for anti-gay sermons. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, writing about the racial implications of the death penalty, and calling homosexuality immoral. Ironically, hate speech laws have often been used against minorities in the Third World, with prosecutors arguing that advocating the rights of minorities is an inflammatory form of racial separatism.

Supreme Court Confronts Free Speech, Animal Cruelty, Gun Rights, Violent Crime, and National Sovereignty Issues

by Hans Bader on October 6, 2009 · 2 comments

in International, Legal, Nanny State, Personal Liberty, Precaution & Risk

The Supreme Court is back in session. Today, it is hearing a challenge to a federal law banning depictions of cruelty to animals brought by a defendant convicted of selling pit-bull dogfight videos. A federal appeals court struck down the 1999 law as a violation of the First Amendment. The government is asking the Supreme Court to reinstate the law, and rule that animal cruelty depictions are not protected speech, the way some other kinds of speech, like obscenity, are considered unprotected by the Supreme Court.  (While the Supreme Court has ruled that obscenity is not protected speech, it has required that obscenity be defined narrowly so as not to reach sexually-oriented speech that either has artistic, literary, or political value, or is not patently offensive.)  At oral argument today, the Justices suggested that the law is overbroad and vague.

The Supreme Court also recently agreed to hear a challenge to Chicago laws banning handguns, in a case called McDonald v. City of Chicago. I explained earlier why the lower court ruling upholding the ban was based on flawed reasoning about how Second Amendment rights apply to state and local governments.

The court will also hear a challenge to the imposition of life sentences without parole on teenage offenders who have repeatedly committed violent crimes (like rape and sexual battery) against victim after victim, but not yet succeeded in killing someone. If the challenge is successful, it may be harder for states to deter violent crimes by minors against children and adults alike. (The death penalty and life sentences are significant deterrents to those who commit violent crimes, reducing the murder rate.  For example, a recent Emory University study says that each execution deters approximately 18 murders.)

The Heritage Foundation explains why life sentences without parole are appropriate, and why it would be a bad idea for judges to make up limits on such sentences.

A gaggle of left-wing lawyers and religious groups are asking the Supreme Court to rule that the Eighth Amendment’s ban on cruel and unusual punishment restricts the imposition of life without parole on juveniles, even when they have repeatedly committed violent crimes. Their long-run goal is to make it as difficult to impose life sentences as it currently is to impose the death penalty, which cannot be carried out without years of endless and expensive appeals, most of which focus on aggravating or mitigating factors, rather than the defendant’s guilt or innocence (even admittedly-guilty death row inmates often succeed in delaying for years, or even overturning, their death sentences).  (Most murderers never even get the death penalty, even when they outrageously torture the dying victim.)

The left-wing lawyers and religious groups are also unjustifiably seeking to use fuzzy notions of “customary international law” to override U.S. law, as the Cato Institute and others have pointed out in their court brief.

“Customary international law” threatens America’s security and civil liberties.  Piracy flourished in the crucial shipping lanes off the coast of Somalia partly due to a treaty that the U.S. has not ratified yet — but which is often described as “customary international law” binding on all nations. Partly as a result of the LOST Treaty, billions of dollars worth of cargo, and human lives, have been lost due to piracy. Harold Koh, appointed by Obama to be the State Department’s chief lawyer, argues that “customary international law” like LOST is binding on the U.S., even when it is reflected in treaties that the U.S. has refused to sign.  (European human-rights conventions and an indecisive White House also have delayed action against the pirates.)  That’s just one reason U.S. policymakers should think twice before following vague “international norms.”

Since customary international law is vague, liberal lawyers invariably use that ambiguity to claim that it dictates a host of controversial requirements that few countries would voluntarily adopt on their own, like banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

One of the arguments in the animal-cruelty video case — that the government can prohibit an entire category of speech to promote a “compelling interest” — is quite dangerous, because courts now routinely find even trivial government goals to be “compelling interests.” It is almost considered bad manners for a judge to candidly say that a law passed by a legislature is not supported by a compelling interest, which is why judges usually strain to find that the other Supreme Court requirement for upholding a ban on speech (“narrow tailoring”) is missing instead. (In my 2007 law review article, I listed some of the not-very-crucial interests widely recognized by the courts as “compelling,” like “preventing splintered political parties and establishing professional standards.”  Courts sometimes find interests to be “compelling” even when they logically contradict each other — for example, courts have found “compelling” interests justifying both governmental discrimination against gay people, and governmental bans on discrimination against them (even purely private discrimination by religious groups or clubs).  Some court rulings finding “compelling interests” are just wrong.)

The Supreme Court cases challenging life without parole are Graham v. Florida and Sullivan v. Florida. The animal cruelty video case is U.S. v. Stevens.