A Structural Approach to the Eighth Amendment

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Douglas A. Berman


The Eighth Amendment's prohibition on "cruel and unusual punishments" presents a classic constitutional line-drawing problem: most punishments must be constitutionally sound, yet courts must find that at least a few punishments cross the ethereal line that demarcates a sanction as unconstitutionally "cruel and unusual." This line-drawing challenge has proven especially confounding to the Supreme Court. Reflecting the view of many commentators, Ben Wittes has described the Justices' Eighth Amendment work as "a jurisprudential train wreck." With a bit more understatement, the Supreme Court has itself admitted that "our precedents in this area have not been a model of clarity."
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Posted 6:00 AM by Guest Blogger [link]

Picketing At Funerals

Jason Mazzone

Today the Supreme Court hears argument in Snyder v. Phelps. The case pits the privacy interests of the father of a dead Marine burying his son against the First Amendment rights of strangers picketing at the funeral. As Neil Richards has said, respondent Fred W. Phelps, Sr. is the least likeable party in all of First Amendment jurisprudence. But I predict Phelps will win because even if the Court is inclined to apply lesser First Amendment protections to funeral protests, this is the wrong case for the Court to do it.
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Posted 1:00 AM by Jason Mazzone [link]

Tom Friedman can't see the elephant (or smell the rotting pig)

Sandy Levinson

Jack, among others, has commented on Tom Friedman's column in the Sunday New York Times calling for a third-party in 2012. Friedman quotes Stanford political scienitst Larry Diamond: "We basically have two bankrupt parties bankrupting the country." Friedman sounds like James Madison in condemning those now "leading" our country for a basic lack of republican virtue (as in "Republican Form of Government," not maximizing the interests of the Republican Party, which the Madison of the Federalst almost certainly would have regarded--like the Democratic Party--as a basically wicked "faction"). There is much to agree with in the column, and I think it's altogether possible that we will have a four-party election in which David Petraeus will be the Republican candidate, Sarah Palin will represent the Tea party, Barack Obama the Democrats, and Michael Blomberg (with Evan Bayh) the Friedmanite "responsible centrists."

But why can't Friedman connect the basic dots and realize that he is simply regurgitating one aspect of early 20th century Progressivism, i.e., the denunciation of wicked politicians and the valorization of elites ostensibly committed to the "common good" instead of the "interests," without recognizing what at least some Progressives, including Woodrow Wilson and Teddy Roosevelt (who are, interesting enough, very high on the enemies list of Glen Beck, who might well run as Palin's vice president), that we have a radically defective Constitution? Indeed, that period brought us a number of important constitutional amendments, including the 17th Amendment that at least some Tea Partiers are trying to repeal in order to give selection of senators back to state legislatures.
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Posted 10:58 AM by Sandy Levinson [link] (33) comments

The Tea Party: Puppet or Windup Toy?

JB

Glenn Reynolds informs us that he told us so: the Tea Party is the result of an Army of Davids self-organizing, routing around traditional power centers,"tak[ing] on big institutions who would rather not listen to them, and win[ning]". Jonathan Rauch at the National Journal marvels at the Tea Party's ability to organize without central leadership.

Meanwhile, in her New Yorker piece "Covert Operations," Jane Mayer points out that various Tea Party organizations are well funded by anonymous contributions from wealthy and powerful industrialists, while Frank Rich of the New York Times, in his "Billionaires Bankrolling the Tea Party," points out the role of Freedom Works, and the many rich and powerful interests that are using the different strands of the Tea Party for their own ends, while Paul Krugman chimes in with a similar assessment.
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Posted 6:50 AM by JB [link]

The Senate Confirmation Process

Gerard N. Magliocca

The following is an op-ed of mine that appears in today's Indianapolis Star. While this is a small piece of the problem that Jack discussed yesterday, I think that it's important.

Posted 7:55 AM by Gerard N. Magliocca [link]

The Senate Must Be Reformed

JB

Tom Friedman argues that there will be a third party candidate in 2012 because people are sick and tired of the two-party system. His concern?

a president who won a sweeping political mandate, propelled by an energized youth movement and with control of both the House and the Senate — about as much power as any president could ever hope to muster in peacetime — was only able to pass an expansion of health care that is a suboptimal amalgam of tortured compromises that no one is certain will work or that we can afford (and doesn’t deal with the cost or quality problems), a limited stimulus that has not relieved unemployment or fixed our infrastructure, and a financial regulation bill that still needs to be interpreted by regulators because no one could agree on crucial provisions. Plus, Obama had to abandon an energy-climate bill altogether, and if the G.O.P. takes back the House, we may not have an energy bill until 2013.

But all of these half measures resulted not from lack of political will or from a bankrupt two party system, but from the Senate's ridiculous rules, including the filibuster, which requires 60 votes to pass anything. With the filibuster, the likes of Ben Nelson (Mr. Cornhusker compromise) and Joe Lieberman (who depends heavily on support from insurance companies) decide national policy. Without the filibuster, one needs only 50 Democrats plus the Vice-President to pass reform legislation in the Senate. Without the filibuster, the stimulus is larger, heath care reform includes different (and likely better) compromises, and the financial regulation bill has teeth. Change the Senate rules, and American democracy works again--hardly perfectly, for it has many many other problems besides--but far better than it has for the last two decades.

The problem, as I have said over and over again since Obama's election, is the Senate. It has been for some time. If we want to save American democracy, the Senate has to be reformed.
Posted 9:00 AM by JB [link]

Punishment and the Constitution in 2020: Luck or Law? The (Uneasy) Constitutional Case Against Indeterminate Sentencing

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Dan Markel

Nearly forty years ago, Judge Marvin Frankel famously spotlighted attention on the uncabined discretion available to judges in sentencing matters, writing that "[t]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law." At the time, such "unchecked and sweeping" powers belonged not only to federal judges but also state judges who similarly operated with little structure or appellate review to guide sentencing choices. As we all know now, Frankel’s policy entrepreneurship helped create the conditions for sentencing reform at the federal level and across many states over the subsequent four decades.

What is less well-known, however, is that trial judges in the majority of states in this nation still operate without any meaningful structure or appellate review to guide sentencing choices. Indeterminate sentencing -- by which an offender can face an increase in punishment simply for having a surly demeanor or for having been suspected of charges that were never brought -- is a design that still prevails around the several states. Perhaps less disconcerting (to some) but no less odd (to many), a defendant can receive a reduction in punishment from that which would otherwise be given because the judge knows the defendant goes to church or has done some form of community service in the past.
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Posted 6:00 AM by Guest Blogger [link]

Fix Medicare's Bizarre Auction Program

Ian Ayres

Crosspost from Freakonomics:

Here’s a piece co-authored with auction guru Peter Cramton, a professor of economics at the University of Maryland:

Fix Medicare’s Bizarre Auction Program

By Ian Ayres and Peter Cramton

Harry Truman once quipped, “Give me a one-handed economist! All my economists say, ‘On the one hand, on the other’” Often even a lone economist has difficulty making a recommendation. While true on certain matters, there are many issues where economists do agree about the right and wrong course of action. A case in point is competitive bidding for Medicare supplies.

Economists and other auction experts agree that using administrative prices from 25 years ago to set Medicare prices is a bad idea, and that a much better approach is to price Medicare supplies in competitive auctions. That is not surprising. What is surprising is the degree of consensus that Medicare’s shift to auctions is fatally flawed and must be fixed for the Medicare auctions to succeed in lowering costs while maintaining quality for medical equipment and supplies.

For the last ten years, the Centers for Medicare and Medicaid Services has been testing an auction approach that is incredible in the inefficiency of its flawed design. This policy brief lays out a number of weaknesses with the auction procedure but it is sufficient to focus on the interaction of just two:

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Posted 3:20 PM by Ian Ayres [link]

Bodies, Borders, and the National Security Sovereign

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

John T. Parry

In “America and the World, 2020,” one of the essays in The Constitution in 2020, Harold Koh suggests that before 2001, the executive branch was “checked by an energetic Congress and overseen by a searching judicial branch,” and there were no such things as “law-free zones, practices, courts, or persons” (316). He follows these claims with a catalog of some of the George W. Bush administration’s post-9/11 claims about expansive executive authority over national security issues.

There is no question that the Bush administration had a strong conception of itself as a “national security sovereign.” But Koh’s phrasing suggests that this conception was a new thing in American law and politics – that before 2001, the president was constrained and hemmed in by the other branches and by a pervasive rule of law.

I want to contest that claim from the perspectives of the law of international extradition and the practice of irregular rendition as they existed before the “war on terror.” Extradition traditionally has been an area – like immigration – in which the executive branch enjoys enormous discretion over the movement of bodies across borders and in which federal courts tend to defer to executive action. Thus, Second Circuit Judge Jon O. Newman wrote in LoDuca v. United States (1996) that, if there were no federal extradition statute, “the Executive Branch would retain plenary authority to extradite.” Plenary authority, that is, to seize people and expel them from the United States without process so that they can face criminal proceedings in another country. Statements of this kind – and there are many in the federal reports – indicate that extradition provides a useful way to get at the nature of the national security sovereign today and to say a bit about the kind of national security sovereign we might have in 2020.
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Posted 6:53 AM by Guest Blogger [link]

Selling My Addiction

Ian Ayres

Crosspost from Freakonomics:

An unusual auction began late yesterday on eBay. I’m selling my “right to regain weight.” Why would anyone in their right mind be willing to pay me cash to buy this right? What does this even mean?

It’s simple. The winner of the auction wins the rights to receive any forfeitures on my stickK weight maintenance contracts over the course of the next year. As I say in the eBay item description:

Following the auction’s close (and as soon as I receive payment from the auction winner), I will designate the winner as the recipient of any forfeiture payments made on my www.stickK.com maintenance contracts for the next 52 weeks.

Any week during this 52-week period where

(i) I fail to report to stickK my progress on the contract;

(ii) I report that my weight is above 185; or

(iii) My referee, Barry Nalebuff (Yale game-theorist and Ayres coauthor), reports that my weight is above 185 lbs

the auction winner will receive $500.

So, I’m selling the right to receive any and all stickK forfeitures during the next year. I’m auctioning my stickK contracts. Since I’m putting $500 at risk each week, the auction winner will receive somewhere between $0 and $26,000.

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Posted 2:10 PM by Ian Ayres [link]

Information Empowerment and Social Control

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Wayne A. Logan

It is safe to assume that in 2020, like today, a significant majority of the nation’s convicts will be subject to community supervision of some kind, not prison or jail. If the recent past serves as a guide, the correctional regime that they experience will be heavily information-based.

Convict information, assembled and disseminated to communities, played a linchpin role in what was arguably the defining social control innovation of the late twentieth century, sex offender registration and community notification (RCN) laws. The laws, now in effect nationwide and sweeping up roughly 700,000 individuals, utilize two distinct yet complementary information-based strategies. With registration, targeted individuals must provide identifying information to governments in the hope of instilling a surveillance effect (hence deterring recidivist misconduct) and enabling police to investigate reported sexual offenses. With community notification, this information is spread among communities, in the hope of empowering families and individuals with information to take self-protective measures against sexual abuse and to help police monitor registrants.
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Posted 6:08 AM by Guest Blogger [link]