Tag Archives: Constitution

Right Question, Wrong Case: Louisiana Dodges a Bullet as Supreme Court Dismisses Inmate’s Speedy Trial Claim

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Samuel Alito
Tl;dr version of today’s dismissal: Jonathan Boyer is a man who deserves to be in prison, so it’s not necessary to talk about what Louisiana’s criminal justice system might have gotten wrong. Picture of Justice Samuel Alito via PBS.

(Update: This post was revised on April 30, 2013. See the post history at the bottom for more details.)

Back in January, I wrote in this space about Boyer v. Louisiana, in which an indigent death penalty defendant argued that the state had violated his constitutional right to a speedy trial when it failed to provide funds for his court-appointed counsel, resulting in a seven-year wait for trial from prison. The Supreme Court had just heard oral argument on the agreed-upon question of whether Louisiana’s lack of necessary funds for defendants could be weighed against the state under the Court’s speedy trial analysis. My answer to this key issue then was (and still is) yes–regardless of Jonathan Boyer’s eventual conviction for the murder for which he was charged, the state needs to bear some responsibility for its failure to repair the infamous and well-documented funding crisis in its public defense system, which has led directly to long delays for the trials of indigent defendants.

Today, however, the Supreme Court dismissed Boyer’s case without even reaching this important constitutional question, seemingly unable to look past the heinous shooting death of which Boyer stood accused. In a one-sentence, 5-4 decision, an ideologically-divided Court stated that it had been “improvidently granted” (or, “DIG,” in Court-watcher parlance), meaning that it should have never agreed to hear the case at all. The reason? As Justice Samuel Alito explains in his concurrence, ((Justice Alito’s concurrence was joined by Justice Clarence Thomas, who, as you may remember, stole the show at the January argument by breaking a nearly seven-year silence and cracking a joke about the quality of Boyer’s defense counsel.)) some of the justices do not accept the premise that it was actually Louisiana that caused the “lengthy delay between [Boyer’s] arrest and trial,” despite the state’s longstanding problems with indigent defense. Rather, they believe that the defendant himself convoluted and muddled the path to trial. Since they don’t think that Louisiana was at fault, the question that the Court had originally agreed to hear–which had assumed the state was the party responsible for the delay–was not the correct one the case should be decided on.

To reach DIG, Justice Alito had to step over the Louisiana Court of Appeals’ factual finding that “[t]he majority of the seven-year delay was caused by the ‘lack of funding’” and the state’s own admission that it could not free up adequate money to pay Boyer’s two court-appointed counsel to mount a capital murder defense. Attributing Louisiana’s admitted lack of funds to mere “confusion about which branch of the state government was responsible for paying [the defense attorney’s] fees,” Alito looks to the record and describes the state getting railroaded by the defendant’s counsel when in fact it was trying to bring Boyer to justice promptly. In Alito’s recounting, Boyer’s attorneys took advantage of the “confusion” by repeatedly delaying a funding hearing, as well as asking for multiple continuances of trial even after the state dropped its pursuit of the death penalty (thus making the case less expensive to defend). Explaining away the plain language of the Louisiana Court of Appeals’ conclusion about the cause of delay, Alito insists that the words “lack of funding” “most likely means” the hoopla surrounding the funding of the indigent Boyer’s trial (which to Alito was largely caused by Boyer himself), rather than, well, the state’s lack of funding.

Of course, in the eyes of the Supreme Court’s conservative majority, what really did Boyer in is the fact that he was eventually convicted of murder, a fact that makes him a less sympathetic plaintiff than if he had been exonerated at trial after languishing for seven years in prison. Just to remind us all of what kind of person the state was dealing with, Alito writes:

The evidence of petitioner’s guilt was overwhelming. He gave the police a detailed statement describing the murder; his brother, an eyewitness, agreed to testify about the crime; multiple other members of petitioner’s family told police that they had heard petitioner confess; and petitioner’s fingerprints were found in the victim’s truck.

Accordingly, a sense of “well, he deserved it anyway” permeates the concurrence–Jonathan Boyer was found guilty of shooting a man to death, so it’s no big loss to society to dismiss his case and avoid the larger question of whether Louisiana also did something wrong here. In fact, Justice Alito thinks that Boyer has already gamed the system through his delaying tactics and gotten a better deal out of the state as a result: “It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor…[W]hat started out as a very strong case of first-degree murder ended up, after much delay, in a conviction for lesser offenses.”

Having successfully schemed his way to get out of the death penalty, Jonathan Boyer doesn’t deserve anything more from this court. What Alito pointedly ignores, however, is the fact that even if this is true in Boyer’s case, Boyer is not the only indigent inmate in Louisiana’s prisons who has seen a trial delay thanks to dithering (or “confusion”) on the part of the state.

Justice Sonia Sotomayor’s dissent against the improvident grant ruling points out as much. Writing for herself and Justices Breyer, Kagan and Ginsburg, Sotomayor doesn’t disagree with the jury finding that Boyer was guilty of second-degree murder, but she does think that the Court needs to take this opportunity to clarify the state’s speedy trial obligations, precisely because Boyer’s situation is not a unique or isolated one. Specifically, Sotomayor states that the lower court should have weighed the failure to fund against the state in Boyer’s speedy trial challenge:

Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent’s defense is not as serious as a deliberate effort by a State to cause delay… But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Justice Sotomayor warns that the Court may have avoided that constitutional issue today, but sooner or later, it will have to come up with an answer about the state’s accountability. In the meantime, indigent inmates in Louisiana continue to await trials from behind bars due to the state’s funding crisis, being treated as if they were guilty before proven innocent (or guilty)–a fact that Sotomayor backs up with empirical studies showing significant understaffing of Louisiana’s public defender services and average waits of 501 days between felony arrests and trials in some parishes. Jonathan Boyer’s case may have been particularly outrageous in just how long he had to wait for his, but, as Sotomayor writes, his case is indicative of “larger, systemic problems in Louisiana.” What Justice Alito and the majority forget is that the Sixth Amendment speedy trial guarantee applies to both the innocent and the guilty–and the longer the Court sits on its hands, the more likely it is that an innocent version of Jonathan Boyer will be needlessly imprisoned for years while awaiting acquittal.

As it turns out, Boyer v. Louisiana is a prime example of the right question coming before the Supreme Court but with the wrong facts and the wrong plaintiff. The Court surely would have been more hesitant to dismiss the case wholesale had the defendant been more sympathetic, the crime less horrible, the facts more ambiguous. The Boyer DIG also highlights the unique difficulty of Sixth Amendment speedy trial cases: because the Supreme Court said in 1973’s Strunk v. United States that the proper remedy for a speedy trial violation is an outright reversal of any conviction (or dismissal of indictment), courts are very hesitant to permit such a drastic measure unless they are convinced of the defendant’s innocence. This was undoubtedly a result that Justice Alito and the conservative majority did not want to see with Boyer, who they (and a non-unanimous jury) have decided deserves to spend life in prison without parole. Due to the zero-sum nature of speedy trial disputes, however, the Court’s dismissal today lets the state of Louisiana off scot-free for its failure to fix its admittedly broken indigent defense system.

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Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

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Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

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* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

#23: The Living Constitution

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I was first made aware of David A. Strauss’ The Living Constitution via a Stanley Fish column on the New York Times web site. Titled “Why Bother With the Constitution?,” Fish’s blog post for May 10 dovetailed Supreme Court nominee Elena Kagan’s impending confirmation process with the fundamental constitutional questions raised by Strauss in his 139-page book.

Professor Fish’s reaction to The Living Constitution is best described as righteous indignation. To some of Strauss’ statements he retorts, “This is simply wrong.” To others, with considerable consternation, “This is an amazing statement.” Towards the end he proclaims that “the incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, ‘it makes sense,’ he says, ‘to adhere to the text even while disregarding the framers’ intentions.'”

So what exactly is going on here? Clearly something that Strauss is advocating, or even simply implying, is rather disagreeable to Mr. Fish. The former’s thesis is described (on the book’s front flap) as a defense of “the living Constitution…a common law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders.” Or, as Stanley Fish would have it, “Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.”

Not exactly. I don’t get the impression Strauss intended to relegate the written Constitution to window dressing. Nevertheless, Fish is correct in noting that the The Living Constitution makes some bold claims as to the document’s role in contemporary jurisprudence. In large part, the book is a crusade against “originalism,” the judicial philosophy espoused most visibly by Supreme Court justices Antonin Scalia and Clarence Thomas. According to the originalist line of thinking as delineated by Strauss, “when we give meanings to the words of the Constitution, we should use the meanings that the people who adopted those constitutional provisions would have assigned…It is impermissible — it’s a kind of cheating, really — to take the words of the Constitution and give those words a meaning that differs from the understandings of the people who were responsible for including those words in the Constitution in the first place.”

The obvious counterpoint is, of course, the question of what to do in the majority of scenarios in which the Founding Fathers set forth no explicit guidelines (what exactly constitutes “cruel and unusual punishment?”), could not possibly have foreseen the issues (privacy on the Internet), or espoused views that are no longer acceptable in modern society (slavery). Acknowledging these obstacles, Strauss contends that they render originalism useless as a judicial philosophy. (In a section he headlined “The Originalists’ America,” Strauss remarks that “racial segregation of public schools would be constitutional,” “the government would be free to discriminate against women,” “the Bill of Rights would not apply to the states,” and so on.)

In titling his book The Living Constitution, he follows a long (albeit controversial, like nearly everything else related to jurisprudence) tradition of adhering to a more flexible view of the Constitution. But then he takes matters a step further. “It is the unusual case,” Strauss notes, “in which the original understandings get much attention.” In Strauss’ estimation, not only is the Constitution necessarily mutable to fit the needs of a dynamic society, in a way it is actually irrelevant to modern “constitutional” law itself. This is because of what he terms the “common law” approach: historically, “the law was a particular set of customs, and it emerged in the way that customs often emerge in a society…It can develop over time, not at a single moment; it can be the evolutionary product of many people, in many generations.”

In contemporary American law, this series of ever-shifting customs takes the form of precedent. Past judges’ rulings are considered the foundation upon which future verdicts are rendered; thus, Strauss claims, this methodology avoids both the impracticalities of originalism and the dangers of judicial overreach inherent to the dominant view of “living Constitutionalism,” in which activist judges are free to bend the law to their liking at will.

In reality, however, what the author deems an alternative approach to mainstream modes of thought is not entirely groundbreaking. At its simplest, Strauss’ thesis is simply a reassurance that living Constitutionalism works, that it does restrain judges from arbitrary decision-making. Where it differs, however, is in his attitude toward the actual text of the Constitution. To Strauss, the lip service that justices pay to the sacred text in their judicial opinions is just that: lip service. In actuality, he argues, current legal interpretation has so completely evolved and transformed over the years that the written Constitution itself has lost its germaneness to today’s legal wrangling. Quoting Thomas Jefferson, who wrote that “the earth belongs…to the living,” Strauss maintains that the Constitution, restrained as it is by the chains of centuries-old thinking, is an insufficient substitute for judicial precedent. And yet by forcing judges to formulate constitutional justifications for their every ruling — however tenuous the connection may be — living Constitutionalism, in most cases, prevents the worst variants of judicial activism. (Of course, depending on one’s particular ideological affiliations and the results of any given trial, this may or may not always be readily apparent.)

Stanley Fish, meanwhile, is having none of this. “You don’t interpret a text by looking for meanings people would find agreeable,” he writes. “You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.” He then angrily concludes: “If this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.” That Fish and Strauss cannot even agree on what the “real” Constitution is provides a worthy bellwether of the political whirlwind that is sure to accompany Elena Kagan into her much-anticipated confirmation hearings.