Supreme Court Watch: Criminal Justice

First off, intriguing argument about addressing "small scale" violence better to deal with gun violence overall, including the mass shootings of the sort that get the most press.

As noted here, with multiple later posts (see also SCOTUSBlog) on the 5-4 ruling on proper standards for determining mental impairment in capital cases. In the view of one blogger:

But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida's standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The "nose counting" here is done basically to address the "unusual" part of cruel and unusual, in part because of the argument that both criteria must be met. Does this mean that if the rack somehow became "usual" again, it would not violate the 8A, even if patently cruel? The term "unusual" has often been largely ignored as an independent criteria as noted in Trop v. Dulles in lieu of some general principle such as the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

The word "unusual" should have some meaning, yes, but especially taking the Constitution as a whole, it ultimately has limited bite. [An interesting take is discussed here.] We saw this in the lifetime without possibility of parole for minors case, e.g., where the fact that it wasn't overly rare wasn't enough to save the procedure at issue. Common practice is perhaps a rebuttable presumption of some sort. At any rate, as noted above, basic "fairness" might require striking down a punishment. This due process laden sentiment does not rest on nose counting. That is but a supporting argument. And, the mixture of reasons for not executing the mentally impaired is a case in point: both dignity and procedural fairness are covered. Finally, the opinion should not be stereotyped -- e.g., it did not merely rest on medical judgment.

Meanwhile, a few other cases of a criminal nature (one was more of a First Amendment case involving protestors), including a per curiam striking down something on double jeopardy cases via a bright line rule. Basically, putting aside the latter, we dealt with bad fact situations that were losers for the defendants, even if there was some reason to be concerned. Ginsburg/Breyer didn't join all of Alito's opinion in a deadly force case, but Ginsburg's opinion in the 1A case was fact specific (see, e.g., the SCOTUSBlog summary*). No big surprises in this area today.

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* OTOH, see discussions cited here, especially one pretty upset with the ruling. I admit to only briefly looking over it and think it's unclear how a closer case would be decided.