May 27, 2010

Posted in Uncategorized

SG Corrects Erroneous Prisoner Data Used in Graham v. Florida – That National Consensus Model Just Does Not Seem To Be Working Out

After Justice Kennedy issued the opinion in Graham v. Florida, relying on the “national consensus” model of 8th Amendment jurisprudence, I remarked:

I often joke that I became a lawyer because I couldn’t do math. I guess I’m not the only one.

Well looks like SCOTUS made another counting mistake.

From the BLT:

In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG’s knowledge, was inaccurate.

The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that “there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes.” In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

Katyal’s letter focused on the information submitted by Bureau of Prisons in its letter, “of which this office became aware only upon the release of the Court’s decision,” and which was “submitted in response to a confidential request from Court personnel.”

Katyal said that because of “time constraints,” the number of six federal prisoners was arrived at by consulting “automated inmate records,” rather than presentence reports and other documents. Since the decision came down, Katyal said a “careful review” of presentence reports was conducted, leading to the conclusion that “it appears that none of the six inmates listed … is serving a life sentence  based solely on a nonhomicide crime completed before the age of 18.” Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

In other words, the Supreme Court, on its own initiative petitioned the Bureau of Prisons for information regarding the number of inmates serving sentences of life without parole for juvenile non-homicide crimes. The BOP did not inform the SG’s office, and provided SCOTUS with inaccurate information.After the opinion was issued, Katyal double checked, realized the BOP was wrong, and issued this letter to the Court.

A few comments.

First, what right does the Court have to petition parties for information that was not briefed? This is not a civil law country where the Judge becomes the finder of fact. Rather, Judges should determine questions of law, and on appeal, determine whether the lower court was correct.  Is this common for Courts to look outside the record, and actually ask for info? I always get irked when SCOTUS appoints counsel when the parties are no longer interested in litigating a case. What authority do they have to do so? Oh well. In the words of Mel Brooks, “It’s good to be the king.”

Second, this further proves the flaws of the national consensus model of 8th amendment jurisprudence. In two consecutive HUGE 8th amendment cases, the Court made fundamental counting errors, that impacted huge questions of constitutional law.

Along with Ilya Shapiro, I have written about the fallacy of national consensus in Pandora’s Box in the context of Kennedy v. Louisana, another opinion written by Justice Kennedy.

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care,164 the right to education, or reproductive rights?

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?168 Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

If the Court cannot ascertain such a simple piece of information, how can we possibly expect this model to be anything more than mere window dressing?

Third, and perhaps most importantly, this brings to the fore the fact that the Supreme Court makes mistakes. Kudos to Katyal for making this correction. But I wonder how many other errors are made by the Court in their attempts to elucidate the law and rule on big issues. Think back to Kennedy v. Louisiana. The Court’s mistake only came to light following a blog post! I am glad this admission of error comes from the Government and not the Internet.

Now, will the Court issue a new opinion, noting that this error was de minimis, like they did with Kennedy v. Louisiana? Perhaps we will have another opinion from Justice Thomas.

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  • Michael Yuri

    “First, what right does the Court have to petition parties for information that was not briefed? This is not a civil law country where the Judge becomes the finder of fact. Rather, Judges should determine questions of law, and on appeal, determine whether the lower court was correct.”

    Check out the advisory notes to Federal Rule of Evidence 201. It distinguishes between “adjudicative” facts, which are the facts specific to a particular case (and are covered by Rule 201), and “legislative” facts, which are those used in the process of formulating legal rules.

    When Courts decide questions of law, they routinely assume facts that haven’t been introduced through any formal evidentiary process or proven under any formal legal standard. Is there a reasonable expectation of privacy? Will this ruling have a deterrent effect? What incentives will this legal rule create? Are there strong reliance interests on the existing law? Will this rule open the floodgates for litigation in the lower courts?

    Courts routinely answer questions like these and thousands of others in all manner of common law and constitutional contexts, making (usually implicit) factual assumptions in the process. The only difference in Graham is that (1) some of the Court’s assumptions were made explicit, and (2) the Court attempted to obtain accurate information rather than relying on “common sense” or gut intuition.

    The Court was not acting as a “finder of fact”. It was obtaining background information against which to craft a rule of law. It’s not in any way inappropriate, nor is it avoidable.

    • Josh Blackman

      Thanks for the note, and the citation to the FRE.

      Rule 201(b) provides:
      (b) Kinds of facts.
      A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

      The fact the SG had to submit a letter to the Court indicates that this was obviously was in dispute. Further, it was not generally known, as the Court was only able to ascertain that fact after writing directly to the BOP. You couldn’t google it, or bring it up on West. Finally, I do not think it was capable of accurate determination, as no other sources existed to determine this fact.

      While this fact does not seem to be a typical adjudicative fact, it does not seem to meet the requirements of Rule 201 to constitute a legislative fact.

      Also, this rule seems to apply to the trial court, and not an appellate court. Generally, appellate courts are bound by the record, whereas district courts can, and do look outside for legislative facts.

      The Court was acting as a finder of fact, in the sense of a civil law inquest. They were searching for facts outside the record, ex parte, without telling the parties of interest.

      This was not unavoidable. If so inclined, the Court could have asked the United States to brief this issue. The court routinely calls for the views of the solicitor general. This would have been no exception. Perhaps if they asked the US to brief the issue of federal law in Kennedy v. Louisiana, they would not have made such a glaring error.

      • Michael Yuri

        I think you’re misreading FRE 201. The entire rule applies only to adjudicative facts, and 201(b) is explaining the criteria that an *adjudicative* fact must meet in order to be judicially noticed. It has nothing to do with legislative facts.

        I agree that the FRE does not apply to the Supreme Court (although it does apply to the courts of appeals, see FRE 1101(a)). I was using it to illustrate the difference between adjudicative facts, which are found by the trial court and (usually) left undisturbed on appeal, and legislative facts, which are routinely found, implicitly and explicitly, by the appellate courts. The key difference between inquisitorial systems and ours is that in an inquisitorial system the judge takes an active role in gathering *adjudicative* facts.

        You say that “Judges should determine questions of law,” but the problem is that our law (both the common law and constitutional law) is riddled with legal rules that depend on or are justified by underlying factual premises. In applying or creating these rules, the Court must necessarily, implicitly or explicitly, make factual findings, not about the parties to the case, but about the world in general.

        The legal test that the Graham majority applied asked whether there was a “national consensus.” To the extent that “consensus” is a fact capable of ascertainment, it is a legislative fact. It is used for the purpose of creating/defining the legal standard; it is not a fact specific to the parties in the case before the court.

        Clearly, the Court made a mistake in this case. That’s not good, and of course when the Court relies on legislative facts, it should make a serious effort to get them right. But that has nothing to do with the propriety of the Court doing its own research on these types of questions. It’s just a comment on the *quality* of that research in this case.

        And I fail to see how asking the views of the Solicitor General (another non-party to the case) is somehow more *appropriate*. (Although I don’t doubt that it would have led to more accurate research in this case).

        • Josh Blackman

          Michael, I stand corrected, I did misread 201, it only applies to adjudicative facts. The notes to Rule 201 provide a really good summary of legislative vs. adjudicate facts.

          If this case was brought in Federal Court, I would still think it odd for a District Court to write directly to the Bureau of Prisons to ascertain this fact, without asking the US attorney and the Defendant, even if it qualified for judicial notice under 201.

          I will quibble a bit with your observation that a “national consensus” is a legislative fact. What is a legislative fact, I think, is how many people are being held without parole for a juvenile non-homicide offense in a state or federal system. That fact can be reduced to a number, much like the time of sunset on a particular day (a fact that I think is the classic legislative fact). But the balancing of these numbers from different to determine whether a “national consensus” exists is pure judicial decision making.

          And the Supreme Court routinely calls for the views of the SG in a number of cases, if a federal interest is implicated, even if they are a nonparty. So for whatever this tradition is worth, I do not think it would be inappropriate.

  • “You couldn’t google it” – Is that the new judicial notice standard? 😉

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  • The Court relied on faulty information in this case, but your attempt to use that to undermine the decision is somewhat weak, considering that the correction of the error only made the national consensus stronger.

    I know you’d like to insult Graham in any way possible, but this attack isn’t particularly effective.

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