Scalia’s Criminal Law Legacy: Eighth Amendment Edition

Before returning to the Sixth Amendment, I’ll turn to the Eighth Amendment, with a focus on Scalia’s death penalty jurisprudence.

The Eighth Amendment bars the government from imposing excessive fines, excessive bail, and “cruel and unusual punishments.” In the 1958 case Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren established the modern jurisprudence of the Eighth Amendment, writing that its prohibition on “cruel and unusual punishments” is not static, but “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”

One string of post-Trop law prohibits specific punishments as applied to classes of offenders (e.g., no death penalty for juveniles) and classes of offenses (e.g., no death penalty for the crime of child rape). Until the Court’s 2010 decision in Graham v. Florida, 560 U.S. 48, holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, the Court’s decisions in this area dealt almost exclusively with the death penalty. In the early 2000s, opponents of capital punishment won two major victories before the Supreme Court. As a result, the federal government and states can no longer execute persons who are intellectually disabled (Atkins v. Virginia, 536 U.S. 304 (2002)), or who were juveniles (i.e., under the age of 18) at the time of the crime (Roper v. Simmons, 543 U.S. 551 (2005)). Roper extended the holding of Thompson v. Oklahoma, 487 U.S. 815 (1988), which had outlawed the death penalty as a punishment for persons who committed a capital offense when under the age of 16.

Justice Scalia authored dissents in all three cases. He never expressly advocated for the death penalty—“I take no position on the desirability of the death penalty,” he once wrote—but Scalia’s feelings on that form of punishment are, I think, apparent (it’s safe to say he’d be “death-qualified” to sit on a capital jury). Nevertheless, his opinions also show that his votes had nothing to do with the appropriateness of the death penalty—and everything to do with who gets to decide how society punishes those convicted of the gravest offenses. In Scalia’s view, in almost all cases the people through their elected representatives, and not judges, should have the power to decide whether death is an appropriate punishment for particular classes of offenders or offenses. “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?” he asked (rhetorically) in Roper.

Scalia grounded his position first in the text of the Constitution and the original meaning of the Eighth Amendment. As he wrote in Baze v. Rees, 553 U.S. 35 (2008),

[T]he very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for “a capital, or otherwise infamous crime,” and prohibits deprivation of “life” without due process of law. The same Congress that proposed the Eighth Amendment also enacted the Act of April 30, 1790, which made several offenses punishable by death.

Thus, Scalia rejected the prevailing view that federal judges could rely on “evolving standards of decency” to declare punishments unconstitutional. He rather believed that the Eighth Amendment’s meaning is static. In an interesting essay on the morality of capital punishment, which Scalia published in the journal First Things, he explained:

[The Eighth Amendment] means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

In any event, Scalia did not trust himself or his colleagues to gauge accurately society’s evolving standards. “The risk of assessing evolving standards,” he wrote in Thompson, “is that it is all too easy to believe that evolution has culminated in one’s own views.” His dissent in Atkins scolded, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members,” before accusing the majority of fabricating a “national consensus” against execution of the intellectually disabled.

Causing Scalia to take even more umbrage was the Court’s reliance on the views of professional and religious groups, as well as the views of other developed countries. In Atkins he wrote that “the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls. [T]he views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”

Scalia’s opinions on the death penalty are frequently blistering and deal scathing criticism against colleagues who disagree with him. When I studied constitutional law, my professor made a point of contrasting Scalia’s dissent in Lawrence v. Texas (where the majority held that the Constitution protects homosexual relations) with Justice Rehnquist’s dissent in Roe v. Wade. “That’s how you write a dissent on a contentious issue,” she remarked, holding up Rehnquist’s less combative writing style as a model of persuasion. She thought Scalia’s derisive, dismissive tone made his opinions less persuasive. In a Los Angeles Times op-ed, renowned legal scholar Erwin Chemerinsky wrote that Scalia’s “nasty, sarcastic and personal” opinions were having a negative effect on a generation of law students and young lawyers. They were developing the habit, attributable to a steady diet of Scalia, of lacing their briefs with “derision and ad hominem barbs.” Chemerinsky concluded, “If legal professionals ignore Scalia’s meanness or—worse—pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers.” Scalia’s writing, however, is widely admired across the political spectrum. As Jeet Heer wrote in The New Republic (“Antonin Scalia Is the Supreme Court’s Greatest Writer”), months before the justice died, “Scalia is the foremost living practitioner of performative legal prose, a masterful writer who can make torts tarty and judgments jazzy.”

Chemerinsky’s and Heer’s sentiments both find expression in Scalia’s concurrence in Glossip v. Gross, 576 U. S. ___ (2015). Responding to Justice Breyer’s dissent, which called for the abolition of the death penalty under the Eighth Amendment, Justice Scalia crafted a short, punchy opinion with prose that is at once marvelous and intemperate. I’ll end with these selections:

Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11-month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. . . . The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.


Even accepting JUSTICE BREYER’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook.


[W]hether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary’s pay grade. Perhaps JUSTICE BREYER is more forgiving—or more enlightened—than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.


[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.


As JUSTICE BREYER concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,”—a task for which we are eminently ill suited. Indeed, for the past two decades, JUSTICE BREYER has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, JUSTICE BREYER uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” (A caution to the reader: Do not use the creative arithmetic that JUSTICE BREYER employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.)


Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.

Scalia’s Criminal Law Legacy: 6th Amendment Edition (Part I)

The Sixth Amendment to our Constitution guarantees persons charged with crimes certain trial-related rights: to be tried by an impartial jury, to a speedy and public trial, to be informed of the nature of the charges, to confront the witnesses against them, to subpoena witnesses for their defense, and to the assistance of counsel.

Two of those rights—trial by jury and confrontation of adverse witnesses—underwent a transformative decade in the 2000s. Justice Scalia was instrumental to both transformations, which favored defendants.

Right to Trial by Jury

Criminal offenses consist of “elements” that the government must prove beyond a reasonable doubt to get a conviction. In recent decades, lawmakers have created schemes whereby facts and circumstances that aren’t “elements” of the charged offense, but relate to the offender and his crime, may increase the punishment for the offense. In the landmark case Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant pleaded guilty to a crime (possession of a weapon for an unlawful purpose) that carried a maximum penalty of 10 years. The prosecutor asked the judge to increase the sentence based on the fact that Apprendi’s crime was racially motivated. Because the judge agreed with the prosecutor, the law allowed the judge to impose up to 20 years, double the 10-year maximum for the crime. (The judge gave 12 years.) Under New Jersey law, the government had no obligation to present the hate crime enhancement to a jury and have its members find beyond a reasonable doubt that Apprendi’s motives were racial. Instead, the judge was permitted to make the finding by a preponderance of the evidence (a lighter, and from the government’s perspective more favorable, burden of proof).

In Apprendi’s case, the Supreme Court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi’s sentence was invalid because a judge, not a jury, had determined the existence of an aggravating fact necessary to increase the sentence.

Apprendi upended the criminal sentencing landscape. Although Justice Stevens authored Apprendi on behalf of five justices, Justice Scalia laid the groundwork for the sea change in sentencing laws. In a dissent in Almendarez-Torres v. United States, 523 U.S. 224 (1998), Scalia set forth the rule that would carry the day two terms later in Apprendi: “[I]t is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject.” Dissenting in Monge v. California, 524 U.S. 721 (1998), later in the same term as Almendarez-Torres, Scalia argued that the constitutional right to trial by jury meant little if it permitted judges to increase criminal sentences based on a range of sentencing enhancements a judge could unilaterally apply:

Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, “knowingly causing injury to another,” bearing a penalty of 30 days in prison, but subject to a series of “sentencing enhancements” authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the State then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he “knowingly cause[d] injury to another,” but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be, to borrow a phrase from Justice Field, “vain and idle enactment[s], which accomplished nothing, and most unnecessarily excited Congress and the people on [their] passage.”

The views expressed in Scalia’s dissents in Almendarez-Torres and Monge would in short course become law.

Though no fan of the Court’s Eighth Amendment jurisprudence policing the death penalty (where he often found himself in dissent), Scalia joined the majority in Ring v. Arizona, 536 U.S. 584 (2002), invalidating the piece of Arizona’s capital sentencing law allowing a judge to determine the presence or absence of aggravating factors required for imposition of the death penalty. Scalia lamented that the Court’s own misguided interpretation of the Eighth Amendment had forced states to “specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed.” Of overriding importance, however, was his belief “that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.” He added this powerful paean to the jury’s role in capital trials:

[M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

In Blakely v. Washington, 542 U.S. 296 (2004), Scalia’s majority opinion furthered the aims of Apprendi by holding that a trial judge violated Blakely’s jury right when the judge, in accordance with statute, gave an “exceptional sentence” (three years in excess of the maximum) to Blakely because he’d acted with “deliberate cruelty.” Like much of his best work, Scalia’s opinion in Blakely is at heart about power. He characterizes the jury right as “a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” To conclude, Scalia drew on his lodestar, the original meaning of Constitution, noting, “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the State.”

Right to Confrontation of Witnesses

Around the same time as the Apprendi revolution, Scalia helped to reshape the meaning of the Confrontation Clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.” According to the Court’s ruling in Ohio v. Roberts, 448 U.S. 56 (1980), the Confrontation Clause did not prohibit the government from introducing an unavailable witness’s statement against a criminal defendant if the statement bore adequate “indicia of reliability.” Roberts meant that the government could (unless hearsay rules said otherwise) admit a witness’s out-of-court statements without affording the defendant an opportunity to cross-examine that witness in court. Scalia’s opinion in Crawford v. Washington, 541 U.S. 36 (2004), changed that by holding the government cannot introduce a witness’s out-of-court, testimonial statement unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.

Because testimony from civilian witnesses who are vulnerable to intimidation or just don’t want to show up for court (which is common with domestic violence) is an integral piece of many prosecutions, Crawford raised the bar for prosecutors. Scalia raised the bar even higher in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), where the prosecution submitted a certified drug test report without also presenting live testimony of the forensic chemist who tested the drugs. In Scalia’s book, this scenario allowed for a “straightforward application” of Crawford; the government could not introduce the results of the drug test without offering up the analyst who tested the drugs for cross-examination. A certified report did not do.

Melendez-Diaz presents a particular challenge for forensic laboratories and prosecutors. Because the kinds of cases that often require forensic analysis, e.g., DUIs and drug cases, are high-volume, the demand for forensic witnesses in such routine cases cannot easily be met. Justice Kennedy captured such challenges well in his dissent in a related case, Bullcoming v. New Mexico, 564 U.S. 647 (2011):

New Mexico’s experience exemplifies the problems ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600—or 8 or 9 every workday. In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, “chaotic.” And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. . . . The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.

I doubt Scalia enjoyed the prospect that the rule he championed would give the defense a windfall in many cases (as the author of the law review article “The Rule of Law as a Law of Rules,” he probably had little sympathy for lawbreakers), but he was firm in his belief that inconvenience to the prosecution and its witnesses did not overcome the confrontation right. “The Confrontation Clause,” he wrote in Melendez-Diaz, “may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”

Scalia’s preference for in-the-flesh confrontation was on display long before Crawford and Melendez-Diaz. In 1990 the Supreme Court was asked to decide whether the Confrontation Clause categorically prohibited a child victim in a child abuse case from testifying outside the physical presence of the defendant by one-way closed circuit television. (Maryland v. Craig, 497 U.S. 836 (1990)). The Court found that the “State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.” In dissent, Scalia grasped the charitable impulse behind the policy, but gave no quarter in rejecting it:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

Scalia’s deconstruction of the majority’s reasoning is an analytical gem worth quoting at length:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for—“face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for—“face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “right to meet face to face all those who appear and give evidence at trial.”

One of the common criticisms of Justice Scalia’s jurisprudence is that his originalist legal philosophy served as a veneer allowing him to pursue his personal preferences under the guise of interpreting the Constitution. Scalia’s rulings on the jury right and confrontation right, which assisted criminal defendants, undermine that criticism, since there is nothing in Scalia’s writings that indicate a soft spot for criminals. Rather, his decisions in the Apprendi– and Crawford-line of cases, as well as in Craig, show how he carried out his formalist approach to constitutional interpretation without regard for which side he was helping.

On the Anniversary of His Death: Justice Scalia and the Criminal Law

Tomorrow marks the first anniversary of Justice Antonin Scalia’s death. In the way of flashbulb memories, I suspect I’ll remember the moment I learned of his passing as vividly in fifty years as I recall it now.

In the days after Justice Scalia’s death, I surveyed a number of defense attorneys for their reflections on the man. The response was uniformly negative. One told me he was “elated” by the news. Others soberly assessed his legacy: he was no friend to their side. “What about all his defendant-friendly decisions?” I asked. To which I received some quizzical looks. “Crawford? Jones?” Some gave an inch; though Scalia was a rotten apple, he had a few edible bites to him.

If I’d probed for the root of these unfavorable takes, I surmise I might have found Scalia’s acerbic dissents on hot-button topics like gay rights as much to blame as any opinions of his that disadvantaged criminal defendants. Still, the defense attorneys I questioned had a point: Scalia was not a friend of the accused in the same way and to the same extent as Justice Thurgood Marshall. This, it seemed, overshadowed my counterpoint—that Scalia frequently favored the rights of criminal defendants over the law enforcement interests of governments and even pioneered areas of constitutional law that benefitted the accused.

Of course, to analyze Scalia’s criminal law jurisprudence through the binary of pro-defendant/pro-government is to embark on a pointless quest. Scalia was committed above all to interpreting the Constitution as it was understood at the time of its drafting and ratification. That method of interpretation routinely placed him on both sides of disputes between criminal defendants and the sovereigns prosecuting them.

Scalia’s influence on our criminal law was profound. However, as Professor Rachel Barkow (NYU) noted in a tribute to her former boss, his contribution in this area “does not always receive the attention it deserves.” To help shine some more light on Scalia’s criminal law jurisprudence I’m planning a series of posts, which will be organized by Amendment (4th, 5th, 6th, and 8th, though not in that order). Check back soon for the first entry in the series, highlighting Scalia’s transformative influence on the right to trial by jury and confrontation.

The Constitutional Implications of Monetary Bail: Walker v. City of Calhoun

In the same vein as my last post, about the role of community bail funds in reforming bail practices, I’ll touch upon the judiciary’s role in bail reform. The Supreme Court’s last major statement on the constitutional implications of bail, United States v. Salerno, 481 U.S. 739 (1987), might suggest that courts aren’t willing to police bail laws all that strictly. Salerno upheld against Eighth Amendment (excessive bail) and Fourteenth Amendment (substantive due process) challenges, a provision of the Bail Reform Act of 1984 allowing a federal court to detain a defendant pending trial if the government presents clear and convincing evidence that no conditions of release “will reasonably assure . . . the safety of any other person and the community.” Justice Marshall, in dissent, condemned this provision of the statute as “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state.”

But Salerno is a remnant of a different era—when criminal justice reform usually meant pro-government reform. Perhaps Walker v. City of Calhoun (2016 WL 361612) is a harbinger of a new era, one in which courts are willing to circumscribe the government’s power in the realm of bail. In 2015, Maurice Walker sued Calhoun, Georgia after he was arrested for walking drunk in the middle of road, booked into jail, and told by a police officer “that he would not be released unless he paid the standard $160 cash bond [for] being a pedestrian under the influence.” (Georgia statute classifies “pedestrian under the influence” as a misdemeanor punishable by a maximum fine of $500 and no jail time.) Walker was living off a meager Social Security payout and couldn’t afford to post bond. Instead, he had to wait in jail until his court date the next week. In his suit, Walker claims that the City of Calhoun’s bail policy violates the Fourteenth Amendment. The district court agreed. So does the Department of Justice, whose Civil Rights Division has submitted an amicus brief on behalf of Walker. The case is pending appeal before the Eleventh Circuit.

In a brief three-paragraph analysis that raises more questions than it answers, the district judge found that “[a]ny bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.” Suggesting constitutional problems not only with bail schedules, but also with monetary bail writ large, the court added that “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.”

The district court’s ruling in Walker sparked a number of questions for me, three of which I’ll enumerate in this post:

1. If courts start to rule in favor of plaintiffs like Walker, will they do so via the equal protection route, the due process route, or some combination of both (à la Obergefell)? In Walker the district court relied solely on the Equal Protection Clause to invalidate Calhoun’s bail scheme. Although there is Supreme Court caselaw indicating that equal protection guarantees indigent defendants certain benefits in criminal proceedings (e.g., free transcripts, Griffin v. Illinois, 351 U.S. 12 (1956)), the Equal Protection Clause isn’t a great fit in this area. As Justice Stewart explained in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1981), “the Equal Protection Clause confers no substantive rights and creates no substantive liberties. The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.” Calhoun’s bail scheme doesn’t prescribe varying bond amounts depending on the arrestee’s wealth. Under Davis v. Washington, 426 U.S. 229 (1976), the fact that some laws disparately impact certain groups is insufficient for an equal protection violation; there must be discriminatory intent. Monetary bail has a disparate impact on the poor, but no one is claiming that Calhoun’s bail scheme was intended to discriminate against indigent arrestees.

In Griffin and other cases grounded in Justice Black’s principle of “equal justice” (“There can be no equal justice where the kind of trial a man gets depends on the money he has.”), the court’s target isn’t invidious discrimination, the parasite against which the Equal Protection Clause labors. It’s unfairness, which is the rival of due process.

2. Is there a limiting principle, and if there is what is it? Does the analysis apply only to misdemeanors, or does it encompass felonies? Is Walker’s case different because his offense was not punishable by jail? (Bail isn’t punitive, but it does seem anomalous that a person can be jailed before they are found guilty, but not after.) The district court uses such sweeping language, while neglecting to define parameters, you’re left to wonder about the violent offender with a high bond. He’s an indigent man who brutally assaulted his wife, but if he were a hedge fund manager he’d be able to bond out. The only thing keeping this offender in jail is his inability to pay for his release. And according to Walker, “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.” Much depends on what the court means by “solely.”

3. Are bail schedules unconstitutional? Upon his arrest, Walker was assigned a $160 bond according to the Calhoun municipal court’s offense-based bail schedule. Many jurisdictions employ bail schedules, which establish fixed amounts of bail corresponding to specific offenses. Georgia statute permits courts to establish and rely on bail schedules. O.C.G.A. 17-6-1(f)(1). Walker appears to hold that unless a bail scheme considers a variety of factors, including indigence, it is operating contrary to the Constitution. It’s conceivable that a bail schedule could account for a variety of factors—it would look something like the Federal Sentencing Guidelines. Yet, jurisdictions that use bail schedules also permit judges to consider arguments that an individual offender deserves a bond above or below the standard schedule bond. It seems that Walker would have been able to argue for a lower bond when he appeared before a judge. There was no constitutional issue with Walker’s arrest on the pettiest of charges (Atwater v. City of Lago Vista) and he had no right to have bond set the second he was arrested (County of Riverside v. McLaughlin). So I have trouble seeing how Calhoun’s bail scheme operated unconstitutionally in Walker’s case. If Walker had appeared before the judge, and the judge, viewing the bail schedule as a mandate, had refused to consider that other factors including his indigence cut in favor of a personal recognizance bond—that I admit is problematic. But Walker appears to hold that using a bail schedule for the initial setting of bond is unconstitutional if it doesn’t account for an arrestee’s indigence.

I’m curious to see how the Eleventh Circuit handles Walker. If it ratifies the district court, it would set precedent forcing prevailing bail practices to change.

Community Bail Funds and Nullification of Pretrial Detention

Jury trials are full of the unexpected. Witnesses fail to honor subpoenas. Witnesses who show up testify in ways that differ from or flatly contradict their prior statements. A judge’s ruling on an evidentiary issue can keep out a key piece of physical evidence or shut down an important line of questioning (or even an entire witness’s testimony). The deus ex machina of the high drama—the saving grace of the hopeless defense, the torpedo to the ironclad prosecution case—is jury nullification, when a jury acquits a defendant despite, and with full recognition of, his legal guilt. Jury nullification is when a jury renders a verdict not based on the law, but on what they feel the law should be.

Jury nullification is probably as old as the jury trial itself and the subject of continuing debate. One side holds that nullification is a necessary check on tyrannical government power; the other maintains that it’s an illegal usurpation of power. A new development in the conversation over the role of community players in administering criminal justice is the concept of “bail nullification.” As Professor Jocelyn Simonson (Brooklyn Law School) explains in a forthcoming law review article endorsing “bail nullification” (and coining the term), community bail funds can do for bail what nullifying jurors do for verdicts:

In recent years, community groups in jurisdictions across the United States have increasingly begun to use bail funds to post bail on behalf of strangers, using a revolving pool of money. These funds include new charities set up in partnership with public defender offices in Massachusetts, the Bronx, Brooklyn, and Nashville as well as identity-based bail funds that range from a bail fund for transgender sex workers of color in Queens, New York to a bail fund supporting communities of color targeted by policing in Chicago, and bail funds formed by activists within the Movement for Black Lives, who have used crowdsourced funding to post bail for hundreds of protesters and allies in Ferguson, Baltimore, Cleveland, Oakland, and Baton Rouge. Each time a community bail fund pays bail for a stranger, the people in control of the fund reject a judge’s determination that a certain amount of the defendant’s personal money was necessary for the defendant’s release.

I wasn’t aware of community bail funds until I read Simonson’s article—as far as I know, none operates in Colorado—but the nascent practice seems likely to spread. Recent efforts to reform the criminal justice system have focused on sentencing and the perceived unfairness of mandatory minimum sentences, particularly with regard to drug offenses. But as Simonson notes, “For most indigent defendants, bail is the ballgame.” If a defendant is unable to make bail, she is detained in jail pending trial, which may cost the detainee wages (if not her job), custody of her children, and housing. Because most defendants, even those convicted of felonies, end up receiving probation as a sentence, defendants who cannot make bail may secure their immediate release by pleading guilty in exchange for a probationary sentence. For this reason, an unintended but not unexpected consequence of the bail system is to deter defendants from exercising their trial rights. Research has also shown that defendants detained before trial receive harsher sentences than their bail-posting peers and are less likely to see the charges against them dismissed. Private organizations must lobby legislators to effect sentencing reform, which is expensive and comes without certainty of making measurable gains. Bail funds allow reform-minded individuals to intervene directly in the criminal justice system to immediate effect. If community bail funds were to catch on, they would be a potent force, for good or ill.

Bail can be problematic. Everyone charged with a crime enjoys the presumption of innocence until he pleads guilty or a jury or judge finds him so. Bail isn’t punishment, but it has the effect of depriving a defendant of liberty or, if he pays bail, property, without a finding of guilt. The concerns of those pushing for bail reform are real. Bail falls hardest on the poorest, and sometimes, perversely, on the lesser law-breaker. Some defendants, with little or no employment history listed in their jail dossier, post high bonds within a matter of hours, simply by phoning a friend. To draw the inference, I’ve seen drug-pushing middlemen quickly bond out, while addicts linger in custody, unable to post the much smaller bond on a possession charge. I’ve also witnessed defendants fold and plead guilty when their public defender informs them that to roll the dice before a jury they will have to sit in custody for months. Bail can certainly be a blunt instrument, and its effectiveness is debated.

While our country’s system of bail is imperfect, in my estimation the system’s flaws do not outweigh its merits. Defendants in criminal cases routinely fail to show up for court and it’s not uncommon for individuals to pick up new charges while in the community pending trial. Given these realities, a system that handed out personal recognizance bonds (i.e., no-cost bail) across the board wouldn’t do justice either. Consider that safeguards exist to prevent unjust and lengthy pretrial detention: (1) an officer cannot make an arrest without probable cause to believe an individual committed a crime, (2) defendants are typically entitled to a probable cause hearing before a court can detain them pending trial, and (3) many states have speedy trial statutes requiring courts to bring defendants to trial within a period of months. Add to those protections the fact that bail statutes generally require judges to set a bond by assessing the characteristics of a specific defendant and the seriousness of the alleged offense. In the jurisdiction where I practice, Pretrial Services surveys each defendant and assigns a score to gauge the individual’s risk of nonappearance. Such procedural protections reduce the risk of unjust, discriminatory, and overlong pretrial detention.

In Simonson’s view, when members of the community use a bail fund to nullify a judge’s decision, the routine act of posting bail is elevated into a powerful “act of resistance” that “undermine[s] the power of institutional actors.” Simonson depicts community bail funds as a disruptive force in the justice system, but I think her focus on “nullification” is misplaced. By definition, nullification entails the subversion of legitimate authority. There’s nothing necessarily subversive or disruptive about charitable acts that may spur a defendant to take greater accountability for his actions. (It doesn’t surprise me that 95% of the Brooklyn Community Bail Fund’s beneficiaries make their court appearances. Defendants know that relatives and friends may bail them out multiples times if necessary; beneficiaries of a community bail fund likely recognize a bail fund’s generosity is limited.) And while community bail funds are new, the act of posting bail on another’s behalf is not. I’ve listened to enough jail calls to know that often it’s not the defendant himself who cobbles together bail money, but rather his family and friends. Community bail funds may simply act as a gap-filler for defendants who are indigent and don’t have family or friends with means to assist them. In this sense, the actions of community bail funds aren’t comparable to juries who nullify the law. Jury nullification is corrosive to the rule of law. Community bail funds rather operate within legal bounds.

My thought is that community bail funds have the potential to accomplish some good if care is taken to distribute funds to defendants who are likely to provide a positive return on a fund’s investments. I note that bail funds are selective. The Bronx Freedom Fund pays bail only in misdemeanor cases. The Memphis and Nashville Community Bail Funds assist people who “pose little flight or safety risk to the community.” When judges set bail, they calculate risk. The same goes for a bail fund. If too many clients fail to appear for court or commit new crimes, bail is forfeited and the revolving pool of money begins to dry up. If a bail fund has a habit of releasing offenders who commit violent crimes and other serious offenses while awaiting trial its good will in the community will disappear. On the other hand, if bail funds allow indigent defendants to maintain a job and housing while pending trial, and also incentivize good behavior and court attendance, it’s conceivable they could become a fixture in the justice system, and even institutional actors may accept them.

Can Judges Consider Immigration Status When Imposing Sentence?

On the eve of Trump’s inauguration, with immigration politics heating up, I take up not sanctuary cities, the mass deportation of criminal aliens, or the “big, beautiful wall,” but the more obscure issue of whether and when a judge can deny probation to an undocumented immigrant on the basis of his or her immigration status. In a case the Nebraska Supreme Court decided last week, Jose Cerritos-Valdez, an undocumented immigrant, was convicted of a DUI and a misdemeanor drug charge. (See 295 Neb. 563 (Neb. 2017).) Cerritos-Valdez asked the trial judge for probation, but the judge opted for a straight jail sentence and made this remark upon sentencing:

[H]e’s not in the United States legally and that becomes problematic for the Court when probation is being requested because were he here legally, the Court might entertain probation but it’s very difficult, if not impos­sible, for the Court to impose probation when the first term of probation is that you obey all laws; and to obey all laws, you would have to leave this country, which would then conversely make it impossible for you to be supervised by probation.

Cerritos-Valdez appealed the sentence, asserting that he was illegally denied probation based solely on his status as an undocumented immigrant. In upholding the sentence, the Nebraska Supreme Court joined what it called a “consensus” that “it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.” (Cerritos-Valdez, it found, was not denied probation solely because of his undocumented status.) That consensus is consistent with longstanding notions of sentencing: Just as Harvard and other elite universities subject applicants to a “whole-person” review, judges must conduct a “whole-offender” review when imposing sentence.

There is also consensus that illegal alien status can be a proper sentencing consideration. Indeed, the caselaw, while not uniform, indicates that judges can afford illegal alien status substantial weight in certain cases, so long as the court ties an offender’s undocumented status to traditional sentencing considerations, e.g.: (1) Is the offender able to lead a law-abiding life in the community? (2) Does the offender have an extensive criminal history? (3) Will the offender maintain suitable employment? (4) Does the offender have a social support system? Consider, from People v. Cesar, 131 A.D.3d 223 (N.Y. App. Div. 2015), this list of factors that may legitimately affect whether an undocumented immigrant is given probation: (1) “the likelihood of the defendant’s deportation during the probationary period,” (2) “the defendant’s history, if any, of repeated departures from and illegal reentries into the United States,” (3) “the presence or absence of family in the United States,” (4) “the defendant’s employment history,” and (5) “the defendant’s legal employability.”

The factors Cesar cites reappear in related caselaw. For instance:

Factor #1: Although the Oregon courts have held that immigration status is not per se relevant to sentencing, it was deemed relevant where the defendant was facing immediate deportation, and thus couldn’t comply with probation. State v. Morales-Aguilar, 855 P.2d 646 (Or. Ct. App. 1993).

Factor #2: In State v. Martinez, 165 P.3d 1050 (Kan. Ct. App. 2007), the court held that if a defendant’s “continued presence in the United States is in violation of [federal immigration law], that fact alone may constitute a substantial and compelling reason to deny presumptive probation.” An undocumented immigrant’s continued presence in the United States is not a criminal offense unless that individual has previously been deported and has again reentered the United States illegally. (Cerritos-Valdez had reentered the country after a previous deportation, so the trial judge was correct to point out that he would have to leave the country to be in full compliance with the conditions of probation.) Note, however, that courts are inconsistent on this point: In State v. Zavala-Ramos, 840 P.2d 1314 (Or. Ct. App. 1992), the court held that “a history of deportation, standing alone, would not justify” a judge’s decision to impose incarceration instead of the presumptive probationary sentence.

Factor #5: In Trujillo v. State, 698 S.E.2d 350 (Ga. Ct. App. 2010), the trial judge rejected the defendant’s request for probation, explaining that the court could not order him to maintain employment—a standard condition of probation—“without ordering him to violate the law and/or be an accessory to any employer who would hire him in violation of the law.” The court of appeals found the trial judge’s decision fell within his broad discretion upon sentencing.

In short, trial judges have such wide latitude to take undocumented status into account that it will be the rare case where an appeals court finds the trial judge gave undue weight to that status.

And with that, reader, see you in the Trump presidency.

Obama’s Criminal Justice Legacy, In His Own Words

The week ahead is Barack Obama’s last as President. (It’s strange to the write that.) In the twilight of his second term President Obama is full steam ahead with the bold executive gestures that have characterized what historians may one day label “the pen and phone period” of his presidency: the ban on offshore drilling, the designations of Bears Ears and Gold Butte National Monuments, granting clemency to 231 prisoners in a single day. Less momentous, but of interest, is Obama’s recent barrage of scholarly publication. In addition to penning articles in Science and the New England Journal of Medicine, last week Obama published “The President’s Role in Advancing Criminal Justice Reform” in the Harvard Law Review. In 1990, Obama became the first black president of the Harvard Law Review, and he went on to teach constitutional law at the University of Chicago. Despite his academic pedigree, Obama never left a paper trail: last week was the first time he published a piece of legal scholarship in his name.

“The President’s Role in Advancing Criminal Justice Reform” doesn’t read like a traditional law review article. Light on analysis, heavy on political platitudes (the phrase “second chance” appears 17 times), it reads more like an apologia for Obama’s record on criminal justice reform. (Like your standard law review commentary, though, it has 300+ footnotes.) Here’s a quick summary of the article, followed by some commentary:

Obama begins by stating the case for reform—the high rate at which America incarcerates its citizens and the associated economic and social costs, the “school-to-prison pipeline,” the disparate impact of the system on communities of color, and the bipartisan consensus in favor of reform.

Regarding reform at the federal level, Obama lauds his Department of Justice for reversing policies that (1) required federal prosecutors “to bring charges that could result in the most severe possible sentence,” (2) allowed prosecutors to use certain sentencing enhancements to trigger “excessive mandatory minimums for low-level, nonviolent drug offenders,” and (3) required defendants who accepted plea agreements to waive their right to appeal based on ineffective counsel.

From there Obama moves on to discuss his most significant legislative accomplishment in the field—the Fair Sentencing Act (FSA), which revised a sentencing scheme that doled out harsher punishments for crack cocaine offenses than for powder cocaine offenses. As Justice Breyer explained in Dorsey v. United States, 132 S.Ct. 2321 (2012), before the FSA the law imposed “the same 5–year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack.” The FSA reduced this 100-to-1 disparity to 18-to-1, and eliminated the mandatory minimum sentence for simple possession of crack. More comprehensive reform legislation, which would have eliminated or reduced mandatory minimum sentences for nonviolent drug offenses, garnered bipartisan support but never made it to the floor of Congress. Were these efforts successful? The President notes that he’s the first “in decades to leave office with a federal prison population lower than when I took office, even as my Administration saw the rate of violent crime fall to its lowest point in decades.”

On the correctional front, Obama recites achievements such as the Bureau of Prison’s reduction in the use of solitary confinement (it’s now prohibited for juveniles and as a response to low-level infractions), DOJ’s move to end the BOP’s reliance on private prisons, and an emphasis on reintegrating offenders into society. Obama describes one White House initiative that commits businesses and educational institutions to “banning the box” (i.e., removing from job and college applications the part where you have to disclose a criminal record).

Obama may be most proud of his use of the pardon power. To date, he’s commuted more than 1,000 sentences, more than the previous 11 presidents combined. He underscores that this largesse of clemency is not unprecedented: he is “reinvigorating” the power, which was “used . . . on average 222 times per year between 1885 and 1930.”

In a section on state and local reform, Obama acknowledges that the president’s ability in this realm is limited, but that grants, best practice guidelines, DOJ civil rights prosecutions, and wielding the bully pulpit, can all help drive such reform. For example, Obama references the DOJ’s investigation of Ferguson, Missouri, and his Task Force on 21st Century Policing.

In the article’s last section, “Work Unfinished,” Obama urges passage of sentencing reform and gun control legislation, increased treatment opportunities for opioid addicts (the ACA gets a shout-out), improvement of forensic science and data collection, restoration of the franchise to offenders who have paid their debt to society, and the use of technology to promote trust in law enforcement (e.g., body worn cameras). Obama fittingly ends with the word “redemption.” The last eight years have to have taken a toll on Obama’s optimism, but it’s still alive. As with almost all of his sales pitches, he guarantees a win-win with his proposals for criminal justice reform: Not only does such-and-such policy [insert beneficial effect: improve public safety/reduce budget deficits, etc.], but it’s the right thing to do.

One conspicuous omission from the article is marijuana and Obama’s blessing of state initiatives to legalize its recreational use. Although he may be pivoting to a career in academia (?), Obama is still posturing politically and his article, which seeks to inspire governmental reform, thus avoids a divisive issue. Obama is also cautious in how he addresses issues surrounding race. He champions police officers as the “heroic backbone of our communities.” Though Ferguson makes an appearance, Obama mostly avoids the police-citizen conflicts that have roiled the country. He repeatedly refers to disproportionate impacts on communities of color, but in a way that allows the issue to simmer in the background.

Two things I would’ve liked to see more of: There is little in the article about the limits of presidential power in this area. And at times, Obama appears to deem a given policy, initiative, or task force a success simply because of its creation, without rigorously evaluating whether it accomplished its goals.

For a first law review article, Obama didn’t select a bad topic. Throughout his presidency, he’s been criticized for operating outside the law with respect to health care reform, immigration and environmental policy, and the enforcement of Title IX. Obama took a more modest approach to reforming the criminal justice system, and it was one of the few areas where he found bipartisan support. While the article feels politically calculated (Obama certainly wrote it with an eye toward his legacy), he succeeds in providing a blueprint for how a president can act within the limits of his power and without triggering a partisan backlash, to reform a major function of government.