In Miller v. Alabama, the United States Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.

Since that decision, state supreme courts and legislatures have grappled with how to deal with the implementation of the decision.

The Supreme Court of Nebraska issued three decisions applying the U.S. Supreme Court’s 2012 ruling in Miller v. Alabama, and you can access those decisions here, here, and here.

Many state constitutions have a provision in them that directly affords a right to education.  Over the last decade, several state supreme courts have grappled with how to decide cases that challenged school funding.

The cases are not easy.  There is a natural reluctance of judges to order the other branches of government to spend money.  Separation of powers and political question doctrines permeate the cases.  And then there is the political fallout.

The New Hampshire Supreme Court and the Washington Supreme Court, among others, took serious political heat for their conclusion that the schools were unconstitutionally funded.  And so we can now look to Kansas:

“Under the facts of this case, the district court panel did not apply the correct test to determine whether the State met its duty to provide adequacy in K-12 public education as required under Article 6 of the Kansas Constitution.”

So ruled a unanimous Supreme Court of Kansas in a 110-page per curiam decision issued today.

Thanks to Above The Law:

What’s a good excuse for getting out of jury duty?  Apparently not “having a heart attack RIGHT NOW!”

Access to Wisconsin’s online court records database soon could be limited.  Meanwhile, the Minnesota Supreme Court is deciding whether to start an inter branch constitutional fight as a result of opposition within the Minnesota judiciary to a statute that was passed in Minnesota which inhibits access to juvenile records on line.

The Wisconsin legislature is considering a bill that would prevent online access to court records in cases resulting in dropped charges or not guilty verdicts.  The Milwaukee Journal Sentinel reports:  Bill Lueders, president of the Wisconsin Freedom of Information Council, said the approach of the Wisconsin bill was “‘fundamentally wrongheaded’ because the solution to some people misusing information should not be to cut off access to that information for all people.”

During argument before the Minnesota Supreme Court, that was essentially the argument advanced by those who advocated that the Minnesota Judiciary ignore or refuse to implement the statute inhibiting electronic access to juvenile records.

So, how easy should it be to access court records?

Marriage duration almost twice as long in South Dakota as in DC

Longest Marriages – States – The median span of marriages in South Dakota is almost twice that of D.C. – Bloomberg Best & Worst.

(This appears not to be duration of marriage at time of divorce, which is reported fairly often, but instead duration of current marriage among census respondents generally.)  This arguably is a statistic that is of more interest to anthropologists than judges, but if conflict resolution is an aim of judges then maybe that is not true.

Michael H. Graham (University of Miami – School of Law) has posted Confrontation Clause: Williams Creates ‘Significant Confusion’ Prompting California Avoidance; Bryant’s Dual Perspective Primary Purpose Approach; 2013 Application Summary (Criminal Law Bulletin, Vol. 49, No. 6, p.1533 (2013)) on SSRN.

Here is the abstract:

Confrontation clause analysis took still one more step backward with the United States Supreme Court decision in Williams v. Illinois — U.S. — 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a four justice plurality, with really only three of the four justices aligning principally with an “accusing a targeted individual of engaging in criminal activity” definition of testimonial, combined with a concurrence by Justice Thomas described by Justice Kagan dissenting as adopted by no other member of the Member of the Court. Justice Kagan also said of Justice Thomas’s concurrence that it is “ — to be frank — who knows what” “formality and solemnity” approach. Combined the Williams opinions “have left significant confusion in their wake”. Id. at 2277 (emphasis added).

The Associated Press reports:

It’s a common practice among drivers who pass through a speed trap:  Flash your headlights at approaching cars as a warning to slow down.  Now, a federal court judge in Missouri says penalizing drivers for the headlight flash violates their First Amendment right to free speech.

U.S. District Judge Henry E. Autrey in St. Louis on Monday issued a preliminary injunction prohibiting the St. Louis County town of Ellisville from citing and prosecuting drivers who flash their lights to warn of radar and speed traps.  Ellisville’s city attorney said there are no plans to appeal.

The order stems from a lawsuit filed by the American Civil Liberties Union of Missouri on behalf of Michael Elli.  On November 17, 2012, Elli flashed his headlights to warn oncoming vehicles of a radar set up by Ellisville police.

The New York Times reports that the highest court in New York has declared  “that there are limits to the lies and deceptions the police can employ to get a person to confess to a crime” and ordered a new trial for a man convicted five years ago of killing his infant son.

In a unanimous ruling, the court held that detectives in Troy, N.Y., had gone too far during the interrogation of Adrian P. Thomas, and that his confession, stating that he had thrown his son onto a bed, should never have been revealed to a jury.

Detectives threatened to arrest Mr. Thomas’s wife if he did not take responsibility for the baby’s death. They repeatedly told him he would not be charged with a crime if he confessed to abusing his son. Finally, they told Mr. Thomas that his son’s survival depended on his remembering what he might have done to cause a brain injury, even though the baby was already brain-dead.

Chief Judge Jonathan Lippman, writing for the seven-member Court of Appeals, said those techniques, taken together, amounted to psychological coercion that violated Mr. Thomas’s constitutional rights.

BARRY MAHONEY sent out an e mail a few days ago, the text of which was something a lot of people hoped that they would never receive:  Barry is retiring.

Recently, Barry served as President Emeritus of The Justice Management Institute.  He was JMI’s President in 1993-2002 and 2008-09.  He has directed JMI projects on caseflow management, drug court planning and implementation, rural courts, pretrial services, pro se assistance programs, and strengthening justice system processes to help prevent the conviction of innocent persons.

During 2012-13, he worked with the MacArthur Foundation’s Models for Change initiative on juvenile justice issues in Louisiana and two other states.  His earlier work includes serving as an Assistant Attorney General in New York State, Associate Director of the National Center for State Courts, Director (twice) of the London Office of the Vera Institute of Justice, and Director of Research at the Institute for Court Management.

To scores of people in the criminal justice system he is simply Barry, but Dr. Mahoney is a graduate of Dartmouth College and Harvard Law School, and holds a PhD in Political Science from Columbia University.  He has taught extensively in judicial education programs presented by JMI, the National Judicial College, the National Center for State Courts, and other national and state organizations.  For decades he has prodded, cajoled, and drug people toward a better system of justice.

But, there is a ray of hope:  Committed as Barry is to spending more time with his family, he did say he might be available for selective assignments.

In FERNANDEZ v. CALIFORNIA the United States Supreme Court considered the issue of a consent search of residence, with dual occupants, in which one of the occupants provides the consent. Justice Samuel A. Alito, Jr. delivered the opinion of the Court. Justices Antonin Scalia and Clarence Thomas issued concurring opinions. And Justice Ruth Bader Ginsburg issued a dissenting opinion, in which Justices Sotomayor and Kagan joined. You can access the oral argument via this link.

In Fernandez, the police saw a suspect in a robbery run into an apartment building and then heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Ms. Roxanne Rojas.  Her “face was red, and she had a large bump on her nose. The officers also saw blood on her shirt and hand from what appeared to be a fresh injury.”  The officers asked her to step out of the apartment.  The Supreme Court of the United States indicated that after asking “Rojas to step out of the apartment so that he could conduct a protective sweep, petitioner appeared at the door wearing only boxer shorts. Apparently agitated, petitioner stepped forward and said, ‘You don’t have any right to come in here. I know my rights.’…Suspecting that petitioner had assaulted Rojas, the officers removed him from the apartment and then placed him under arrest.”

An officer later returned to the apartment and, after obtaining Ms. Rojas’ oral and written consent, searched the premises, where the officer found several items linking the accused to the robbery.

The questions that the Supreme Court resolved were:

While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants? Must they all consent? Must they all be asked? Is consent by one occupant enough?

The Supreme Court indicated that its decisions “firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search.” The Court noted that in this case, “we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.”

The Supreme Court pointed out that in its decision in Randolph, it “went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present. Again and again, the opinion of the Court stressed this controlling factor…”

In this case, the defendant argued that despite his absence when Ms. Rojas consented to the search, Randolph applied because “he was absent only because the police had taken him away” and because “he objected to the search while he was still present.”

The United States Supreme Court rejected both of these propositions.  It concluded that “the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search”:

…the lawful occupant of a house or apartment should have the right to invite the police to enter the dwelling and conduct a search. Any other rule would trample on the rights of the occupant who is willing to consent. Such an occupant may want the police to search in order to dispel “suspicion raised by sharing quarters with a criminal.” 547 U. S., at 116; see also Schneckloth, 412 U. S., at 243 (evidence obtained pursuant to a consent search “may insure that a wholly innocent person is not wrongly charged with a criminal offense”). And an occupant may want the police to conduct a thorough search so that any dangerous contraband can be found and removed. In this case, for example, the search resulted in the discovery and removal of a sawed-off shotgun to which Rojas’ 4-year-old son had access.

Denying someone in Rojas’ position the right to allow the police to enter her home would also show disrespect for her independence. Having beaten Rojas, petitioner would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.

Professor Orin Kerr has this post at ScotusBlog on the opinion.  Among his observations:

Fernandez says that “presence” is the key to triggering Randolph, but I wonder what that means. Does the requirement of presence mean present at the door, or does it mean present on or near the premises? . . .

Which is it, presence at the door or presence on the premises? It’s at least possible that it’s a bit of both. Specifically, perhaps the initial objection has to be at the door, and then the objection lasts as long as the defendant is on the premises. Reading over the opinion, I’m not sure. Either way, it would seem to make a difference at least in some cases. Imagine the objector tells the police to buzz off, and the police then wait five minutes and ring the doorbell again. The consenting occupant answers the door, and the officers ask again while the objector is elsewhere in the house (perhaps in the bathroom or taking a nap). Can the police search the house then? And if so, what happens if the objecting occupant realizes what is happening and objects again — is he “present” again for purposes of the Randolph rule if he is present where the search is occurring?