This week’s opinions: in plain English

By Lisa Tucker
on May 20, 2010 at 1:30 pm

You know the active part of the Term is coming to an end when you get not one, not two, but three really interesting and controversial and important opinions in one day.  Monday was just such a day – we’re about six weeks from the Court’s traditional summer recess – so there’s tons to talk about this week in Plain English.

Let’s start with Graham v. Florida, the juvenile life-without-parole case.   The criminal defense bar has been watching this one closely – after all, many criminal defendants are children, and many of these are tried in adult courts and sent to adult prisons.  In Graham, the Court held that juveniles, who aren’t neurologically and psychologically as mature as adults, can’t be sentenced to life in prison without the possibility of ever being eligible for parole.  The case follows from Roper v. Simmons, a case from a few years back in which the Court held that juveniles cannot receive the death penalty.

First, it’s important to understand that this life-without-parole case only applies to kids who haven’t killed anyone; whether the Court’s ruling yesterday will apply to juvenile killers is still an open issue, perhaps to be litigated down the road.  And it’s also critical to know (as Lyle explained here) that Graham is not a get-out-of-jail-free card:  kids serving life sentences without parole (about 130 in all) will still have to show that they are “fit to rejoin society.”

How about another sentencing case:  United States v. Comstock, a case involving adult sex offenders that was argued by Elena Kagan, now the nominee to replace Justice Stevens?  Well, in this case, the Court held that people who are mentally ill and “sexually dangerous” may be held in federal prison even after they have served their entire criminal sentences.  The case was decided under the “Necessary and Proper Clause,” a section of the Constitution that allows Congress to exercise its various powers if its actions are necessary and proper.

This case arose when the government began proceedings to keep custody of several federal prisoners who were about to be released.  The prisoners objected, arguing that the statute which allowed the government to keep them in prison was unconstitutional.  Two lower courts agreed with the prisoners, but on Monday the Supreme Court reversed.  Justice Breyer’s opinion gave five reasons why Congress could properly enact the law.  For example, Congress had a long history of engaging in this kind of activity; moreover, given the nature of the offense, the continued detention was a “necessary and proper” means for Congress to achieve its goal of protecting the public from these sexually dangerous individuals.   And the statute was narrow in its scope, affecting very few federal prisoners.   In other words, Congress acted within its powers under the Constitution when it adopted the statute.

Let’s move on to Abbott v. Abbott, a case about a very different kind of custody.  Abbott was the Supreme Court’s first international family law case; to decide the case, the Court had to interpret an international family law convention, the Hague Convention on the Civil Aspects of International Child Abduction, which deals with abductions by family members (who are usually, but not always, the child’s parents).  The Convention tries to prevent parents from taking their children to another country in the hope of getting a better custody ruling there by creating an automatic return remedy:  if a child is taken from one participating country to another, the parent who is left behind can seek the child’s return to his original country as long as the parent has “rights of custody.”

What wasn’t clear in this case was whether Timothy Abbott, the father who brought the lawsuit, had a “right of custody” to his son.  Timothy didn’t have “custody” in the sense that many people think of the word, but the Convention defines “rights of custody” broadly, to include “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”  And what Timothy did have was a ne exeat right, which is the right to have the child remain in the country (here, Chile) unless he agreed to allow the child to leave.  In violation of that right, Jacquelyn Abbott took their son to Texas, then refused to return him to Chile.  Mr. Abbott filed a lawsuit in Texas under the Convention, arguing that his ne exeat right was a right of custody and that the child should therefore return to Chile, but the lower courts disagreed.  Because the courts of appeals had reached different conclusions on the question, the Court granted cert. to resolve it.

In its opinion on Monday, the Court agreed with Mr. Abbott, reasoning that the ne exeat right is a right to determine where the child will live and thus a right of custody under the Convention.  This news is good for parents worldwide, as it makes clear that the United States – as other countries that have signed the Convention have agreed – will not harbor parents who have removed children from their home countries in violation of another parent’s right to prohibit that removal.

One more case of note this week:  Sullivan v. Florida, a companion case to Graham involving a thirteen-year-old who received a life sentence without parole.  Rather than deciding the case, the Court announced that the case was a “DIG,” or “dismissed as improvidently granted.”  A DIG typically happens once or twice a Term, and what it means is that the Court never should have granted cert. in the first place, usually for reasons having to do with the procedures by which the case made its way to the Court.  What that means is that someone – either the law clerks or the Justices – didn’t look closely enough at the case before granting cert.

So why did the Court DIG the Sullivan case?  Well, because it had made a pretty broad pronouncement in Graham, stating that life without parole was unconstitutional for all juvenile offenders, it didn’t have to decide Sullivan, too.  Therefore, the Court chose not to ignore a procedural problem that arose during the case’s litigation in the Florida courts, which had held that they couldn’t rule on the merits of Sullivan’s challenge because it came too late.  Presumably, if the state courts did not rule on the issue, the Supreme Court did not want to do so, either.