Two interesting criminal law decisions this week

Two interesting criminal law decisions from Monday, March 09, 2009, suggesting an effort to resolve the growing reexamination of the constitutionality of SORNA and death penalty

U.S. v. Ambert,(C.A.11 (Fla.))
SONRA's sex offender registration requirements did not violate due process.
The Eleventh Circuit has held that the Sex Offender Registration and Notification Act (SORNA) does not violate the rights of a defendant’s substantive or procedural due process rights, who was a convicted sex offender. SONRA causes a defendant's name to be placed on a sex offender registry without first a hearing to assess the risk of recidivism and current dangerousness, or with the opportunity to challenge his prior conviction. The Court applied the lower rational relation test of constitutionality and concluded that SONRA's restrictions were rationally related to Congress' legitimate goal in protecting the public from recidivist sex offenders. The publication of truthful information that was already available to the public did not infringe the fundamental constitutional rights of liberty and privacy.


Thompson v. McNeil ,(U.S.)
Criminal Justice - Execution following 31 years on death row as cruel and unusual punishment -- Certiorari Denied
The U.S. Supreme Court denied certiorari in a case in which the Eleventh Circuit Court of Appeals held that the execution of a murder defendant following a 31-year term on death row did not violate the Eighth Amendment's prohibition of cruel and unusual punishment. The Court issued three separate opinions concerning the denial. Justice Stevens issued a statement respecting the denial of the petition, but noted that in his earlier opinion concurring in the judgment in Baze v. Rees, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), he had suggested that the time had surely arrived for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces. The petition in this case, he said, set forth costs that merited consideration in any such study. He noted that, as the incarcerated awaited execution, the defendant was spending almost 24 hours a day in isolation in a 6-by 9-foot cell. Two death warrants had been signed against him and had been stayed only shortly before he was scheduled to be put to death. The Court concluded that, while the length of the defendant's confinement under sentence of death was extraordinary, the concerns his case raised were not unique. Today, condemned inmates await execution for an average of nearly 13 years. Furthermore, the reversible error rate in capital trials is staggering.


Justice Breyer strongly dissented from the denial of certiorari. He noted Justice Thomas's suggestion, in his concurrence in the denial of certiorari, that the defendant could not now challenge the constitutionality of the delay because much of that delay had been his own fault, in that he had caused it by choosing to challenge the sentence. Justice Breyer responded to Justice Thomas’s analogy by suggesting that a defendant's decision to exercise his right to seek appellate review of his death sentence could not automatically waive a claim that the Eighth Amendment proscribed a delay of more than 30 years. The delay was partly caused by the sentencing judge's failure to allow the presentation and jury consideration of nonstatutory mitigating circumstances. At resentencing, the defendant presented substantial mitigating evidence, not previously presented, that suggested that he might be significantly less culpable than his codefendant, who did not receive the death penalty. Justice Breyer said that he referred to this evidence only to point out that it was fair, not unfair, to take account of the delay the State caused when it initially refused to allow him to present it at the punishment phase of his trial. It was the punishment, not the gruesome nature of the crime, which was at issue.


Justice Thomas concurred in the denial of certiorari. He rejected the proposition that a defendant could avail himself of the array of appellate and collateral procedures and then complain when his execution was delayed. The issue was not whether a death-row inmate's appeals waived any Eighth Amendment right, he reasoned; rather, it was whether the death-row inmate's litigation strategy, which delayed his execution, provided a justification for the invention of a new Eighth Amendment right. It did not, Justice Thomas said. Justice Thomas also disagreed with Justice Stevens that other aspects of the criminal justice system required a fresh examination of the costs and benefits of retaining the death penalty. He also said that Justice Stevens had altogether refused to take into consideration the gruesome nature of the crimes that legitimately lead States to authorize the death penalty and juries to impose it. The facts of this case, which involved the defendant and his codefendant torturing the victim until she died, illustrated the point. Justice Thomas said it was the crime, not the punishment imposed by the jury or the delay in the defendant's execution, that was unacceptably cruel. (Case below: Thompson v. Secretary for Dept. of Corrections, 517 F.3d 1279 (C.A.11-Fla. 2008).)

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