1. Ap u.s. government & politics
Monday, April 16, 2018

2. Detention and punishment
HW Discussion

3. Rights of prisoners: habeas corpus & the 8th Amendment

4. Writs of Habeas Corpus Not located in the Bill of Rights;
Rather right to apply to a court for this Writ is included in the powers denied to Congress by Article I, Section 9 of the original Constitution:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
What is the key limitation on the privilege?
Ex Parte Vallandingham (1864)
Confederate sympathizer sentenced to death; applies for Habeas
Supreme Court denies jurisdiction
Ex Parte Milligan (1868)
Similar facts to Vallandingham
This time the Supreme Court accepts jurisdiction, and grants Habeas
Why did these cases come out differently?

5. Modern Habeas Cases
Arise in the context of the Bush Administration’s detention of terrorism suspects in the U.S. and at Guantanamo Bay, Cuba
Hamdi v. Rumsfeld (2004)
U.S. citizens held as enemy combatants have the right to challenge their detention by applying to a court for a Writ of Habeas Corpus
Boumediene v. Bush (2008)
Foreign nationals held as enemy combatants at Guantanamo Bay have the right to apply to a U.S. court for a Writ of Habeas Corpus
Why is the impact of these decisions actually quite limited?

6. The 8th Amendment Prohibitions: 1) Excessive Fines 2) Excessive Bail
What is a fine?
2) Excessive Bail
What is bail?
What is its purpose?
Why the prohibition on excessive bail?
3) Cruel and Unusual Punishment

7. Cruel and Unusual Punishment
The final clause of the 8th Amendment
What is “cruel and unusual?”
Depends on what society believes it to be!!!
Consider different societies/cultures
Trop v. Dulles (1958): Clause must draw its meaning from “evolving standards of decency that mark the progress of a maturing society”
Coker v. Georgia (1977)
Punishment is excessive and unconstitutional if it:
Makes no measureable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering
Is grossly out of proportion to the severity of the crime

8. Is Capital Punishment Cruel and Unusual?
Furman v. Georgia (1972)
Landmark case in which Supreme Court called for a ban on the death penalty in Georgia
Ruled its law as it stood was capricious and hence, cruel and unusual punishment
The Court ruled that the states had to give judges and juries more guidance in capital sentencing to prevent arbitrary use of the death penalty
It held that Georgia’s death penalty was invalid; Basically told the legislature to create better death penalty laws
NOTE: All 9 Justices wrote separate opinions trying to define “cruel and unusual punishment”

9. Is Capital Punishment Cruel and Unusual?
Gregg v. Georgia (1976)
The Supreme Court reinstated the Georgia death penalty by sustaining its revised death penalty law
The death penalty itself is not cruel and unusual punishment, but capital cases now require bifurcated trials

10. Who Can Be Executed?
As a general rule the Supreme Court has upheld the death penalty for murder but not other crimes
The punishment must be related to the crime
It only makes sense that the death penalty is only applied to a case where a life has been taken
The death penalty should only be applied in the most heinous crimes

11. Who Can Be Executed? Age Race Roper v. Simmons (2005)
The 8th and 14th Amendments will not permit executing anyone under 18 years of age for committing a crime
Race
McClesky v. Kemp (1987)
Defendant presented a study contending that capital punishment in Georgia was filled with racial discrimination
Court rule that his study was valid, however, he had not proved the sentence was the result of racial discrimination

12. Who Can Be Executed? Mental Retardation The Mentally Ill
Atkins v. Virginia (2002)
The Supreme Court has prohibited executing the mentally retarded
The Mentally Ill
The Supreme Court banned execution of the insane
Ford v. Wainwright (1986)
An inmate that becomes mentally ill while in prison can not be executed

13. Death Penalty “Fishbowl” Debate
Question: Should the Supreme Court declare the death penalty unconstitutional, as a violation of the “cruel and unusual punishment” clause of the 8th Amendment?
Take 5 minutes to jot down your thoughts and sketch out at least one argument.
Office Side: In the Fishbowl!
Door Side: Evaluate the arguments that are made; what did you find most convincing and why? Who won the debate?
Let’s debate!

14. Homework
Textbook, p (Right to Bear Arms); (Right to Privacy)