Panel 4: Criminal Procedure and Affirmative Action

• Jurisdiction: United States,Federal
• Citation: Vol. 35 No. 5
• Publication year: 2019

Panel 4: Criminal Procedure and Affirmative Action

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PANEL 4: CRIMINAL PROCEDURE AND AFFIRMATIVE ACTION

Moderator: Lauren Sudeall

Panelists: Dan Epps, Gail Heriot, and Corinna Lain

Professor Lauren Sudeall: We're going to be transitioning a little bit in terms of topic now, and as you may have noticed, I'm not Eric Segall. I'm Lauren Sudeall. I'm on the faculty here at the Law School. I'm going to skip the longer introductions as has been done in the other panels just to save time. I'll just tell you who we have up here on the stage. We have Dan Epps from the Washington University School of Law, Corinna Lain from the University of Richmond School of Law, and Gail Heriot from the University of San Diego School of Law. We have the perhaps unique and challenging task of weaving together multiple topics, not even just what's listed on the agenda, but we're going to sort of squeeze the death penalty in there, as well, as sort of a sub-topic of criminal procedure.

Our format's going to be a little different by virtue of having the Herculean task of doing that. We're just going to sort of—I'll spend a minute or two giving a little introduction, and then we're going to go panelist by panelist, and I'll ask a few questions, give a brief opportunity for others to chime in, and then we'll try to reserve time at the end for Q and a.

So, as I mentioned, we're trying to knit together, or at least touch on, some pretty different areas here. But, perhaps we can draw some parallels and thinking about lustice Kennedy's approach to these topics. In the context of the death penalty, lustice Kennedy certainly didn't embrace abolition, but as in many of the other areas we've talked about today, he often provided the critical fifth vote in a number of important death penalty cases, including Roper v. Simmons, barring the death penalty for juveniles; Kennedy v.

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Louisiana, barring the death penalty for non-homicide crimes; and joined Justice Stevens' opinion in Atkins; but, he also joined the majority in upholding a number of lethal injection protocols. So, I think in some sense we see someone who didn't want to strike the death penalty down altogether, certainly, but really was trying to be careful about demarcating the boundaries in which it could operate with a focus on sort of decency and a certain view of society. I know Corinna's going to talk about the importance of dignity in the context of the death penalty.

We have somebody who, for a long time, had never voted in favor of an affirmative action program but in Fisher v. Texas eventually changed his mind, upholding the university's plan. I know Gail will talk about that. He also wrote the concurring opinion in Parents Involved, again threading the needle. That case involved voluntary school-integration plans. So, in trying to think about all these different issues and these two different areas of the law, I'll at least put forth and certainly folks here can tell me if I've hit on anything of value, that I think we can think about Justice Kennedy as often trying to thread the needle and be very careful in trying to think about boundaries. But also, I think to some extent having this very aspirational view of society and maybe how society should be and maybe trying to reach that place of having that inform him in how he approached these different areas of the law, and I do think in some sense, maybe a certain idealism about society and at least where it should be, if not where it is today.

I'm going to start with Dan to talk about criminal procedure. If you could just start off by maybe summarizing, again, in ten minutes or so, or less than that, Justice Kennedy's approach to the field or maybe just hitting on a few highlights or cases that are of particular interest in that area.

Professor Dan Epps: Sure. So, I've been spending a lot of time thinking about Justice Kennedy's approach to criminal procedure and trying to come up with some themes. I think some of them are the

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relentless anti-formalism that we've been talking about for the whole day. I don't think he was particularly concerned with procedural rules for the sake of procedural rules. He was much more oriented toward substance in this field than straight up procedure. He cared about fairness but cared about fairness for particular ends. So, if you were someone coming in and saying, "Look, I'm a guilty person, but I didn't get this exact procedure to which I was entitled under the Constitution," he might not have been the best Justice for you. But if you're coming in saying, "Something really unjust just happened to me," you might have been in better shape.

One thing I've been thinking about a lot is, and trying to figure out, is that he's often called our most libertarian Supreme Court Justice in recent years, he has this big concern about liberty. I don't see a liberty focus in crim pro nearly as much as you might expect. At the very least, I don't see it in the sense of a traditional libertarian concern for the threat posed by the state. In his Fourth Amendment cases, which I'll talk about in a little bit, he is sort of more deferential to the government. He is—I found him generally more deferential to political actors and police in general in crim pro than you might expect, given his jurisprudence in some other areas.

In terms of his most important contributions, I think a lot of people are going to immediately go to the Eighth Amendment cases. I'm not going to talk about the capital cases, do not take the wind out of your sails, Corinna, but I'll talk about some of the related cases which are Graham v. Florida, right. This is a case where the Court says you can't impose life without parole for juvenile non-homicide offenders, and then it's built on in Miller, which requires individualized sentencing for juvenile homicide offenders before they can get life without parole. Those are going to get a lot of billing when people are talking about him and the sort of criminal sphere, but even in the Eighth Amendment context, he's not sort of a uniformly pro-defendant Justice. He writes a separate opinion in Harmelin v. Michigan sort of indicating some theoretical openness to Eighth Amendment challenges to terms-of-year sentences more generally,

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not talking about the juvenile context, but there, ends up upholding a quite unjust sentence for a first-time drug offender.

Interestingly, he seems to get sort of intrigued by some problems with criminal justice late in his career. He gives this speech in 2012 to the ADA, where he talks about the dangers posed by corrections and how we need to care more for prisoners. But I don't know if he has enough of an opportunity to flesh that out in his jurisprudence before he ends up leaving the Court. He does so in the juvenile context. He writes the opinion in Brown v. Plata, which is about the remedy for a long series of conceded Eighth Amendment violations in the California prison system, but it seemed like maybe there was more he wanted to do or might have wanted to do if you can imagine him staying on the court for ten years. One thing I'm drawn to is he has this weird opinion in Davis v. Ayala, which is the case that has literally nothing to do with solitary confinement, but it turns out that the defendant in that case had been in solitary confinement. Justice Kennedy asked a random question about it in oral argument and then wrote this whole concurrence saying, "This is a thing I might be interested in getting into," and then that ends up being an unfinished legacy.

Professor Sudeall: So, you mentioned earlier the Fourth Amendment—and we talked a little bit earlier in the day about the relationship between Justice Scalia and Justice Kennedy. The Sixth Amendment and Fourth Amendment were areas where Justice Scalia was seen as being maybe unexpectedly defendant friendly, so would you say that he was more so than Justice Kennedy? We've also talked about areas in which the two of them really vehemently disagreed around certain issues. How did they play off each other in this context?

Professor Epps: Yeah, I would say certainly a little bit, and I don't want to overstate how much of a Fourth Amendment defender I think Justice Scalia was, because he talked a lot about the substance of the Fourth Amendment, but when it came down to remedies, I don't

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think he was really interested in doing a lot to meaningfully enforce the Fourth Amendment. But that said, when it came to the substance, I think Justice Scalia was more concerned with the Fourth Amendment than Justice Kennedy. Justice Scalia writes a very angry, and I thought quite effective, dissent in Maryland v. King, which is the case about whether you can DNA test arrestees. Justice Kennedy generally was okay with the drug testing. He wrote the Skinner and von Raab decisions. Justice Kennedy dissents in Carpenter, the recent case about whether it's a Fourth Amendment search to get cell site location information. Justice Kennedy writes Hiibel v. Sixth Judicial District, which is about when you can question or arrest someone who just refuses to give their name.

Justice Kennedy does write some pro-defendant Fourth Amendment cases, but not that many. This is where it gets to the point I was saying a second ago. You see in Justice Scalia, he does have this concern for the dangers of government. Whether it's real, whether it's just rhetorical, he really talks about that and seems to see that as a real threat and emphasizes that the Founders were worried about the dangers of government. I don't see that concern that much in Justice Kennedy's jurisprudence.

Professor Sudeall: So, if there is one or several ways in which you think his leaving the Court might change criminal procedure, what might that be, or might he not—might his departure not change that area of the law in a fundamental way?

Professor Epps: I think it would be hard to imagine it won't in some ways, and I think how it's going...