Monday, June 02, 2014

Do Brown v. Plata and Hall v. Florida Mark An Emerging Jurisprudence of Constitutional Risk?

by Michael Dorf

Last week's Supreme Court decision in Hall v. Florida invalidated the Sunshine State's methodology for measuring intellectual disability--and thus ineligibility for the death penalty. Florida's strict numerical IQ cutoff of 70, the Court said, "creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional." Here I want to focus some attention on what may be an emerging jurisprudence of constitutional risk.

To begin, note a possible implication of Hall: that assignment of the burden of persuasion on the question of intellectual disability may have to be shifted to the state, and by more than a preponderance. This point was made by Justice Alito in dissent. He wrote:
As Hall concedes, the Eighth Amendment permits States to assign to a defend­ant the burden of establishing intellectual disability by at least a preponderance of the evidence. See Tr. of Oral Arg. 12. In other words, a defendant can be required to prove that the probability of a 70 or sub-70 IQ is greater than 50%. Under the Court’s approach, by contrast, a defend­ant could prove significantly subaverage intellectual func­tioning by showing simply that the probability of a “true” IQ of 70 or below is as little as 17% . . . or 2.5% [depending on the rule for standard error of measurement]. This totally trans­forms the allocation and nature of the burden of proof. 
Justice Alito's point, of course, was that the risk of executing someone with intellectual disability is substantially higher due to the allocation to the defendant of proof of the matter by a preponderance of the evidence than it is from Florida's strict numerical cutoff. Thus, the dissenters thought, the majority ruling was wrong.

However, the argument can readily be turned in the opposite direction in the next case, when a defendant argues that the state should have the burden of proving absence of intellectual disability by clear and convincing evidence or perhaps beyond a reasonable doubt. In that next case, the fact that Hall's lawyer conceded the validity of the burden will not matter, because that concession won't be binding on another defendant.

Looking beyond the issues surrounding Hall directly, we might also ask whether the ruling is part of an emerging jurisprudence of constitutional risk. Consider Brown v. Plata, decided in 2011 by the same 5-4 lineup that decided (and respectively dissented from) Hall: Justice Kennedy writing for a majority consisting of himself and the four relative liberals, with the four most conservative Justices in dissent. In Plata the Court said that prison crowding in California "creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong."

The similarities between Plata and Hall are striking. In both cases the Court says that some practice is unconstitutional because it creates an unacceptably high risk that that people will suffer a constitutional violation. Depending on how one views it, that is either pretty novel or wholly conventional.

Let's begin with the way in which the Plata/Hall risk analysis is novel. Suppose that a town board opens its sessions with a prayer. Per Town of Greece v. Galloway, decided last month, that will be permissible, absent "a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose." Now suppose that someone objects to the prayers in the town, arguing that they present an unacceptably high risk of denigrating, proselytizing or advancing an impermissble government purpose. That would not be enough to win. The plaintiff must actually show that the pattern of prayers does denigrate, proselytize or advance and impermissible purpose.

The requirement usually applies regardless of the underlying substantive test. Thus, for Justices who take a more stringent view of the Establishment Clause--as the dissenters do in Town of Greece--the question is whether (in Justice Kagan's words there), the challenged practices violate the constitutional "norm of religious equality." Here too, it would not be sufficient to show that there is a large risk of a violation of the norm of religious equality. In order to obtain a ruling that the prayer practice is unconstitutional, a plaintiff would have to show that it actually violates the norm of religious equality.

Put differently, the usual practice in constitutional law requires plaintiffs to show that the defendant has violated the Constitution in a way that harms them, not merely that the defendant has acted in a way that created a risk (even a large risk) of a constitutional violation. Constitutional law, in other words, adheres to the usual approach of the common law.  In recent years, some states have expanded tort liability to recognize a cause of action for exposure to risk--often with respect to exposure to toxins that have long latency periods--but that approach had not, to my knowledge, generally spread to constitutional litigation. Accordingly, we might view the Plata/Hall risk approach as a constitutionalization of the relatively novel tort concept of liability for exposure to risk.

However, viewed from another perspective, the risk approach in Plata and Hall is quite conventional, especially with respect to constitutional rights in criminal procedure. To some extent, those rights serve values independent of the truth-finding function of the criminal law. For example, the Fourth Amendment protects privacy, sometimes at the cost of impeding the search for truth. But to a large extent, criminal procedure rights guard against the risk of convicting an innocent person. That is probably the chief function of the right to a trial by jury, the right to counsel, the right of the accused to cross-examine witnesses, etc.  Seen from this persepective, Plata and Hall are like In Re Winship, which found that the Due Process Clauses of the 5th and 14th Amendments require proof beyond a reasonable doubt for a criminal conviction. Whereas the Winship procedure reduces to acceptable levels the risk of a criminal conviction of an innocent, the Plata and Hall rules respectively reduce to acceptable levels the risk of cruel and unusual punishment and the risk of the execution of a person with intellectual disability.

What explains the risk approach in the criminal context but not in most other contexts? The most obvious explanation would appear to be the stakes. Note, though, that the divide is not simply criminal versus civil. Although I said above that the risk approach generally does not prevail in civil cases, I can think of at least one exception: The overbreadth doctrine in First Amendment cases is sometimes said to be justified based on the risk of chilling protected free speech. And we might in turn say that this is consistent with the overall pattern based on the importance of First Amendment rights (which is also said to justify the overbreadth doctrine).

Going forward, it strikes me that the next place we might see the application of the Plata/Hall risk analysis would be with respect to claims that certain methods of execution (such as lethal injection with poorly trained staff or using untested chemicals) pose an unacceptably high risk of a very painful death. Notably, in Baze v. Rees, CJ Roberts and Justice Alito accepted that risk assessment is a proper way of thinking about such a claim, even as they (joined by Justice Kennedy in the plurality opinion) rejected the challenge to Kentucky's lethal injection protocol. That means that seven Justices ought to be amenable to the possibility of such a challenge succeeding on different facts.

Even if not, however, my main point in this post is simply to flag what I regard as a potentially jurisgenerative development in the conceptualization of constitutional claims.