This week in law and policy

Bush administration must charge Padilla or let him go, SC District Court rules

On Monday, Judge Henry Floyd, a 2003 Bush appointee, ruled that the Bush administration has 45 days to either charge Jose Padilla with a crime or free him from detention. In June, the Supreme Court ruled that Padilla had filed his habeas corpus motion in the wrong court because he was being held in South Carolina. Padilla's lawyers refiled the suit in the District Court for the District of South Carolina.

"The President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant," writes Judge Floyd, citing Youngstown Steel as authority for refusing to allow the Executive to usurp the power of the Legislature--including the right to suspend the Great Writ. No barrier to charging Padilla with his alleged crimes exists; he is a citizen of the United States; he must be charged or freed.

Supremes rule juvenile death penalty unconstitutional

This week the Supreme Court marked another major change in United States criminal law as it ruled the juvenile death penalty unconstitutional (Chief Justice Rehnquist and Justices O'Connor, Thomas, and Scalia dissenting). Roper v Simmons overturned Stanford v Kentucky (1989), ending "the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty" (majority opinion).

The decision follows Atkins v Virginia (2002), which ruled the death penalty unconstitutional for mentally retarded offenders.

While the dissenting Justices stated that these are decisions for the legislatures and (in the case of Justice Scalia) that international law and opinion should play no role in American law, the majority was persuaded by a changing consensus in the United States (thirty states now ban the juvenile death penalty, among them twelve who have banned the death penalty altogether). In the past ten years, only three states have executed offenders who were juveniles when they committed their crimes: Oklahoma, Virginia, and Texas. At the same time, use of the juvenile death penalty is anathema to the international and human rights communities.

Oral arguments in Ten Commandments cases

On Wednesday, the Court heard arguments in two allied cases challenging the constitutionality of Ten Commandments displays on public property (Van Orden v Perry [Erwin Chemerinsky of counsel] and McCreary County v ACLU of Kentucky). The cases test the application of the Establishment Clause, and in particular the question whether allowing such displays within composite displays of "legal heritage" constitutes pretext. More coverage, including links to the briefs, at ScotusBlog.

Supremes rule on racial classification in prisons in Johnson v California

The Court ruled that California's practice of racially segregating newly-arrived prison inmates for sixty days must survive strict-scrutiny review (Justices Thomas and Scalia dissenting; Chief Justice Rehnquist did not participate). In doing so, the Court chose its equal protection standard over the more deferential review it has given to state correctional facilities' policies (much to the dissenting Justices' chagrin). Excellent analysis by Vikram Amar here.