Tough-on-Crime Cases Top Supreme Court Fall Session


The Supreme Court, which opens its new term next week, will take up constitutional challenges this fall to two popular tough-on-crime measures of the 1990s: Megan’s Laws, which alert the public to sex offenders who were released from prison, and three-strikes laws, which can keep three-time felony offenders in prison for life.

Judges in California, Connecticut and Alaska have ruled that these laws sometimes go too far.

They say Megan’s Laws brand as dangerous all former offenders, even if their crimes were long in the past. And in California, shoplifting can be the third strike that sends a two-time offender to prison for life.

The high court will also decide whether states can force drug makers to discount the price of prescription drugs. With the debate about how to temper soaring drug costs stalled in Congress, lawyers for the pharmaceutical industry and the Bush administration are urging the court to void Maine’s discount-drugs law.


And in a case that has attracted wide interest in the entertainment industry, the court will decide the fate of a 1998 law that extended copyrights for films, books, songs and plays that were released in the 1920s and 1930s.

These are among the 41 cases set for arguments this fall, with the first to be heard Oct. 7.

However, the fall term truly gets underway this week, when the nine justices meet behind closed doors for the annual ritual of sifting through the nearly 2,000 appeals that arrived over the summer.

Chief Justice William H. Rehnquist, who hates to take time even for discussion or debate, will ask fellow justices to vote on a list of appeals that, in his view, raise a significant and disputed legal question. It takes at least four votes to grant an appeal. And as early as Tuesday, the court is expected to announce cases that will be taken up in the coming months.

So far, there are no cases arising directly from the war on terrorism. The first will be coming soon, however.

The Justice Department says it will appeal a ruling that opens the immigration hearings for those picked up during the FBI’s anti-terrorism probe. Atty. Gen. John Ashcroft ordered all such hearings closed to the public and media. But in August, a U.S. appeals court sided with Detroit newspapers and ruled that the Constitution’s guarantee of freedom of the press forbids secret hearings.

Terrorism may also cast a shadow over several current cases.

For example, a case from Oxnard tests whether a police officer can try to force a confession out of man who has been shot and is near death.


In November 1997, Sgt. Ben Chavez rode in the ambulance that carried Oliverio Martinez to an emergency room after he had been shot six times in a struggle with two officers. Police were looking for a suspected drug dealer in a park when they spotted Martinez on his bicycle and stopped him. Chavez repeatedly tried to get a statement from Martinez that would exonerate his fellow officers. Doctors and nurses insisted Chavez leave the emergency room, but he persisted.

Martinez, although paralyzed, survived and sued Chavez and the Oxnard police. The U.S. 9th Circuit Court of Appeals cleared the suit to go before a Los Angeles jury, ruling that “coercive interrogation” by police is unconstitutional.

But U.S. Solicitor General Theodore B. Olson and Assistant Atty. Gen. Michael Chertoff, two leaders of the Bush administration’s legal war on terrorism, filed a brief on behalf of the Oxnard police. They urged the high court to rule that the Constitution allows “coercive questioning” by police and federal agents, as long as any forced admissions are not used against the suspect in court.

Pressuring Suspects


In the war on terrorism, information about Al Qaeda operatives is more important than possible testimony in a criminal trial. Ashcroft wants federal agents to be free to hold witnesses and suspects and pressure them to talk. He hopes these detainees can tip off agents to other plotters and their plans.

If the Supreme Court upholds a constitutional “right to be free of coercive questioning,” Olson said in a court brief, it “will undermine legitimate ... efforts to obtain potentially life-saving information during emergencies.”

Olson concedes that the police and federal agents cannot torture a witness or use brutal methods that “shock the conscience.” But pressuring a dying man to talk is not “so outrageous” as to be deemed unconstitutional, he said.

The war on terrorism may also affect the outcome in a pending deportation case.


Congress in 1996 said that immigrants who commit crimes in the United States must be deported. The government also insists they remain jailed until their deportations.

Last year, however, the 9th Circuit Court said this mandatory detention rule is extreme, unfair and unconstitutional.

Olson urges the Supreme Court to reverse that decision and to rule that deportable immigrants can be jailed without a hearing. If the high court agrees, most legal challenges to last year’s roundup of 1,200 immigrants in the terrorism probe would be swept aside.

The Megan’s Law and three-strikes cases come before the court in November. Both laws arose from horrible crimes involving children.


In 1993, 12-year-old Polly Klaas was abducted from her home in Petaluma, Calif., and killed by Richard Allen Davis, a twice-convicted kidnapper on parole.

A year later, Megan Kanka, a 7-year-old New Jersey girl, was abducted and killed by a paroled sex criminal who lived nearby. Her parents knew nothing of their neighbor’s criminal history.

Now, all 50 states require released sex criminals to register with local authorities and supply them with a photo and a current address. Thirty states, including Alaska and Connecticut, make this information available to the public on a state Web site. In California, the registry can be viewed at police stations, and communities are alerted when high-risk offenders have moved into the area.

Critics say that ex-offenders who have served their time and are not dangerous should not be labeled as a threat to the community.


“People have lost their homes and their jobs” after being listed on the state’s Web site for past sex crimes, said Darryl Thompson, an Anchorage lawyer for two men who are contesting the registration requirement. “Even the spouses and their girlfriends are hurt by it.”

State officials say they are simply giving the public accurate information about a criminal conviction.

“If my kid is going to another neighborhood, I check the site,” said Cynthia Cooper, a state lawyer who is defending Alaska’s law.

In a Connecticut case, the court will decide whether ex-offenders are entitled to a hearing to determine whether they are still dangerous. In the Alaska case, the court will decide whether Megan’s Law can be applied to ex-offenders whose crimes occurred before the law was enacted.


California’s three-strikes law is harsher than others because a petty theft can trigger a life sentence if it is a criminal’s third offense. More than 7,000 criminals have been sentenced under the law. Of these, 311 were sentenced for a petty theft.

The high court will consider two of those cases. Leandro Andrade, a 37-year-old heroin addict, was sentenced to 50 years in prison for a third strike of shoplifting videotapes from two Kmart stores in San Bernardino County. Gary Ewing got a sentence of 25 years to life after he limped out of an El Segundo golf shop with three Callaway clubs tucked into his pants leg.

Sentence Overturned

The 9th Circuit overturned Andrade’s sentence as “grossly disproportionate” to his crime. State prosecutors say Andrade and Ewing had long records of thefts or burglaries that justify locking them up for life.


The prescription drug case will be heard in December.

Maine’s law says that drug makers must offer the state’s residents the same discounts that are offered to low-income people enrolled in Medicaid.

If Maine wins, dozens of states are expected to copy the law. Last week, the Bush administration urged the court to void it on the grounds that it hijacks the Medicaid program to aid people who are not poor.

In the next few months, the court also is likely to take up cases on college affirmative action, campaign finance reform, sex Web sites on library computers and gay rights.


A conservative law firm is urging the court to take up a University of Michigan law school case and to rule that colleges may not use a student’s race as an admission factor.

The court’s conservative and liberal factions have been evenly split on this issue.

The Justice Department is also urging the court to revive a law that requires public libraries to install filters on computers to screen out sexually oriented Web sites. A lower court said this violates freedom of speech.

Meanwhile, gay rights lawyers are challenging a Texas law that is one of the few remaining laws making it a crime for gays or lesbians to have sex in their own homes.


The Lambda Legal Defense Fund is appealing on behalf of two men who were arrested at home and prosecuted.

Before voting on whether to take up the issue, the court asked Texas lawyers last week to submit a brief defending the law.

A challenge to the McCain-Feingold campaign finance law also is destined to reach the high court. First, however, a three-judge panel in Washington will consider whether the limits on so-called soft money--unrestricted campaign donations--and negative campaign ads within 60 days of the election violate the 1st Amendment.