SCOTUS Rules On 'Dangerous' Inmates, Juveniles

Guests

David Savage, Supreme Court reporter for the Los Angeles Times and Chicago Tribune
Marc Mauer, executive director, The Sentencing Project
Stephen McAllister, solicitor general, Kan.

The Supreme Court ruled that federal officials can indefinitely hold inmates considered "sexually dangerous," even after they complete their prison terms. And in a 5-4 split, the Court found that juveniles cannot be sentenced to life in prison without parole if they have not killed anyone.

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

The U.S. Supreme Court handed down rulings in two important cases earlier today. First, in a seven-to-two decision, the high court agreed that the government can indefinitely hold convicts considered sexually dangerous, even after their prison terms are complete.

In the second case, decided five to four, the court said it is cruel and unusual punishment to sentence minors to life without the possibility of parole if murder is not involved.

Later in the program, a comic book also-ran sprints to the top of the movie box office charts. Glen Weldon joins us on "Iron Man 2." But first, the Supreme Court rulings.

If either of these cases affects you, give us a call. Tell us how, 800-989-8255. Email us, talk@npr.org. You can also join the conversation via our website. Thats at npr.org. Click on TALK OF THE NATION.

We begin with David Savage, who covers the court for the Los Angeles Times and the Chicago Tribune. He joins us today by phone from his office. David, always good to have you with us. Thanks for your time.

Mr. DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times, Chicago Tribune): Hi, Neal.

CONAN: And let's take these one at a time. A solid majority ruled it's constitutional to hold a convict even after he completes his sentence.

Mr. SAVAGE: Yes, and Neal, this case actually was not a dispute about what you might think it was about, which is: Is that fair?

CONAN: Yeah.

Mr. SAVAGE: About 15 years ago, in a case from Kansas, the court upheld these after-the-fact punishments involving sexual criminals. They said that they were not retroactive, and it was not a violation of due process of law.

So it's actually been clear for a while as a constitutional matter, as a matter of individual rights. The government could hold somebody after they served their term...

CONAN: Because of what they might do.

Mr. SAVAGE: Correct. Last year, however, a federal appeals court struck down the federal law on the grounds that Congress didn't have the authority to pass such a law. There is no federal police power, they say, and that Congress only has the powers that are in the Constitution, the power to regulate interstate commerce.

What the court said today, with Stephen Breyer writing a very broad opinion, was that Congress can pass laws that are necessary and proper to carry out its aims. And he wrote an opinion that said any law that's sort of rationally related to some aim that Congress has, it is constitutional.

I think this opinion was really about the health care mandate, which is coming up next. This is the first time in five years they've had a big case about the reach of federal power. Elena Kagan argued it, and everybody knew this case was even though it was ostensibly about holding sex predators after their prison terms, the real dispute was the reach of federal power.

CONAN: So it was a proxy.

Mr. SAVAGE: Yes, and John Roberts actually joined this opinion. It was a five-to-four opinion basically saying that Congress can enact laws that are intended to that are sort of necessary to carry out their aims.

And if you think about the health care mandate debate, remember the argument is we need to mandate that all persons have health insurance. That's a necessary condition to regulate the national health insurance market.

Everybody agrees that Congress can regulate a market. The question was, can they also regulate sort of individuals and say, you must have insurance. And I would read this opinion today as basically five of them saying that Congress has very broad authority for things like this.

CONAN: And those most opposed were Clarence Thomas and Mr. Scalia.

Mr. SAVAGE: Yes, they have the sort of small-government, small-Constitution view. It's the kind of thing you hear the Tea Party people saying, you know, that the Constitution created a federal government with limited powers and only those limited powers. You know, you hear that all the time, and Scalia and Thomas basically said that, that Congress has certain limited powers, but we're not going to allow it just to willy-nilly to regulate aspects of American life.

But as you said, this is a seven-to-two only Scalia and Thomas voiced that view.

CONAN: So if that seven-to-two majority is predictive, the health care law, well, it may not be that predictive, you never know.

Mr. SAVAGE: That's right, you never know. But I would sure think - there's a lot of language. When this case goes into court, and I think it's in the court in Florida already...

CONAN: Yes.

Mr. SAVAGE: The Obama administration is going to cite this opinion and this language as saying, see, the Supreme Court just this year has said Congress has this broad authority to pass laws that are necessary for carrying out its purposes.

CONAN: Now let's get on to the second case, and that involved minors who are sentenced to life without the possibility of parole in cases that do not involve homicides. And as I read the decision, this was sort of a follow-on to the ruling, what, just a year or so ago, that some time ago that minors could not be put to death because of psychological issues. Their brains are not fully developed.

Mr. SAVAGE: Yes, that's right, Neal. It's very much the same thinking and very much the same justice. Justice Kennedy wrote both opinions, and in both cases, he stressed that teenagers, minors, are not fully formed. Yes, they can be punished, yes they can be dangerous people, but we should take into account their youth.

And in the case of the juveniles who commit murder, Kennedy said its - they are not the worst of the worst and should not be sentenced to death. In this case, it involved life without parole for crimes that it was like robbery or assault, that did not involve murder.

I must say, this case came up last fall, and until it came up, I didn't know there was such a thing in the United States. There are 77 such inmates in Florida prisons, that is 15-, 16-, 17-year-olds that committed crimes like an assault or a robbery. A judge got really angry at them and said, look, you've been in here for a couple crimes before, I think you're hopeless. I'm going to sentence you to life in prison without the possibility of parole.

The Supreme Court said today that's cruel and unusual punishment. It doesn't mean all these young men go free, it just means they're entitled to have a hearing somewhere down the road to see if they've been sufficiently rehabilitated that they can be released.

CONAN: So they would have to go before a parole board, and they would have to approve the release.

Mr. SAVAGE: That's correct. All this says is that you can't shut the prison door forever and say, never again can you have a hearing. They're entitled to a parole hearing to say that theyre no longer dangerous.

CONAN: Would they have to be resentenced?

Mr. SAVAGE: I assume that the state I dont know for sure. I assume all the states are going to have to go back and impose some different sentence because the court was quite clear today in saying this sentence, this - categorically, you may not sentence someone to life in prison without parole if the person was under 18 at the time of the crime and if the crime did not involve a murder.

CONAN: And what did it was a five-to-four decision, so a close split. What did the minority say?

Mr. SAVAGE: The three dissenters I should say, by the way, John Roberts agreed with the majority in part. He said this young man's sentence was grossly disproportionate, was unconstitutional. He just didn't like setting a categorical rule for all of them.

The three dissenters basically said, as they've said before, is that this is up to the states and the people, juries and judges. Cruel and unusual punishment, we should interpret it by what it meant 200 years ago, and it's clear that states could punish people, even put people to death, for relatively minor crimes. And therefore, we shouldnt second-guess the state's decision to impose these prison terms.

CONAN: Why should we nine justices in Washington think that we're better-suited to make these decisions than legislatures in Tallahassee or Sacramento, for that matter?

Mr. SAVAGE: You said it better, Neal.

CONAN: Okay. David Savage, this case, does it have broad implications like you suggest the first one did?

Mr. SAVAGE: Well, I don't think it's easy to say. The court has been you know, this is the first time in a big way that they have put a categorical limit on prison terms. In the past, the Eighth Amendment has always been about the death penalty. But if you said to me, what's next down the road? You know, I don't see another case comes along that Justice Kennedy could go along with.

He didn't want to hand down this decision in a case involving a juvenile who committed a murder. It had appeals to that effect, and the court always turns them down. So they took a case that's involved life terms for juveniles where there's no murder involved. So I don't see it immediately translating into, you know, another group or another category of cases.

CONAN: Well, David Savage, thanks very much for your time, as always.

Mr. SAVAGE: Thanks, Neal.

CONAN: David Savage covers the Supreme Court for the Los Angeles Times and the Chicago Tribune, joined us today by phone from his office there. In just a moment, we're going to be talking with advocates in both these cases, advocates who as it happens, both got the decisions they hoped to get, at least in part.

We'd like to hear from those of you who are affected by these cases one way or the other. Give us a call, 800-989-8255. Email us, talk@npr.org.

We'll start here in Studio 3A with Marc Mauer, executive director of the Sentencing Project. They filed a brief in the case involving life sentences for juveniles with no chance of parole. The brief argued against those tough sentences for young offenders. Today, the court agreed. Marc Mauer with us. Thanks very much for your time.

Mr. MARC MAUER (Executive Director, The Sentencing Project): Good to be here.

CONAN: And obviously you're happy with this decision.

Mr. MAUER: We are pleased. This is, you know, a very significant recognition that the so-called get-tough policies of the last several decades, they way they piled up both our criminal justice and juvenile justice systems, you know, have now gone well beyond what I think most Americans, you know, think is a reasonable way to respond to crimes committed by juveniles.

And we should note these were serious crimes, even though they were non-homicides. The question still becomes, though, you know, are juveniles the same as adults? And I think the court has clearly said, no, they're not.

And, you know, any parent who has a 13-year-old, you know, could answer that question, as well. You know, kids grow up. Kids change. This is a very (unintelligible)...

CONAN: Impulse control is different. But nevertheless, individuals vary. Some of these kids may be fully formed.

Mr. MAUER: They certainly may be but, you know, that's the reason why we have restrictions on the right to vote at what age, what age you can drive a car, drink alcohol and all that. You know, there may be some 14-year-olds who can responsibly drink alcohol, but we're not really in a position to make that determination on a case-by-case basis, and so we have to set some sort of broad standard.

And in this case, you know, when the consequences are so severe, in particular, the court has recognized that we need to set, you know, set that broad standard that says beyond this, below this, it's just not reasonable.

CONAN: And so you have to come up with an arbitrary number, which in this case is 18.

Mr. MAUER: Yes, and, you know, I think it's important to note that, you know, the outlier position of the United States in regard to use of juvenile life without parole, you know, in addition to the kids who are affected by this ruling today, the others, you know, serving life without parole for homicides as well, more than 2,000 sentenced for crimes committed when theyre under the age of 18. If you look around the world, there is literally not a single other case that's been identified in any other country where any juvenile under 18 is serving such a sentence.

CONAN: And only about 100 or so in this country, as I understand it.

Mr. MAUER: Hundred and twenty-nine for non-homicides and more for homicides.

CONAN: And most of them, as we mentioned, in the state of Florida. Stay with us, if you would, Marc Mauer. We're also going to be joined by Stephen McAllister, solicitor general of Kansas, to talk about the other Supreme Court case today. And we'd like to hear your calls. If you're affected by either of these decisions, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.

Two decisions by the Supreme Court today changed the rules today on who can be held in prison and for how long, and raise new questions about who decides. Sex offenders deemed dangerous can be held indefinitely even after their sentence ends, while juveniles who didn't kill anyone cannot be sentence to life without possibility of parole. The court ruled they must be considered for release.

We'll talk with two people who filed briefs in those cases. If either of these cases affects you, give us a call, tell us how, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Thats at npr.org. Click on TALK OF THE NATION.

Marc Mauer of The Sentencing Project, just to follow up on something we asked David Savage about a moment ago, will these given this decision, will juveniles sentenced to life without the possibility of parole, will they have to be resentenced?

Mr. MAUER: Well, the court has basically said that every state that maintains some of these juveniles serving life without parole has to provide some kind of mechanism by which they can be considered for release at some point, to demonstrate they'd been rehabilitated, are good candidates for being released.

So that may vary from place to play and all that. And importantly, too, there are only 11 states plus the federal system where these even apply, where we actually have juveniles serving these penalties for non-homicides, which I think was part of the court's assessment, as well, declining support, declining interest in maintaining this penalty.

CONAN: And let's bring on our other guest today. In the other notable high court ruling, U.S. v. Comstock, the Supreme Court ruled the federal government can hold convicts even after they serve their time if they are deemed sexually dangerous. Stephen McAllister, solicitor general of Kansas, he filed a brief arguing in favor of that federal law. He's been kind enough to join us here in Studio 3A. Thanks very much for your time today.

Mr. STEPHEN McALLISTER (Solicitor General, Kansas): My pleasure.

CONAN: And you also are pleased with today's ruling.

Mr. McALLISTER: We're very pleased with the ruling, yes.

CONAN: And how many people fall into this category?

Mr. McALLISTER: It's not a large number. The federal system is likely to be pretty selective. The programs are long-term, they're intensive. They're very costly. That's one of the reasons the states wrote in this case that we favored the federal program as a complement to our own.

There are sort of inherent limits on how many individuals can be accommodated in these programs.

CONAN: Who decides when someone is sexually dangerous and therefore cannot be released?

Mr. McALLISTER: Well, there's typically a screening mechanism for inmates who are about to be released, coming to their end of their sentence. In Kansas, for example, it's a group that includes people from the attorney general's office who look at inmates whose sentences meet the criteria to decide, but it's a very small fraction. It's a very selective process because we simply don't have unlimited resources to do this.

So it's very selective and a very small percentage, but it is typically driven by the attorney general's office or, in this case, the Department of Justice will decide this particular individual is someone we will file a petition and seek to have him committed for further care and treatment.

CONAN: File a petition, does that have to go before a judge?

Mr. McALLISTER: Yes. There's a fairly elaborate process that goes with this. So it would be a petition filed by the government. There's typically appointment of counsel. There may be expert witnesses, proceedings in front of a judge or, in some of the states, in front of a jury, a very trial-like process to determine if this person meets the statutory criteria for civil commitment.

CONAN: And then at some point, do they have the possibility of parole? Can they re-apply for release?

Mr. McALLISTER: Well, they under the state systems, very definitely. In fact, there's almost always an annual review that takes place and it could be the reviewers would suggest they may be ready, but also they typically have the right to petition on at least an annual basis to ask for release, saying my circumstances have changed, I should be released. Even though the government's not asking to let me go, I think I'm entitled to it. So there's a regular way to challenge that.

CONAN: As a practical matter, to your knowledge, has anybody been released under that program?

Mr. McALLISTER: I don't not under the federal program because it's really been on hold for this, but under the state program, some. It's not a high percentage and this tends to be, by the nature of it, a long-term process and not always, unfortunately, a successful process.

I mean, one of Kansas' most notorious committees, who went to the Supreme Court, a fellow named Crane(ph), was eventually released from the program but is now serving time in a Missouri prison because when he got out, he committed more sexually violent offenses, and he's now in prison for the rest of his life.

CONAN: Wouldnt that not discourage people from, under any circumstances, releasing somebody?

Mr. McALLISTER: Well, I think there is some wariness and some reluctance. On the other hand, the people involved with the programs do typically believe strongly that there is the ability to treat, to make a difference, to improve these individuals. It's not a it's not a schizophrenic kind of, it's not a drug-treated sort of situation. It's much more of a cognitive, a behavioral alteration, and that's part of the longer-term nature. But there are many out there who believe they can successfully treat these individuals.

CONAN: You are obviously here talking about the cases that you were involved in, but you're not unfamiliar with each others' cases. I wonder, Steven McAllister, your opinion on the ruling about juveniles.

Mr. McALLISTER: Well, I think it's a very tricky case because you have the you see the competing ways of interpreting the Eighth Amendment, and you can see the justices who say, look, it's very limited. We shouldnt be substituting basically our judgment for that of legislatures, even if it's a minority of states at this point who do it. There are still 37, I think, Justice Kennedy said, who authorize, maybe only 12 or 13 who actually do it. And it's a typical criticism in the Eighth Amendment context.

On the other side of it, there is a lot of notions built into the system that the juvenile system is different in many, many ways...

CONAN: Well, these are kids convicted as adults.

Mr. McALLISTER: They're convicted as adults, but I mean, the point is they are juveniles when charged. And Justice Kennedy emphasized both the fact that they may have less culpability and also that these are not murders.

So taking those into account, I certainly can understand where the court came down. Kansas is not one of those states that is imposing these sentences. So as a practical matter, I'm not terribly concerned, but the argument is fairly familiar between the two sides here.

CONAN: Marc Mauer, on the case involving sexual predators who can be held indefinitely, your opinion on that?

Mr. MAUER: Well, you know, it raises the broader policy questions of how do we handle people whove committed serious sexual offense. And, you know, we know a couple things. One is that there's a broad spectrum of sexual offenses that people commit. You know, on one hand, we have the Peeping Toms. On the other hand, we have the serial rapists waiting in the bushes.

And, you know, if there's anything we've learned, it's that, you know, those behaviors, we need to do very different kinds of individualized responses depending on the severity and where that behavior comes from.

Secondly, we know that in far too many instances, the problem we have in the prison system, not even talking about civil commitment, is how limited the treatment is in the first place.

And, you know, the resources aren't there. The public interest isn't there. The legislative interest is not there. And so we spend enormous amounts of money keeping people confined when, at least in some of these cases, we probably could do a much better job.

CONAN: Let's get some listeners involved in the conversation, 800-989-8255. Email talk@npr.org. Linda's(ph) on the line from Mountain View in California.

LINDA (Caller): Hello.

CONAN: Hi.

LINDA: I'm the mother of a child who was molested by a sexual predator, and I just wanted to share my story. In California, we have determinate sentencing. And so the person, even though there were multiple offenses, pled it down to two, which means he's not a candidate for three strikes you're out.

At the end of his prison sentence, he was sent to the state hospital Atascadero. Without the doctor's permission and without any kind of an elaborate hearing, they gave him what is called an administrative law judge hearing. And the judge determined that he had the right to petition for release. And what the probation officer told me is because he had served his sentence, even though his doctor felt he should be held on what they call a 5150, danger to themself or others, the law judge said the hospital had to release him. And so he was released after about two years.

CONAN: And that was after one of the people he was - he attacked was your child?

LINDA: Yes.

CONAN: That must be awful.

LINDA: And that had a huge effect on my child. My child is now 19, and this happened when he was three.

CONAN: And is it a he or a she?

LINDA: He.

CONAN: He, does he continue to fear attack by this man?

LINDA: I know he yeah, he's at times said he would like to get a gun and shoot him. And it was 16 years ago.

CONAN: Sixteen years ago. So this is a very living case.

LINDA: Yeah, and he's had years and years of counseling.

CONAN: And to your knowledge, after his release, has he gone on to attack anyone else?

LINDA: I'm not sure. He's a family member. This is the really sick part. He's a family member, and he continues to send birthday cards and Christmas cards to all my kids.

CONAN: Makes the trip to the mailbox difficult.

LINDA: Yeah, so I mean, I think the thing is he's still in complete denial, I'm pretty sure, that it was really that bad a thing that happened.

CONAN: Linda, thanks very much for your call, and thank you for sharing that. I know that wasn't easy.

LINDA: Okay.

CONAN: Appreciate it. And Stephen McAllister, it's stories like that that make it so difficult to approach these cases. You would think that again, this was not the issue today, the fairness of it, but you say, I finished my sentence, why are you still holding me?

Mr. McALLISTER: Right, and it's complicated, but this was a lot of the argument that was sorted out in the Hendrix(ph) case almost 15 years ago. On the one hand, they finished their sentence. On the other hand, often these are multiple offenders and the people that are drawn into the commitment programs are not going to be typically first-time offenders.

The other problem is prosecution is also sometimes very difficult. A circumstance like she just described with a three-year-old victim would be a very difficult case in many ways to prosecute. And I think there is a perception that sometimes those sentences have been plea bargained down and so forth to be much lighter than perhaps they should've been.

In the commitment and Hendricks(ph) has made clear - not intended as a substitute for the criminal sentence. But on the other hand, it does serve the function of not only treating these individuals but also incapacitating them so that they cannot re-offend while they're in custody of the state or the federal government.

CONAN: Incapacitating them how?

Solicitor General MCALLISTER: In the sense that they're held in a secure facility while they receive treatment, so that they are not just out in the community, even on a sort of a release program or a probation or something.

CONAN: Let's go next to Beverly(ph). Beverly with us from Shaker Heights in Ohio.

BEVERLY (Caller): Hi. I'm calling with a question about what percentage of the juveniles that are being held - the 77 juveniles that are being - currently being held with life sentences are African-Americans.

CONAN: Those are just the ones in Florida. That's life sentence without the possibility of parole. And let's return to Marc Mauer.

Mr. MAUER: Yeah. Well, we do know that for life without parole, both for murder and non-murder, nationally, there are very disproportion rates of confinement for African-Americans and Latinos, far out of their proportion to the general population and somewhat higher than their proportion of the sort of regular, if you want to think of that, prison population.

So very significant, and certainly that's true for these 77 kids in Florida, which is by far the leading state in the nation. Which raises questions of, you know, how are cases processed? Do these numbers just reflect criminal activity or does it reflect access to resources and decision making in the juvenile criminal justice systems?

BEVERLY: Mm-hmm. So you don't know what percentage of those 77 that are currently being held are African-American?

Mr. MAUER: You know, I don't have these figures in front of me, but I do know that it's a substantial percentage, certainly.

BEVERLY: Thank you for taking my call.

CONAN: Okay, Beverly. Thanks very much. And I just wanted to follow up, briefly, on what David Savage was telling us earlier. He said he didn't see anywhere for this to go. Obviously, there are life sentences without the possibility of parole for minors that do involve homicides. Is that where you see this going?

Mr. MAUER: Well, I think that's sort of the next logical step. You know, I think after 2005, when the Supreme Court banned the death penalty for juveniles, this became the next arena essentially. Now, five years later, we've made a significant in roads there, and so that would be the next logical step or - and also it's extremely long sentences for juveniles, as well. You know, some states that have made changes, Colorado and others, still impose 40-year prison terms for juveniles.

And, you know, the fundamental question still remains the same. You know, are our kids capable of change? How much time is enough? And, you know, at what point do we recognize the different culpability of juveniles and how do we take that into account?

CONAN: Mark Mauer of the Sentencing Project. Also with us, Stephen McAllister, the solicitor general of Kansas.

You're listening to TALK OF THE NATION from NPR News.

And let's go next to Paul(ph). Paul with us here from the bay area in California.

PAUL (Caller): Hello. Thank you for doing this program.

CONAN: Go ahead.

PAUL: We represent a client who is a black male, who is charged with - actually a third strike. This is his third strike though. He has no prior sexual assaults, and it's not against a minor. But he has AIDS, and so it makes our case very difficult for us to take it to trial, because if the jury got this case, they would convict him just on the fact that he knew he had AIDS for 15 years and he raped this woman who was disabled.

CONAN: And did - took no precautions - did not use a condom.

PAUL: Took no precautions as far as we know. We don't know, because the victim doesn't know and he won't talk to us about that.

But I can understand this issue in the context of against children. The woman he attacked in this case was an adult and he's an adult. The group in the United States that has the highest rate of AIDS is young black girls due to gang rape by black males in the United States. And so it's like a death sentence, this AIDS issue. And people - a lot of people don't realize that black girls have the highest rate of death from AIDS due to this problem. And so I could see where the Supreme Court has probably considered that fact in their calculation.

CONAN: Did this come into it, Stephen McAllister, at all?

Solicitor General MCALLISTER: I'm not aware of whether anyone briefed that. I don't recall any mention of that.

CONAN: And you were there arguing your case but you didn't hear it.

Solicitor General MCALLISTER: No.

CONAN: All right. Paul, obviously, you've got a difficult case in front of you. We wish you the best of luck.

PAUL: Thank you...

CONAN: All right. Appreciate it.

PAUL: ...for doing the program.

CONAN: Okay. Thank you very much. And let me follow up, Stephen McAllister, the question of treatment. Is there treatment available in the prisons where these men are sentenced to the first place, and after they're held, are they sent to different facilities? Is treatment available there?

Solicitor General MCALLISTER: Well, the answer is yes and yes. Although I think a comment was made earlier, sometimes what's available in prison is limited. And there are problems with prison treatment that are partly a result of this setting also. We've also been to the Supreme Court in different case involving an inmate who didn't want to participate in the prison treatment program. And when he lost privileges as a result, he argued that that was unconstitutional. I mean, so some inmates may want to take full advantage of prison treatment programs, but there are a significant number who don't want to participate and will not necessarily do so willingly or voluntarily. But it is available in, at least, limited forms.

Now, when they enter one of these civil commitment programs because it is not intended to be punitive and is not part of the criminal justice system, they are moved to a different facility. And so in Kansas, for example, it's a mental health facility. Now, it's, granted, somewhat prison-like and that it's got to be secure by the nature of these individuals, so it's not just a house on a quiet neighborhood street. I mean, it's still a prison-like facility, but they are not usually in contact with, and certainly not housed with a general prison population. They're completely segregated.

CONAN: Just very briefly, we only have a few seconds left, would you agree with David Savage's belief that this was, in some ways, a proxy for the health care case.

Solicitor General McALLISTER: It's an interesting thought. I suppose it's a very and I think this is why you had Justice Kennedy and Justice Alito peeling off in separate concurrences. The majority opinion is a very broad assertion of power under the necessary and proper cause. Whether if I will go along with that in a very different kind of setting, you know, it's hard to know. I wouldnt battle out on the outcome there. But it has - certainly would be a case that will be argued.

CONAN: Is Kansas one of the states that's filed suit against the circuit?

Solicitor General McALLISTER: Kansas has declined to join that lawsuit.

CONAN: All right. Thank you very much for your time today. Stephen McAllister, solicitor general of Kansas, also teaches law at the University of Kansas, defended the United States in the U.S. v. Comstock case, with us here in Studio 3A. Also with us Mark Mauer, executive director of The Sentencing Project who wrote an amicus brief in the Graham v. Florida case.

And gentlemen, thank you both for your time today. We appreciate it.

Mr. MAUER: Thanks for having us.

Solicitor General McALLISTER: Thank you.

CONAN: Coming up, the first blockbuster of the summer, and it's only spring. NPR's comic book blogger reviews "Iron Man 2." Stay with us.

It's the TALK OF THE NATION from NPR News.

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