Note

Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches

The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does not need to obtain a warrant before conducting a Fourth Amendment search. Individuals in Virginia, however, are protected not only by the Fourth Amendment but also under state law. And Section 19.2-59 of the Code of Virginia contains a ban on searches without a warrant, subject only to exceptions in the enforcement of game and marine fisheries laws—rather, that is what Section 19.2-59 seems to say it contains. In practice, the Supreme Court of Virginia has for decades interpreted the statute to provide the same protections as the Fourth Amendment, despite the stark differences between the two texts.

This Note’s first contribution is to explore that discrepancy. It documents how Section 19.2-59 was first passed during the Prohibition Era as part of a backlash to overly intrusive searches by law enforcement agents. It reveals that the Supreme Court of Virginia was originally willing to credit the statute’s plain meaning and interpret it as offering broader protections against unreasonable searches than the common law. In the middle of the twentieth century, however, the court began to misread those early cases, leading to the current understanding of the law that is divorced from its plain meaning. The history of Section 19.2-59 thus raises difficult questions of statutory interpretation. This Note’s second contribution is to identify those questions and begin articulating what the contemporary meaning of Section 19.2-59 should be.

Introduction

“Because we can only administer the law as it is written, the interpretative principle that precedes all others is that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says . . .’.”1 1.Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).Show More

Kenneth Wilson was pulled over as he drove through Chesterfield County, Virginia, on the evening of March 29, 2019.2 2.Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020).Show More The officer who commenced the stop did not initially give any reason for doing so. But after running Wilson’s license and registration, he ordered Wilson to step out of his car.3 3.Id. at *2.Show More Wilson responded by asking why he had been pulled over. The officer told Wilson that his headlight was out and opened the driver-side door. Wilson remained seated. The officer quickly repeated the order three more times, but Wilson did not budge. Then, without warning, the officer punched Wilson in the face and yanked him out of the car.4 4.Id.Show More

Once Wilson was restrained, the officer informed him that he had ordered Wilson to exit the vehicle due to the smell of marijuana.5 5.Id.Show More Wilson was patted down and escorted away. The officer then searched his car and found marijuana. In subsequent criminal proceedings, the Chesterfield County General District Court ordered that the drugs be suppressed.6 6.Id.Show More

Wilson sued the officer under both federal and state law seeking half a million dollars in compensatory and punitive damages. In considering the officer’s motion to dismiss, the U.S. District Court for the Eastern District of Virginia noted that one of the state law claims was for “unlawful search in violation of Virginia Code § 19.2-59.”7 7.Id.Show More The court did not take long to resolve the claim, simply noting that it “rel[ies] on the absence of probable cause” and citing to a 1968 Supreme Court of Virginia case in support of the proposition.8 8.Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)).Show More In Wilson’s case, the court reasoned, the smell of marijuana gave the officer probable cause that there was contraband in the vehicle. The Section 19.2-59 claim was accordingly dismissed.9 9.Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam).Show More

At first glance, the decision appears unremarkable. Yet it is notable for what the court did not do: consider the text of Section 19.2-59 of the Code of Virginia. If it had, the court would have needed to concede that the provision says nothing about probable cause. Instead, Section 19.2-59 seems to plainly prohibit the type of warrantless search that Wilson’s car was subject to. The statute starts with a simple command:

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer.10 10.Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.Id.Show More

That general prohibition is subject to an exception allowing for the warrantless searches of vehicles—but only when such searches are carried out in the enforcement of Virginia’s game or marine fisheries laws.11 11.Id.Show More The limited exception seems to further Wilson’s case, giving rise to a negative inference that warrantless automobile searches in all other contexts are prohibited.12 12.See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressiouniusestexclusioalterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)).Show More

The perfunctory treatment Section 19.2-59 received in Kenneth Wilson’s case is not unusual. In fact, Section 19.2-59 and its seemingly near-total ban on warrantless searches have gone almost entirely overlooked both in practice and in the literature. In practice, the statute is interpreted to offer the same protections as the Fourth Amendment,13 13.The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.Show More despite the fact that the Amendment allows for a large portion of law enforcement searches to occur without a warrant.14 14.See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”).Show More Section 19.2-59 is also understood to create a cause of action against law enforcement officers akin to that found in 42 U.S.C. § 1983.15 15.See infra Subsection I.B.2.Show More In the literature, the statute’s origins, development, and interpretation by courts have never been explored.16 16.A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”).Show More

This Note seeks to change that. Part I summarizes the current state of the law on illegal searches in Virginia under the Fourth Amendment, Section 10 of the Virginia Declaration of Rights,17 17.Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10.Show More and Section 19.2-59. Part II explores the history of Section 19.2-59.18 18.Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity.Show More It reveals the statute was originally enacted in 1920 as part of a larger bill meant to rein in the searches of state prohibition officers. Although the statute has been amended several times since, much of its substance remains the same as it was in 1920. Part III first analyzes how the Supreme Court of Virginia19 19.The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court.Show More interpreted Section 19.2-59 in the years immediately following its enactment. It then documents how, in the latter half of the century, the court misread those earlier cases, leading to the current application of the statute that departs not only from its text, but also from how it was originally understood by courts. Finally, Part IV makes a preliminary attempt at answering several questions raised by the analysis in Parts II and III.

  1. Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)). ↑
  2. Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020). ↑
  3. Id. at *2. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)). ↑
  9. Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam). ↑
  10. Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

    Id. ↑

  11. Id. ↑
  12. See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressio unius est exclusio alterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)). ↑
  13. The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. ↑
  14. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”). ↑
  15. See infra Subsection I.B.2. ↑
  16.  A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”). ↑
  17. Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10. ↑
  18. Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity. ↑

  19. The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court. ↑

Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. This Note therefore proposes challenging the extreme sentencing of emerging adults under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

Introduction

In 2015, Jonas David Nelson was convicted of first-degree murder for the premeditated shooting of his father.1 1.Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021).Show More On the day of the offense, Mr. Nelson was eighteen years and one week old.2 2.Id.Show More He was subsequently sentenced to a mandatory term of life imprisonment without the possibility of parole, in accordance with Minnesota law.3 3.Id. at 34.Show More Despite the fact that the record was “replete with evidence of [Mr.] Nelson’s cognitive and social delays and years of psychological and emotional abuse,”4 4.Id. at 40.Show More the Minnesota Supreme Court upheld his mandatory-life-without-parole sentence on both direct appeal and upon request for postconviction relief.5 5.Id. at 34, 40.Show More As powerfully noted by Justice Chutich in dissent, Mr. Nelson was given “the functional equivalent of a death sentence, without any consideration of him, his personality, his upbringing, or his psychological attributes, solely because the offense occurred seven days after his eighteenth birthday.”6 6.Id.at 41 (Chutich, J., dissenting).Show More

The U.S. Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders—i.e., those under the age of eighteen—must be treated differently from adults.7 7.See, e.g.,Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders).Show More Juveniles lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation.8 8.SeeinfraPart I.Show More Given this reality, the imposition of extreme sentences—including the death penalty, mandatory life without parole (“LWOP”), and discretionary LWOP for non-homicide offenses—on juveniles in criminal court is disproportionate and unconstitutional under the Eighth Amendment.9 9.The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution.Show More But these constitutional protections cease to exist the day one turns eighteen. Despite referring to Mr. Nelson’s case as “extremely tragic,” the Minnesota Supreme Court felt bound to follow U.S. Supreme Court precedent that “clearly limited [Eighth Amendment protection] to juvenile offenders under the age of 18 at the time of the offense.”10 10.Nelson, 947 N.W.2d at 40 (emphasis added).Show More Had Mr. Nelson been eight days younger, the mandatory LWOP sentence that he received would have been unconstitutional as applied to him.

Emerging neuroscientific research, however, strongly indicates that the hallmark characteristics of youth—immaturity, impressionability, and corrigibility—are present in individuals older than eighteen, too.11 11.See infra Subsection II.B.1.Show More Cognitive development continues well into a young person’s twenties, and society recognizes the relative immaturity of this demographic through prohibitions on activities such as drinking and firearm possession.12 12.SeeElizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region 11–12 (2020), https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9].Show More As a consequence, the proportionality considerations relevant for those under eighteen are arguably as compelling for “emerging adults”—defined here as those ages eighteen, nineteen, and twenty—as they are for juveniles. Despite this reality, emerging adults have not been granted protection against the harshest of criminal sentences under the Federal Constitution, and claims of disproportionality under the Eighth Amendment have been universally quashed.13 13.See infra Part III.Show More Given the current composition of the Supreme Court, seeking federal constitutional protection against disproportionately harsh sentences for emerging adults seems futile.14 14.See infra Part III.Show More The more effective realm for such advocacy, this Note posits, is in the states.

This Note proposes that advocates redirect focus and challenge the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitutions.15 15.See infraSection IV.A.Show More Further, many have interpreted these clauses to be broader and more protective than the Federal Eighth Amendment.16 16.See infra Section IV.A.Show More Attention should therefore be directed toward challenging extreme sentences for emerging adults under these provisions.

Recent litigation in Washington and Illinois illustrates how this can be achieved. In 2021, the Washington Supreme Court held that imposing mandatory-LWOP sentences on those ages eighteen through twenty violates the state’s constitutional provision against cruel punishment.17 17.See infra Section IV.B.Show More Over the last few years, Illinois state courts have also struck down the harshest criminal sentences as applied to emerging adults, holding that they violate the state constitution’s proportionate penalties clause.18 18.See infra Section IV.C.Show More Challenging emerging-adult sentencing in these ways is a promising strategy for future advocacy efforts across the country.

The contributions of this Note are threefold. First, while theories about emerging adulthood have existed for two decades, they have only recently been argued in court.19 19.SeeJeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000).Show More This Note comprehensively surveys recent cases from both state and federal courts and synthesizes the arguments that have—and have not—been successful, a notable contribution to the literature. Second, academics and scholars have advocated generally for the consideration of proportionality in sentencing20 20.See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev. 1209, 1222–23 (2015) (arguing that those who commit more serious crimes deserve more severe punishments).Show More and explored how state constitutional provisions could be utilized to further such aims.21 21.See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273–74 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law).Show More However, none have applied these principles to the extreme sentencing of emerging adults, and this Note will be the first to advocate for such a path forward nationwide. Finally, the power of state constitutional law is significantly underappreciated in academic literature,22 22.SeeGary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”).Show More despite the fact that it has profound and direct impact on those prosecuted in state courts across the nation. This Note contributes to the academic conversation by explaining how state constitutional law can be used as a powerful tool to inspire positive, tangible change, helping advocates structure their thinking and supplying them with arguments for state court practice.

This argument proceeds in five Parts. Part I considers proportionality as a philosophical concept, documenting its use in federal constitutional law to date, and reviews the Supreme Court’s Eighth Amendment jurisprudence as it relates to juveniles. Part II explains why the Supreme Court has remained faithful to the age of eighteen as a cutoff for constitutional protection against extreme sentencing but challenges the justifications provided by the Court in light of modern developments in neuroscience and social science. Part III surveys the failed efforts to gain federal constitutional protection for emerging adults, and Part IV explains why the most effective route forward for emerging adult justice will instead be under state constitutional law, highlighting Washington and Illinois as case studies of success. Part V recommends that litigants seek facial, as opposed to as-applied, protection of emerging adults and addresses counterarguments to that proposal.

  1. Nelson v. State, 947 N.W.2d 31, 33 (Minn. 2020), cert. denied, 141 S. Ct. 2518 (2021). ↑
  2. Id. ↑
  3. Id. at 34. ↑
  4. Id. at 40. ↑
  5. Id. at 34, 40. ↑
  6. Id. at 41 (Chutich, J., dissenting). ↑
  7.  See, e.g., Roper v. Simmons, 543 U.S. 551, 572 (2005) (describing the “differences between juvenile and adult offenders” as “marked and well understood” and thus holding unconstitutional the imposition of the death penalty on juvenile offenders). ↑
  8. See infra Part I. ↑
  9. The Supreme Court has held that sentencing a juvenile to death, Roper, 543 U.S. at 574–75, as well as imposing discretionary LWOP for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 82 (2010), and mandatory LWOP for any offense, Miller v. Alabama, 567 U.S. 460, 479 (2012), violates the Eighth Amendment to the U.S. Constitution. ↑
  10. Nelson, 947 N.W.2d at 40 (emphasis added). ↑
  11. See infra Subsection II.B.1. ↑
  12. See Elizabeth S. Scott, Richard J. Bonnie & Laurence Steinberg, Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 645 (2016); Karen U. Lindell & Katrina L. Goodjoint, Juv. L. Ctr., Rethinking Justice for Emerging Adults: Spotlight on the Great Lakes Region
    11–12 (2020),

    https://jlc.org/sites/default/files/attachments/2020-09/JLC-Emerging-Adults-9-2.pdf [https://perma.cc/U8GG-PBR9]

    .

    ↑

  13. See infra Part III. ↑
  14. See infra Part III. ↑
  15. See infra Section IV.A. ↑
  16. See infra Section IV.A. ↑
  17. See infra Section IV.B. ↑
  18. See infra Section IV.C. ↑
  19. See Jeffrey J. Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psych. 469, 469 (2000). ↑
  20. See, e.g., Jim Staihar, Proportionality and Punishment, 100 Iowa L. Rev.
    1209, 1222–23 (2015) (

    arguing that those who commit more serious crimes deserve more severe punishments)

    .

    ↑

  21. See, e.g., Gregory S. Schneider, Sentencing Proportionality in the States, 54 Ariz. L. Rev. 241, 273
    –7

    4 (2012) (discussing how state judiciaries could engage in proportionality review under state constitutional law). ↑

  22. See Gary S. Gildin & Jamison E. Colburn, Introduction: State Constitutionalism in the 21st Century, 115 Pa. St. L. Rev. 779, 781 (2011) (“State constitutional law is a vibrant, albeit still underappreciated, area of legal study.”); Richard S. Frase, Limiting Excessive Prison Sentences Under Federal and State Constitutions, 11 U. Pa. J. Const. L.

    39

    , 64 (2008) (encouraging “litigators, courts, and scholars to be less ‘Fed-centric’”). ↑

Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two enumerated rights remain that the Court has affirmatively labeled non-fundamental. It is doctrinally puzzling why the Fourteenth Amendment should be understood to stop just short of total incorporation.

Of the last unincorporated rights, only one relates to criminal procedure: the Grand Jury Clause, which guarantees the right to be indicted by a grand jury before prosecution for a felony. The Court declined to incorporate the Grand Jury Clause in 1884 in Hurtado v. California, and this Note argues that Hurtado should be overturned. After analyzing the incorporation caselaw from the Roberts Court, an area in which the Court has been active, this Note argues that Hurtado is doctrinally incompatible with the modern approach to fundamental rights. Despite the internal inconsistencies in the doctrine, which this Note identifies, applying the modern incorporation framework to the Grand Jury Clause shows that the right to indictment is a fundamental one.

Finally, this Note argues that Hurtado can be overturned consistent with principles of stare decisis. Indeed, this Note makes a novel but striking finding—Hurtado likely does not carry precedential force as an incorporation case at all. This Note shows that Hurtado was argued and decided as a procedural due process case. Because the Court’s incorporation doctrine turns on substantive rather than procedural due process, Hurtado did not decide the relevant legal question at all for incorporation purposes.

Introduction

“[F]or so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards by the whole petit jury, of twelve more, finding him guilty, upon his trial.”1 1.4 William Blackstone, Commentaries 306 (London, 16th ed. 1825).Show More

In at least one corner of constitutional law, the Supreme Court makes explicit value judgments about which constitutional rights are important and which are not. Under the Court’s longstanding incorporation precedents, the Due Process Clause of the Fourteenth Amendment only secures “fundamental” rights against violation by the states. States remain free to ignore or abridge rights in the Bill of Rights that the Court deems non-fundamental.

At one time, the Supreme Court believed that nearly all of the Bill of Rights was non-fundamental, but after a flurry of incorporation cases from the Roberts Court, only two affirmatively non-fundamental rights remain: the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s requirement of a grand jury’s indictment as a prerequisite to prosecution for capital or infamous crimes.2 2.Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982).Show More This Note is concerned with the latter. In 1884, in Hurtado v. California, the Supreme Court held that it did not violate the Fourteenth Amendment’s guarantee of due process when the State of California tried, convicted, and sentenced a man to death without an indictment. This Note offers a long-overdue reconsideration of Hurtado and argues that the right to indictment is a fundamental one that should bind the states—no longer should states be able to prosecute by information at the whim of a lone prosecutor.

This reevaluation of Hurtado comes at a time when the Supreme Court itself is pondering the future of Hurtado. Dissenting from the Court’s recent decision in Ramos v. Louisiana, which incorporated the requirement of a unanimous jury for criminal convictions, Justice Alito warned that the Court’s holding there threatened the validity of Hurtado.3 3.Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting).Show More This Note is the first since Ramos to take Justice Alito’s comments seriously by analyzing the validity of Hurtado both on its own terms and in light of the Supreme Court’s recent incorporation precedents.4 4.See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions.Show More It finds that Hurtado is a flawed, misunderstood precedent that cannot be maintained in light of current doctrine.

In addition, this Note also contributes to the literature by uncovering hitherto unnoticed inconsistencies among the Roberts Court’s incorporation cases. While these cases seem conceptually unified, careful examination shows that they differ from one another in subtle but important methodological aspects.

A word of clarification. This Note takes a purely doctrinal approach. It is not concerned with the well-trodden issue of whether the Fourteenth Amendment was intended to incorporate rights against the states as an originalist matter. Nor does it take any stance on whether incorporation is properly accomplished via the Due Process Clause or the Privileges or Immunities Clause. It accepts as a matter of settled precedent that the Fourteenth Amendment incorporates at least some rights and that it does so through substantive due process. Finally, while there is a voluminous literature both critiquing and defending the grand jury as an institution, that, too, is beyond the scope of this Note and is only considered so far as the Court’s doctrine makes such functionalist assessments of constitutional rights relevant.

The argument proceeds as follows. Part I briefly outlines the contours of the right to grand jury indictment in order to clarify what is at stake in the incorporation debate. Part II traces the arc of the Supreme Court’s incorporation doctrine and then analyzes the modern caselaw, noting differences in how the cases apply the incorporation framework. Part III turns to Hurtado itself, critiquing the opinion and explaining its important role in the development of criminal procedure among the states. Part IV applies the modern incorporation framework to the Grand Jury Clause and finds that it is a fundamental right protected by substantive due process. Finally, Part V argues that Hurtado can be overturned consistent with stare decisis principles. In fact, it is entirely possible that stare decisis does not attach to Hurtado at all under the modern incorporation doctrine because Hurtado determined only that procedural due process does not guarantee the right to indictment—the holding did not implicate substantive due process.

  1. 4 William Blackstone, Commentaries 306 (London, 16th ed. 1825). ↑
  2. Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982). ↑
  3. Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting). ↑

  4. See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions. ↑

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