Concurrence, First Amendment

New York v. Ferber

JUSTICE O’CONNOR, concurring.

Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except “material with serious literary, scientific, or educational value,” ante at 458 U. S. 766, from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s facial attack. The compelling interests identified in today’s opinion, see ante at 458 U. S. 756 -764, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while masturbating surely suffers the same psychological harm whether the community labels the photograph “edifying” or “tasteless.” The audience’s appreciation of the depiction is simply irrelevant to New York’s asserted interest in protecting children from psychological, emotional, and mental harm.

An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York’s statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the “portrayal[s] somewhat more realistic’ by utilizing or photographing

Anthony Kennedy, Civil Rights, Concurrence

New York Club Ass’n v. City of New York

JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring.

I agree with the Court’s conclusion that the facial challenge to Local Law 63 must fail. I write separately only to note that nothing in the Court’s opinion in any way undermines or denigrates the importance of any associational interests at stake.

The Court reaffirms the

power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society.

Roberts v. United States Jaycees, 468 U. S. 609, 468 U. S. 632 (1984) (O’CONNOR, J., concurring in part and concurring in judgment). But our cases also recognize an “association’s First Amendment right to control its membership,” acknowledging, of course, that the strength of any such right varies with the nature of the organization. Id. at 468 U. S. 635. Balancing these two important interests calls for sensitive tools. As it has been interpreted, Local Law 63 is such a device.

The Law identifies three factors to be used to determine whether a particular club is “distinctly private” for purposes of applying the city’s antidiscrimination laws. As the Court notes, however, ante at 487 U. S. 15, n. 6, the court below has suggested that the factors identified in Local Law 63 are not exclusive, but are to be considered along with other considerations such as ” size, purpose, policies, selectivity, congeniality, and other characteristics.'” 69 N.Y.2d 211, 222, 505 N.E.2d 915, 920-921 (1987) (quoting Roberts, supra,

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Nelson v. Campbell

Justice O’Connor delivered the opinion of the Court.
Three days before his scheduled execution by lethal injection, petitioner David Nelson filed a civil rights action in District Court, pursuant to 42 U. S. C. §1983, alleging that the use of a “cut-down” procedure to access his veins would violate the Eighth Amendment. Petitioner, who had already filed one unsuccessful federal habeas application, sought a stay of execution so that the District Court could consider the merits of his constitutional claim. The question before us is whether §1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. We answer that question in the affirmative, reverse the contrary judgment of the Eleventh Circuit, and remand the case for further proceedings consistent with this opinion.
I
Because the District Court dismissed the suit at the pleading stage, we assume the allegations in petitioner’s complaint to be true. Petitioner was found guilty by a jury in 1979 of capital murder and sentenced to death. Following two resentencings, the Eleventh Circuit, on June 3, 2002, affirmed the District Court’s denial of petitioner’s first federal habeas petition challenging the most recent death sentence. Nelson v. Alabama, 292 F. 3d 1291. Up until and at the time of that disposition, Alabama employed electrocution as its sole method of execution. On July 1, 2002, Alabama changed to lethal injection, though it still allowed inmates to opt for electrocution upon written notification within 30 days of the Alabama Supreme Court’s entry of judgment or July 1, 2002, whichever is later. Ala. Code §15–18–82.1 (Lexis Supp. 2003). Because he failed to make a timely request, petitioner waived his option to be executed by electrocution.
This Court denied petitioner’s request for certiorari review of the Eleventh Circuit’s decision on March 24, 2003. Nelson v. Alabama, 538 U. S. 926. Two weeks later, the Alabama Attorney General’s office moved the Alabama Supreme Court to set an execution date. App. 81. Petitioner responded by letter that he “ha[d] no plans to contest [the] motion,” agreeing “that an execution date should be set promptly by the court in the immediate future.” Id., at 89. Hearing no objection, the Alabama Supreme Court, on September 3, 2003, set petitioner’s execution for October 9, 2003.
Due to years of drug abuse, petitioner has severely compromised peripheral veins, which are inaccessible by standard techniques for gaining intravenous access, such as a needle. Id., at 7. In August 2003, counsel for petitioner contacted Grantt Culliver, warden of Holman Correctional Facility where the execution was to take place, to discuss how petitioner’s medical condition might impact the lethal injection procedure. Counsel specifically requested a copy of the State’s written protocol for gaining venous access prior to execution, and asked that a privately retained or prison physician consult with petitioner about the procedure. Id., at 8–9, 25–26. The warden advised counsel that the State had such a protocol, but stated that he could not provide it to her. He nevertheless assured counsel that “medical personnel” would be present during the execution and that a prison physician would evaluate and speak with petitioner upon his arrival at Holman Correctional Facility. Id., at 8, 26.
Petitioner was transferred to Holman shortly after the Alabama Supreme Court set the execution date. Warden Culliver and a prison nurse met with and examined petitioner on September 10, 2003. Id., at 9–10. Upon confirming that petitioner had compromised veins, Warden Culliver informed petitioner that prison personnel would cut a 0.5-inch incision in petitioner’s arm and catheterize a vein 24 hours before the scheduled execution. Id., at 11. At a second meeting on Friday, October 3, 2003, the warden dramatically altered the prognosis: prison personnel would now make a 2-inch incision in petitioner’s arm or leg; the procedure would take place one hour before the scheduled execution; and only local anesthesia would be used. Id., at 12. There was no assurance that a physician would perform or even be present for the procedure. Counsel immediately contacted the Alabama Department of Corrections Legal Department requesting a copy of the State’s execution protocol. Id., at 13, 27. The legal department denied counsel’s request. Id., at 28.
The following Monday, three days before his scheduled execution, petitioner filed the present §1983 action alleging that the so-called “cut-down” procedure constituted cruel and unusual punishment and deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Id., at 21 (complaint), 102 (amended complaint). Petitioner sought: a permanent injunction against use of the cut-down; a temporary stay of execution to allow the District Court to consider the merits of his claim; an order requiring respondents to furnish a copy of the protocol setting forth the medical procedures to be used to gain venous access; and an order directing respondents, in consultation with medical experts, to promulgate a venous access protocol that comports with contemporary standards of medical care. Id., at 22. Appended to the complaint was an affidavit from Dr. Mark Heath, a board certified anesthesiologist and assistant professor at Columbia University College of Physicians and Surgeons, attesting that the cut-down is a dangerous and antiquated medical procedure to be performed only by a trained physician in a clinical environment with the patient under deep sedation. In light of safer and less-invasive contemporary means of venous access, Dr. Heath concluded that “there is no comprehensible reason for the State of Alabama to be planning to employ the cut-down procedure to obtain intravenous access, unless there exists an intent to render the procedure more painful and risky than it otherwise needs to be.” Id., at 37.
Respondents moved to dismiss the complaint for want of jurisdiction on the grounds that petitioner’s §1983 claim and accompanying stay request were the “ ‘functional equivalent’ ” of a second or successive habeas application subject to the gatekeeping provisions of 28 U. S. C. §2244(b). App. 82. The District Court agreed and, because petitioner had not obtained authorization to file a second or successive application as required by §2244(b)(3), dismissed the complaint. A divided panel of the Eleventh Circuit affirmed. Relying on Fugate v. Department of Corrections, 301 F. 3d 1287 (CA11 2002), in which the Eleventh Circuit had held that §1983 claims challenging the method of execution necessarily sound in habeas, the majority held that petitioner should have sought authorization to file a second or successive habeas application. 347 F. 3d 910, 912 (2003). The majority also concluded that, even were it to construe petitioner’s appeal as a request for such authorization, it would nevertheless deny the request because petitioner could not show that, but for the purported Eighth Amendment violation, “ ‘no reasonable factfinder would have found [him] guilty of the underlying offense.’ ” Ibid. (quoting 28 U. S. C. §2244(b)(2)(B)(ii)). Thus, the Eleventh Circuit held that petitioner was without recourse to challenge the constitutionality of the cut-down procedure in Federal District Court. We granted certiorari, 540 U. S. 1046 (2003), and now reverse.
II
A
Section 1983 authorizes a “suit in equity, or other proper proceeding for redress” against any person who, under color of state law, “subjects, or causes to be subjected, any citizen of the United States… to the deprivation of any rights, privileges, or immunities secured by the Constitution.” Petitioner’s complaint states such a claim. Despite its literal applicability, however, §1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements, where an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence. See Preiser v. Rodriguez, 411 U. S. 475, 489 (1973). Such claims fall within the “core” of habeas corpus and are thus not cognizable when brought pursuant to §1983. Ibid. By contrast, constitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core and may be brought pursuant to §1983 in the first instance. See Muhammad v. Close, 540 U. S. _____, _____ (2004) (per curiam) (slip op., at 1–2); Preiser, supra, at 498–499.
We have not yet had occasion to consider whether civil rights suits seeking to enjoin the use of a particular method of execution— e.g., lethal injection or electrocution—fall within the core of federal habeas corpus or, rather, whether they are properly viewed as challenges to the conditions of a condemned inmate’s death sentence. Neither the “conditions” nor the “fact or duration” label is particularly apt. A suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the “fact” or “validity” of the sentence itself—by simply altering its method of execution, the State can go forward with the sentence. Cf. Weaver v. Graham, 450 U. S. 24, 32–33, n. 17 (1981) (no ex post facto violation to change method of execution to more humane method). On the other hand, imposition of the death penalty presupposes a means of carrying it out. In a State such as Alabama, where the legislature has established lethal injection as the preferred method of execution, see Ala. Code §15–18–82 (Lexis Supp. 2003) (lethal injection as default method), a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself. A finding of unconstitutionality would require statutory amendment or variance, imposing significant costs on the State and the administration of its penal system. And while it makes little sense to talk of the “duration” of a death sentence, a State retains a significant interest in meting out a sentence of death in a timely fashion. See Calderon v. Thompson, 523 U. S. 538, 556–557 (1998); In re Blodgett, 502 U. S. 236, 238 (1992) (per curiam); McCleskey v. Zant, 499 U. S. 467, 491 (1991) (“[T]he power of a State to pass laws means little if the State cannot enforce them”).
We need not reach here the difficult question of how to categorize method-of-execution claims generally. Respondents at oral argument conceded that §1983 would be an appropriate vehicle for an inmate who is not facing execution to bring a “deliberate indifference” challenge to the constitutionality of the cut-down procedure if used to gain venous access for purposes of providing medical treatment. Tr. of Oral Arg. 40 (“I don’t disagree… that a cut-down occurring for purposes of venous access, wholly divorced from an execution, is indeed a valid conditions of confinement claim”); see also Estelle v. Gamble, 429 U. S. 97, 104 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment” (citation omitted)). We see no reason on the face of the complaint to treat petitioner’s claim differently solely because he has been condemned to die.
Respondents counter that, because the cut-down is part of the execution procedure, petitioner’s challenge is, in fact, a challenge to the fact of his execution. They offer the following argument: A challenge to the use of lethal injection as a method of execution sounds in habeas; venous access is a necessary prerequisite to, and thus an indispensable part of, any lethal injection procedure; therefore, a challenge to the State’s means of achieving venous access must be brought in a federal habeas application. Even were we to accept as given respondents’ premise that a challenge to lethal injection sounds in habeas, the conclusion does not follow. That venous access is a necessary prerequisite does not imply that a particular means of gaining such access is likewise necessary. Indeed, the gravamen of petitioner’s entire claim is that use of the cut-down would be gratuitous. Merely labeling something as part of an execution procedure is insufficient to insulate it from a §1983 attack.
If as a legal matter the cut-down were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives for gaining venous access, respondents might have a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself. But petitioner has been careful throughout these proceedings, in his complaint and at oral argument, to assert that the cut-down, as well as the warden’s refusal to provide reliable information regarding the cut-down protocol, are wholly unnecessary to gaining venous access. Petitioner has alleged alternatives that, if they had been used, would have allowed the State to proceed with the execution as scheduled. App. 17 (complaint) (proffering as “less invasive, less painful, faster, cheaper, and safer” the alternative procedure of “percutaneous central line placement”); id., at 37–38 (affidavit of Dr. Mark Heath) (describing relative merits of the cut-down and percutaneous central line placement). No Alabama statute requires use of the cut-down, see Ala. Code §15–18–82 (Lexis Supp. 2003) (saying only that method of execution is lethal injection), and respondents have offered no duly-promulgated regulations to the contrary.
If on remand and after an evidentiary hearing the District Court concludes that use of the cut-down procedure as described in the complaint is necessary for administering the lethal injection, the District Court will need to address the broader question, left open here, of how to treat method-of-execution claims generally. An evidentiary hearing will in all likelihood be unnecessary, however, as the State now seems willing to implement petitioner’s proposed alternatives. See Tr. of Oral Arg. 45–46 (“I think there is no disagreement here that percutaneous central line placement is the preferred method and will, in fact, be used, a cut-down to be used only if actually necessary”).
We note that our holding here is consistent with our approach to civil rights damages actions, which, like method-of-execution challenges, fall at the margins of habeas. Although damages are not an available habeas remedy, we have previously concluded that a §1983 suit for damages that would “necessarily imply” the invalidity of the fact of an inmate’s conviction, or “necessarily imply” the invalidity of the length of an inmate’s sentence, is not cognizable under §1983 unless and until the inmate obtains favorable termination of a state, or federal habeas, challenge to his conviction or sentence. Heck v. Humphrey, 512 U. S. 477, 487 (1994); Edwards v. Balisok, 520 U. S. 641, 648 (1997). This “favorable termination” requirement is necessary to prevent inmates from doing indirectly through damages actions what they could not do directly by seeking injunctive relief—challenge the fact or duration of their confinement without complying with the procedural limitations of the federal habeas statute. Muhammad, 540 U. S., at _____ (slip op., at 2). Even so, we were careful in Heck to stress the importance of the term “necessarily.” For instance, we acknowledged that an inmate could bring a challenge to the lawfulness of a search pursuant to §1983 in the first instance, even if the search revealed evidence used to convict the inmate at trial, because success on the merits would not “ necessarily imply that the plaintiff’s conviction was unlawful.” 512 U. S., at 487, n. 7 (noting doctrines such as inevitable discovery, independent source, and harmless error). To hold otherwise would have cut off potentially valid damages actions as to which a plaintiff might never obtain favorable termination—suits that could otherwise have gone forward had the plaintiff not been convicted. In the present context, focusing attention on whether petitioner’s challenge to the cut-down procedure would necessarily prevent Alabama from carrying out its execution both protects against the use of §1983 to circumvent any limits imposed by the habeas statute and minimizes the extent to which the fact of a prisoner’s imminent execution will require differential treatment of his otherwise cognizable §1983 claims.
B
There remains the question whether petitioner’s request for a temporary stay of execution, subsequently recharacterized by petitioner as a request for a preliminary injunction, App. 49, transformed his conditions of confinement claim into a challenge to the validity of his death sentence. Normally, it would not. If a request for a permanent injunction does not sound in habeas, it follows that the lesser-included request for a temporary stay (or preliminary injunction) does not either.
There is a complication in the present case, however. In his prayer for relief, petitioner asked the District Court, among other things, to “[e]nter an order granting injunctive relief and staying [petitioner’s] execution, which is currently scheduled for October 9, 2003.” Id., at 22. Though he did not specify what permanent injunctive relief he was seeking, a fair reading of the complaint leaves no doubt that petitioner was asking only to enjoin the State’s use of the cut-down, not his execution by lethal injection. The same cannot be said of petitioner’s stay request. There, he explicitly requested that the District Court stay his execution, seemingly without regard to whether the State did or did not resort to the cut-down. This observation is potentially significant given the fact that the State has maintained, from the outset of this litigation, that it would attempt other methods of venous access prior to engaging in the cut-down. See id., at 51–52; id., at 93–94 (affidavit of Warden Culliver). By asking for broader relief than necessary, petitioner undermines his assertions that: (1) his §1983 suit is not a tactic for delay, and (2) he is not challenging the fact of his execution, but merely a dispensable preliminary procedure.
Whatever problem this failing might have caused before this Court entered a stay, the execution warrant has now expired. If the State reschedules the execution while this case is pending on remand and petitioner seeks another similarly broad stay, the District Court will need to address the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas. See also 18 U. S. C. §3626(a)(2) (“Preliminary injunctive relief [in prison conditions cases] must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm”).
C
Respondents argue that a decision to reverse the judgment of the Eleventh Circuit would open the floodgates to all manner of method-of-execution challenges, as well as last minute stay requests. But, because we do not here resolve the question of how to treat method-of-execution claims generally, our holding is extremely limited.
Moreover, as our previous decision in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 (1992) (per curiam), makes clear, the mere fact that an inmate states a cognizable §1983 claim does not warrant the entry of a stay as a matter of right. Gomez came to us on a motion by the State to vacate a stay entered by an en banc panel of the Court of Appeals for the Ninth Circuit that would have allowed the District Court time to consider the merits of a condemned inmate’s last-minute §1983 action challenging the constitutionality of California’s use of the gas chamber. We left open the question whether the inmate’s claim was cognizable under §1983, but vacated the stay nonetheless. The inmate, Robert Alton Harris, who had already filed four unsuccessful federal habeas applications, waited until the 11th hour to file his challenge despite the fact that California’s method of execution had been in place for years: “This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id., at 654.
A stay is an equitable remedy, and “[e]quity must take into consideration the State’s strong interest in proceeding with its judgment and… attempt[s] at manipulation.” Ibid. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State’s significant interest in enforcing its criminal judgments, see Blodgett, 502 U. S., at 239; McCleskey, 499 U. S., at 491, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Finally, the ability to bring a §1983 claim, rather than a habeas application, does not entirely free inmates from substantive or procedural limitations. The Prison Litigation Reform Act of 1995 (Act) imposes limits on the scope and duration of preliminary and permanent injunctive relief, including a requirement that, before issuing such relief, “[a] court shall give substantial weight to any adverse impact on … the operation of a criminal justice system caused by the relief.” 18 U. S. C. §3626(a)(1); accord, §3626(a)(2). It requires that inmates exhaust available state administrative remedies before bringing a §1983 action challenging the conditions of their confinement. 110 Stat. 1321–71, 42 U. S. C. §1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”). The Act mandates that a district court “shall,” on its own motion, dismiss “any action brought with respect to prison conditions under section 1983 of this title … if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from relief.” §1997e(c)(1). Indeed, if the claim is frivolous on its face, a district court may dismiss the suit before the plaintiff has exhausted his state remedies. §1997e(c)(2).
For the reasons stated herein, the judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Antonin Scalia, Attorneys, Byron White, John Paul Stevens, Lewis Powell, Majority, William Rehnquist

N.C. DOT v. Crest St. Commun. Council

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the question whether a court may award attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988, in a separate federal action not to enforce any of the civil rights laws listed in §1988, but solely to recover attorney’s fees.

I

In 1957, the Durham City Council advised the North Carolina State Highway Commission of the need for a major east-west expressway in the city. North Carolina Department of Transportation and Federal Highway Administration, Final Environmental Impact Statement No. FHWA-NC-EIS-72 13-F, Historical Resume 15 (1982). Over the years, parts of this highway were completed. In 1976, petitioner North Carolina Department of Transportation (NCDOT) resumed planning an extension of the east-west highway. The proposed extension was to run through the Crest Street community, an established, predominantly black neighborhood in Durham. The extension would have displaced the community park and church and many of the residents of the neighborhood. Respondents, Residents of Crest Street Community and the Save Our Church and Community Committee, two unincorporated associations, retained the North Central Legal Assistance Program to represent them in regard to the proposed highway extension. Despite respondents’ opposition to the extension plans, petitioners issued a revised draft Environmental Impact Statement that continued to propose that the extension run through

Byron White, Federalism, Harry Blackmun, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Nantahala P. & L. v. Thornburg

JUSTICE O’CONNOR delivered the opinion of the Court.

The Nantahala Power & Light Company (Nantahala) and Tapoco, Inc. (Tapoco), are both wholly owned subsidiaries of the Aluminum Company of America (Alcoa). Tapoco and Nantahala each own hydroelectric powerplants on the Little Tennessee River. Almost all of the power that they produce goes to the Tennessee Valley Authority (TVA). In exchange for allowing TVA to pour into its grid the variable quantity of power produced by Tapoco’s and Nantahala’s facilities, Tapoco and Nantahala jointly receive a fixed supply of low-cost “entitlement power” from TVA. In addition, Nantahala buys a variable amount of high-cost “purchased power” from the TVA grid. Tapoco sells all its power to Alcoa; Nantahala serves public customers.

For the purposes of calculating the rate to be charged Nantahala’s retail customers, all of whom are in North Carolina, the Utilities Commission of North Carolina (NCUC) chose an allocation of entitlement and purchased power between Tapoco and Nantahala that differs from the allocation of entitlement power between Tapoco and Nantahala adopted by the Federal Energy Regulatory Commission (FERC) in a wholesale ratemaking proceeding. The North Carolina Supreme Court upheld NCUC’s allocation. We noted probable jurisdiction to decide whether NCUC’s allocation may stand in light of FERC’s ruling. 474 U.S. 1018 (1985). We hold that NCUC’s allocation of entitlement and purchased power is preempted by federal law.

I

A

This

Civil Rights, Concurrence

Murray v. Giarratano

JUSTICE O’CONNOR concurring.

I join in THE CHIEF JUSTICE’S opinion. As his opinion demonstrates, there is nothing in the Constitution or the precedents of this Court that requires that a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the States to provide such proceedings, see Pennsylvania v. Finley, 481 U. S. 551 (1987), nor does it seem to me that the Constitution requires the States to follow any particular federal model in those proceedings. I also join in JUSTICE KENNEDY’S opinion concurring in the judgment, since I do not view it as inconsistent with the principles expressed above. As JUSTICE KENNEDY observes, our decision in Bounds v. Smith, 430 U. S. 817 (1977), allows the States considerable discretion in assuring that those imprisoned in their jails obtain meaningful access to the judicial process. Beyond the requirements of Bounds, the matter is one of legislative choice based on difficult policy considerations and the allocation of scarce legal resources. Our decision today rightly leaves these issues to resolution by Congress and the state legislatures.

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, David Souter, Majority, Ruth Bader Ginsburg, William Rehnquist

Murphy v. United Parcel Service Inc

JUSTICE O’CONNOR delivered the opinion of the Court. Respondent United Parcel Service, Inc. (UPS), dismissed petitioner Vaughn L. Murphy from his job as a UPS mechanic because of his high blood pressure. Petitioner filed suit under Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 328, 42 U. S. C. § 12101et seq.,in Federal District Court. The District Court granted summary judgment to respondent, and the Court of Appeals for the Tenth Circuit affirmed. We must decide whether the Court of Appeals correctly considered petitioner in his medicated state when it held that petitioner’s impairment does

*Briefs of amici curiae urging reversal were filed for the State of Massachusetts et al. by Thomas F. Reilly, Attorney General of Massachusetts, Catherine C. Ziehl, Assistant Attorney General, Darrell V. McGraw, Attorney General of West Virginia, and Mary C. Buchmelter, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Alan G. Lance of Idaho, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Joseph P. Mazurek of Montana, and Patricia A. Madrid of New Mexico; for the American Diabetes Association by Michael A. Greene; for the National Employment Lawyers Association by Gary Phelan and Paul A. Brantner; and for Senator Harkin et al. by Arlene B. Mayerson.

Briefs of amici curiae urging affirmance were filed for the American Trucking

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist

Moran v. Burbine

JUSTICE O’CONNOR delivered the opinion of the Court.

After being informed of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (1966), and after executing a series of written waivers, respondent confessed to the murder of a young woman. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that respondent would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The question presented is whether either the conduct of the police or respondent’s ignorance of the attorney’s efforts to reach him taints the validity of the waivers and therefore requires exclusion of the confessions.

I

On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a factory parking lot in Providence, Rhode Island. Suffering from injuries to her skull apparently inflicted by a metal pipe found at the scene, she was rushed to a nearby hospital. Three weeks later, she died from her wounds.

Several months after her death, the Cranston, Rhode Island, police arrested respondent and two others in connection with a local burglary. Shortly before the arrest, Detective Ferranti of the Cranston police force had learned from a confidential informant that the man responsible for Ms.

Anthony Kennedy, Clarence Thomas, Criminal Procedure, Majority, Stephen Breyer, William Rehnquist

Monge v. California

JUSTICE O’CONNOR delivered the opinion of the Court. This case presents the question whether the Double Jeopardy Clause, which we have found applicable in the capital sentencing context, seeBullingtonv.Missouri,451 U. S. 430(1981), extends to noncapital sentencing proceedings. We hold that it does not, and accordingly affirm the judgment of the California Supreme Court.

I

Petitioner was charged under California law with one count of using a minor to sell marijuana, Cal. Health & Safety Code Ann. § 11361(a) (West 1991), one count of sale or transportation of marijuana, § 11360(a), and one count of possession of marijuana for sale, § 11359. In the information, the State also notified petitioner that it would seek to prove two sentence enhancement allegations: that petitioner had previously been convicted of assault and that he had served a prison term for that offense, see Cal. Penal Code Ann. §§ 245(a)(1), 667(e)(1), and 667.5 (West Supp. 1998).

Under California’s “three-strikes” law, a defendant convicted of a felony who has two qualifying prior convictions for “serious felonies” receives a minimum sentence of 25 years to life; when the instant conviction was preceded by one serious felony offense, the court doubles a defendant’s term of imprisonment. §§ 667(d)(1) and (e)(1)-(2). An assault conviction qualifies as a serious felony if the defendant either inflicted great bodily injury on another person or per

W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mike Fisher

Economic Activity, Partial concurrence, partial dissent, William Rehnquist

Monessen v. Southwestern R. Co. v. Morgan

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.

For the reasons given by the Court, I agree that prejudgment interest was impermissibly awarded in this FELA case. Accordingly, I join Parts I and II of its opinion. Because the trial court erroneously gave conclusive effect to a state rule requiring the use of a “total offset” method of calculating present value, I also agree that we must reverse the judgment of the Supreme Court of Pennsylvania upholding that decision. I do not agree, however, that juries must in all circumstances be left free to choose among the total offset rule and alternative methods of accounting for anticipated future inflation.

The majority correctly notes that damages awards in state court FELA cases must be based on an approximation of present value, and that the jury must be instructed accordingly. Ante at 486 U. S. 339 -340.

Although… [it is] clear that no single method for determining present value is mandated by federal law, and that the method of calculating present value should take into account inflation and other sources of wage increases as well as the rate of interest, it is equally clear that an utter failure to instruct the jury that present value is the proper measure of a damages award is error.

St. Louis Southwestern R. Co. v. Dickerson, 470 U. S. 409, 470 U. S. 412 (1985). The reason for this rule is plain: because of the time value of money and the practice of awarding damages in