Monday, May 17, 2010
Graham (juvie life without parole case) decided!
Full opinion here. Three initial thoughts, with more tomorrow:
1) It's too bad the opinion was limited to juveniles who commit non-homicide offenses.
2) It appears to be the first time that the Court has created a categorical rule barring a punishment to a class of offenders outside of the death penalty area.
3) The most fascinating thing about the outcome is the raging debate between the majority and Justice Thomas about the use of individual subjective morality as the basis for the majority opinion.
1) It's too bad the opinion was limited to juveniles who commit non-homicide offenses.
2) It appears to be the first time that the Court has created a categorical rule barring a punishment to a class of offenders outside of the death penalty area.
3) The most fascinating thing about the outcome is the raging debate between the majority and Justice Thomas about the use of individual subjective morality as the basis for the majority opinion.
Comments:
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The majority says:
"A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only."
Yes, but after this ruling, a 16 year old that beats and rapes a woman, or multiple women, would be categorically prohibited from receiving life without parole, while an 18 year old could receive that punishment. That sword of logic cuts both ways.
If we buy in to the current Court precedent that the 8th amendment analysis of cruel and unusual punishment includes whether the sentence is proportional to the crime, then I tend to agree completely with Justice Roberts. The punishment in THIS case was certainly not proportional to the crime, but as he points out...
"So much for Graham. But what about Milagro Cun-
ningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill? Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son? The fact that Graham cannot be sentenced to life without parole for his conduct says nothing whatever about these offenders, or others like them who commit nonhomicide crimes far more reprehensible than the conduct at issue here."
Also, I gotta say, the majority opinion seemed to be a bit of tortured logic, as Justice Thomas points out. We need to look for a national consensus on whether this punishment is cruel and unusual. So, we first look to legislation. WAIT A SECOND, the legislation at both the federal and state level overwhelmingly allows this type of punishment. Well, no big deal, we'll just focus on the fact that they don't do it very often. Surely, and by surely I mean that since this would support our conclusion then it is what this fact must mean, that must mean that they don't support this punishment. So, we may not be able to show a national consensus against it, but we can show, through conjecture and speculation, a national consensus that it should be used cautiously. So, good enough. National consensus reached. Cruel and unusual.
I don't know, seems like the majority did a lot of work to get somewhere that Roberts got much easier and with much less tortured logic.
"A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only."
Yes, but after this ruling, a 16 year old that beats and rapes a woman, or multiple women, would be categorically prohibited from receiving life without parole, while an 18 year old could receive that punishment. That sword of logic cuts both ways.
If we buy in to the current Court precedent that the 8th amendment analysis of cruel and unusual punishment includes whether the sentence is proportional to the crime, then I tend to agree completely with Justice Roberts. The punishment in THIS case was certainly not proportional to the crime, but as he points out...
"So much for Graham. But what about Milagro Cun-
ningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill? Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son? The fact that Graham cannot be sentenced to life without parole for his conduct says nothing whatever about these offenders, or others like them who commit nonhomicide crimes far more reprehensible than the conduct at issue here."
Also, I gotta say, the majority opinion seemed to be a bit of tortured logic, as Justice Thomas points out. We need to look for a national consensus on whether this punishment is cruel and unusual. So, we first look to legislation. WAIT A SECOND, the legislation at both the federal and state level overwhelmingly allows this type of punishment. Well, no big deal, we'll just focus on the fact that they don't do it very often. Surely, and by surely I mean that since this would support our conclusion then it is what this fact must mean, that must mean that they don't support this punishment. So, we may not be able to show a national consensus against it, but we can show, through conjecture and speculation, a national consensus that it should be used cautiously. So, good enough. National consensus reached. Cruel and unusual.
I don't know, seems like the majority did a lot of work to get somewhere that Roberts got much easier and with much less tortured logic.
# posted by 
: 1:25 PM
: 1:25 PM
Since when does taking a straw poll of criminal and sentencing procedure count for bunk in determining whether the Constitution permits or forbids a certain punishment? Similarly, let's not look to history (we used to execute juveniles in this country and our parent countries) or world opinion (because let's face it, some parts of the world are perfectly cruel).
The real question in this case, and the only one that mattered, was whether the body charged with interpreting the Constitution was going to make it a substantive due process right of juveniles not to receive life without parole for offenses other than homicide. Apparently we have five justices that say yes but can't muster the gumption to just out-and-out say it, one justice that thinks it's probably a good idea given the relatively weak facts of this case, and three that think it's not but can't muster the gumption to just out-and-out say they're fine with imprisoning juveniles for life.
RRL raises a good point that certain cases where death is not the result are shocking to the conscience and certainly worthy of higher punishments, and also brings up what an arbitrary dividing line 18 years is between the maturity we nominally require of adults and the free pass we give juveniles. What about when there are both juvenile and adult offenders to the same crime, as is the case in a capital murder I'm currently dealing with? Is the juvenile somehow less culpable because he's 16 and not certified by a court and his co-defendants are 18 and 19? Hell, we would let them play on the same high school sports team, attend the same schools, and in general do everything the same: except the 18 year old can vote, buy cigarettes, porn and apparently spend life without parole in a prison, whereas the 16 year old can't because he's "too young."
To me, this isn't the question you solve by legislation either (what happens when a Texas juvenile crosses the border to New Mexico while on probation for a Texas felony, commits a felony in NM, and gets a sentence there? Where does he spend his time? NM, where life without parole for juveniles is illegal, or Texas, where it is? [nb: I picked these two states at random; I don't actually know what their laws state]).
Either we need a constitutional amendment clarifying the scope of the 8th, or we trust the justices to do it. And if the latter, then the justices need to stop trying to shoehorn a result into bad reasoning. Just come out and say, "we don't think the 8th Amendment cognizes this punishment, because it shocks the conscience and we don't like it." If one of the other branches of government has a problem with that ruling, well, here's the procedure to change it. Get to work.
The real question in this case, and the only one that mattered, was whether the body charged with interpreting the Constitution was going to make it a substantive due process right of juveniles not to receive life without parole for offenses other than homicide. Apparently we have five justices that say yes but can't muster the gumption to just out-and-out say it, one justice that thinks it's probably a good idea given the relatively weak facts of this case, and three that think it's not but can't muster the gumption to just out-and-out say they're fine with imprisoning juveniles for life.
RRL raises a good point that certain cases where death is not the result are shocking to the conscience and certainly worthy of higher punishments, and also brings up what an arbitrary dividing line 18 years is between the maturity we nominally require of adults and the free pass we give juveniles. What about when there are both juvenile and adult offenders to the same crime, as is the case in a capital murder I'm currently dealing with? Is the juvenile somehow less culpable because he's 16 and not certified by a court and his co-defendants are 18 and 19? Hell, we would let them play on the same high school sports team, attend the same schools, and in general do everything the same: except the 18 year old can vote, buy cigarettes, porn and apparently spend life without parole in a prison, whereas the 16 year old can't because he's "too young."
To me, this isn't the question you solve by legislation either (what happens when a Texas juvenile crosses the border to New Mexico while on probation for a Texas felony, commits a felony in NM, and gets a sentence there? Where does he spend his time? NM, where life without parole for juveniles is illegal, or Texas, where it is? [nb: I picked these two states at random; I don't actually know what their laws state]).
Either we need a constitutional amendment clarifying the scope of the 8th, or we trust the justices to do it. And if the latter, then the justices need to stop trying to shoehorn a result into bad reasoning. Just come out and say, "we don't think the 8th Amendment cognizes this punishment, because it shocks the conscience and we don't like it." If one of the other branches of government has a problem with that ruling, well, here's the procedure to change it. Get to work.
Broken clocks are right twice a day.
(Enterprising readers may choose for themselves which one of us is the broken clock.)
(Enterprising readers may choose for themselves which one of us is the broken clock.)
Hey, even a blind squirrel finds an acorn every now and again.
I think the fact that we agree is evidence of how very strange the opinion in this case was.
I think the fact that we agree is evidence of how very strange the opinion in this case was.
# posted by : 5:20 PM
: 5:20 PM
RRL, stop wasting your time on this business and call the freaking pool guy.
Seriously. Right now. Stop what you are doing and call the pool guy. And be sure to remind him the ph has to be just right for a dolphin. I'm on that end, you just take care of getting the pool guy out there.
Thank you.
Seriously. Right now. Stop what you are doing and call the pool guy. And be sure to remind him the ph has to be just right for a dolphin. I'm on that end, you just take care of getting the pool guy out there.
Thank you.
# posted by : 6:03 PM
: 6:03 PM
I think the fact that we agree is evidence of how very strange the opinion in this case was.
It's just like in Blade II where Blade had to team up with the vampires to defeat the supervampires with those wicked sideways mouths.
The real question is, how long will we have to wait before the Supreme Court rules on which Blade movie is the best?
It's just like in Blade II where Blade had to team up with the vampires to defeat the supervampires with those wicked sideways mouths.
The real question is, how long will we have to wait before the Supreme Court rules on which Blade movie is the best?
The Blade movies are abominations and should be locked in a bunker thirty floors below sea level.
Or perhaps in a cell with Mr. Snipes.
I probably veer to the right on criminal prosecution issues because of my job, though I don't see any necessary connection between right-wing politics and prosecution. Some of the strictest criminology views come out of the Hegelian/Marxist tradition. Hegel and Kant both argued for the death penalty, and though Marxist criminologists like Bonger argued for a sociological understandings of the motivations of crime, all of them understood that the criminal legitimizes his own punishment through the transgressions of civil society's laws.
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Or perhaps in a cell with Mr. Snipes.
I probably veer to the right on criminal prosecution issues because of my job, though I don't see any necessary connection between right-wing politics and prosecution. Some of the strictest criminology views come out of the Hegelian/Marxist tradition. Hegel and Kant both argued for the death penalty, and though Marxist criminologists like Bonger argued for a sociological understandings of the motivations of crime, all of them understood that the criminal legitimizes his own punishment through the transgressions of civil society's laws.
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