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Constitutional Opinions
How Cruel and Unusual?
Elena Kagan will need to be asked about the Supreme Court’s recent ruling in Graham v. Florida.
While it received relatively little attention in the popular press, the Supreme Court’s recent decision in Graham v. Florida barring States from imposing life sentences on juvenile offenders without the possibility of parole illustrates many of the problems with the modern Court’s approach to such constitutional questions. In doing so, it raises a number of questions that should be at the forefront of the upcoming confirmation proceedings for President Obama’s nominee to the high court, Elena Kagan.
In Graham, the Supreme Court overturned a life sentence issued to a criminal defendant who violated his parole and committed armed burglary when he was approximately one month shy of his 18th birthday. The Court held that where there is no possibility of parole, such sentences constitute “cruel and unusual” punishment that is prohibited under the Eighth Amendment. In so ruling, it imposed for the first time an absolute bar on a noncapital sentence applied to a particular class of offenders. The Court’s decision is questionable on several grounds — all of which raise fundamental issues regarding the proper role of the courts in deciding such constitutional questions.
As a threshold matter, the Court’s decision departs significantly from the constitutional text. While the Eighth Amendment prohibits “cruel and unusual punishment,” there is nothing in the text that says that punishment must somehow be “proportionate” to the crime, much less imposes a categorical bar on life sentences without the possibility of parole for juvenile offenders. Nonetheless, the Court imposed such a prohibition based on its determination that such sentences did not have “any legitimate penological justification” and were inconsistent with “basic principles of decency.” As Justice Thomas observed in his dissent: “Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition.” The Court’s deviation from the text undermines the guarantees found in the Constitution, and indeed the rule of law.
The Court’s decision also illustrates its recent proclivity for relying upon foreign law in deciding constitutional questions. In finding that life sentences for juvenile defendants constituted “cruel and unusual” punishment, the majority relied upon what it concluded was “the overwhelming weight of international opinion against” such punishments. Aside from the fact that such constitutional issues raise questions of U.S. — not foreign — law, reliance on foreign law inevitably leads to subjective determinations. For example, in deciding whether a life sentence for a juvenile is “cruel and unusual” punishment, the Court could rely just as easily upon the laws of Saudi Arabia and other jurisdictions, which sanction much harsher punishments, as the laws of modern European countries. Once one starts down this road, there is no principled basis for preferring one body of law to another.
The Court’s decision also illustrates a tendency to encroach upon the powers of the other branches of government. As Justice Thomas noted in his dissent, the Court’s decision supplanted the determinations of state legislatures across the country with its own moral judgments. These elected bodies concluded that life sentences without the possibility of parole could be appropriate for juvenile offenders. The Supreme Court rejected these determinations in a single decision that imposes a categorical prohibition on such legislation.
Finally, the Court’s decision manifests a surprising disregard for the abilities of courts to make sentencing determinations that properly reflect the particular facts and circumstances of a given case. In announcing a bright-line rule prohibiting life sentences without parole, the Court in essence usurped the authority that lower courts traditionally exercised in making sentencing determinations. While the majority acknowledged that such “[c]ategorical rules tend to be imperfect,” it found that a clear line was “necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” In other words, the Court simply does not trust judges to impose sentences that are consistent with its view of “basic principles of decency.”
Will these trends continue? Will the Court continue to eschew the constitutional text and instead rely upon foreign law and its own moral judgments? Given recent decisions like Graham, these are questions that should be front and center at the Kagan confirmation hearings.
Yosemeti Sam| 6.7.10 @ 8:46AM
" ... In other words, the Court simply does not trust judges to impose sentences that are consistent with its view of "basic principles of decency."...."
There that notion goes again - "basic principles of decency."
How about basic principles of due justice - empathy for starters - for victims of predators.
Whaaa, whaaa, whaaa - if you can't do the time, don't do the crime.
Louis Jenkins| 6.7.10 @ 8:57AM
Regardless, no one is crying for the victims are they? Whether or not you are robbed or killed by an underaged assailant or an adult, your are relieved of your property or dead. I'm tired of crying over the 17 year old who uses a gun to knock over a quick mart and then kills the teller. They're old enough to to do the crime.
Oldefarte| 6.7.10 @ 10:43AM
Let me see if my non-legal mind has this correct......since a human being's age [reached/occurred] of REASONING is 7-9, that SC decision means that, even though the assailant MENTALLY KNEW EXACTLY WHAT he/she was doing/performing at the time of the criminal act upon another human being, that same cannot be charged a similar legal sentence as another/older assailant because of adolescent age limitations? Now you's 'splain it to's me's that way's, I's be's knowing's what's you's talking 'bout!!!!!!!
Purpleguy| 6.7.10 @ 6:51PM
Why not just put them to death and save society a whole lot of trouble? ... unless you just might think you at 17 in no way resembles you now ... did you not change in all that time?
Oldefarte| 6.7.10 @ 7:38PM
It's not a question of 'changing over time', but of APPLYING THE LAW IN A NON-DISCRIMINATORY FASHION. The punishment according to law should be applied equally to both a 18 year old and to a 25 year old, since both are capable of unlawful motivations/intentions!!!!
L. Ross| 6.7.10 @ 11:47AM
Let me get this right. I recently gave a young man a ride to his first duty assignment here in California. He is an infantryman, and 17 years six months old. He is old enough to fight and die for his nation, but somehow, some punk who is 5 months older isn't old enough to know what he was doing was wrong. But another 30 sunrises would have made all the difference. Then, he would have known it was a bad thing.
Kathryn Wiley| 6.7.10 @ 2:45PM
The Supreme Court's decision on Graham v. Florida was exactly the right decision. It was actually time that the federal govt caught up with the majority of states--many of which have already banned this egregious sentence. The decision follows the Roper v. Simmons in 2005 decision that said that “death was different” but that being a juvenile was also different. Several studies show that juveniles have a very excellent chance to rehabilitate and go on and lead productive, law-abiding lives. Graham v. Florida does NOT release all juveniles from prison. It only gives them a chance to change and obtain parole. It gives them hope for a future. I'm astonished that so many Americans are so ready and willing to deny them this. It's truly shameful. Thank goodness the majority of justices agreed.
Maggie Elvey | 6.7.10 @ 4:30PM
I don't see a word in your comment about the Homicide Victim Survivors in your writing. Since they are dead and buried, the victim and their survivors don't count anymore...the poor violent child (juvenile) who committed the henious MURDER is now the victim. We must give him/her a second chance...WHAT ABOUT THE VICTIM..WHERE ARE THEIR SECOND CHANCE .Something is a miss in this country and it is people who think like you do. Have you ever had a loved one brutally murdered by Juveniles? YES, I have, my husband was brutally murdered by two teenagers ages 15 (4 months short of 16) & 16 yrs, 2 months old. Beaten over the head with a metal pipe as he was held down on the floor of his business..25 skull fracturers. one the size of a 50cent piece that could not be put back together, he would have been a vegetable . He was in in a coma for 41 days before he passed away 17 years ago TODAY 6/7/93...that is cruel and unusual punishment, not serving a life sentence for a choice you made.
The 15 year old has been out 7 years.
Now I have to worry about the 16 year old getting a chance to be releases when I believed he would service LWOP...I have learned that victim survivors can never give up...you have to look over your shoulder for bleeding heart liberals to make sure you don't get re-victimized over and over again.
K Wiley| 6.7.10 @ 4:57PM
First let me say that I'm very sorry for your loss. No one should have to go through such a dreadful ordeal and I hope you have friends and family to help you with the obvious pain you still feel. But this Supreme Court decision was not about capital cases. The decision was expressly in regard to juveniles who did not commit murder. And I never meant to imply the victim and their loved ones don't count. Of course they do. But we have a very serious prison overcrowding situation right now in this country and we can no longer afford to pay to build more and more prisons. We must come up with a way to rehabilitate those capable of being rehabilitated and see them return to society as productive people rather than remain tax burdens. That's the way to put a stop to the type of loss you have experienced.
JimE| 6.7.10 @ 7:11PM
Capital punishment eliminates over crowding prisons.
LiveFreeOrDie| 6.8.10 @ 1:52PM
Unfortunately not. If sentences were actually carried out then maybe. Our current system actually contributes to prison "over crowding."
Purpleguy| 6.7.10 @ 7:22PM
Yes, it is horrible you had to deal with that situation, but that is when you turn to your faith. Bad things happen to good people, but taking out vengeance is not the way.
Moreover, this case had nothing to do with murder, which of course is a very different thing.
Purpleguy| 6.7.10 @ 6:53PM
Very well said! Show me one person that doesn't regret something they did at 17, and I'll show you a liar. We all deserve a second chance, but even more so at that age.
Oldefarte| 6.7.10 @ 7:40PM
That's called AGE DISCRIMINATION. 'Regret' and a 'second chance' have nothing to do with the subject!!!!
Nick| 6.7.10 @ 10:01PM
Quick!
Someone call a cardiologist, stat! We have a bleeding heart amongst us.
DaveS| 6.7.10 @ 7:57PM
The magic age of 18 sounds a lot like Harry Blackmun's strained trimester approach: taken out of thin air and akin to sometghing like establishing driving or drinking ages. What crap. Without looking, I am positive Scalia, Thomas and probably Alito were in the dissent.
DaveS| 6.7.10 @ 7:59PM
Son of a gun! I shoulda gawn to Hahvod Law!
Oldefarte| 6.7.10 @ 3:11PM
Replace the legal argument with a moral one. A teenager is well beyond the AGE OF REASON, and should be held accountable [just as one a year plus older and be held to the SAME LEGAL STANDARD] for his/her actions!!!!!
J.C.Eaton| 6.7.10 @ 4:26PM
The Supreme Court trusts NO branch of government but the Judiciary: it trusts no judges other than its' own.
Purpleguy| 6.7.10 @ 6:48PM
"While the Eighth Amendment prohibits "cruel and unusual punishment," there is nothing in the text that says that punishment must somehow be "proportionate" to the crime, much less imposes a categorical bar on life sentences without the possibility of parole for juvenile offenders." - here's where Common Sense comes into play. If the Founders did not enumerate, they expected interpretation of "Cruel and Unusual" to change over time, dependent on society norms. This is one area where "Strict Constructionist" falls down.
"...the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition. The Court's deviation from the text undermines the guarantees found in the Constitution, and indeed the rule of law." - Not so, that is the whole purpose of Judicial Review ... Why would you need a judge, if the rule of law does not veer one iota from the original text? The Founders never expected that the Judiciary would just spout the original text of the Constitution and that's it. If they thought the Constitution text was so sacrosanct, why would they have allowed for the Amendment process in the Constitution?
The Court's decision also illustrates its recent proclivity for relying upon foreign law in deciding constitutional questions. - now, really? Even the Founders borrowed "foreign law" for the society they expected the Constitution to oversee. A jury of 12 peers comes from British Common Law, the Senate and House of Representatives is very similarly constituted like the House of Lords and House of Commons, even the Court system itself is based on the British system, etc.
da monk| 6.8.10 @ 6:06PM
Well said!
Oldefarte| 6.7.10 @ 7:52PM
Wrong! The Judiciary branch's duty is to intrepret the stated law [as to the judged law's meaning] as passed by the Legislative branch, not to MAKE/FABRICATE LAW by rendering their OPINIONS as to the legislators' intentions. Foreign law does NOT have any relevance to our American Common Law, which was instituted by our founding fathers and legislated/amended by our government's Legislative branch; and as such, has no right of inclusion into our judges' decision making process!!!!
BurnEm| 6.8.10 @ 12:37AM
WHY ALL THIS argument ?? Let's just split it NOW into the TWO CAMPS that we all KNOW we are in:
"Camp Liberachi" -- Liberal little cry-baby SCUM that are SO busy working to make sure that murdering scum get parole for PIPE-BEATING MURDERS committed, or preventing execution for same because camp members are so limp-wristed that they SUCK ( they elected an Inexperienced Chicago PUNK, so we KNOW they suck ); or,
2) Camp BurnEm -- Execute HEINOUS MURDERERS regardless of age to GET THEM OUT OF SOCIETY FOR GOOD, as it is NOT WORTH THE LIFE OF A DECENT PERSON, to TAKE A CHANCE on the little SCUM...
Note to Camp Liberachi members: Go write another LOVE LETTER to your favorite HOLLYWOOD SCUMBAG praising them for seeking the "logical" and "compassionate" method for dealing with a 16 year old who murders a 68 year old NEW GRANDFATHER, because he's shaking so bad from being mugged, that HE CAN'T GET HIS WALLET OUT FAST ENOUGH...
REMEMBER IN NOVEMBER, folks... Camp Liberachi is who is to blame for the RECYCLING of MURDERERS back into our society...
My Brother's Keeper| 6.8.10 @ 2:42PM
http://www.buffalonews.com/201.....hment.html
Nuff said!
ExCalifornian| 6.8.10 @ 11:06PM
Wow! Purpleguy! You stated: "Even the Founders borrowed "foreign law" for the society they expected the Constitution to oversee. A jury of 12 peers comes from British Common Law, the Senate and House of Representatives is very similarly constituted like the House of Lords and House of Commons, even the Court system itself is based on the British system, etc. "
Did you fail to relaize that the 13 colonies were in fact British or have you been reading one of those new Goals 2000 textbooks?
Appointing Elena Kagan to the Supreme Court after getting Justice Sotamyor (sp?) seated, what next Bozo the Clown for our next activist panel of the Supreme Court who have more feeling for the criminal and the liberal administration than the victims or the rights of "We the People". Justice Rose Bird (CA)was finally retired after never having metted out death penalties where is was clear that the jury deemed it appropriate. In California, one is the "bad guy" if one defends one's self but a perpetrator is the poor, misguided "victim". There would be more prison space if we would actually defend our boarders and ship back the non-violent illegals. Teenagers know more about the law than most adults, at least as it applies to them.
Maggie | 6.9.10 @ 1:21PM
First I should say " Thank you for all your comments." 2nd; I should have checked my spelling better. 3rd; I read in these posting something about revenge...it is scary that folks think victims are out for revenge. Most victim survivors are only out for LEGAL JUSTICE and punishment for the crime committed against them. 4th; Rehabilitate them so they can be released back in public...NO NO NO, it is called prevention before they commit a crime. You can lead a horse to water, but you can't make it drink.
Respect for yourself, Respect for others and Responsibility for your CHOICES.
My husband does not get a second chance to be put back on the face of this earth so why should his killer be put back into society...he losses his membership by his choice.
Check out, National Organization of victims of Juvenile Lifers. www.jlwopvictims.org