February 3, 2009

If the question is whether a life sentence for rape is "cruel and unusual" when imposed on a 13-year-old...

... why highlight the question of whether a particular convict may have been innocent? To answer the question correctly and establish a legal rule on the subject, you have to assume the litigant was guilty. Does the NYT think this is what must be done to interest readers in stories about constitutional law? Or does it really hope to push public opinion on legal issues by stimulating a clutter of emotions?

ADDED: Here's a contemporaneous news report of the sentencing:
Regardless of the boy's age, he deserved the maximum sentence because he has a long criminal history, including an assault on a mental health clinic counselor and a burglary during which he killed a dog, Assistant State Attorney Larry Kaden said.

[Judge Nicholas] Geeker agreed.

"He is beyond help," the judge said. "The juvenile system has been utterly incapable of doing anything with Mr. Sullivan."

Because of the youth's record and other factors, state sentencing guidelines called for the life terms with no provision for parole, Kaden said....

[Sullivan] was accused of breaking into the woman's Pensacola area home when she was away May 4 and stealing jewelry and cash, then returning later the same day to rape her twice at knifepoint.

47 comments:

Outis said...

Does the NYT think?

EDH said...

whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

"stimulating a clutter of emotions?"

Nah!

John Althouse Cohen said...

The MSM doesn't report on legal doctrine. Period. They report on who wins and loses cases. That's all. You don't learn about the law by reading the NYT.

Scalia made this point a while ago, though you mocked it. (I can't find the post... Anyone?)

Seneca the Younger said...

That was a rhetorical question, right?

Quayle said...
This comment has been removed by the author.
Simon said...

John Althouse Cohen said...
"The MSM doesn't report on legal doctrine. Period. They report on who wins and loses cases. That's all."

Sometimes they tell us who they think should win (or should have won), too. Beyond that, I agree.

Simon said...

(Just to give two examples, consider the NYT's coverage of Ledbetter, which barely even bothered to hide its outrage, or Adam Liptak's piece this weekend that went far beyond simply reporting that Bennie Herring lost.)

Bissage said...

It is the most ancient of maxims that Equity abhors finality and for this reason it is unjust that there should ever be a sentence that bars the possibility of parole.

It follows that condemned persons should be cryogenically frozen with the possibility of resuscitation.

MadisonMan said...

... to push public opinion ...

Not push. Push-poll. That would read much better.

Is it worth noting that the people serving life sentences for barely-teen crimes are black? I thought that was the most interesting information in the article.

Simon said...

Bissage, perhaps, but I think there's much to be said - as a generality - of Scalia's observation in Bousley that a criminal law system can't function without rules of procedure an a rule of finality that bars new evidence and arguments from being made long after judgment. That's of course subject to many qualifications and exceptions, but that strikes me as the sound, general rule.

traditionalguy said...

Creating a"Stimulating a clutter of emotions" is a by the book ruling method in use by the Paper of Record for many years. Why mention it now? The death penalty for a 13 year olds is outside our Common Law traditions. But this new age of unrestrained sex at any age,with its accompanying violence, may push the age of accountability down with it. Let's vote on it, but also liscense check the voters so no 14 and unders get to vote, unless they are carrying heat, in which case just surrender to them like they do in merry old England.

Christy said...

You didn't note that the guy was photographed in a wheel chair. How many will see the pic and read the headline, and go "tsk tsk." The entire NYT set-up in this piece is designed to program all "right thinking people."

Simon said...

MadisonMan said...
"Is it worth noting that the people serving life sentences for barely-teen crimes are black? I thought that was the most interesting information in the article."

It's a code. The inclusion of a statement is an implicit assertion of its relevance to the matter at hand. The Times would not waste space to mention, even if it were true, that all three of those serving such sentences are diabetic, or that they are cardinals fans; it's a way to insinuate that the reader should assume that this is a racism issue. They don't want to say it directly, but including the offhand observation prompts the imagination of the readers to do the work.

jdeeripper said...

... why highlight the question of whether a particular convict may have been innocent?

NY Times mentality. Black man/boy + rape + White woman + The South = Was there really a crime?

This is the same paper that brought you the Duke rape hoax and turned it into an epic event because it involved rich, young White men and a black female alleged victim.

The same paper that has deified Barack Obama as the Savior come to redeem America of it's Origin Sin of White racism.

There is a metanarrative to NY Times articles that is more important to them then tedious legal details.

Simon said...

traditionalguy said...
"The death penalty for a 13 year olds is outside our Common Law traditions."

Not necessarily so. As Blackstone noted, the law of England inherited by this nation established seven as the dividing line: "the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment[;] ... our maxim is, that 'malitia supplet aetatem.' Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax[,] ... if it appear to the court and jury[] that he was doli capax, and could discern between good and evil, he may be convicted and suffer death." 4 Blackstone's Commentaries 23 (1769); see also Thompson v. Oklahoma, 487 U.S. 815, 864 (1988) (Scalia, J., dissenting).

The NYT - being a liberal organ - tends to conflate the question of whether something can be done, constitutionally, with whether it ought to be done as a matter of law and practice. One need not believe that life sentences should commonly be dished out (or, indeed, ever imposed) to oppose the invention of a "constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way–by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of [appropriate punishments]." Roper v. Simmons, 543 U.S. 551, __ (2005) (Scalia, J., dissenting).

Leland said...

I think it is cruel and unusual for a 13 yr old to take advantage of a 72 yr old woman. Life sentences seem pretty common for rapist.

William said...

I also have trouble with the idea of sending a thirteen year old away for life....But the way this article is written is patently manipulative.....I wonder if The Times would report on a paroled murderer who went on to commit a heinous crime in a way that called into question the whole idea of parole.

The Drill SGT said...

MM said...Is it worth noting that the people serving life sentences for barely-teen crimes are black? I thought that was the most interesting information in the article.

That may be what you read, as they intended, but it is not what was written.

- 8 people, serving life without parole, for crimes committed a 13
- all in the US
- only 2 of the 8 weren't murders
- those 2 were in Florida and black


the other 6 could be white, and I suspect that if a large number were black, we would have been told that.

traditionalguy said...

Is not the Con Law issue the overruling of State Criminal Laws no matter what the current status of the age of accountability for juneniles (I love the phrase, "Happy go lucky teens") in each state? Newly sensed opinions of Cruel and Unusual in the punishment method has nothing to do with age unless 13 year olds are hurt worse than 17 year olds, by their execution, happy go lucky or not. No the NYT thinks the conflated issue is how much it hurts their feeling to have to think such thoughts.

Smilin' Jack said...

To answer the question correctly and establish a legal rule on the subject, you have to assume the litigant was guilty. Does the NYT think this is what must be done to interest readers in stories about constitutional law?

Sadly, yes. Strangely, most people do care about whether innocent people are being sentenced to prison. They don't realize that it's much more important and interesting to abstract them into litigants, and then sit around the law school classrooms endlessly debating the applicable constitutional esoterica.

MadisonMan said...

My elliptical writing should've included non-lethal crimes. Brevity clouds my point yet again. I think it's interesting because I wouldn't have thought about it. Not a statistically significant point, just an interesting factoid.

Is the person he is convicted of raping still alive? That's the other thing I found myself asking as I read the article.

former law student said...

1. This is a good example of "Hard cases make bad law," as defined during a current discussion on volokh.com

2. Executing a 13 year old would violate even Sharia law, because the age of maturity for boys is 15 years. Our current tenancy of the moral high ground looks shakier and shakier. When Iran is more progressive than the US, you have to wonder.

http://www.iranian.com/main/node/20017

Laura(southernxyl) said...

If the question is whether a life sentence for rape is "cruel and unusal" for a 13-year-old, I think the next question ought to be why we impose a sentence at all. If it's to punish that 13-year-old, that's one thing; if it's to prevent that 13-year-old from preying on another woman, now that we've established that that's something he does, that's another. One might say that after, say, 10 years he's paid his dues to society, but at 23 will he still be a rapist?

Laura(southernxyl) said...

fls - are we now talking about executing 13-year-olds?

Simon said...

Blogger former law student said...
"Executing a 13 year old would violate even Sharia law, because the age of maturity for boys is 15 years. Our current tenancy of the moral high ground looks shakier and shakier. When Iran is more progressive than the US, you have to wonder."

I simply do not understand legal liberals sometimes. No one advocates executing thirteen year olds, yet to hear you people talk, we're retrograde by Sharia standards if the Constitution doesn't forbid it doing what nobody wants to do. The Constitution need not - and does not - settle any number of immensely important moral questions; indeed, part of its enduring genius is that it doesn't even try. Such questions are committed to resolution through society's evolving standards of decency (to coin a phrase) as expressed in the legislation they choose to adopt. Is it really so horrible a prospect that the Constitution permit a result that society abhors? And if society already abhors it, why does the Constitution need to prevent society choosing that result?

former law student said...

No one advocates executing thirteen year olds,

So why did simon cite Blackstone?

Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax[,] ... if it appear to the court and jury[] that he was doli capax, and could discern between good and evil, he may be convicted and suffer death."

Further, assuming simon believes that the degree of punishment should be proportional to the offense, if a 13 year old rapist should be sentenced for life, what sentence should a 13 year old murderer receive? Meting out the same punishment for both crimes would have a negative deterrent effect: The young monster could well think that he might as well kill his victim, if there can be no additional penalty.

Henry Buck said...

So now FLS is arguing that all 13-year old murderers should be put in prison for life? That's a great rule FLS.

Shanna said...

"Executing a 13 year old would violate even Sharia law, because the age of maturity for boys is 15 years. Our current tenancy of the moral high ground looks shakier and shakier. When Iran is more progressive than the US, you have to wonder."

Of course if you’re a girl, I imagine things are a bit different.

Laura(southernxyl) said...

Okay, who thinks that a 13-year-old who is capable of robbing an old woman, and then returning to her house to rape her at knifepoint, is parsing what his sentence is likely to be if he rapes her, or rapes and then kills her? Because if he's cogitating to that degree, would it not occur to him that he could not do any of those things and get no prison time at all?

Simon said...

former law student said...
"So why did simon cite Blackstone?"

I cited Blackstone's description of the founding generation's understanding of the English criminal law in noting a qualification to Traditionalguy's assertion that our common law tradition did not include capital punishment for thirteen year olds. At the time of the founding, it was unusual - but not unknown - for a thirteen year old to be deemed sufficiently culpable to be executed.

traditionalguy said...

Simon... Sorry I used an original colony of Georgia's understanding of the age of criminal accountability. I forgot to check out England's possibility of executing kids under certain circumstances. They just skipped our minds after 1782 because we were tired of tracking down and killing off His Magisty's murderous killers on the lose from here to King's Mountain and Cowpens in the Carolinas. Mass Death penalties were the King's specialty then, especially for innocent women, children and prisoners of war.

traditionalguy said...

Simon... Sorry again, I just got up and read the Ga. Code, and low and behold 13 is the magic age, not 14 as I had remembered. After my 14th birthday, I must have lost all fear, except for fear of losing my drivers liscense, which we now do to Juvies for any offense.That will scare them straight.

Smilin' Jack said...

Because if he's cogitating to that degree, would it not occur to him that he could not do any of those things and get no prison time at all?

On the contrary, he could do none of those things and still get lots of prison time. But who cares if an innocent kid is sentenced to life in prison--that's just not very interesting.

...Blackstone's description of the founding generation's understanding of the English criminal law in noting a qualification to Traditionalguy's assertion that our common law tradition...

--now that's what's interesting.

Laura(southernxyl) said...

Jack - who on this comment thread do you think doesn't care if innocent 13-yr-olds are in prison?

Dang, talk about your straw man.

Smilin' Jack said...

...why highlight the question of whether a particular convict may have been innocent?

Laura(southernxyl) said...

Ah.

There are two issues here.

1 - Is the 13-yr-old guilty?

2 - Is a life sentence for a 13-yr-old who is guilty of rape cruel and unusual?

If the answer to question 1 is "no", then question 2 should never come into play.

I believe that was Ann's point.

Revenant said...

whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

At the time the Eighth Amendment was written and for quite a long time thereafter, the normal, non-cruel, non-unusual punishment for this "crime that did not involve killing" would have been execution.

We're letting him live. We're being especially lenient and nice.

Smilin' Jack said...

“I absolutely believe he is innocent,” Bryan A. Stevenson, the executive director of the Equal Justice Initiative, said of Mr. Sullivan....But the point made by Mr. Sullivan’s brief to the Supreme Court is not that he is innocent.

Because that would be of no interest to the Court, or to legal scholars. So Sullivan's only recourse at this point is to appeal to the Court's undying interest in quibbling about eighteenth century legalisms.

Ann's point is that the NYT, by highlighting the question of innocence, is distracting us by a mere "clutter of emotions" from the truly interesting question, which is the proper interpretation of a 200-year-old legal shibboleth.

blake said...

2. Executing a 13 year old would violate even Sharia law, because the age of maturity for boys is 15 years. Our current tenancy of the moral high ground looks shakier and shakier. When Iran is more progressive than the US, you have to wonder.

That's some grade-A horsehockey right there.

Why do you hate the USA so much that you have to draw these absurd parallels?

former law student said...

That's some grade-A horsehockey right there.

?

US: A 13 year old boy is an adult.
Iran: Not so, a boy is not an adult until he turns 15.

Revenant said...

Because that would be of no interest to the Court, or to legal scholars.

No, because that point isn't up for discussion. He was found guilty, therefore he IS guilty so far as the law is concerned. The relevant question is whether the punishment he received is legal. He'll be going to jail regardless.

Revenant said...

Our current tenancy of the moral high ground looks shakier and shakier. When Iran is more progressive than the US, you have to wonder.

Under Sharia law, when a father murders his daughter because she was sleeping around the father is not punished. Under US law, we imprison the father and sometimes even execute him. Americans should be ashamed that Iran is more progressive than us in its treatment of child murderers.

Clue for the clueless: treating wrongdoers more leniently may be "progressive", but that doesn't necessarily make it either just or morally right. Failure to sufficiently punish bad behavior is every bit as wrong as excessively punishing bad behavior.

blake said...

US: A 13 year old boy is an adult.
Iran: Not so, a boy is not an adult until he turns 15.


So, what matters is that we try him as an adult, but not that Iran will kill him once he's 15?

And even if it is, couldn't you at least average it out? The age at which a girl is an adult is 9. The average age at which a Iranian child is considered an adult is around 12, then.

Yay for our moral high ground, however tenuously we may retain it.

Cedarford said...

Simon - simply do not understand legal liberals sometimes. No one advocates executing thirteen year olds, yet to hear you people talk, we're retrograde by Sharia standards if the Constitution doesn't forbid it doing what nobody wants to do.

Appears Simon missed the case last year where the Supreme Court did say executing someone for a crime committed at 16 years or under WAS cruel and unusual punishment and was unconstitutional.

Bissage said...

The right thing to do right now is to say this expressly, right here, right now, as follows: I GOOF AROUND A LOT HERE AT ALTHOUSE.

Right . . .

Now look, please don’t anybody go saying something to their kids (or anybody else) like “Equity abhors finality.” That was a dark joke.

A JOKE!

There are 10 (yes, I went back and counted them), that’s right TEN, bits in my 9:07 comment that were meant to be teh FUNNAY!!1!!!!

Posted prominently at my (rudimentary) blog is all you need to know about my comments here at Althouse: “‘It is not necessary for the public to know whether I am joking or whether I am serious, just as it is not necessary for me to know it myself.’ -- Salvador Dali”.

It’s a personal freedom thing . . .

Okay?

But still . . . I’ve got a nuclear conscience . . . and sometimes it gets the better of me . . . A LOT!!1!!!!

So there you have it!

Still.

Simon said...

Cedarford said...
"Appears Simon missed the case last year where the Supreme Court did say executing someone for a crime committed at 16 years or under WAS cruel and unusual punishment and was unconstitutional."

It wasn't last year, it was a few terms ago in Roper. I didn't miss it, although I don't know exactly what to do with it; in any event, however, you miss the point.

Shanna said...

Appears Simon missed the case last year where the Supreme Court did say executing someone for a crime committed at 16 years or under WAS cruel and unusual punishment and was unconstitutional.

So, that means we're AHEAD of "Sharia" standards, right?

Of course, I don't really give a damn about Sharia law, since women get completely f'd over by it all. It's a bit preposterous to give them some sort of moral high ground until that gets fixed.