Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed.Do you think the Court has a "vision of evolutionary culmination"?
June 25, 2012
"[O]ur Eighth Amendment cases are no longer tied to any objective indicia of society’s standards."
"Our Eighth Amendment case law is now entirely inward looking," writes Justice Alito, dissenting today in Miller v. Alabama — PDF — which declared it mandatory life imprisonment to be "cruel and unusual" punishment when imposed on a juvenile.
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I have no idea what it means, but it sure sounds like the statement from an activist judge to me!
PS. I'm declaring this to be "activist court" week! Anything the court does, I've decided, is "activist".
What does he even mean by that? To me, as a law and SCOTUS layman, that sounds like a warning about the future, where future trends will reach some sort of unanticipated and perhaps undesireable legislative climax? I guess it's a warning about a future of unintended consequences, but some more detail would be warranted. I should read his diseent before trying to piece together what that detail might be.
But society's standards do play a roll, don't they?
The Founders, sitting pensively while a large HD flatscreen is rolled into their discussions (run off a generator outside, of course...it's 1787, after all) would see a Lady Gaga concert and decide THAT'S cruel and unusual punishment and probably wonder why our time sentences so many people to be subjected to it. Indeed...to PAY to be subjected to it.
Society's standards should be enforced by elected legislators; not by pretending that the plain meaning of words shifts over time.
If enough people think that it shouldn't be possible to sentence a young man to life without parole, even though that young man massacres a hundred children and boasts of it in his confession, because the young man is 17 years 364 days old when he commits the crime...then pass a fucking law to that effect.
The culmination is fairly easy to see, because we have an example, mentioned on this blog not too long ago. Which was the justice system of Norway, where prosecutors desperately try to get a mass murderer declared insane because there's no other way to legally confine him for more than twenty years.
And that big-screen TV you mention will be in the commons area of the young man's prison. Which will be air-conditioned and more comfortable than most of those founding father's houses.
If that's cruel and unusual punishment, than what isn't? A stern talking-to?
Poor Akhil Amar. This 5-4 vote proves his life's work is a fraud.
Poor Akhil Amar.
That though has occurred to me a couple of times this morning, lol.
This is why judicial review was not part of the Constitution.
Who cares. Everyone fine with 5 unelected SCOTUS judges deciding pretty much everything based on their own hidden political beliefs.
So, just accept what they give us and stop whining.
With a divided court of 4 liberals and 5 conservatives, I don't think the court has a vision, evolutionary culmination or otherwise.
There's a world of difference between a 14-yo, the convicted murderers in this case, and a 17-yo.
Would a 17-yo have been similarly successful in the appeal, I wonder?
Well, we have a Constitution which prohibits "cruel and unusual" punishment. We have five Justices who consider mandatory life imprisonment without parole for juveniles to be such. It is impossible for me to understand how the Justices reach this conclusion. The dissents in this case are very clear. I agree with them.
You can be for or against some legislative policy preference without thinking the policy preference is mandated by the Constitution. If you don't like a criminal justice policy, lobby your legislature to change it. Elect folks who agree with you. Run for office.
There are cases where there have child murderers and some of those murders have been stricken from the court records. Its as if the murdered persons never even lived, at least according to the court records.
Compassion for the perpetrators but the victims are gone and forgotten.
Here's a signpost on the way to a evolutionary culmination:
From http://m.rasmussenreports.com/
22% Believe Government Has Consent of Governed
Democrats are happier with the status quo than Republicans and voters not affiliated with either of the major parties when it comes to the current Congress and the federal government.
One of the central tenets of the Declaration of Independence is that governments derive “their just powers from the consent of the governed.” Only 22% of the nation’s likely voters believe the government today has such consent.
A new Rasmussen Reports national telephone survey finds a wide partisan gap on the question. Democrats are evenly divided as to whether or not the government has the consent needed for legitimacy. Only eight percent (8%) Republicans and 21% of unaffiliated voters believe it does.
The survey of 1,000 Likely Voters was conducted on June 15-16, 2012 Rasmussen Reports. The margin of sampling error is +/- 3 percentage points with a 95% level of confidence. Field work for all Rasmussen Reports surveys is conducted by Pulse Opinion Research, LLC. See methodology.
" There's a world of difference between a 14-yo, the convicted murderers in this case, and a 17-yo.
Would a 17-yo have been similarly successful in the appeal, I wonder?"
That was my thought.
Also, I read (okay, skimmed) the opinion. As I read it, the case was based on a two-tiered system that ended in a particular result:
1. 14-year-old was tried in adult court, due to nature of the crime.
2. Adult court DID NOT ALLOW judicial discretion in sentencing.
This resulted in a MANDATORY life sentence without parole (for all intents, capital punishment), of a 14-year-old.
The court remanded the case. It did not, as I read it, rule out the possibility of a life sentence for the defendant. It did, however, hold that the combination of Alabama laws that led to a 14-year-old being sentenced to life with no parole, with NO discretion allowed, amounted to "cruel and unusual".
This is hardly a radical interpretation.
Cruel and unusual is a subjective standard. Or so my emotional intelligence tells me. Alito is a thinking male android.
This is a case area that demanded an empathetic and wise Latino's opinion.
Kagan should have let Sonia write this one. Cat fight!
Tibor: It's an explicit reference to a warning about the future path laid out by the majority. They say that mandatory-imposed life sentences are unconstitutional; then they say that in the future they expect that discretionarily-imposed life sentences will be uncommon (or "unusual," as one of the dissents points out). And therefore the next case addressing discretion-imposed life sentences will be able to find that such sentences are unusual enough that they violate the 8th Amendment. Voila! It's all there in the dissent, not a veiled reference at all.
Considering the advances in medicine would an 80 year mandatory minimum sentence for those who committed heinous crimes be permissible? In theory the kid could live long enough to be eligible for parole.
I think "society's standards" is a euphemism for "judge's preferences."
Really, how could it be otherwise? The Supreme Court does not take polls.
What were the details of the murder? I don't think it is difficult to come up with details that would warrant such a sentence for a fourteen year old.
"Do you think the Court has a "vision of evolutionary culmination"?
This is really a test to see who has done their homework and who has not, isn't it?
"The Court long ago abandoned the original meaning of the Eighth Amendment, holding instead that the prohibition of “cruel and unusual punishment” embodies the “evolving standards of decency that mark the progress of a maturing society.”
Alito uses his dissent to explicitly dispute both the propriety of using "evolving standards" to adjudicate constitutional issues, and, in particular, the underlying assumption that the "trajectory of our moral 'evolution'" is necessarily positive in the first place. He points out that the Court has never bothered to justify that view, nor describe the ostensible end state of our putative progression. Apparently, even the Justices won't answer your question!
If the Court is to use such a yardstick, however: "[A}ren't elected representatives more likely than unaccountable judges to reflect changing societal standards?" The (inward looking) "subjective views of individual Justices" is no substitute for the most obvious objective evidence (indica) of social mores, clearly represented in this case by legislation in 43 states (the latter being the somewhat more limited substance of the minority dissent).
Here's a FIFY version of your question:
Does the arc of history, in fact, bend toward justice?
"Cruel and unusual is a subjective standard."
I think it is and always was. Despite your attempt at condescending sarcasm towards an emotional, politically-driven "living constitution", traditionalguy, about which we would usually agree, I can't see too many 100% objective ways to apply these words.
An attempt at plain language interpretation leads me to two prohibitions:
1. Punishments that don't "fit the crime" according to current convention.
2. Punishments designed specifically to be as cruel as possible.
1 would apply to a case where someone got 25-to-life for fishing with an expired license.
2 would apply to a punishment designed to be as cruel as possible. Britain still had "hung, drawn and quartered" on the books at that time, where people were disemboweled, alive, among other things. That was different from simple hanging, which was commonplace in America.
These are some of the words in the Constitution that seem to be intended to shift with the times. I don't know what else to do with them. The 8th Amendment does not say "no punishments".
I wonder if Congress could by statute define what is cruel and unusual punishment and have the courts adhere to that definition?
I find garage's presence on this blog to be "cruel and unusual punishment".
I do believe in such creatures. They can be found lurking in and about various emanating penumbras.
@ BarryD...I am in total agreement with this decision.
There are some places the law actually says that men should reflect on what they are doing and make a better choice. It is not always a pre-set world of rational mandates. The next case will frequently up date old legal concepts for the better.
Sorry for the confusion. It is a good opinion.
Interesting thought, cubanbob.
Generally, ideally, rights are not subject to majority rule. That's why we take certain things out of the hands of congress and depend on the courts to keep congress's hands off them.
But "societal standards" seems to be created for legislative discretion. If we have to pretend that it is an objective standard, then we should look to the ballot box for what that standard might be.
We elected these bozos. If we don't like what they do, we can unelect them. That's society's standard.
Perhaps better if my last use of "society's standards" had cut to the chase and said "cruel and unusual" as in:
But "cruel and unusual" seems to be created for legislative discretion. If we have to pretend that it is an objective standard, then we should look to the ballot box for what that standard might be.
But society's standards do play a roll, don't they?
No, they do not. Only the standards of the Supreme Court play a role. Much of the time the standards of society get overridden by the standards of the courts.
Generally, ideally, rights are not subject to majority rule.
Rights are always subject to majority rule, both in practice and in "ideal".
That's why we take certain things out of the hands of congress and depend on the courts to keep congress's hands off them.
The court does not speak for "we", nor is it supposed to. "We" did not take abortion law out of the hands of Congress.
But "societal standards" seems to be created for legislative discretion.
Your knowledge of political practice is as weak as your knowledge of political theory. The point of "societal standards" is the same as that of "penumbras" - to give the courts a fig leaf to hide behind as they override legislative discretion.
A good example of this would be Miller v. Alabama, the case you are supposed to be commenting on, in which the court once again pissed all over "legislative discretion".
"Undislosed evolutionary culmination" of issues on several fronts describes the future lefty jurists have in store for us!L
What he's saying is that the Supreme Court has decided that what constitutes "cruel and unusual punishment" will not be evaluated on the basis of what society's standards currently are. They will be evaluated on the basis of what the Supreme Court thinks they should be.
Say you find a fourteen year old who tortured another child over a period of days and then killed him. I hardly think you could call life without parole a "cruel and unusual" punishment based on the perpetrator's age in that case. What happened in this case? Additionally, even if the actual case does not resemble the scenario I've outlined, does this ruling bar the life without parole sentence in cases like the one I've described?
Freeman -- from the pdf:
So a 14-yo was with his 'friends' in a car, learned they had a shotgun while driving, they stopped at the Video Store, he stayed in the car, and then went into the store and while in the store his 'friends' killed the clerk. And for that, tried as an adult, he gets life with no parole. (I don't know the ages of the others)
The other 14-yo -- and a 'friend' (again, I don't know the age) -- beat a neighbor and set fire to the trailer, and the neighbor died in the blaze. Tried as an adult for murder in the course of arson.
The former sentence seems a lot more overkillish to me than the latter.
Thanks, MM.
So does this ruling bar life without parole for juveniles regardless of the details of the crime?
Ms. Hunt, Madison Man:
It is not the place of appellate courts to determine the particular sentence. The principle is that a State cannot require life without parole for a particular type of crime. Of course, this raises the issue of what is NOT cruel and unusual for juveniles in such cases. One might think that is a proper question for legislatures rather than judges.
I have no quarrel with Alito's assertion that the preponderance of legislation, not the Justices' own moral impulses, should be the default criteria for "cruel and unusual" purposes. The legislative piece, and the impetus behind it, that bothers me is the mandatory imposition of a life sentence without parole, especially under laws which assign the same culpability for murder to anyone in the company of a person who actually pulls the trigger. I believe this is part of a dangerous legal trend.
Yes, "death is different," but the rarity of executions in proportion to the incidence of murder would seem to be the most powerful indication of social mores, especially in the face of so much legislation which allows it. In practice, life without parole is the severest punishment we mete out -- except in the most demonstrably egregious of circumstances. And yet, the mandatory nature of the sentencing in question is purposefully designed to prevent both judges and juries from considering the kind of circumstances and intent which are the very basis of proportionality (and thus the cruelty inherent in its absence), which is also firmly established in law. All crimes are not the same.
Unfortunately, prosecutors and their more zealous "law & order" proponents in government are making considerable progress on eliminating intent as factor in the hierarchy of crimes, nowhere more effectively than in this instance, where presence at the scene is virtually synonymous with premeditated murder. I'm surprised at how many fail to recognize this as an incredibly slippery slope. It ultimately undermines the presumption of innocence by relieving prosecutors of a substantial burden of proof.
"So does this ruling bar life without parole for juveniles regardless of the details of the crime?"
As I read it, this ruling does not even bar life without parole for THIS defendant in THIS case. Nor does it free this defendant. It just bars this mandatory sentence, and requires that discretion be allowed, and remands the case.
From what I can tell as an educated layman, it's a pretty narrow ruling.
One might think that is a proper question for legislatures rather than judges.
No. Legislatures are driven by whatever will win reelection. That's how we ended up with so many mandatory minimum sentences. Mandatory minimum sentencing is bad law because it will always lead to some poor sap getting hit with a sentence out of proportion to his crime. In this story, the 14-y-o who was present during a murder gets the same sentence he would have gotten if he had actually done the murder. It is clear to me; should also be clear to the legislatures salivating over the tough-on-crime vote.
JM Hanes clarifies the issues better than I do.
I would add that mandatory life w/o parole doesn't just constrain judges and juries, while substantially relieving prosecutors of their burden, it does so at the very time and place that the harshest of penalties -- the absolute, permanent loss of liberty -- is in play. How does that not turn the fundamentals of our judicial system upside down?
The only western country where juvenile or someone with a 80 IQ will be punished with life wtihout parole .
5 millions in prison to have the same crime rate of any european country?
It is a subjective standard and words shif of meanig with time. I guees all above will be ok with a charge for lewds behaviour for showuing the ankle
What the penalty should be for a particular crime is a policy issue UNLESS the penalty is cruel and unusual. Try to imagine what the men who wrote that phrase considered to be "cruel and unusual" and then consider whether they would have found life imprisonment to be such for murder. I understand that some of you think that is not a good choice for the penalty, but how do you see it as unconstitutional? Your reasoning strikes me as: I don't like it, therefore it is unconstitutional.
Look, the prosecutors have to prove, beyond a reasonable doubt, that the defendant has committed the crime. How has their burden been reduced?
Rob, in too many cases, the prosecutors don't have to prove anything. They say to the defendant, we could charge you with Charge A, which carries a mandatory minimum sentence of 20 years...OR if you plead to Charge B, you'll only get the mandatory minimum of 10 years.
With YOUR life on the line, what would you choose? The defendant usually goes for the plea because the idea of facing 20 years is a truly frightening prospect. Ten years looks attractive. It is very, VERY difficult to turn down the plea.
Prosecutors have too much power.
Rob:
"Try to imagine...
As a constitutional matter, I should probably say stop right there.
...what the men who wrote that phrase considered to be "cruel and unusual" and then consider whether they would have found life imprisonment to be such for murder.
Consider the fact that they demonstrably preferred death to loss of liberty, when you ponder how cavalierly they might have viewed a government's power to impose that penalty.
"How has their burden been reduced?
Any day a prosecutor doesn't have to prove intent is a good day for the prosecution and a very bad day for the defendant.
It just bars this mandatory sentence, and requires that discretion be allowed, and remands the case.
That seems reasonable. It is, perhaps, "cruel and unusual" to automatically sentence, not according to the details of a case but according to some automatic policy as if sentencing could be done on an assembly line.
> Yes, "death is different," but the rarity of executions in proportion to the incidence of murder would seem to be the most powerful indication of social mores, especially in the face of so much legislation which allows it.
No, it doesn't. Incidence of execution is restricted by very "unsocial" processes.
Both legislation and the imposition of the death penalty by juries are indications of social mores.
> And yet, the mandatory nature of the sentencing in question is purposefully designed to prevent both judges and juries from considering the kind of circumstances and intent which are the very basis of proportionality
Yes, they're partially aimed at sentencing judges, but they're also aimed at appellate judges.
I wonder why the public might want to restrict their discretion....
Ha. I AM a prosecutor.
1. pw, your example makes no sense in this context. There is nothing a prosecutor could charge to convince a juvenile to take a sentence of life without parole.
2. JMH, the founders accepted the death penalty for murder by juveniles. There is no doubt they found the loss of liberty abhorrent, but the USSC has already eliminated the death penalty. What penalty would be lenient enough to NOT be "cruel and unusual"? 50 years? 30? 5? Where is the "cruel and unusual" line?
3. Ms. Hunt, others, you may like this outcome from the Supreme Court. It may seem reasonable. Is it not reasonable for a State legislature to determine that a convicted murderer should never be released? What part of the Constitution forbids such a policy? Could anyone predict what penalty would be allowed? Would you ever want to live next door to someone convicted of murder?
PW:
To put it another way: you have an argument to make about the pressure prosecutors can put on Defendants to make them plead guilty. It is worth discussing. However, it is not relevant to THIS USSC ruling. What could a prosecutor use as leverage to get a defendant to plead to life without parole? It is true an ADULT could be charged with a death penalty eligible offense and decide to plead rather than face the risk of the death penalty. However, that leverage does not exist when the defendant is a juvenile.
Mr. Hanes:
There is a terrible trend away from intent. In my opinion, the trend on the Federal level quite bad in this area.
However, here in Indiana to convict for Murder we must prove not only the intent to do the act which caused the death but also "specific intent" to cause the death. I can't see anything easy about that, but I would not have it any other way.
Or Ms. Hanes...
What part of the Constitution forbids such a policy?
The no cruel and unusual punishment part. If you're going to start charging people with murder because they were present at the murder, then you can't pretend that all the people charged with murder are of the same category. I can see how it would be found cruel and unusual to apply mandatory sentencing guidelines that were crafted through the legislature with the most vicious of criminals in mind to lesser, tag-along criminals who are "upcharged."
Could anyone predict what penalty would be allowed?
Perhaps a penalty arrived at by weighing all facts in the case. In fact, I'd say that if all of the facts were the same, but the judge or jury had decided upon this sentence, it ought to be legal. But again, I think it is cruel and unusual to have one's sentence decided on the basis of some one size for all rule applied to extremely varied cases.
Would you ever want to live next door to someone convicted of murder?
That's no real test. I wouldn't want to live next to someone convicted of far lesser offenses, but it doesn't follow that you should then give all such someones life without parole.
I'm reminded or Art Linkletter's Book 'Kids Say the Darndest Things' which was about kids saying true things that adults had learned not to think. Alito's statement would be quotation one in 'Supreme Court Justices Say the Darndest Things.'
(Incidentally, I hope the case from Arkansas ends up with the sentence reduced and that the case in Alabama ends up with the sentence staying the same.)
Andy Freeman:
"No, it doesn't. Incidence of execution is restricted by very "unsocial" processes."
I'll recalibrate slightly because I think my underlying point still stands. How often an execution is actually carried out is less significant in this context than how often that sentence is imposed, and how often it is actually sought. Part of why prosecutors are so cautious, of course, is because juries are so much more reluctant to convict in capital cases. In practice, life w/o parole is the default maximum sentence (which in 15 states is true in law as well). In capital cases, per SCOTUS, a judge is constitutionally required to include mitigating factors in his jury instructions, but in the kind of cases we're talking about, the law itself basically preempts mitigating factors entirely. That troubles me, because I believe proportionality and the appearance of proportionality are important. YMMV.
"I wonder why the public might want to restrict their discretion...."
Mandating the next best thing to the death penalty we've got, in complete disregard of intent, seems categorically different from mandatory minimums instituted in lesser circumstances.
I wonder why more folks aren't more interested in limiting prosecutorial discretion, which has serious legal, moral and practical hazards, too, not the least of which is eliminating judge & jury from the putative judicial process altogether. One could argue that Scooter Libby actually got caught in a trap set by the Bush Administration when it made it DoJ policy to charge the most serious array of possible crimes and thence to call for the maximum conceivable sentence upon conviction.
I wonder if the mandatory sentencing rules would stand if murder charges were, by law, restricted to actual murderers. Seems like proving intent should be basic to a murder charge.
"Is it not reasonable for a State legislature to determine that a convicted murderer should never be released?"
It is not reasonable. The criteria for a murder conviction do not include all the criteria for a just sentence. Not all murders are equal. Someone might be guilty of murder, under the law, but not someone that anyone reasonable would believe deserves a long sentence at all.
Consider the example of an 18-year-old, raped by her father from age 2. Her father is friends with the Sheriff, and gets away with other crimes regularly. She believes she cannot go to the police. One day, she gets a gun, lies in wait for him to come home, and shoots him dead. Murder? Yes. Premeditated. Equivalent, morally, in anyone's eyes, to what, say, Tookie Williams did? Not on your life!
Generally, these laws come from a perception, right or wrong, that "liberal" judges are too lenient in sentencing, and they let violent criminals "get off too easy."
Maybe that's a problem. These "zero-tolerance" mandatory sentences, however, are not a reasonable solution to this problem. They don't account for the variables that justice must consider.
Prosqtor:
I wasn't actually disputing the death penalty for minors, although I certainly hope that trying them as adults never becomes routine.
I'm also less concerned with whether or not this is a proper constitutional issue than I am with what I consider bad law with dangerous implications. I'm glad to hear (or rather, further alarmed!) that I haven't just been imagining a real trend away from intent. As an IANAL, I'm often peering through the glass a little darkly, so I appreciate your comments.
Maybe that's a problem. These "zero-tolerance" mandatory sentences, however, are not a reasonable solution to this problem. They don't account for the variables that justice must consider.
But without them you end up with a problem of basic fairness, in that a guy who gets a "hanging" judge will get a much stiffer sentence than someone who perpetrated the exact same crime and drew a more lenient judge. The "variables that justice must consider" are almost completely subjective.
It is not reasonable. The criteria for a murder conviction do not include all the criteria for a just sentence.
The only just sentence for premeditated murder is death.
We give out lesser sentences not out of a sense of justice, but out of a sense of mercy and caution.
Rob:
I'm afraid I'll have to walk back my opening response to your earlier post.
On p.22 of Scalia's (!) dissent in Arizona, you'll find him saying:
"Now, imagine a provision— perhaps inserted right after Art. I, §8, cl. 4, the Naturali zation Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immi gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.”
So, let your imagination run wild!
Revenant:
If you're with a friend who pulls out a gun and shoots the clerk at a 7-11, do you believe you've committed premeditated murder?
"The only western country where juvenile or someone with a 80 IQ will be punished with life wtihout parole"
I'm all for locking up juveniles and people with IQs 80 or lower, but only during my commutes, not for life. There are way too many of each on the road. Especially the morons.
"vision of evolutionary culmination"...I think Scalia is arguing that some members of the Court believe in the inevitable progress of history, even though they don't yet know how to define "progress". To me, that unknowable "vision" places the Court in a new place historically, not the rule of law, but the rule of the hope for progress.
Would I like to live next door to a murderer?
Maybe I already do and just don't know it. So far, so good.
Barry D.:
Your hypothetical murder which would not deserve life without parole is ridiculous. Television crime shows are not reality. Just because you can imagine a situation where someone might be charged and convicted of murder and you feel the person was morally justified is no grounds to declare a penalty cruel and unusual. In addition, the scenario you describe would traditionally NOT be murder, but would either be self-defense or voluntary manslaughter. If it were not self defense or a "sudden heat" situation then why would it not justify very harsh penalties?
pw:
That is just silly. Would you ever choose to live next door to a guilty, convicted murderer? How many years of incarceration do you believe will render that person trustworthy? I have no problem with permanently incarcerating those who commit murder.
Murderers have a very low recidivism rate. I'd say it's a good bet that the murderer next door won't come after me. Murder is usually a crime of passion. Silence of the Lambs is not the norm.
I don't know if I'd like the guy or if I'd want him picking up my mail for me when I'm on vacation. But could I live next door to a murderer? Sure.
PW: I admit I agree with most of your last comment. Certainly, most murders are crimes of passion committed against persons with strong relationships with the killer.
However, to get back to juveniles, life without parole:
1. How long a sentence of imprisonment would NOT be cruel and unusual? What is the magic number? 50 years? 20? 0? Since the recidivism rate is low should we let the perpetrator go? How about if you set off that bomb in the mall?
Does the arc of history, in fact, bend toward justice?
Since we are not, in point of fact, discussing "the arc of history", but rather, the arc of judicial fiat, I would say that's a meaningless question. Does the arc of judicial fiat bend towards actual, you know, justice? Ask Carry Buck - Holmes certainly was prone to confusing his prejudices and preferences for the working of the evolving world-soul.
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