Six of Nine Good People Amend the Constitution

The United States Supreme Court announced this holding today, in Graham v. Florida:

The [Eighth Amendment's Cruel and Unusual Punishments] Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.

Consider the three key phrases: a juvenile offender, life in prison without parole, a nonhomicide crime. Those are qualifiers that now control the reading of the Eight Amendment. If an offender is a juvenile, if he commits a crime, however brutal, that comes up short of murder, then he can't be sentenced to live without parole.

Not one of these qualifiers is actually in the Constitution, nor is there any foundation for this particular package in the history of Constitutional interpretation. This sort of fine tuning is the essence of legislation, not adjudication. It is what legislatures do all the time, and what they are supposed to do. But in this case it is nine judges amending not ordinary legislation, but the Constitution itself.

If the Court is not relying on the text of the Constitution, what does it base its decision on? From Justice Kennedy's opinion:

As compared to adults, juveniles have a "'lack of maturity and an underdeveloped sense of responsibility'"; they "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; and their characters are "not as well formed."

All that may well be true, but I don't know that the Court is competent to apply psychological theories. The Court also thinks itself competent to read the American mind. From the New York Times summary of the case:

Justice Kennedy responded that a study relied on by Mr. Graham and supplemented by the court's own research had located only 129 juvenile offenders convicted under such laws. Seventy-seven were in Florida, the rest in 10 other states. Those numbers, Justice Kennedy said, make the sentence "exceedingly rare" and demonstrate that "a national consensus has developed against it."

Well, he knows better than we what we think. But it's not just we Americans that get to determine what the Constitution means. From Justice Kennedy's opinion:

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But "'[t]he climate of international opinion concerning the acceptability of a particular punishment'" is also "'not irrelevant.'"

Allow me to unpack that for you. When world opinion, as the five or six justices interprets it, agrees with the sentiments of those five or six, then and only then is it relevant to their decision.

I don't necessarily disagree with the Court's sentiment. I am not at all sure that juvenile offenders ought to be sentenced to live without possibility of release. Unlike the majority today, however, I know the difference between my sentiments and the Constitution.

There is no ground in the text, logic, or history of the Constitution for this decision. There is no reason to believe that a national consensus exists against life sentences for juveniles. From Justice Clarence Thomas' dissent:

Congress, the District of Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile non homicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered.

In fact, the Court was merely writing its personal sentiments into the text of the Constitution.

On the same day as this decision was announced, the Court also announced another decision. From CBS News:

The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered "sexually dangerous" after their prison terms are complete.

I suppose those must be inmates who became sexually dangerous after the age of 17. Apparently such folks can be kept in jail forever regardless of their sentence. Your constitutional rights apparently depend on how the Court feels about you. Chief Justice Roberts has some thoughts about this. Maybe Graham was judged harshly.

But what about Milagro Cunningham, 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 non-homicide crimes far more reprehensible than the conduct at issue here.

Well, yeah, what about those guys? These are judgment calls, not legal questions. Legislatures and juries exist to handle the former. Courts should confine themselves to the latter. This Court majority has no idea what it is.

Comments

[william]

Actually, there is plenty of authority for this result in the constitution. Just read the actual text of the Constitution:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Obviously, the Founding Fathers did, in fact, intend to prohibit punishments that were cruel and unusual. They put this broad, open-ended clause in the Constitution, specifically to ensure that. Here, the conservative judicial doctrine of strict construction founders, precisely because the wording in the constitution is boundless and in fact, the clause seems to invite exactly the type of reasoning engaged in by this Court.

[Miranda]

Well, now, I think the court is being a bit too Anglo-Saxon on this one. Surely we ought to also consider the opinions of our friends in Iran and Sudan in these matters. World Opinion is of great importance and it would be a shame to leave anyone out.

[William]

BTW Miranda, "not me" - lol

[KB]

William: I hate to admit it, but you have a point. The language in the eight amendment is clearly relativist. But it's hardly "boundless". If it were, we wouldn't need a constitution anymore, would we?

To be sure, "excessive" and "unusual" are temporal variables. Even Justice Scalia (may his name be praised!) admits that we can't flog people anymore. A pity, that. But if the Court is to interpret the law rather than writing its own sentiments into the margins, it has to take its lead from what is excessive and unusual in practice. Justice Thomas shows that current practice in the various states tells against the Court's decision.

[William]

KB,

I think you make the better point. "lower case william" appears to argue that the Court should use the personal standards of its membership to define contemporary standards of society. When it does so, it puts the "cart before the horse" and makes law in its own reflection, rather than interpreting law based on the Constitution and current societal standards. The Court thus attempts to "bend" society in its image, which is outside its jurisdiction.

You are correct when you point out that "these are judgment calls, not legal questions. Legislatures and juries exist to handle the former."