May 13, 2009
You make the call: should PA file a brief in Graham and Sullivan
This new article from the Pittsburgh Tribune-Review, which is headlined "U.S Supreme Court may alter juveniles' life sentences," spotlights why Pennsylvania will be very interested in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here):
Civil-rights advocates are cautiously optimistic that the days of sentencing juveniles to life in prison with no chance of parole could soon end. Their hope lies with the U.S. Supreme Court, which said this month it would review two cases from Florida in which juvenile offenders claim their life sentences — one for rape, the other for robbery — are unconstitutional.
Legal experts cautioned the court could rule in a number of ways, and said some outcomes might not change Pennsylvania's sentencing guidelines. But they added that if the court rules life sentences for juveniles are inhumane, the effect on Pennsylvania — which has about 450 juvenile lifers, more than any other state — could be huge.
"The impact here would be significant, profound and immediate," said Bradley Bridge, an attorney with the Defender Association of Philadelphia who opposes sentencing juveniles to life in prison without parole. "We would go back into court rapidly, seek to have all of the juvenile life sentences ruled unconstitutional, and have them re-sentenced."...
Justices could rule in various ways, according to legal experts. For example, the Supreme Court could uphold the sentences, or deliver an opinion specific to non-lethal crimes. All of Pennsylvania's juvenile lifers were convicted for first- or second-degree murder, Bridge said. Another possible outcome: The court could set an age limit determining when such sentences are inhumane.
For the sake of discussion, I encourage readers to imagine being in the role of a leading legal actor in Pennsylvania — say, Attorney General or the Governor's legal counsel. How would you assess and decided whether and how Pennsylvania might participate in the Graham and Sullivan cases?
At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state. At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes. So, might you urge advocating in support of Florida's extreme use of juve LWOP in these non-murder cases, or perhaps instead urge supporting the defendants in a brief that encourages the Justices to draw a constitutional line that could help preserve the law in the Keystone State?
Of course, Pennsylvania might opt not to participate at all, and perhaps any state considering getting involved should fear that a decision to participate could prompt certain Justices to want to issue a broader ruling than the facts in Graham and Sullivan demand.
So dear readers, should Pennsylvania (and other states) jump into the Graham and Sullivan juve LWOP fray?
Other recent posts on Graham and Sullivan:
May 13, 2009 at 09:54 AM | Permalink
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"STFU STFU STATES RIGHTS STATES RIGHTS"
is what I imagine my state's (MI) GOP AG would say. Michigan after all won a SCOTUS decision to give life (forget if its with or without parole) for simple drug possession.
Posted by: . | May 13, 2009 10:12:44 AM
In the typical SCOTUS criminal case on a constitutional issue affecting the states, there is one states' amicus brief written by the AG of one state and joined by numerous others. I expect that is what we will see in this case.
A constitutional rule that says a person can get life in prison for possessing drugs on his 18th birthday but not for rape the night before would be very weird.
Posted by: Kent Scheidegger | May 13, 2009 10:38:47 AM
BTW, any chance of getting Graham to change his name to Gilbert?
My object all sublime
I shall achieve in time--
To let the punishment fit the crime--
The punishment fit the crime;
Posted by: Kent Scheidegger | May 13, 2009 10:42:40 AM
Kent, not to disagree with your point from a logical standpoint, but isn't the reality that arbitrary lines are drawn in the law all the time with respect to age?
I think the 17 yo's case is a slam dunk. A person can join the military at age 17--certainly, then he can be expected to suffer adult consequences for heinous crimes.
Besides the "who decides" issue I mentioned earlier (curious, Doug, no response to that one?), one of the fundamental issues here is society's right (not obligation) to provide a victim of a heinous crime the assurance that the perp will never ever walk free again. Certainly, a state, can decide that rape victims simply do not have to ever worry about their attackers becoming free.
Posted by: federalist | May 13, 2009 11:02:33 AM
I don't know what's up with all my misplaced commas this morning.
Posted by: federalist | May 13, 2009 11:10:38 AM
"Kent, not to disagree with your point from a logical standpoint, but isn't the reality that arbitrary lines are drawn in the law all the time with respect to age?"
Yes, but in most cases the arbitrariness is deemed acceptable because there is no feasible alternative. People should not drive cars until they have achieved a certain maturity of judgment, but assessing that maturity on an individual basis is impractical given the huge numbers of people involved. So we settle for a sharp age cut-off, knowing full well we are stopping some people from driving we should allow and allowing some to drive we should not.
In the case of sentencing for violent crime, the numbers are much smaller. We can and should make these determinations individually.
Posted by: Kent Scheidegger | May 13, 2009 11:26:43 AM
Agreed, but wouldn't that reasoning ban a mandatory LWOP sentence for a juvenile?
Posted by: federalist | May 13, 2009 11:44:12 AM
Federalist, the law is full of protections that are contrary to the objective of keeping dangerous people off the streets as long as possible. For instance, we could clearly be able to lock more people up if we didn't have the Fourth and Fifth Amendments.
Now, you could argue whether LWOP for a rape committed at age 13 is one of those punishments the Eighth Amendment is meant to prohibit. But you cannot deny that in passing the Eighth Amendment, the Founders realized that they were outlawing some punishments that the victims of crime, if given the choice, would have preferred to impose.
Posted by: Marc Shepherd | May 13, 2009 1:19:41 PM
Marc, not sure that passes the "so what" test. First of all, you don't seem to have gotten the memo--those who believe that the Eighth Amendment bans ever more and more should not be arguing about what the Founders thought. Moreover, Marc, the people who passed the Eighth Amendment probably didn't think they were outlawing state punishments either.
Now that we've gotten that out of the way, the point that the Constitution forbids certain things simply proves too much. That some things are restricted doesn't mean that everything is therefore open to negotiation.
The Supreme Court has recognized retribution as a legitimate rationale for punishment. My point follows that.
Really, though, if the idea is that the juvenile offender should have a chance at freedom if he makes some showing satisfactory to some decisionmaker, isn't that necessarily conceding that some juvenile offenders will never make such a showing? So then are you left to argue that for some juveniles an effective life sentence is ok, but with others it is not. Once there's a right to release if certain conditions are met, then wouldn't due process be triggered? And who's going to evaluate that? Or are we going to have an oddball regime where the grace of a parole board is the only process that is due. And that seems to be strange, given that the rationale is that LWOP is cruel. If LWOP is so cruel, how is it less cruel because a criminal refuses to show remorse, get a GED whatever? And if LWOP is so cruel, how is it less cruel if all that stands in the way of an effective life sentence is that some parole board simply decides to withhold grace?
I think the real problem with the criminals' case here is the "who decides" issue. I think most would concede that life with the possibility of parole (even if the parole is entirely a matter of grace). So why wouldn't states with executive clemency or a two-tiered clemency process pass muster (i.e., where a board has to have a positive recommendation to a governor before gov can grant clemency). Is there constitutional magic to "parole" if it can be as grace-based as the clemency decision.
And why can't the Court take a wait and see approach, i.e., wait until some guy has actually served 50 years before making the determination.
Lastly, if you guys think that the Eighth Amendment demands something more than grace-based parole, how is the quantum of entitlement set? I know that the Eighth Amendment has been transmogrified into a detailed code of procedure for death cases, but wasn't that justified on the "death is different" slogan, er argument.
Posted by: federalist | May 13, 2009 2:22:46 PM
federalist, I am not sure what "who decides" question you want me to answer, but I will explain my thinking about these matters from the outset: I am greatly troubled by LWOP as a punishment for ANY offender, in part because I think it is a (very costly) type of government oppression that seem to me to be even more extreme in terms of government control over an individual than the death penalty. (I say that in part because we are all going to die, but none of us will be locked in a cage forever unless/until the state decides to do so.)
Though I cannot say with certainty that the Framers would have shared this vision, I do think that some likely viewed extreme restrictions on liberty to be even worse than death --- consider, e.g., Patrick Henry's famous quote "give me liberty or give me death." Thus, I think it is reasonable to suggest that they would have endorsed constitutional restrictions on LWOP sentences that are at least as significant and constitutional restrictions on the death penalty.
You points about parole/clemency is an interesting one, though prior SCOTUS rulings suggest there is some constitutional magic to parole eligibility (e.g., ex post facto rights vest, etc.).
Posted by: Doug B. | May 13, 2009 2:42:27 PM
Federalist, you seem to point out, in response to practically every post, that long and brutal prison terms are comforting to the victims. This is no doubt true, but it "proves too much," to use your phrase. If it were up to victims, most sentences would be longer and tougher than they are. If it were up to the victim, most criminals would get the max, which somewhat undermines the idea that where you have a range some defendants should be sentenced near the bottom of it.
So when you continually trot out the assurance that severe sentences are good because they make victims happy, you're stating something that is obviously true. But it is also not very illuminating: as a society we long ago decided that victims don't decide the sentence, because punishment has more objectives than just giving satisfaction those who were harmed.
Posted by: Marc Shepherd | May 13, 2009 2:47:03 PM
Now we are getting somewhere:
First of all, nowhere did I advocate that the states had the obligation to listen to victims (in fact, if you guys would read my post, you'll notice, I said society's right, not its obligation). And I don't think I need to remind the learned gentlemen in here that not being required to do something doesn't mean that doing it is impermissible. Nor does it mean that the quantum of how much is done is somehow limited.
Second of all, retribution IS a permissible goal of punishment, and the Supreme Court has said so. And "retribution" does have, as a component, "making victims happy".
Third of all, and Doug, this is an example of what I mean by leading with your chin, you cannot credibly argue that the Framers endorsed the current regime of constitutional restrictions on the death penalty. Thus, you cannot really argue that the Framers would have said, "Well, gee, LWOP restrictions should be the same." The argument that the Eighth Amendment prohibits LWOP has to be based on "evolving standards of decency". Harkening back to the Framers ain't gonna win this one for you.
Fourth of all, and once again, this is an example of leading with your chin, your point about parole being magic really underestimates my argument. I am well aware of parole rights being magic. But it's not the nomenclature of parole that creates the magic, it's whether the prisoner has a liberty interest in what the state chooses to pour into the "parole" right it grants prisoners. Thus, under Due Process, a state cannot change a rights-based parole system to a grace-based parole system or abolish it. But that's decidedly NOT the issue here. The issue is whether the 8th Amendment requires that a (i.e., grace-based ability to be free) has to be committed to something called a "parole board". Not to toot my own horn, but surely you've learned by now that I do know what I am talking about, and I am well-prepared to defend what I write. You obviously support the position in Graham, but you really haven't shown that you can argue the knotty issues that pop up. Really Doug, did you think I was unaware that Due Process vests certain parole rights? And do you really think that, logically speaking, you can point to those cases and say well, there's a substantive right to a particular decisionmaker and it has be called a "parole board" (all of course under the rubric of a very general constitutional provision). I mean, if a decisionmaker were of constitutional moment, surely the idea that judge-sentencing under death statutes (and remember "death is different") would be verboten, so are we really to believe that the 8th Amendment is supposed to be so fussy on the "who decides" question of whether some criminal gets grace-based freedom?
Fifth of all, you need to forthrightly acknowledge that your view about LWOP is categorically different from very recent Supreme Court case law. Remember what Kennedy said in Roper. That necessarily presumes that death is worse than LWOP.
If you want to just stomp your feet (rhetorically) and say that LWOP is bad therefore it must be unconstitutional, fine. But let's not pretend that it's not just your political preference. And here is your political outlook:
"I am greatly troubled by LWOP as a punishment for ANY offender, in part because I think it is a (very costly) type of government oppression that seem to me to be even more extreme in terms of government control over an individual than the death penalty."
Given that such a punishment is avoidable by simply not doing a very bad thing (which the person has notice of), it's really hard to argue that this is government "oppression". What happened to Joe the Plumber (i.e., leaks of info by government officials that was supposed to be private) is more oppressive than LWOP for murder, rape or what have you. It's also kind of silly--so the government having control over you for 30 years is ok, but not the extra 20 years? Where do you draw the line between "oppressive" and non-oppressive conduct by the government? And what about older people who commit crimes, is there a categorical imperative that they get some life after serving a sentence?
Sorry this post is so sharp, but Doug, you've misrepresented what I have to say, you've flat-out accused me of racism. Any fair-minded observer would have to admit that you have dished it out--I punch back (rhetorically) very hard. An exposed chin is hard for me to resist.
Posted by: federalist | May 13, 2009 3:32:37 PM
Personally, I think Furman and its progeny were very wrongly decided. However, a majority of the current Court accepts these cases as legitimate precedent. This means that at least five Justices, however they may ultimately rule, will be doing what conservatives loathe: substituting their judgment for the policy preferences of the legislature.
Beyond that, Sullivan and Graham raise important constitutional issues beyond those explored in the Furman line of cases. Everyone agrees that the death penalty was available for rape in 1789, so to find it unconstitutional today, a Justice must rely on the "evolving standards" rationale. But in 1789, could a 13-year-old be sentenced to LWOP for a rape? It strikes me as entirely possible that even an originalist would find this cruel and unusual.
Posted by: Marc Shepherd | May 13, 2009 4:01:25 PM
Well, as recently as 1944 a 14 yo was executed for murder in SC. And theoretically, death was available to 13 year olds in 1789 (see Standford v. Kentucky discussing Blackstone). And since death is a lesser punishment than LWOP (Doug's idiosyncratic view notwithstanding), ipso facto LWOP was cool. You gotta remember too that people didn't live as long back in the day, especially not in prisons.
Posted by: federalist | May 13, 2009 4:12:51 PM
Isn't the subjective assessment of the word, humane, better suited for a legislature, and the cert violates Article I Section 1?
Posted by: Supremacy Claus | May 13, 2009 5:12:55 PM
"But in 1789, could a 13-year-old be sentenced to LWOP for a rape?"
I'm pretty sure rape was capital in all states in 1789. If not all then nearly all.
Life imprisonment wasn't used much, if at all, at the time of the founding. In the initial federal criminal code (1790), punishment for felonies was generally 3 years, 7 years, or death.
Posted by: Kent Scheidegger | May 13, 2009 6:27:10 PM
federalist, as I have indicated before, I have no trouble at all with your rhetoric (though you do seem to have trouble with mine, since you seem to think I accused you of racism). What I find troublesome is the sloppiness of your arguments, which veer back and forth between normative and descriptive claims, and which at times embrace the legal status quo and at times fight against it. So let me try again to help you understand my policy and legal perspectives.
1. I readily admit that my legal perspectives are influenced by my policy perspectives. I also tell everyone that one is either a fool or a charlatan to assert or believe that this is not true for everyone. I have never met a judge or a lawyer or a non-lawyer who could cleave law and politics, and so I never mind this charge, but rather I mind those who want to perpetuate the silly myth that one can divorce legal views from policy views.
2. I look at all punishments from a government power perspective, which is the basis for my (admittedly idiosyncratic) view that LWOP should not be categorically considered a lesser punishment than death. And, as Kent's comment highlights, historical practice suggests that maybe my perspective was more common at the Founding.
3. All government-imposed punishments are avoidable "by simply not doing a very bad thing" and so it is silly to assert that the very fact of committing a crime means one cannot be oppressed. And, unless and until you have been locked in a cage and ensured your life will never again be your own, I think it is hard to be confident judging how this form of government power should be compared to other forms of purported oppression. (As your comment notes, political opportunism creates the risk of oppressive behavior and, of course, death is never fully avoidable even if one leads a perfectly virtuous life.)
4. Add all this up and, if you were not so eager to pick a fight, you would come to understand that I generally find constitutional restrictions on the death penalty to be too extreme and constitutional restrictions on long terms of imprisonment to be too lax. Of course, as you stress, these perspectives create line-drawing problems, but that is the nature of law and policy. I would prefer that legislatures draw these lines, since they are democratically accountable and people generally accept the arbitrary nature of lines drawn by legislatures (and/or by geography). But our constitutional structure also demands that courts do some of this line drawing, and I think the lines have been poorly drawn by the modern Supreme Court --- from both a legal and policy perspective --- with regard to all major punishments.
5. Finally, when operating as an academic, which is the hat I wear when writing on this blog, I am NOT seeking to convince everyone of my view and/or "argue [all] the knotty issues that pop up." Rather, I want to encourage people who are interested in the law and policy of sentencing and punishment to think hard about both the status quo and on-going developments. On this criteria, I think I am succeeding with you, since you invest an impressive amount of time thinking and writing in this forum even though you apparently have a day job.
Posted by: Doug B. | May 14, 2009 8:09:08 AM
Also, Marc Shepard, you are just flat out wrong when you assert that "[i]f it were up to victims, most sentences would be longer and tougher than they are." If if were truly up to ALL victims, sentences would probably be much more dynamic (and varied) than we currently have. But, problematically, prosecutors always stress the tough victims and downplay the softer victims to create the impression that all victims want greater toughness. This is just not true --- as I often spotlight in posts reporting on cases in which victims have sought leniency --- but it is a harmful myth that prosecutors (and some vocal victims) have helped create because of the way they often use certain victims to serve their advocacy interests in some cases.
Posted by: Doug B. | May 14, 2009 8:46:53 AM
At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state. At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes.
If I were a state AG, I think I would support Florida. From a state AG's perspective (I think), it's better to keep more options on the table. If I didn't think juve LWOP should EVER be possible for non-murder crimes, I would discourage line prosecutors from seeking juve LWOP for non-murder crimes, or I would suggest that my state adjust its sentencing laws. What I would not want is for the Supreme Court to constitutionalize my preference.
Also, depending on how the opinion is written, if perpetuates the shoddy reasoning of the Kennedy case, it might lead to more constitutional restrictions down the road.
Posted by: anonymous | May 14, 2009 9:08:35 AM
Doug, it is indeed true that you have spotlighted cases where the victim was in favor of leniency. I am aware of that.
But as a general matter, if victims were consistently polled, I suspect they would far more often be in favor of "throwing the book" at the defendant. Is there any evidence to the contrary?
I realize there are exceptions; in my post, I said "most," not "all."
Posted by: Marc Shepherd | May 14, 2009 9:45:42 AM
"Sloppiness"? Come on Doug. You get waxed and pull that? You're joking, right.
As for racism, well, look at your response to my invocation of the Long Beach racial assault and lenient sentences.
As for Kent's post, not speaking for him, but I doubt he thinks that is dispositive of whether LWOP is permissible. First of all, death was permissible, so a necessarily lesser punishment, LWOP, is. Second of all, that legislatures did not go further in 1789 does not mean that they couldn't have.
Posted by: federalist | May 14, 2009 10:48:53 AM
When federalist criticizes the reasoning of fellow commentators, he says things like "your mother probably dropped you on your head at birth." Prof. Berman is far more polite and criticizes federalist's reasoning as being "sloppy" at times.
But federalist can't take even this. For someone so eager to "dish it out," he sure can't seem to "take it."
Posted by: lawyer | May 14, 2009 12:38:03 PM
Thanks for confirming my sense, lawyer, that federalist seems to have very thin skin. The fact that he doth protest so much this (inaccurate) claim that I called him a racist has led me to conclude federlist has never been involved in a truly fair debate without wasting timing with silly name-calling. I keep trying to be a respectful debater --- despite the fact that I am up against a masked man(?) --- but that is proving difficult with someone so sensitive.
In any event, federalist tellingly does not engage with my assertion that LWOP could be --- and in my view should be --- viewed as an even more extreme punishment that death for constitutional purposes. Notably, I think few would argue that the 8th Amendment would permit a state to permit daily torture of repeat murderers even if the state could constitutionally sentence that repeat murderer. (I also think some victims would want to impose a punishment of daily torture, though this is an interesting empirical question.) I do not think we would/should say --- either as a matter of judgment or as a matter of constitutional law --- that daily torture is a necessarily lesser punishment than death, and that is why I resist saying say --- either as a matter of judgment or as a matter of constitutional law --- that LWOP is a necessarily lesser punishment than death.
And this is an example of your sloppiness, federlist, since I am rarely sure if/when you are making normative or descriptive claims and/or when you mean to embrace the legal status quo or when you mean to fight against it. I make the same sloppy mistake sometimes, too, though I try to make my points/claims clear. And I will never be troubled --- indeed, I will be grateful --- when you point out that I am making sloppy arguments. But please try to thicken your thin skin before patting your own back in these debates.
Posted by: Doug B. | May 14, 2009 2:18:24 PM
Thin skin? Hardly. I have very thick skin--I just enjoy punching back.
As for racist accusation, well here are your own words:
"4. Finally, the Long Beach incident you stress, federalist, is very old news. It is an interesting story and one that seems troublesome, but it lacks the national impact on societal perceptions raised by the topic here being discussed. And, again, the fact that you recall and raise a long-ago case about black offenders getting a break reinforces yet again that only certain kinds of disparity get you concerned."
The implication of that statement, that I play racial favorites when it comes to the use of the awesome power to prosecute crimes, is tantamount to calling me racially biased. Get that right.
Second of all, you say I don't engage your comment that LWOP is more of a punishment than death. Well, here's what I've said: "And since death is a lesser punishment than LWOP (Doug's idiosyncratic view notwithstanding), ipso facto LWOP was cool." I also cited Roper, which by necessary implication means that death is a greater punishment than LWOP. I don't see how you can possibly say that I haven't engaged.
Third of all, you did get smoked on the parole magic words mini-debate. Smoked.
You know, I've gone back and re-read the posts here--all I am doing is pointing out the doctrinal problems that would arise with this 8th Amendment bans LWOP for juvie offenders less than death. I am not addressing what a legislature should do, but what it can do. I defy you to point to anything in these posts that argues what policy ought to be or is even unclear on the point. The closest is when I say that the 17 yo's case should be a slam dunk. But I am not talking about the propriety of that sentence (I think it fine), but the constitutionality of that sentence, and that should be obvious, since I said the "case".
And as for respectful debate, please give that a rest. You've misrepresented my views on clemency and have said that I think that every federal prisoner wants to harm my women and children. That oversimplifies my views to the point of parody. My point, which doesn't seem to be a hard one, is that, putting aside retribution issues, determining who is safe to release is very very hard, and the stakes are very very high. Given the choice between erring on the side of public safety and erring on the side of people who have by their own choices gotten themselves incarcerated, I think we ought to err on the side of public safety, which means being careful about parole and releasing people or setting lenient sentences in the first place. How hard is that to understand? And how have my arguments on this point ever been opaque?
Daily torture is simply banned by the Eighth Amendment. I don't see how that's germane to a debate about whether LWOP is a lesser punishment than death. If you want to yammer about your idiosyncratic view that LWOP is more extreme than death, fine. Just understand that the legal analysis that flows from it is almost worthless since there's a lot of caselaw predicated on "death is different", and I don't see that being revised to "death and LWOP are different".
"3. All government-imposed punishments are avoidable "by simply not doing a very bad thing" and so it is silly to assert that the very fact of committing a crime means one cannot be oppressed. And, unless and until you have been locked in a cage and ensured your life will never again be your own, I think it is hard to be confident judging how this form of government power should be compared to other forms of purported oppression. (As your comment notes, political opportunism creates the risk of oppressive behavior and, of course, death is never fully avoidable even if one leads a perfectly virtuous life.)"
Exposed chin, meet right hand. (Actually, right hand followed by left hook to the body.)
First of all, my comment about a very bad thing was in the context of a debate about LWOP, and in order to get LWOP, you have to do something very bad. Since doing something very bad is pretty easy to avoid, it's a bit much to call that "oppression". I hardly think this point is "silly". Second of all, given THAT context, it's a stretch to say that I am saying that criminals cannot be oppressed. What I am saying is that "oppression" is a pretty big leap when someone, on notice of the consequences of doing something really bad, does something really bad, and then receives said consequences. Therefore, in my view, what happened to Joe the Plumber was more oppressive than sending some killer to prison for the rest of his life, and I think that it's difficult to argue against that, unless of course, you come from the worldview that government actions are to be viewed absent context. Third of all, oppression carries with it a moral judgment of the government action--yeah, I wouldn't like being in prison for the rest of my life, but not liking the consequences of my actions hardly means I am oppressed, whereas being punished by the government for exercising my right to free speech, while not as bad from the point of view of the person suffering, is qualitatively worse when looked at from a moral standpoint.
Posted by: federalist | May 14, 2009 4:14:51 PM