February 28, 2012
Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
I had the great pleasure yesterday to serve as a judge in the final round of OSU's moot court competition (with two terrific real Ohio jurists, as detailed here), and the case being argued was Miller v. Alabama, one of the two cases to be heard by SCOTUS next month concerning the constitutionality of sentencing a 14-year-old killer to life without parole. These oral arguments, combined with all of the primary briefing and amicus briefing in Miller (linked here) and the companion case Jackson v. Hobbs (linked here), confirmed my instinct that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their work in Roper and Graham.
Regular readers likely will not be surprised to hear that I am hoping the Supreme Court find the LWOP sentences imposed in Jackson and Miller to be unconstitutional. But readers may be surprised to hear that I continue to be somewhat concerned by the Justices' decision in Graham to adopt a bright-line approach to the Eighth Amendment rather than the more nuanced case-by-case approach as was suggested by Chief Justice Roberts in his Graham concurrence. And my concerned is heightened because the advocates and amici in Jackson and Miller are understandably inclined to push bright-line arguments: the defense side urges an Eighth Amendment rule that JLWOP is always unconstitutional (at least for younger juves), while the states seek a ruling that JLWOP us never unconstitutional for the crime of first-degree murder.
For a bunch of reasons (only some of which are set forth in this amicus brief that I put together along with a group of my students for these cases), I have an inherent disaffinity for rigid and simplistic bright-line rules at sentencing. And, especially as the Justices seem finally ready to place a few (long overdue) constitutional limits on extremely severe prison sentences, I think Eighth Amendment jurisprudence would benefit from more nuanced case-by-case developments than by adoption (or rejection) of various bright-line rules. Moreover, the case-specific offense and offender facts in Miller and especially in Jackson, seem to make lead me to think that embrace of bright-line rules in these cases could end up doing more long-term harm than good to sound constitutional (and sub-constitutional) sentencing jurisprudence.
February 28, 2012 at 11:56 AM | Permalink
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Prof. Berman: You disclosed your personal bias in this post. Did you do so before the start of moot court? I would have tried to get you disqualified as a moot court judge, just to show off to the cute female law students in their black suits.
I suppose that an advocate of the summary executions of these cold hearted killing machines would have lost the contest, despite compelling policy arguments. These trump the constitution, and go to the purpose of government. Necessity and Safety.
Posted by: Supremacy Claus | Feb 28, 2012 10:28:41 PM
I am going to guess the winners were feminists, left wingers, and pro-criminal, because they had the most legal knowledge and best rhetorical skills, of course.
Posted by: Supremacy Claus | Feb 29, 2012 12:04:56 AM