June 30, 2012
Criticism of Justice Alito's one-size-fits-all dissent in Miller
As regular readers know and as previously explained here, in a series of posts I am taking on a claim at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basics here). In the first post here, I questioned number-crunching in the Roberts/textualism dissent. In this second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent.
Coming soon will be my final post in ths series in which I examine a key claim in Justice Alito's dissent. But, before I that post is finished, I see that Wendy Kaminar has this potent criticism in The Atlantic of Justice Alito's work in Miller which carries this sub-headlined: "Conservatives are supposed to embrace individualism. So why did the Court's conservative wing defend a one-size-fits-all approach to juvenile justice?" Here are snippets from the piece:
Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not....
Justice Alito objected strongly to this individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.
"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."
Particularized, individualized justice is precisely what mandatory sentences deny. The Court has declined to strike them down under the 8th Amendment in cases involving adults, although they often dictate excessively, disproportionately harsh sentences, and their role in filling our prisons with non-violent drug offenders is a decades old scandal. Long promoted as a means of eliminated discretion in sentencing, mandatory minimums merely transfer discretion from judges to prosecutors. They ensure that prosecutors decide how defendants will be sentenced when they choose the crimes with which defendants will be charged. In juvenile cases, prosecutors may sometimes choose lengthy, mandatory sentences when they choose to transfer juveniles to adult court.
Now, under Miller, prosecutors may still transfer juvenile homicide suspects, who may still face LWOP for "brutal thrill-killings." But their sentences will no longer be determined by generally unaccountable prosecutors or by the crimes of other juveniles in their "category." This is not an obscure principle, difficult to comprehend. Juvenile offenders are individuals too, not interchangeable members of a class.
Some related Miller posts:
- Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers
- Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods
June 30, 2012 at 06:26 AM | Permalink
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Individualized treatment after conviction violates Fifth Amendment due process and the Equal Protection Clause. It is just a bad idea because of the certainty it will lead to racial, class, and sex disparities.
All lawyers need a disclosure statement with their utterances taking into their Twilight Zone. "This legal argument if followed will result in greater governmental employment, and is made in the economic interest of the lawyer hierarchy."
There is no evidence of the superiority of the individualized approach. The sentencing guidelines were lumping people together, in formulaic sentencing scheme, and resulted in a 40% across the board drop in the crime rates. That is the most compelling evidence available.
Posted by: Supremacy Claus | Jun 30, 2012 12:30:42 PM
"Juvenile offenders are individuals too, not interchangeable members of a class."
Except when the death penalty is involved.
Posted by: David | Jun 30, 2012 7:50:41 PM
The problem with the thesis, however, is that it relates to the question of what the legislature should have done. That does not answer the question of whether the courts are bound to uphold the legislature's determination.
Under Kaminar's logic, the Supreme Court should strike down all mandatory minimum sentences as unconstitutional, since they don't allow for particularized consideration.
Kaminar's ire should not be directed at Justice Alito or the dissenters--it should be directed at the Florida legislature.
Posted by: Res ipsa | Jul 2, 2012 12:23:27 PM