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May 4, 2009

What might (and should) DOJ and other potential amici say about Graham and Sullivan?

I am already having a hard time not getting too excited about the Supreme Court's cert grant today in the juve LWOP cases of Graham and Sullivan (basics here).  Part of the excitement relates to the fact that we can and should expect a new Justice to be on the Court to hear these cases, and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence.  Another part of the excitement relates to the question that titles this post — namely, the uncertainty that now surrounds what the Obama Justice Department and other likely amici might have to say about the constitutionality of life without parole sentences for juvenile offenders.

Of course, we can and should expect a number of public policy groups and defender groups to file amicus briefs in support of the defendants in Graham and Sullivan.  Organizations like Human Rights Watch and The Sentencing Project and others have long been vocal opponents of juve LWOP sentences, and I would expect and hope they will share their insights with SCOTUS in these cases.  Also, defender groups like NACDL and others might also chime in to flag some unique lawyering perspectives in these cases.

But what about the US Department of Justice and/or Attorneys General from other states?  Though they could opt to sit out the case altogether, I have an inkling that a diverse set of state and federal prosecutors may have a diverse set of perspectives concerning the proper way to apply (and limit) the Eighth Amendment in the juve LWOP setting.  Can and should we expect a bold amicus brief from federal AG Eric Holder and SG Elena Kagan?  Can and should we expect dueling amicus briefs from states that permit and states that preclude juve LWOP?  I suppose time (and the SCOTUS briefing schedule) will soon tell.

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May 4, 2009 at 03:03 PM | Permalink


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"and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence."

Translation: Impose more extraconstitutional limitations on states' ability to deal with predatory juveniles . . . .

Graham is where he belongs. Absent some compelling reason for clemency, he should die in prison. Sullivan should too, although I would not have an issue with Constitutionally-mandated clemency consideration (other than the fact that it is an illegitimate exercise of power)).

The parole issue is interesting. Certainly, the Constitution cannot turn on how meaningful the parole right is in a particular state. For example, if parole is solely a matter of grace, then that should be ok, and if that's ok, shouldn't LWOP pass muster if some decisionmaker in the state has the right to commute sentences?

Posted by: federalist | May 4, 2009 3:41:35 PM

Just curious, federalist: do you think the Eighth Amendment have any substantive content enforceable by federal courts, or do you think states should be entitled to adopt any and all criminal punishment they see fit without any judicial scrutiny. Put another way, do you there is ANY illegitimate exercise of judicial power based on the Eighth Amendment, or should it be viewed merely as constitutional surplusage (as the 9th and 10th are now largely seen).

Posted by: Doug B. | May 4, 2009 7:55:36 PM

Eighth Amendment jurisprudence has only one direction, toward the love of the criminal, and toward loosing the predator. It reflects personal preference of the biased, pro-criminal criminal lover. At least, the statute has had some debate and some accountability at the polls. No such thing at the Court.

Your criminal clients are basically immunized to butcher victims without consideration of properly administered anesthesia nor any procedural due process, except for a 5 second trial. The victim has offended the criminal, and gets put to death in the blink of an eye.

This has been happening with the certainty of planetary orbits, year after year. What explains this relentless march toward total immunization of the murdering, torturing, hair trigger offense taking, and sideways pistol holding criminal lover client?

The Rent Seeking Theory.

When jurisprudence increases income for the criminal cult enterprise, it has no validity, and the Justices are armed robbers. Lawmaking by these incompetents is a crime against humanity, being unauthorized, incompetent, and lethal human experimentation.

I would like to see governments lose their immunities. The lawyer whore would then turn on it, and generate massive deterrence from it failure to carry its duty to protect the public.

It is also time for a strong executive to arrest these cult criminals, give them a fair trial, and then have them shot in the court basement. Their corpses would be fed to the pigs, so they would disappear entirely.

Posted by: Supremacy Claus | May 5, 2009 12:36:31 AM

There are some limitations--just not many. I certainly don't see LWOP for forcible rape as an issue.

Seems to me that the LWOP is unconstitutional argument has a significant flaw (besides, of course, the fact that when 8th Amendment adopted, this punishment would have been ok). A life sentence with parole presumably is ok in these cases. And the case law does not make a distinction between what kind of parole right the criminal has, which pretty much means that the state could limit the parole right to strictly a matter of grace. So why wouldn't the governor's ability to grant clemency be the functional equivalent of a parole right--does this really turn on the identity of the decisionmaker?

Posted by: federalist | May 5, 2009 6:28:08 AM

You have dodged the hard question, federalist, after apparently admitting that the Eighth Amendment places some limitations on the power of the state to punish. Specifically, how are those limitation to be determined and enforced. In Graham and Sullivan, we have the state's most extreme prison punishment (LWOP) imposed on a relatively less culpable offender (a juve) for committing what is not the worst possible offense (because nobody died). Add all that up, and these cases seem present a solid case for implicating the limitations you admit exist.

Meanwhile, what is the basis for your claim that LWOP "would have been ok" to the Framers of the Eighth Amendment. Though the death penalty was well known and accepts at the Founding, long terms of imprisonment were not. Can you provide a cite or some form of support for your assertion that the Eighth Amendment's adopters would have blessed the sentences given to Graham and Sullivan?

Posted by: Doug B. | May 5, 2009 6:42:30 AM

Prof B,

I would tend to agree with Federalist here, the limitations of the 8th should be read strictly in terms of manner of punishment with no porportionality component.

Given that the 5th amendment contemplates maiming as a proper punishment for at least some offenses (via the inclusion of "or limb" in the double jeopardy clause) I see no basis for reading the 8th in such a manner. I believe the entire evolving standards of decency line of juricprudence is illegitimate. I do believe the 8th embodies a requirement that punishment be carried out as humanely as possible given the final goal.

Thus a modern maiming would likely require surgical amputation rather than an ax and breaking on the wheel or drowning are not permitted forms of execution. A more interesting case would be permanently marking an offender where you have a choice of methods such as hot iron branding or tattooing.

None of these examples however indicate any limit on the legislature to impose the final punishment, be it maiming, marking or death for whatever offenses it deems appropriate. The limitation is on the means, not the category of offense.

Posted by: Soronel Haetir | May 5, 2009 11:09:18 AM

Doug, that's pretty easy. Since the death penalty was ok for many crimes, the necessarily lesser punishment was too. Rape was punishable by death, was it not? Burglary was too, was it not? Besides, what was the life expectancy for someone incarcerated in 1789 or 1868?

As for limitations, well, yeah, there are some--you can't send someone to jail for 50 years for jaywalking, but just because there are limitations doesn't mean that where some crimes are lesser than the worst crimes, the Eighth Amendment demands a stepback with respect to the punishments.

Posted by: federalist | May 5, 2009 11:15:05 AM

Cheer up Doug, the guy who wrote this gobbledygook:

"When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity."

may just vote how you like. And Doug, care to dispute my point about the functional equivalent of "grace parole" and clemency?

Posted by: federalist | May 5, 2009 11:26:12 AM

Somehow I doubt Doug will be able to shoot down my logic on the functional equivalent of "grace parole", which would unquestionably pass constitutional muster and the possibility of executive clemency.

Posted by: federalist | May 5, 2009 1:26:28 PM

Soronel. I always understood the phrase of life or limb to be idiomatic. Certainly the phrase of life and limb is such. However, I don't know if that idiomatic phrase was used during the founding period or not. It's an interesting question. But I wouldn't leap to the conclusion that "or limb" should be interpreted literally and thus is evidence of a contemplation of maiming.

Posted by: Daniel | May 5, 2009 10:41:15 PM

Soronel. Follow up. According to the American Heritage Dictionary of Idioms the phrase "risk life and limb" is from the 1600s. So it certainly is plausible that it's being used in an idiomatic sense in the Constitution. It's certainly the type of thing a wordsmith like Ben Franklin would approve of.

But perhaps some expert knows more.

Posted by: Daniel | May 5, 2009 10:48:20 PM

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