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April 3, 2011

Notable coverage of the fates of teen lifers in Colorado and Florida

Today's newspapers include these two stories from two different parts of the country concerning the fates of defendants sentences to life for crimes committed a teenagers:

From the Orlando Sentinel here, "'Lifers' sentenced as teens: Do they deserve a 2nd chance?"

From the Pueblo Chieftain here, "Juvenile 'lifers' afraid to hope"

April 3, 2011 at 06:44 AM | Permalink


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It really is amazing how a lawless decision like Graham, and Graham is lawless, spurs the let's release criminals crowd. It's easy to look at a handful of criminals who got some pretty harsh justice (and I don't deny that sentencing a 16 yo to LWOP is harsh) and wring one's hands over their fate (and of course we can't forget that heady feeling of moral superiority that goes with it). But these self-appointed moral scolds who talk in terms of what convicted murderers deserve never seem to care a whit about the safety of some random person who, as night follows day, will be the victim of one of these guys.

Posted by: federalist | Apr 3, 2011 9:58:19 AM

I do not understand the assertion that Graham is lawless, federalist. The defendant in Graham claimed his LWOP sentence for robberies committed at ages 16 and 17 violated the US Constitution's duly enacted 8th Amendment. Six of the Justices of a duly appointed Supreme Court agreed with that contention --- though the majority did so by announcing a new bright-line rule instead of adopting the as-applied approach endorsed by the Chief Justice.

How exactly is Graham lawless when it is an application of constitutional law by those duty bound to interpret and apply the Constitution? Is it the development of a bright-line rule that you dislike? Does that mean you view more flexible standards developed for, say, the 1st, 2d and 4th Amendments? Are decisions like Stevens or Heller or Bryant less lawless in your view? How about Blakely and Booker? Do tell what make for lawlessness in this context?

Posted by: Doug | Apr 3, 2011 6:38:01 PM

Doug, for those of us who feel that the law is more than the practical effect of 5 (or 6) votes on the US Supreme Court, lawless is a perfectly fair term to apply to a particular decision. The decision is laughable as an expression of law. In the view of the Court, as far as one can tell, the bottom line is that at the time of sentencing a non-murderer criminal who happens to be one day shy of his 18th birthday, the criminal has to have a meaningful chance at parole. So now is there an 8th Amendment standard for what constitutes a chance at parole? What is it? Is pure discretion ok--well, it is under the current state of the law. Well, then, what the heck is the difference between that and say executive clemency? Or even a more "enlightened" Legislature. And what if there's an executive veto of a parole board's decision? The 8th Amendment clearly doesn't extend to these issues, yet there is somehow a right to a meaningful chance at parole, whatever the heck that means. At the end of the day, the Supreme Court actually held that something called a parole board has to have a say over whether some juvenile criminal ever gets to see the light of day--instead of a governor or any other means.

"Lawless" is probably the nicest thing I can say about this nonsense. The Court should have exercised some judicial restraint and adopted a "wait and see" attitude with respect to a particular criminal, i.e., wait until some criminal serves 30 years and then deal with his case on an individual basis.

Posted by: federalist | Apr 3, 2011 9:12:05 PM

federalist: I understand a criticism that Graham (or Heller or Bryant) is wrong and/or hard to implement, but I still do not understand the label "lawless" in light of your apparent suggestion that SCOTUS keep jurisdiction over defendant Graham for 30 years and then decide itself whether to release him. That strikes me as truly lawless because then the Court would be taking on the role as parole authority itself.

SCOTUS simply says in Graham that life without chance of release is cruel and unusual for a juve who does not kill. Would have it have been better if it said no life sentence -- even with a chance for parole -- could not be given to a juve? If it the juve line you see as lawless, do you also view all other constitutional doctrines that are different for kids (such as 4th A rights and 5A Miranda rights 6A jury trial right and maybe 2A Heller rights) as lawless? Heller and Booker et al and lots of other big SCOTUS cases in recent years strike me as just as "laughable as an expression of law" if you are merely complaining about Justices seeming to be making up constitutional rules as they go along.

Again, it is clear you disagree with the decision and that's fine. But I am trying to understand if you intend "lawless" to mean something more than "it seems like a silly doctrine to me." If that's really all you mean, so be it. But I wonder (and suspect) your problem really may be with the vague nature of the Eighth Amendment rather than with Graham's effort to give it some content outside the death penalty setting.

Posted by: Doug | Apr 3, 2011 10:02:34 PM

For federalist, lawless means "I disagree with the ruling."

Posted by: lawful | Apr 4, 2011 11:02:05 AM

doug, where did i say that the Court should keep jurisdiction for 30 years?

Deny now, and see where we're at 30 years later . . . .

Posted by: federalist | Apr 4, 2011 11:31:26 AM


I would say that every bit of cruel and unusual punishment jurisprudence that limits who can be punished for offenses beyond the very young (I think I've seen seven or eight brought out as a permissible line at the time of ratification?), is lawless in that it substitutes the opinion of five judges over the numerous state legislatures that made no such binding agreement. I would say the same for all method of execution litigation beyond a few torturous methods where pain is in fact the primary point.possibly the criminally insane (I'm not sure how such was treated at the founding or at the time of the 14th amendment)

That is not to say I think executing seven or eight year olds is a good idea, I think if SCOTUS had not abrogated such a lawless role for itself that a far more modern death penalty amendment would get through congress and the states, One that is grounded in the last couple centuries of experience and not subject to the vagaries of single cases.

I would even agree that Heller and its so far progeny are lawless in how limited their scope and how incorrectly they rely upon Miller. Between the federal militia clauses and the second amendment I see a federal power that could require citizens to keep certain arms and be trained to use them but no power federal or state to limit possession to those particular arms. And again, without the lawless behavior of the court I think some form of limiting amendment would pass, putting nuclear, biological and chemical weapons beyond the legal reach of citizens for example.

I think Federalist is exactly right on this particular point.

Posted by: Soronel Haetir | Apr 5, 2011 7:04:36 PM

Federalist: How exactly would/should Graham or any other defendant get to bring an 8th A claim in 30 years if/when SCOTUS had said now that juve LWOP for these crimes is not unconstitutional? It is now 20 years since SCOTUS said Harmelin LWOP punishment for an adult drug offense was okay: do you propose letting Harmelin and/or others relitigate the exact same issue now? If you accept the "evolving" theory of the 8th Amendment, then perhaps this is not a strange idea. But I suspect based on your prior comments, federalist, that your are not a big fan of an evolving 8th A jurisprudence so that every issue can be relitgated every decade.

Soronel: Do you also think modern SCOTUS 1st and 4th and 6th Amendment doctrine is lawless? States never really agreed not to criminalize adult porn or not to regulate corporate election speech, but SCOTUS judges have prevented that; states never really agreed to subject stop-and-frisk to any constitutional limits, but SCOTUS judges have created that; states never really agreed to fund lawyers for all felony defendants, but SCOTUS judges have required that. Are ALL these modern doctrines "lawless" in your view because they come from SCOTUS rulings rather than formal constitutional amendments?

If so, I get that YOUR definition of lawless is largely "preventing/requiring states to do that which they might not want to do" based on a modern spin on constitutional doctrine. Perhaps this is also federalist's definition, too. But unless/until he agrees that Heller/McDonald and Citizens United and other notable 5-4 rulings that prevent numerous state legislatures from doing what they otherwise want to do, I continue to seek to understand the nature of his accusation of lawlessness in this context.

My fundamental point here is that decisions like Graham (and Heller and Citizens United) seem to me different in kind from other controversial opinions that lack a textual hook in the Bill of Rights. The complaint of lawlessness makes somewhat more sense when there is not any textual hook, but Graham has the text of the Eighth Amendment to point to when he complains about his punishment. One may not agree with how the Justices resolved Graham's claims about what that Amendment should mean for him, but that does not make the decision itself "lawless" in my use of that term. And this is why I keep pressing federalist to explain just what he means other than "I disagree with the ruling."

Posted by: Doug B. | Apr 6, 2011 12:55:42 PM

I do in fact think that much current 1st amendment precedent is lawless, despite being very much in agreement with that precedent and even wishing that the law went much further than the precedent currently does in protecting expression. I would also say that I think Miranda is great policy, but having it imposed upon the states by federal courts is abhorrent (I am perfectly fine with SCOTUS using its supervisory powers over lower federal courts to say that those federal courts must follow Miranda).

I would broaden Justice Thomas' statement from Lawrence about it being an unusually silly law that he would not vote for yet would not find to violate the federal constitution. I believe that is true for an extremely broad range of potential policies at the state level. Including the drug war which I believe to be an incredibly stupid waste, yet perfectly within the powers of states to decide. On the other hand I would say that most federal drug enforcement is illegitimate.

When I say that a ruling is lawless in this context I mean that it is completely detached from whatever textual hook the legislative text (a category in which I include constitutional amendments) that was passed. A judge grafting their own beliefs, or even modern definitions, onto enacted text is going far beyond the judicial role. I would even say in regard to the eighth amendment that judges need to be especially careful not to perform such grafting because the language is so squishy. I do not see that squishyness as license to import whatever feel good social science reaches the judge's desired outcome. Instead I see such language as providing a low floor of acceptable behavior (as of the moment of ratification, possibly modified by the later ratified 14th) and any protection beyond that requires additional state action (either alone or in concert through the amendment process).

Posted by: Soronel Haetir | Apr 6, 2011 5:33:29 PM

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