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July 2, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: Alito/legislative judgment concerns

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's recent Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In the second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent.  This final post in the series now will question the core lament in Justice Altio's dissent that the Miller majority is to be faulted for "arrogation of legislative authority" by countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."

Justice Alito's Miller dissent, which intriguingly was joined only by Justice Scalia, merits praise at the outset for his effective review of modern Eighth Amendment jurisprudence with a special focus on how the "staple of this inquiry was the tallying of the positions taken by state legislatures." He concludes this review by lamenting where he sees the Miller majority taking this jurisprudence: "What today’s decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.  Our Eighth Amendment case law is now entirely inward looking."

For starters, as a matter of Eighth Amendment interpretation and broader constitutional theory concerning the limits imposed on legislatures by the Bill of Rights, one might reasonably respond to Justice Alito's laments here by saying simply "So what?"  Rarely does anyone assert or even suggest that interpretations of the individual rights protected by the First or Second or Fourth or Fifth or Sixth Amendments should be concerned principally with "tallying of the positions taken by state legislatures."  Indeed, Justice Alito's own votes to find violations of the Bill of Rights in cases like Citizens United (involving the First Amendment) or McDonald (involving the Second Amendment) or Jones (involving the Fourth Amendment) seem based on his own "inward looking" judgments about the reach of these constitutional provisions without any serious inquiry into or evident concerns about "the positions taken by state legislatures" as to campaign finance or gun control or GPS tracking. 

Though there is a textured history of "state-by-state head-counting" in the Supreme Court's modern Eighth Amendment cases, the constitutional soundness of this approach to interpreting a Bill-of-Rights limit on legislative power has always seemed suspect to me.  Our constitutional structure with judicial review arguably not only reasonably expects, but arguably demands, judges to make certain constitutional judgments about individual rights by "looking inward" to define counter-majoritarian principles enshired in the Constitution.  To assert in this context that judges ought always embrace and endorse whatever majoritarian legislative judgments find expression in a good number of states is a recipe for making the Eighth Amendment almost nonjusticiable.

Moreover, even if one embraces the notion that legislative judgments merit special respect and deference in the application of the Eighth Amendment, one still must concede that judges have some independent (aka "inward looking") work to do here. Justice Alito acknowledges as much via key language (which I have highlighted) at the start of the penultimate paragraph of his dissent: "The Eighth Amendment imposes certain limits on the sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures — and with good reason."

Perhaps because I cannot recall a single Eighth Amendment case in which Justice Alito has found there to be an Eighth Amendment violation, I am left wondering just what Justice Alito considers to be the "certain limits" imposed by the Eighth Amendment which require judges, for some part (but not "the most part), to remove questions of sentencing policy from elected lawmakers.  In other words, while Justice Alito uses language that concedes judges are to impose some kind of ("inward looking") limits on criminal punishments, he has never provided any indication or even a hint of what he thinks those Eighth Amendment limits might be.

Finally, Justice Alito's complaints about the purported "arrogation of legislative authority" seem especially misguided in the context of a Miller ruling in which not a single Justice declared per se unconstitutional any LWOP sentence for a juvenile murderer.  Rather, the ruling in Miller invalidated only mandatory LWOP sentences, which really serves only to vindicate judicial authority in light of the reality than mandatory LWOP schemes only apply if and when prosecutors exercise their broad discretion in certain ways.  (Notably, one does not hear -- especially from former prosecutors like Justice Alito -- any serious laments that prosecutors are arrogating legislative authority in this realm if and whenever they seek temper the application of mandatory punishment schemes through use of their discretionary (and entirely unreviewable) charging and bargaining powers.)

Given that mandatory sentencing schemes are never really mandatory for executive branch prosecutors and especially given that Miller just requires that the judicial branch have some decision-making role in juve LWOP sentencing systems, I do not find especially convincing Justice Alito's contention that Miller involves the Supreme Court countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."  Rather, I think Miller is more accurately viewed as an effort by the Supreme Court to make sure judges, and not just prosecutors, get to make some judgment about whether a juvenile's crime is so awful that he ought never even get a chance to seek release from prison.  In other words, Miller really seems to involve the Court countermanding -- justifiably, in my view -- judgments as to sentencing procedure rather than as to matters of sentencing policy as lamented by Justice Alito.

Related post in this series and other notable posts with opinions on Miller:

July 2, 2012 at 06:57 PM | Permalink


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Doesn't Miller, when considered together with Ring, ensure that juries (rather than judges) get to have a say on whether juveniles should face LWOP ?

Posted by: Calif. Capital Defense Counsel | Jul 3, 2012 12:21:13 AM

No. Apprendi/Ring would only apply if/when the applicable state/federal law provides that a defendant may not legally get LWOP until some specified facts are established. If written that way, the fact authorizing LWOP will have to be found by a jury.

But if LWOP is authorized by the crime of conviction, and then applicable law give judges discretion as to whether to impose LWOP or a lower sentence (a discretion now required for juve defendants after Miller), then the Sixth Amendment does not kick in.

Posted by: Doug B. | Jul 3, 2012 4:59:24 AM

The Miller majority reached the correct result, but I have some sympathy for Justice Alito’s frustration. Many of the Court’s Eighth Amendment precedents depend on “state-by-state head-counting,” but in this case, where that method clearly would not produce the desired result, the majority does not rely on it. Yet, the majority does not say that the head-counting approach was invalid in those cases where it happened to point in direction where the Court’s inward-looking instincts already wanted to go.

Posted by: Marc Shepherd | Jul 3, 2012 8:53:46 AM

I see nothing hypocritical in Alito saying that the "eighth amendment imposes certain limits" while never having voted in favor of such a limit. Remember that cases which reach the Supreme Court are likely to be cases where some judges disagree with other judges. In other words, they are cases which are, in some sense, close calls. Any case in which the decision is obvious will be decided below, and Alito will not get the chance to vote on it.

So it is entirely possible that Alito believes such limits should exist, but has never voted in favor of one, for the simple reason that the cases in which he believe the limits should apply never reach him.

If the judiciary as a whole were less willing to apply the Eighth Amendment than it currently is, you might see Alito voting in favor of such limits in some cases, as the cases that reach him would now be different.

Posted by: William Jockusch | Jul 4, 2012 9:05:15 AM

You make a very fair point, William Jockusch, but do you have any idea/sense from Justice Alito's opinions as to what he might consider the Eighth Amendment's limits on legislatures? To date, he has opinions indicating he sees no Eighth Amendment problems with the death penalty for some non-homicide crimes, or with LWOP for some juve non-homicide crimes, or with mandatory LWOP for juve homicide crimes.

Justice Rehnquist famously dropped a footnote in the 1980 Rummel case, which rejected an Eighth Amendment attack on a life with parole sentence, which conceded that he might find a constitutional issue "if a legislature made overtime parking a felony punishable by life imprisonment." I suspect (and sure hope) Justice Alito likewise believes the Eighth Amendment includes that kind of limit on extreme sentences, but I am not yet sure what other limits he has in mind based on his opinions to date.

Moreover, and perhaps more on-point for this post, Miller does not in fact further limit WHAT punishments can be given to juve murderers, it only limits HOW those punishments can be imposed. Because Miller only uses the Eighth Amendment to limit how punishments get imposed, I do not see it as really very much of an imposition on "sentencing POLICY" for legislatures (and it certainly seems like a lot less of an imposition than other procedural limits imposed by the Supreme Court's Fifth and Sixth Amendment jurisprudence).

Please understand, William, that I am not asserting that Justice Alito is being, in your words, "hypocritical." Rather, I am just trying to highlight (via this post and the others in this series) what I see as the weakest aspects of the core claims being made by the Miller dissenters. I do not find these core claims "hypocritical," but I also do not find them to be especially convincing. That is really all I am trying to say.

Posted by: Doug B. | Jul 5, 2012 7:18:23 AM

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