Life Sentences for Juveniles: Cruel and Unusual?
A story in today's Wall Street Journal reports that
judges are grappling with whether it is ever proper to sentence a juvenile to life in prison without parole in light of a Supreme Court decision that such a punishment for non-murderers is cruel and unusual.
The question of life sentences for juveniles is yet another instance where the combination of dubious constitutional interpretation coupled with uninformed armchair empiricism can lead the Supreme Court badly astray.
The difficulty on the interpretive side begins with the odd view that the cruel and unusual punishment clause bans the death penalty, which was in common practice at the time of the Founding and which is implicitly authorized by other provisions in the Bill of Rights that contemplate that individuals can be tried for capital crimes. To be sure, sentiments on certain activities do evolve, but not necessarily in the direction of being more restrictive of the punishments that the state should issue. So I take it that using the death penalty is permissible at least in some cases. The law so holds.
At this point, the question is why not allow the death penalty in all cases if it is allowed in some? Clearly anyone who thinks hard about the subject will believe for reasons of deterrence and retribution that some principle of proportionality should govern criminal sentences. But it is far from clear that the Cruel and Unusual Clause is directed toward that issue at all. On its face, and in principle, the opposite seems to be the case. The confusion started with saying that death penalties could be used only for crimes that merited it. But if proportionality is the test key to cruel and unusual punishment, it cannot be restricted to the death penalty cases, but also covers any serious punishment, including life sentence without parole.
So we are now off to the races. Use proportionality as the test and the entire criminal code is subject to revision on the ground that the punishment does not fit the crime.
At this point we have to decide why it should be invoked, which is where sloppy judicial empiricism comes in. Why do we say that teenagers cannot control their emotions? Does that apply to those who have committed crimes after they were in therapy. And why should we think that, to quote Justice Kennedy, it is not proper to deny “the juvenile offender a chance to demonstrate growth and maturity." He has that opportunity at the trial before the sentence is announced. Unless there is some evidence that the whole system is grievously misapplied, why convert an ordinary sentencing decision into a major constitutional case, when there is no reason to think that the new deliberations will improve outcomes?
This issue is tough only if we try to distinguish punishments for some crimes from others. But once we cabin in the cruel and unusual function to its modest historical office, the issue gets a lot easier—at least for those of us who are not on the Supreme Court.
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Aug '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
It's tempting - considering the cost of execution - to say, "Let's just lock them up and throw away the key." But then there's the problem of guards and fellow prisoners whose lives are endangered. Fortunately, brain studies are moving quickly with the aid of advanced scanning technology:
http://www.pbs.org/wnet/brain/scanning/index.html
The small percentage of sociopathic individuals who should be executed will be far more easy to identify in the near future. In their case, age is almost irrelevant.
Jul '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
I support the death penalty for children who kick the back of my airline seat.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
As is generally the case, the appellate courts are co-opting the legislative process. We, the citizenry plus undocumented democrats these days, get to say that an act is a crime through our electoral choices, judges, often restricted somewhat by those choices pass their judgment, and then the wheels, once again, come off the wagon of common sense.
Without question, the review and appeals process is Constitutionally created, but it is difficult to read that it is an ongoing and overriding activity. BTW: Is the function of justice retributive, restorative or redemptive? These are the three R's not taught in law school. When did we utterly disconnect the evil act of the offender from the cost to the victim?
Somewhere the idea of punishment became an anachronism. Can we ever find our way back? Oh! To the original issue... Juveniles. Define please. Age? 12, 16, 18, 21, 25? At age 38 some kids still are dependent on mom and dad, and display all the aspects of juvenile adolescence. Do they get a pass? Back to para' 1: voters are not only the deciders, they are the parents and sometimes even the offenders.
Re: Life Sentences for Juveniles: Cruel and Unusual?
This is all the fault of a group of Justices on the Supreme Court who see it as their job to impose their personal notions of morality on the nation. This may well go on in other areas, but it is nowhere more naked than the death penalty cases and now life sentences for juveniles. Whether a juvenile in a particular case deserves a long sentence, life, or life without parole, is always going to be a difficult question that depends on the facts of the case. But as Richard rightly points out, there must be increasing grades of punishment to match the increasing viciousness of crime. Suppose there is a serial killer 16-year-old who has killed many people in cold blood. Should the courts remove from the people the right to choose a sentence that reflects the extremity of the killings?
This would be a problem that we should all solve together, as the electorate. If we didn't want such penalties, we could send representatives to the state legislatures, or elect state judges, or choose governors who would refuse to create, impose, or execute such sentences. But the Constitution's Framers did not intend to give this job to the nine Justices of the Supreme Court. As Richard says, the Fourteenth Amendment clearly permits the death penalty and it does not create any bright line between 16 year olds and 18 years old. All one has to do is read one of these recent Supreme Court opinions -- with their faux counting of states that have the death penalty, their judgments on whether more states have moved toward the Court's favored result, and the illegitimate nods to foreign and international decisions -- to see how badly the Court is contorting the law to reach its favored result.
Edited on Oct 29, 2010 at 1:48pmRe: Life Sentences for Juveniles: Cruel and Unusual?
This is another example where Justice Kennedy has fallen under the sway of liberals on the Court and has engaged in judicial lawmaking, all to satisfy his ambition to be seen by the media and the academy as some kind of heroic judge. Larry Tribe's letter to President Obama, recently leaked to the press, about Supreme Court vacancies, is right on one score -- the liberals see it as their job to manipulate Kennedy to pull him away from his original conservative views toward their pole. I've always thought that Kennedy ought to be insulted by the way that liberals talk about him and openly think about him in such political terms, and that the best cure would be to decide cases consistently on principle without regard to political outcomes and the approval of the chattering classes.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
"But once we cabin in the cruel and unusual function to its modest historical office, the issue gets a lot easier—at least for those of us who are not on the Supreme Court."
Although defining the "same" crime is not nearly as straightforward as it suits your argument to suggest, (and in which age is often a factor), your same crime-same punishment proposition does address the "unusual" issue on a conceptual basis. It doesn't seem to me, however, that you have actually dealt with the "cruel" piece of the equation -- regardless of whether it is or is not an appropriate issue for adjudication. It's office is not sufficiently modest to be subsumed by unusual, and what it means in practice is a continuing subject of public controversy, which experience suggests that legislation is unlikely to clarify beyond dispute.
Sep '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
This is a question for both Richard Epstein and John Yoo: Years ago, I read some opinions in National Review magazine that the way to solve the judge problem was to invoke Article III (I think) of the Constitution and have the Congress tell the Federal courts what they could or could not review. Does the Constitution have an out, whereby the Congress could tell the court to go poind sand on items like prison overcrowding, death penalty, etc?
May '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
A life sentence for a juvenile should be Constitutional (because of the undemocratic nature of judicial law-making--as Mr. Yoo says) but boy I hope it's used very, very rarely.
Any parent of teens knows the emotional instability of that age. Youth truly should be a mitigating factor in all but the most extreme cases.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
If the standard is ‘cruel and unusual’, then the routine application of the death penalty would indicate that it is neither cruel nor unusual. If one were sentenced to life imprisonment, how would an appeal by the prisoner to have the sentenced reduced to death by hanging be received?
Raycon @6 asks: “Is the function of justice retributive, restorative or redemptive?
The very basis of civilization itself is the forbearance of revenge by the individual in favor of revenge by the society. A society does not honor this commitment is heading toward the ash heap of history.
Jul '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
Well, what's the age? If not the age, then what's the youth factor? Heck, 26 year olds are now still living with their parents and are on their parents' health insurance. Are they still considered "youth[?]"
Edited on Oct 29, 2010 at 8:03pmOct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
The case is a template for what we’ve been talking about on Ricochet (I just had to read it on the train home). The majority admits that 37 states as well as D.C. permit sentences of life without parole for juvenile nonhomicide offenders. Nevertheless, the majority says that “this argument is incomplete and unavailing. There are measures of consensus other than legislation.” Of course the Court knows better, but where else might we find consensus? The international community. The Court notes “the global consensus against the sentencing practice in question.” The editorial board at the New York Times swoons. Who are the two worst offenders, Iran, North Korea, Saudi Arabia? No, “the United States and Israel, impose the punishment in practice.” The majority admitted that the practice was on the State books, but rarely used. Nevertheless, they saw fit to remove its use from States. The concurrence and dissent noted some grotesque crimes in which the victim did not die and questioned whether it was wise to restrict States in applying a life-sentence to juveniles in these cases.
Roberts (concurrence) found that the sentence was grossly disproportionate. No need to interfere with the States.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
The dissent echoes much of what was said in this thread. “I am unwilling to assume that we, as members of this Court, are any more capable of making moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III give us that authority.” “The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on how those standards should evolve. “ The dissent recognizes that federal law and 37 States permit the practice and conclude that “[n]ot only is there no consensus against this penalty, there is clear legislative consensus in favor of its availability.” The majority, however, knows better than those “legislatures [that are] tone-deaf to moral values of their constituents that this Court claims to have easily discerned from afar.” There are other gems in the dissent.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
You meet all types in law. I don’t know why, but you’ll find the moral extremes in law. You’ll meet some of the slimiest, most pathologically immoral people (Bill Clinton for example). And, you’ll meet the most honorable, noble, courageous people (John Yoo).
I think what the Holder justice department has done to you is a disgrace. You have faced it with grace, honor and principle. You have never passed the buck, never backed down, you’ve stood up to what they’ve dished out. You are a heroic figure.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
Anyone else think that if a Juvenile has done something so severe that they are being considered for the death penalty or life without parole that their parents or legal guardians should be put on trial for some kind of gross negligence/incompetence?
I am not suggesting parenting is easy or parents have infinite control over their children, I do not have any children myself - but if your 16 year old has done something so terrible that they are considering locking them up and throwing away the key: you have failed.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
Jimmy Carter
Well, what's the age? If not the age, then what's the youth factor?
Unless you're suggesting that you would mete out the same punishment to an 8 year old who stole an expensive ring from a neighbor's house as you would to a 30 year old thief who did the same, you're going to have to confront that question eventually. If legislators, representing the public will, won't or can't define what constitutes cruelty, or adulthood, then it essentially becomes a de facto matter of prosecutorial or judicial deliberation.
I, for one, find the concept of trying a juvenile "as if " he were an adult very discomfiting. That "as if" seems almost presumptively unusual, per Mr. Epstein's argument above, does it not? It seems preferable to draw a consistent legislative baseline, even if doing so is as daunting a prospect as you suggest. Prosecutorial discretion is, itself, a very sharp double edged sword, and it is also on trial, though largely unaddressed, when sentencing is challenged.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
ElevenX:
In my own experience, children are not infinitely malleable, and even doing your very best as a parent is no guarantee of success. You don't find out whether or not you are a natural parent, or whether your instincts will serve you well, till there is no looking back. Your influence declines precipitously in the face of teenage mobility -- which it is ultimately supposed to as your children approach independence -- and peer pressure can be an extremely powerful, unpredictable, countervaling force. I'm also not sure how essentially telling a young person that his parents are responsible for his behaviour is not actually an effective way to encourage him to shift the blame himself.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
JM Hanes
I, for one, find the concept of trying a juvenile "as if " he were an adult very discomfiting. · Oct 29 at 10:22pm
As do I. If I were a judge, I also would not want to face the family of someone who was murdered by a person I did not put away long enough. These are extreme cases. Although our natural reaction is to recoil from sending away a juvenile for life, there may be cases where you’d want to do it. Some cases are horrific or the offender may have committed the crime just short of his 18th birthday (in the subject case the triggering crime occurred 34 days before the offender’s 18th birthday). The question is who is better situated to make the determination of whether life is correct or not. Is it the judge who looked the offender in the eye, who has all the facts at his/her fingertips, etc.? These laws were on the States books, but were rarely used. The Supreme Court, partly based on international “opinion”, has now taken away the State’s option of ever using them.
Oct '10
Re: Life Sentences for Juveniles: Cruel and Unusual?
There’s a consistent asymmetry in these cases. The liberal majority always pedantically lectures us to mind our visceral reaction to the heinous nature of these crimes in deference to civility. Nobody ever lectures them concerning their visceral reaction to sentencing. Sentencing is a tough thing to do, but I’d rather allow the people with the most facts at their finger-tips (States and trial judges) do it.
Re: Life Sentences for Juveniles: Cruel and Unusual?
JM Hanes:
Although defining the "same" crime is not nearly as straightforward as it suits your argument to suggest, (and in which age is often a factor), your same crime-same punishment proposition does address the "unusual" issue on a conceptual basis. It doesn't seem to me, however, that you have actually dealt with the "cruel" piece of the equation -- regardless of whether it is or is not an appropriate issue for adjudication. It's office is not sufficiently modest to be subsumed by unusual, and what it means in practice is a continuing subject of public controversy, which experience suggests that legislation is unlikely to clarify beyond dispute.
I think that this misapprehends the nature of the inquiry. The problem of cruelty involves the type of punishment only, not the relationship of the punishment to the crime, under some principle of proportionality. Under that definition certain types of punishments, such as torture or drawing and quartering count as cruel. But without the principle of proportionality, there is no reason to ask whether jail time for a parking violation counts as cruel.
Re: Life Sentences for Juveniles: Cruel and Unusual?
This question goes far beyond the narrow issue of what cruel and unusual punishment means. It goes to the question of whether by negating the jurisdiction of the Supreme Court the Congress can reverse the established doctrine of judicial supremacy. The historical answer was yes. The modern one seems to be no. But that is not what is at stake here. The narrower version of judicial review says that the Congress cannot by its action trench on matters left to the courts. Thus Congress could limit the punishment in some cases, but could not force any court to administer a punishment that it thought cruel and unusual. This area of ultimate power is very murky, and it is well that these ambiguities be left unexplored given their potential to shake the foundations of our constitutional order.