Monday, May 17, 2010


Here is the decision in Graham v. Florida, holding that it violates the 8th amendment's prohibition against cruel and inhumane punishment to sentence a juvenile to life in prison for a crime other than murder.

Oh my is this opinion a field day for the critics of strict construction and original intent. Justice Kennedy wrote the majority opinion and he opens with a liberal blast of "evolving standards of decency." (How that phrase must have made Scalia's skin crawl!)

To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to “‘the evolving standards of decency that mark the progress of a maturing society.’” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ”Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (slip op., at 8) (quoting Furman v. Georgia, 408 U. S. 238, 382 (1972) (Burger, C. J., dissenting)).

Next, after an enormous amount of legal gobbledygook,

( See, METROPOLITAN LIFE INS. v. GLENN, 554 U.S. 105 (2008) )

Justice Kenndy decides juveniles are less responsible for their actions than adults:

As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id., at 569–570. These salient characteris- tics mean that “[i]t is difficult even for expert psycholo- gists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of- fenders.” Id., at 569. A juvenile is not absolved of respon- sibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Next Justice Kennedy makes this startling conclusion: As for the punishment, life without parole is “the second most severe penalty permitted by law.” Harmelin, 501 U. S., at 1001 (opinion of KENNEDY, J.). (Rumpole says: Duh!)

A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportion- ate sentences be a nullity.

And finally, just because he can, and because he couldn't get Scalia's vote anyway, Justice Kennedy threw in a paragraph about the sentencing practices of other countries:

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over...The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual... Thus, as petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders.

Justice Stevens in his concurrence was biting in his criticism of Justice Thomas's dissent:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

NEXT : Thomas: The great and silent dissenter.


eye on Petey said...

There will be a web simulcast of the 11th Circuit's resident expert on the supreme court- Judge P Adrien's speech- "Cracking Graham- how we can still sentence juveniles to life and get away with it."

Anonymous said...

boycott bp!

Anonymous said...

based on my projections- this blog gets 1500 visits per day.

Anonymous said...

Yeah- Old Adrien- he loved to slam people- the more prison the better.

fake ted mastos said...

Lets see... you (chomp) can't get life anymore for a juvie in a non murder (smack smack) case (chomp chomp). And the state usually gets negotiates voltage (ha ha chomp smack) so it sounds like to me a continuance is in order to get the state to speak a little latin.

Anonymous said...

Does anyone think the Dred Scott decision would have been any differently decided with Justice Thomas in charge? Strict constructionism means I'm still just 3/5 a person. Unreal!!!

Scott Africa

CAPTAIN said...


Make it the Third "Most Severe Penalty Permitted By Law" .....

Rumpole, yesterday the court also decided United States v. Comstock.

At issue in the case was whether Congress exceeded its power when it enacted 18 U.S.C. § 4248, which authorizes federal district courts to order the civil commitment of sexually dangerous federal prisoners even after they have served their criminal sentences. By a vote of seven to two, the Court – in an opinion by Justice Breyer – held that Congress had the power under the Necessary and Proper Clause to pass Section 4248.

What's worse than life without parole; a sentence with an indeterminate numbers of years. You do your time, and just wehn you thought you were going to be released, the Federal or State government (Florida, for example), commits you and keeps you there, until, ?????

Cap Out .....

caught ya said...

Print this is you dare Rumpole/Blech- 3rd time in 4 months I caught you at the starbucks writing your little blog.


Fake Don Fingerhut said...

It can't be Blecher. Because what I didn't know until this very day was that it was Barzini all along.

RFB said...

Barzini was a pimp- he could have never outfought fake alschuler for the blog.

Anonymous said...

I think Thomas is losing it!

In the sex offendar ruling of yesterday, he is the only desenter and again rambles on. Perhaps, Anita Hill put a damper in his thought process on this one?

Anonymous said...

Captain at Tuesday, May 18, 2010 3:05:00 PM..

You are an idiot.

What's worse is when a 10 yr old girl walking home from school is obducted and assualted by one of these sick f^%$'s, because you have your head so far up your ass you can't think correctly.

Any one who sexually assualts a child should never be released from jail, "period".

All the justices did was affirm what congress and we all know is a problem, that is that sex offendars will strike again, and maybe next time as we see on the news over and over he will kill the next child.

Bravo to the high court for saving the unknown future second victim.

Rumpole said...

Of course Roberts sides with the government, He's a statist. They're all statists- it just depends whose ox is gored. Only Thomas has a glimmer of individuality.

Dinah Bee Menil said...

i read this article twice and its great!