Tuesday, May 18, 2010


Here is the great problem for us in Graham- Kennedy writes an awful opinion that reaches a conclusion we agree with. Thomas writes an extraordinarily effective dissent that dissects the majority opinion. We don't think life in prison with parole is an appropriate sentence for a juvenile- but as Thomas argues- it should remain a matter for the legislature.

For Thomas the issue of what the 8th Amendment prohibits is simple: What does the Constitution say about sentencing and what were the sentencing practices during the time of the Framers?

Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and al- though it would not have offended the standards that prevailed at the founding, the Court insists that the stan- dards of American society have evolved such that the Constitution now requires its prohibition. The news of this evolution will, I think, come as a surprise to the American people.

Vox Populi says Justice Thomas- the voice of the people rule:

I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judg- ments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.

I respectfully dissent.

And Justice Thomas carries the banner for original intent: the 8th amendment means only what the framers said it meant back then- nothing more: It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous “‘methods of punishment,’”

Thomas notes, correctly we admit, that the current supreme court analysis of 8th amendment sentencing issues regarding sentences that are "grossly disproportionate to the crime" is a creation of the court.

First, the Clause does not expressly refer to proportionality or invoke any synonym for that term, even though the Framers were familiar with the concept, as evidenced by several found- ing-era state constitutions that required (albeit without defining) proportional punishments. In addition, the penal statute adopted by the First

Congress demonstrates that proportionality in sentencing was not considered a constitutional command. (noting that the statute prescribed capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars,’ ” to “murder on the high seas”

Rumpole says (and we know the answer, but still we proffer the question) What makes the Framers point of view infallible? And if they were infallible, is Thomas 3/5's a man?

Of course they were not infallible. Original intent proponents argue that there has to be some basis- some baseline of interpreting the Constitution outside of considering the document to be "living and breathing" which is just code words for the document being whatever 5 judges say it is. And while we agree that judges should not be legislators, Justice Stevens is correct that Justice Thomas would apparently- under his philosophy, uphold capital punishment for thefts of goods valued above fifty dollars.

The real problem for Kennedy's majority opinion is that Thomas's dissent is right on the point that philosophically, the basis of this opinion opens the door for the court to create more rules willy nilly, without any basis in the court's Article III authority:

The Court has nonetheless adopted categorical rules that shield entire classes of offenses and offenders from the death penalty on the theory that “evolving standards of decency” require this result. The Court has offered assurances that these standards can be reliably measured by “‘objective indicia’” of “national consensus,” such as state and federal legislation, jury behavior, and (surprisingly, given that we are talking about “national” consensus) international opinion.

When we mentioned in the prior post the gobbledygook of Kennedy's majority opinion- it was the great lengths that Justice Kennedy twists and turns through the painful analysis of statistics, to reach the very shaky conclusion that the sentence in question violates national moral standards, and thus the 8th amendment. The decision in Graham, is for us, the correct outcome. But at what cost to the theory of judicial review? That is the gist of Thomas's dissent, and we give credit where credit is due. Because if you read Kennedy's opinion, you should reach the conclusion that he could apply that tortured decision making process to just about any result he and four other members of the court want to achieve.

Yet even assuming that is true, the Framers did not provide for the constitutionality of a particular type of punishment to turn on a “snapshot of American public opinion” taken at the moment a case is decided. By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a pendulum swing in social attitudes.”

Thomas's main problem with the decision- and in this he is 100% correct- is that Kennedy holds that the law is what the court says the law is- despite what the "community consensus" is.

But the Court is not content to rely on snapshots of community consensus in any event. (“Community consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting Kennedy, supra, at __ (slip op., at 24)). Instead, it reserves the right to reject the evidence of consensus it finds whenever its own “independent judgment” points in a different direction. 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 the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “‘“necessarily . . . a moral judgment”’” regarding the propriety of a given punishment in today’s society.

Here is Thomas's main point: The categorical proportionality review the Court employs in capital cases thus lacks a principled foundation.

Thomas then proceeds to analyze the sentencing of juveniles and argues that the rarity of the imposition of life sentences for juveniles who have not committed murder shows that the imposition of the sentence is properly being reserved for the most heinous of cases. He recounts a horrific crime where a 17 year old in Oklahoma rapes and slices the throat of his 14 year old victim, only to have her survive. Thomas then notes that this is the first time a jury in Oklahoma has ever sentenced a juvenile to life in prison for a non murder case:

I cannot agree with the Court that Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely because they have not done so more frequently. If anything, the rarity of this penalty’s use underscores just how judicious sentencing judges and juries across the country have been in invoking it.

In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat. By the Court’s own decree, “[c]ommunity consensus . . . is not itself determinative.” Only the independent moral judgment of this Court is sufficient to decide the question.

For Thomas, the emperor has no clothes and he says as much:

In the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intaFont sizect state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, at 23. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life- without-parole sentence. Instead, the Court rejects over- whelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency. The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8- year-old and leaves her for dead does not.

Finally- Thomas ends with a sharp retort to Justice Stevens-

I agree with JUSTICE STEVENS that “[w]e learn, some- times, from our mistakes.” Ante, at 1 (concurring opinion). Perhaps one day the Court will learn from this one.

I respectfully dissent.

Between the two opinions there is no contest as to which one is logically consistent and conforms to the principles of judicial review- Thomas carries the day.


Anonymous said...

Rick Scott's message of accountability in government has forced his opponents to jump on the bandwagon. Too bad for Floridians that Alex Sink has spent the last four years sitting on her hands while the state's economy, housing market and budget went into a tailspin. Like Rick Scott says, if career politicians could solve Florida's problems, we wouldn't be in such a mess.

Apparently, the Sink camp got annoyed with that. This evening, they released a 600-word opus on Scott's alleged failings. Most of it centers around his departure from Columbia/HCA, a healthcare system fined a whopping $1.7 billion after a lengthy investigation determined it had been defrauding the federal government for medical costs.

From Sink spokeswoman Kyra Jennings:

Unfortunately for Rick Scott, his record makes very clear that his commitment to accountability is nonexistent. If Rick Scott proposes the same accountability measures for Florida Government that he used at Columbia/HCA, we’ll have to back up the paddy wagon to the front door of the Capitol. Florida simply can't trust someone who was forced to resign as the head of a company that pled guilty to massive amounts of systematic fraud, including 14 felonies, leading to a historic $1.7 billion fine.

I just love the "we’ll have to back up the paddy wagon to the front door of the Capitol." quote. Sink is able to come out swingin, I was about to call it for the Republicans in November, but if Sink keeps using the heavy artilery she just might win this.

Anonymous said...

thomas belives that sick people should be allowed to smoke weed and the fed government shd have no say in the matter. thomas is a great judge. always has been.

respeq da man


Anonymous said...

Not sure what logic is or if I can define it, but "I know it when I see it."

Thomas is scary to me. Period. He is earning his place in history at any cost. He'd probably slit your throat too, rape you and leave you for dead if it would advance his agenda.

He may come across logical, but I'm going to side with the concern that 61 out of 77 juveniles are sentenced to nonhomicides in counties other than Miami Dade or Broward.

The Legislature refuses to fund the justice system too. I'm sure Thomas would agree with that, since its within the Legislature's right to do so.

Rambling Thoughts... said...

I find myself actually agreeing with Thomas on this one. Here is the law school question that needs to be answered: for sentencing under this scheme, what's the difference between a juvi committing a 1st felony PBL one day short of his 18th birthday and another doing it on the day after he turns 18? Where does the majority's point that juvis don't appreciate their actions end up?

Some juvis need life without parole. It wasn't cruel and unusual in the past, the type of offense hasn't changed, the victims are still victims, but an unelected branch has decided that it knows the national consensus on punishment is leniency is different despite the evidence of legislatures tightening sentencing policies.

This stinks to high h***.

Anonymous said...

Excellent and intellectually honest analysis Rump. Thanks.


Fake Catalano said...

enough of this legal gobbledeegook!
more rumour-mongering!!!!

Rumpole said...

Having slept on it, I think this is the best - most effective and powerful dissent I have read in a very long time. Again, I agree with the result of the majority, but they reached it in a very very poor way. Thomas nailed Kennedy but good.

Anonymous said...

Remember, Thomas haters, he and Scalia were the two dissentes in the sex ofenders case who said the feds CANNOT lock up people after their sentences have expired. The rest of the court seemed pretty comfortable with the idea of lifetime incarceraton based on 'expert' testimony.

Anonymous said...

But as a practical matter, life with parole does not necessarily mean one will be released from prison.

I have long believed that parole should be available in most cases, particularly nonviolent ones. However, it should not be automatic. An inmate should have to strongly prove that he/she DESERVES parole. What steps has the inmate taken to actually better him/herself while incarcerated? What does the inmate plan to do with his/her life when released? Why should the parole board believe that the inmate will not reoffend? You get the picture. If an inmate has not taken any constructive steps, no parole. Perhaps there should also be time in a halfway house for long-term inmates before possible parole. Parole should be a POSSIBLITY, not a GUARANTEE.

As a case in point, Charles Manson is eligible for parole. Yet I would gladly bet everything I owned, plus every penny I could borrow, that he will never be paroled.

Anonymous said...

8th amendment jurisprudence has long recognize evolving standards of decency...

Anonymous said...

Yup. I agree with you Rump (though I disagree with the outcome).


Anonymous said...

Very thoughtful this morning rump. I agree. Conservative dissents are often more compelling, because they are often disentangled with the harshness of a given result by allegiance to the neutral principle being applied. This case is a perfect example of that. One would agree with Thomas a lot more, however, if there was any confidence that political powers would not in fact sentence a 7 year old to life for a fifty dollar theft. Thomas would say even that is for legislative judgment. But who can possibly have any confidence in the legitimacy of that judgment, when it is usually so often just based on how tough and mighty a legislator can be. One would think that reason would come into play at some point. Given the current state of the country's political process, I unfortunately doubt it. I like you concur in the result of Kennedy's opinion.

Batman said...

The matter should just simply be decided on what is or is not cruel or unusual punishment. Let's face it, what is cruel and unusual is no different that Potter Stewart's statment about pornography: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it ..."

All of this throwing around of statistics, which we all know can be shaded and manipulated to say whatever we want them to say avoids the question of conscience. The idea that we can take a human being, who is not legally old enough to vote, drink or even serve in the military because of our legal system's belief that that any one under 18 (or even 21) is not sufficiently competent to do those things, and incarcerate him or her for life on the basis he or she is irredeeemable is ludicrous.

Now, with that said, if you put a juvenile in an adult facility, he will grow up fast, tough and mean. In other words you may be creating the very thing you claim this child is. We have already warehoused an entire generation of young adults for serious crimes. All we do, by taking juvenilles and treating them the same, is start the process against the new generation a little bit earlier.

Anonymous said...

Adrien reversed again! Andrew Foster v. State, 3D07-1893.

Anonymous said...

Also a word for the day from the Foster opinion: LEGERDEMAIN

RFB said...


Anonymous said...


Anonymous said...

I was really tired last night, when I wrote my 11:33pm post. The full thought I wanted to convey was: "He may come across [as] logical, but I'm going to side with the concern that 61 out of 77 juveniles are sentenced to [life in prison in] nonhomicides in counties other than Miami Dade or Broward."

That's what I get for posting while falling asleep.

And surprisingly Batman hit on the same sentiment I was trying to convey when I wrote: "Not sure what logic is or if I can define it, but 'I know it when I see it.'" I was borrowing from the Justice Stewart line about porn in Jacobellis v. Ohio.

After all, when looking at the original intent of the Fourteenth Amendment, there was no way any Court would, following that intent, have ever thought to desegregate schools as the Brown decision was illogical.

And by Thomas's remarks in Missouri v. Jenkins, he made it abundantly clear that Brown's use of "psychological or social-science research" was not logical. He acknowledges that de facto segregation is wrong, but how does that square with "adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

Not to mention with the Fourteenth Amendment, you have R. Conkling who came forth with an alleged copy of the manuscript of committee meetings that showed that the committee in drafting the amendment was more focused on using the 14th to protect big corporations from the states rather than minorities and how very rarely has it been used in cases to protect "other persons" but how hundreds of cases involving corporations invoked its power to protect the "corporate person." I had a dream that one day the subsidiaries of Philip Morris, Merck, Bristol-Myers Squibb and Coca-Cola will play with the children of living human beings and that both will not be recognized by color of the currency in their banks, but the content of their character.

Originalism pretends to be the voice of logic but it will twist itself too to fit the needs of those who would use it to reach the desired result. Scalia has long made the argument that many forms of judicial interpretation are flawed, but that original intent is the lesser of all the evils.

Original schmidginal. I revel in my lack of sophistication and my legal simplicity. I remain unimpressed. Violation of probation for a home invasion robbery doesn't equal life in my book, period.

Toy Story said...

Life is meant for the living. I can spend all the time in the world striving to gauge what the intent of what people who are worm food or dust, once was, but that doesn't address our current problems.

Anonymous said...

In the first few pages of the Graham opinion it summarizes his crimes. Its hard to understand how a unbiased observer could think he deserves life in prison. It says that when he was 16, he and another kid went into a BBQ restaurant through an unlocked back door. The other kid hit the manager in the head, causing an injury that "required stitches". They left and nothing was stolen. This is the case he was ultimately sentenced to life on. Initially, he was sentenced to a year in jail (which he'd already served) f/b probation, not a crazy-low sentence for such a case depending on victim's feelings and accounting for D's involvement and age. He violated his probation 6 mos later, when he was 17, by participating in a home invasion robbery. He went into the home w/ two 20 year olds. They all held the homeowners at gunpoint and searched for stuff to steal. Nobody was physically injured. Later that night apparently the three of them tried a second robbery, during which one of the co-defendants was shot (no further details as to this are in the opinion). At probation violation hearing, the bottom of the guidelines were 5 ysp, the PSI recommended a departure and a sentence of 4 ysp, and the state recommended 30 ysp. The judge sentenced him to life on the probation violation, it isn't clear what happened if anything with the new substantive cases. All of this happened in Jacksonville. The judge is white and the then-juvenile is black.

It is hard for me to imagine that anyone who works in the system and sees how cases are typically handled would defend this as a fair result on the above facts. The only person ever injured was his co-defendant, and that doesn't appear to have been directly related to Graham. Even an adult with pages of priors would be extremely unlikely to get life on those facts, let alone a 17 year old kid. Intellectual defensibility of the Kennedy vs. Thomas' opinions aside, sometimes the system treats people unfairly and it is the job of appellate judges to remedy those mistakes. It certainly appears to me that they did so here.

At the time the Constitution was written, were Graham in Jacksonville he would have there as the personal property of another man. The city is named for Andrew Jackson, a man who made his wealth as the owner of a cotton plantation that "employed" hundreds of slaves and the man who led the early 1800s war against the Seminole Indians (also not "men" in our Constitution) and whose chief claim to fame in Florida was taking it from the Spanish, in large part because it was being used as a refuge for runaway slaves. I find originalist, textualist arguments awfully hard to swallow when one looks at the text in relation to the world as it actually existed when our revered founders did the signing. On the other hand, the principles embodied in the Constitution have rightly inspired men and women around the world for over 200 years. I think Kennedy's opinion is in the best tradition of those principles.

Anonymous said...

I want to correct my comment that at the time of the Constitution were Graham in Jacksonville he would have been the property of another. FL was not part of the US at that time. However, once Jackson and the US conquered it, the Constitution and slavery were brought to FL concurrently.

Anonymous said...

5:02.........I'm just curious.......do you have children? I have no trouble with the judge sentencing this defendant to life. To me, the case is much simpler than you suggest. The defendant was on probation for robbery. He and his buddies, six months into his probation, committed a home invasion robbery involving firearms. That same night, they committed a second robbery where a defendant was shot.

Sorry, but I don't care what color he is, what color the judge is, etc. While I wouldn't have given a life sentence if I were the presiding judge (I would have given him a lot of time, but not life), I'm not sympathetic to someone who commits armed home invasion robberies while on probation for robbery.

Regardless, the issue isn't whether he deserved life (would your argument be any different if he was 18 instead of 17?). The real issue is whether the judge's ruling was so unconscionable as to constitute cruel and unusual punishment. I say it wasn't.


Napoleon Bonaparte Broward said...

Rump, you make me so hot when you talk case law.

Anonymous said...

BTDT - Not only was he on probation for robbery, the original case that led to probation was violent - he or his buds smashed the owner of the store over the head with a metal bar leaving him for dead - he needed extensive stiches and I am sure has many injuries that make it hard to live day by day.

In cases like that I say drag in the parents and give them a 3rd degree misd charge just for being a bad parent. Sixty days in the slammer, and by george, we may get some parenting skills out of mom and dad.

Anonymous said...

10:34........didn't know that. Silly me for thinking anonymous would give all the facts, lol. Knowing that, I would give him life in a second.


The Professor said...

Great post, Rump. Good stuff.

You might enjoy the book "The Supreme Court: The Personalities and Rivalries that Defined America." It briefly compares Thomas and Kennedy in a way similar to your thoughts here.

Enjoyed the post.

Anonymous said...

BTDT--I did give all the facts. 10:34 simply makes up facts to make the crime sound worse than it is. I got my facts directly out of the opinion. Nowhere is there any mention that there was any possibility that Graham himself hit the restaurant manager, both the majority and the dissent explicitly say it was the other kid he was with. Also nowhere does it say that they "left him for dead" or that he required "extensive stitches" or had "many injuries that make it hard to live day by day". It says "the restaurant manager required stitches for his head injury." The end. The other facts are supplied by 1034, I stand by my original post.