THOMAS'S DISSENT IN GRAHAM

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 intact 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.