The Supreme Court Says

--by Sebastian

The Supreme Court says that as a matter of Constitutional law the United States can lock you us indefinitely without trial after you have served the time the jury and judge sentenced you to for a crime you did commit on the basis of future crimes it predicts you might commit, and that no judge or jury may impose the sentence of life without parole on a 16 or 17 year old on the basis of crimes (short of murder) he actually has committed.

I'll have more to say on both cases later, but preliminary thoughts:

A) Much of the Court in Graham has finally abandoned the pretense (maintained for example in Roper) that its "Cruel and Unusual" jurisprudence has much at all to do with actual changes in the moral understanding of the country at large and seems ready to embrace the idea that *even formally* it is just whatever 5 judges of the Supreme Court says it is and legislative outcomes be d@#mned.  

B) This is only step 2 in the Roper line.  It has set the stage for step 3, that life without parole cannot Constitutionally be instituted for 16-17 year old murderers.  There is not good evidence that the evolving standards of decency of the populace of the United States would outlaw that either, but I predict the Court will do so anyway within the next 5 years.  

C) These cases are fascinating together.  Not just for their substantive outcome, but also for their judicial pose.  In Graham, the judges appear to have completely usurped the role of legislatures, administrations and popular opinion in determining what counts as "Cruel and Unusual".  This is justified apparently by the vagueness of the phrase.  In Comstock, the judges appear to have abdicated almost entirely to the legislature "Necessary and Proper", apparently because that phrase has almost no ambiguity whatsoever?  

D) Comstock is a case where the facts are about sexual predators.  But the reasoning of the RULING is not.  

E) The ruling in Comstock says that the power to effectively *and retroactively* extend someone's sentence indefinitely after the original sentence that the jury and judge imposed is finished, is part of the necessary and proper power of Congress in maintaining a penal system.  This is not limited to sexual predator crimes, and is not a step the government should be allowed to take.  

Comments

[McKinneyTexas]

Seb, I look forward to your future comments. I glanced at Graham and I'm not that put off. Maybe I will be after you give this more thought.

[Sebastian]

It depends on what you mean by put off. I'm not put off by a policy outcome of reducing or eliminating life without parole. If that turns out to be a good policy, great.

The idea that it is unconstitutional, and that the Supreme Court is going to cite back to a non-existing changing moral consensus on the subject in its precedent and even further hint that such a consensus just doesn't matter at all, is on the other hand ridiculous.

[Jesurgislac]

It's an interesting pair of decisions.

Obviously, it's wrong to lock someone up for life without parole based on crimes they committed before they were legally adult. The US still claims the right to kill children for committing murder, and has done so 18 times between 1990 and 2002. cite Hopefully, this is a first step towards the US joining the civilised majority of the world: maybe the US will also ban recruiting under-18s to the armed forces.

Equally obviously: though the judicial process on rape is a travesty, the vast majority of rapists being acquitted, it is wrong to keep someone in jail after their sentence has expired. The criminal justice system fails the victims of rape and sexual assault so badly, in so many ways, that I can't find this even remotely acceptable as a fix-it. It would too easily be abused, and will be, by people who do not in fact give a damn about the culture of rape that allows so many rapists to walk free from court, but who see this as an opportunity to keep one more black guy locked up for even longer.

If someone is a sexual predator who represents an ongoing threat to the community, they need to be sectioned as mentally ill and helped: but to do that, it would be necessary to define common, prevalent attitudes towards women as a mental illness.

[Labrys]

I wonder what the two rulings together would make of a 17 year old sexual predator who didn't kill any of his victims. So, that would be life without parole without calling it that, then?

[Phil]

I'm not a lawyer, but looking at the Graham opinion, I'm finding the reasoning in the syllabus pretty persuasive, especially in (b)(1). Although I also read over Roberts's concurrence pretty quickly and think it sounds just about right to me, maybe more so than the majority opinion.

Thomas's dissent, and Kennedy's response, are pretty LOL, though. Thomas never met a prisoner he thought might actually have some rights, and Kennedy isn't afraid to call him a jerk for it. Bravo. (And even Scalia and Roberts won't go as far as Thomas, refusing to concur with his II on whether and how the Court should address proportionality.)

[Pub Editor]

Jesurgislac,

Please look before you leap.

The US still claims the right to kill children for committing murder...

The Amnesty Int'l document you cite to is from 2002. In 2005, the U.S. Supreme Court banned the death penalty for defendants who were under 18 at the time they committed murder. Roper v. Simmons, 543 U.S. 551 (2005). I believe Roper was cited in the Graham opinions.

[Troy]

The older I get the more I respect Thomas' stick-in-the-mud conservativism.

The Constitution should mean what it says, not what we wish it to say.

Granted, we lack the political maturity to effectively amend it anymore. Idiocracy FTL.

[Ugh]

Re Civil Commitment: Abstract of Law Review Article on that RE Substance Abuse:

In its 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court radically changed the face of civil commitment. In finding the Kansas Sexually Violent Predators Act constitutional, the Court liberalized the first constitutional requirement for involuntary commitment from "mental illness" to a much broader "mental abnormality" standard, without correspondingly restricting the second requirement of dangerousness. The decision essentially authorizes states to civilly commit a broad range of individuals without sufficient due process protections. This Comment explores the possibilities for expansion of civil commitment in the wake of Hendricks. It argues that the holding was unjustifiably broad, focusing in particular on the potential danger facing substance abusers. In conclusion, it offers several suggestions for mitigating the potential misuse of this dangerous precedent.

[Jesurgislac]

Pub Editor: The Amnesty Int'l document you cite to is from 2002. In 2005, the U.S. Supreme Court banned the death penalty for defendants who were under 18 at the time they committed murder.

Thanks for the correction. I apologize for missing this news in 2005. *makes tea in British and belated celebration*

[Phil]

Troy, that's fine, but all the Constitution says on the matter is that cruel and unusual punishments are disallowed. Somebody has to interpret what "cruel and unusual" means, and I don't believe that doing so requires an amendment. "Cruel and unusual" has no more inherent, obvious meaning than "excessive bails" or "due process." Heck, we can't even always agree on what "no law" means!

[Doctor Science]

Troy:

The Constitution should mean what it says, not what we wish it to say.

I've been wondering recently how this kind of originalism squares -- or doesn't -- with the common law tradition of precedent. IANAL and many of those here are, so correct me, please: isn't one of the features of common law supposed to be that it evolves and that it relies on judges (aka "activist judges") for interpretation and extension? Whereas civil law, which the US supposedly does *not* follow, relies on the letter of legislation and other documents, such as written constitutions?

[Ugh]

It would also be nice to stop hyperventilating (I'm not aiming this at anyone here) and just admit that SCOTUS decisions are the way we amend the Constitution. I mean, since 1791 there have been 16 (or 17, depending on whose counting) amendments, two of which essentially cancel each other out, and three of which come out of the Civil War.

That leaves 11–12 amendments to a short document over 200 years, or one ~every 18 years, and none of any consequence since 1971, almost 40 years ago.

So we’ve got SCOTUS rulings, which at least seem to be more reversible than amendments to the constitution.

[jrudkis]

D) Comstock is a case where the facts are about sexual predators. But the reasoning of the RULING is not.

E) The ruling in Comstock says that the power to effectively *and retroactively* extend someone's sentence indefinitely after the original sentence that the jury and judge imposed is finished, is part of the necessary and proper power of Congress in maintaining a penal system. This is not limited to sexual predator crimes, and is not a step the government should be allowed to take.

Initially this seemed just wrong, penalizing people beyond their sentence. But after reading the opinion, it seems that what they are doing is simply civil committment of the dangerously mentally ill, which can be done in the absense of any underlying crime. Additionally, civil committment at the federal level for people with dangerous mental illness is longstanding, and has been previously ruled upon.

What seems to be egregious about the law is lowering the standard of mental disability for civil committment.

[Sebastian]

"I've been wondering recently how this kind of originalism squares -- or doesn't -- with the common law tradition of precedent. IANAL and many of those here are, so correct me, please: isn't one of the features of common law supposed to be that it evolves and that it relies on judges (aka "activist judges") for interpretation and extension?"

The common law tradition of precedent was about finding natural law or using old precedent to new facts NOT relying on activist judges to substitute their own opinions. Nearly all modern liberal jurisprudence rejects overt natural law concepts.

And relying on common law understanding of precedent doesn't get you Roper or Graham, as both are in direct contradiction with previously existing, 100% on point, Supreme Court decisions.

"Somebody has to interpret what "cruel and unusual" means, and I don't believe that doing so requires an amendment."

It could be the legislature. The Supreme Court doesn't apparently doesn't have any trouble being super-deferential to the legislature on "necessary and proper" or "public use".

"It would also be nice to stop hyperventilating (I'm not aiming this at anyone here) and just admit that SCOTUS decisions are the way we amend the Constitution. I mean, since 1791 there have been 16 (or 17, depending on whose counting) amendments, two of which essentially cancel each other out, and three of which come out of the Civil War."

Why would we do that? Would you formally give the Supreme Court the right to amend the Constitution? I think you can imagine some problems with that straight up. So why would you do so informally?

"That leaves 11–12 amendments to a short document over 200 years, or one ~every 18 years, and none of any consequence since 1971, almost 40 years ago."

Which, not coincidentally is about 15-20 years after the Supreme Court started making lots of changes on its own, and smack dab in the middle of one of the more activist Courts in history. So maybe that is a chicken-egg issue. There haven't been any recent amendments, because the Supreme Court is amending on its own.

[Sebastian]

But after reading the opinion, it seems that what they are doing is simply civil committment of the dangerously mentally ill, which can be done in the absense of any underlying crime. Additionally, civil committment at the federal level for people with dangerous mental illness is longstanding, and has been previously ruled upon.

What seems to be egregious about the law is lowering the standard of mental disability for civil committment.

The last sentence is the answer. Civil commitment is about imminent danger to self or others. This is about speculative some-time-perhaps-far-in-the-future danger. Really, I think a big part of this is that we want to punish sexual predators more now than we did when some of them were sentenced. (Which is appropriate if you ask me.) But the problem is that you can't retroactively punish someone more. But instead of accepting that, we are creating a whole new legal loophole to retroactively increase the punishment. And that retroactive legal loophole seems VERY abusable.

[jrudkis]

But instead of accepting that, we are creating a whole new legal loophole to retroactively increase the punishment. And that retroactive legal loophole seems VERY abusable.

But then the relevant question should be whether the lower standard meets constitutional due process, not whether the subject matter meets "necessary and proper."

It seems to be a bad law, but that is not the same as unconstitutional.

[Sebastian]

"It seems to be a bad law, but that is not the same as unconstitutional."

I would say that there is a much better case for it to be unconstitutional than there is for Constitutionally forbidding punishment of 17 year olds with life without the possibility of parole. It acts much as a bill of attainder and operates as an ex post facto punishment, both explicitly banned by the Constitution. It also acts as a punishment without jury trial.

[jrudkis]

I agree, but those arguments were not made (presumably because state laws have already been upheld that are substantially similar).

I think life without possibility of parole is generally bad too (since there is little incentive for good behavior), so as bad laws go, that is a good one to get rid of.

Besides, being a teenager is a mental illness. Most of us recover from it in time.

[Sebastian]

"I agree, but those arguments were not made (presumably because state laws have already been upheld that are substantially similar)."

Perhaps, but it isn't as if precedent is all that important to this Court, as we can see from Roper and Graham.

"I think life without possibility of parole is generally bad too (since there is little incentive for good behavior), so as bad laws go, that is a good one to get rid of."

Call your legislator. Or get a Constitutional amendment. But don't have the Court create their own personal idea of what counts, and don't have them continually refer to an evolving moral consensus in the US which doesn't exist. There is no such moral consensus in the US. Claiming that there is, is a lie.

[Phil]

It could be the legislature. The Supreme Court doesn't apparently doesn't have any trouble being super-deferential to the legislature on "necessary and proper" or "public use".

Well, isn't that essentially what Roberts's concurrence said, that he agrees with the majority finding re: Graham's particular sentence on the grounds of proportionality, but not on a bright-line rule that life-without-parole for minor offenders is per se unconstitutional? I can pretty much buy that, although, since I'm NOT a lawyer, could the Court have ruled in such a way as to grant relief to Graham without finding a solid rule?

There is no such moral consensus in the US. Claiming that there is, is a lie.

Like I said, I found the reasoning outlined in the syllabus pretty convincing: That a minority of states have such sentences for minors; and that even in the states that do have them available, they're rarely given. That seems like a consensus to me.

[Sebastian]

"That a minority of states have such sentences for minors; and that even in the states that do have them available, they're rarely given."

According to the Appendix attached to the decision, only 6 don't have LWP for juvenile criminals and an additional 7 have it only for homicide. That means 44 have it, and 37 have it for non-homicide crimes. And rarely given does not argue that there has been a change against wanting to have it available, it argues at least as much that the states are using it judiciously--which is to say appropriately.

So I repeat, there is no such moral consensus in the US.

[Jesurgislac]

Sebastian: Call your legislator. Or get a Constitutional amendment. But don't have the Court create their own personal idea of what counts

Why not? Granted I think 9 judges appointed for life is a crappy way of making changes - you would obviously be far better off if, rather than being stuck with a Constitution over two centuries old, you had some more recent human rights document to refer to and a legislative body that actually functioned to make changes with reference to human rights and equality for all. But the US is a crappy kind of country in that respect, and all you have is the Supreme Court. Why is it that conservatives want so very much to ensure that ordinary people in the US have no means of establishing their human rights?

Well, I suppose the answer is that that's what conservatives do - oppose human rights for ordinary people, by any means they can. In the US, they win.

and don't have them continually refer to an evolving moral consensus in the US which doesn't exist.

Of course it does, Sebastian. That is: yes, societies have a moral consensus, and yes, it evolves.

[CharlesWT]

"And rarely given does not argue that there has been a change against wanting to have it available, it argues at least as much that the states are using it judiciously--which is to say appropriately. "

I wonder how often the threat of using it is used to gain guilty pleas for lessor sentences.

[Sebastian]

"and don't have them continually refer to an evolving moral consensus in the US which doesn't exist."

"Of course it does, Sebastian. That is: yes, societies have a moral consensus, and yes, it evolves."

You are misunderstanding my statement. I'm not saying that the US doesn't have a moral consensus. I'm not saying that it doesn't evolve. I'm saying that that actual moral consensus in the US is not recognizable in the decision that the Supreme Court actually made. There is nothing even close to a moral consensus that certain heinous 16 or 17 year old murderers can't get the death penalty (contra Roper) or that other heinous acts of 16 or 17 year olds can't get LWP (contra Graham). In fact, if their is a moral consensus on the issue of Roper at all, it is precisely the opposite of what the Supreme Court claimed.

And this isn't one of those cases where differing minds can just agree to disagree. Saying that there is a moral consensus in the US on those issues in the direction that the Supreme Court claimed is flat out lying.

Claiming that there ought to be such a consensus against those is a matter where right minded people might disagree. Claiming that there IS such a consensus is lying.

[Jesurgislac]

Sebastian: I'm saying that that actual moral consensus in the US is not recognizable in the decision that the Supreme Court actually made.

Is it becoming more acceptable in the US to give life without parole sentences to people who committed crimes when they were children?

Or less acceptable?

If you polled the population of the US 25 years ago and asked "Is it acceptable to you that someone who, at the age of 17, committed a heinous crime, ought to be imprisoned for life without the hope of parole?" do you think you would get more people saying "no, it's not acceptable" in 1985 than you would in 2010?

Your argument is that the US's evolving moral consensus is against the decision that young offenders deserve to be given more of a chance.

So you should be able to show evidence that in 1985, the moral consensus of the US was more solidly in favor of being more lenient to young offenders - that the general feeling then was that life without parole for someone who'd committed a crime at the age of 17 was wrong. Which has now changed, and the moral consensus now is that life without parole for child offenders is perfectly okay.

Can you do that? Never mind what you personally think. What literature reviews, what judicial decisions, what changes in legislation, can you show to prove your thesis that the moral consensus in the US is evolving in the opposite direction from the Supreme Court decision?

[Sebastian]

First of all consensus definitely implies majority, and a large majority at that.

There is no such consensus.

As for the direction of the consensus, the death penalty in all of the forms polled has remained almost completely non-changing about 30 years. And in the 16 years between Roper and the case it directly overruled, 3 states had added juvenile death penalties.

In the last 20 years, at least four states have added LWP as possible juvenile sentences for certain crimes, and none have removed it, leaving 37 states (out of fifty) with it for non-homicide crimes. And of the large US states, only Texas doesn't have LWP for juveniles for at least some crimes. (I know, who would have guessed that Texas would be the only large state that was so progressive? Of course the fact that they had the death penalty for juveniles muddies the water a bit).

And of course, you have neatly reversed the burden of proof for changing the Constitution. But whatever, the actual evidence doesn't help you even then. At very very best, you could legitimately argue that there have been small changes in the moral consensus--though frankly I think you would have trouble showing which direction there had been change, if at all. But nothing on the revolutionary-now-we-must-effectively-amend-the-Constitution-to-remove-it-from-further-public-debate level.

The Court claimed a wholesale and dramatic change.

The Justices who signed on to the opinion either lied, engaged in massive self-deception, or are so out of touch with the general US population that they act in that cartoon kind of way: "How could he have won? I don't know ANYONE who voted for him?"

[Jesurgislac]

As for the direction of the consensus, the death penalty in all of the forms polled has remained almost completely non-changing about 30 years.

I wasn't asking you about the death penalty, Sebastian. I'm happy to note that although I missed the news five years ago, the US is no longer numbered among the states that kill children.

I was asking you about the consensus on whether it's right to lock a teenager up for life without parole, and I picked "1985" just because 25 years is roughly a generation - I'm happy for you to cite the work you've done to establish what the consensus is evolving towards by citing document reviews, polls, etc, from 1980 versus 2010, if you prefer.

If you can't cite evidence, then you are acting in that classic cartoon way "IT STANDS TO REASON" or "EVERYONE KNOWS" when you don't actually know - it just fits your prejudices.

[Brett Bellmore]

"Equally obviously: though the judicial process on rape is a travesty, the vast majority of rapists being acquitted,"

Really, Jes... Is your thesis here that women never lie, or that they simply ought to be entitled to lock up any man they dislike as a matter of principle?

The reason men accused of rape tend to be acquitted, is that a key element of the crime is that the sex have been unwilling, and we try not to throw people in jail purely on somebody else's uncorroborated word. So, if the two people present at the time disagree about whether it was willing, and there's no other evidence to resolve the matter, the guy goes free.

Since the alternative to this rule is to simply permit women to jail any man they decide after the fact that they dislike, don't expect my half of the human race to agree to changing it anytime soon.

On the larger matter, agreed, the Court is gradually dropping the pretense that it's implementing changes in public opinion. Or even implementing the Constitution...

[Jesurgislac]

Is your thesis here that women never lie

My thesis is that rape is no more likely to be falsely reported than any other crime. That is, my thesis is that women are no more likely to lie than men.

According to a recent study by the American Prosecutors Research Institute, false rape allegations account for two to eight percent of all reported rapes. This low figure may shock many readers who have heard claims that over 40 percent of rape reports are false. In the past, errors in police coding procedures have often been a reason for high claims of false reports; many reports categorized as “false” actually should be recorded as “unsubstantiated” (which means that there is insufficient evidence to move forward with the case) or “baseless” (indicating that the claim is considered truthful, but the incident doesn’t meet specific elements of the crime). Some reasons for incorrectly categorizing reports include pressure on police officers to close out cases and make their departments appear successful, difficulties with agencies not tracking and differentiating between “false” and “baseless” reports, and a lack of supervision within and across law enforcement agencies regarding careful training and implementation of accurate coding procedures. cite

The reason men accused of rape tend to be acquitted, is

that the man's unsupported word, against all other evidence, that the woman he assaulted consented, is allowed to override any other proof. The woman's past sexual history is often allowed to be "evidence": whether or not she was drunk or on drugs is often allowed to be "evidence", and it used to be the law that if she was married to the rapist he was legally allowed to assault her: it is certainly customary with the force of law that married or not, a woman who has consented to a sexual relationship with a man will find she cannot bring a charge of sexual assault against him, no matter what medical evidence demonstrates that she did not consent.

Returning to the original topic, the facts show that while most men do not commit rape, men who do commit rape, will often do so repeatedly. See Repeat Rape and Multiple Offending Among Undetected Rapists. There's also a guide here which deals primarily with the problem of rapists on college campuses.

One barrier to treating this as a sexual pathology which needs treatment is the normalisation of rape culture - Brett ably demonstrates one small aspect of it, the presumption that if women's testimony about rape is respected, then women will use that to punish men they "dislike".

jrudkis: Initially this seemed just wrong, penalizing people beyond their sentence. But after reading the opinion, it seems that what they are doing is simply civil committment of the dangerously mentally ill, which can be done in the absense of any underlying crime. Additionally, civil committment at the federal level for people with dangerous mental illness is longstanding, and has been previously ruled upon.

I hope you're right, but I think that there ought to be a better means of treating the mentally ill than a jail sentence...

[Hartmut]

Given that there is a clear tendency in popular opinion towards harder punishment/LWP for crimes involving sex (esp. against minors) in Germany too, I am very much inclined to assume the same to be true in the US. In the same context capital punishment has gained in popularity (while the generic question about CP to my knowledge is still answered in the negative here, people are far more likely to answer yes if the question is connected with cases of severe sexual abuse of children).
I think this shift in popular opinion has something to do with greater awareness of the topic caused by increased and more sensational media reports.

[Hartmut]

I might add the the German Supreme Court had to weigh in on the topic of keeping-behind-bars-beyond-sentence (Sicherungsverwahrung) recently. The case is in appeal at the European Human Rights Court.
Abuse is (yet) kept low due to very strict regulations.

[wonkie]

Seems to me that the amendment process is there in case the SCOTUS is unable to interpete the COnstitution in a way that suits the citizens, either because the language just can't be stretched to allow it or because the change required is really , really big. When the political/social climate makes such a big change that an amendment is needed, then a big push can be made to amend it via political action.

On a day to day basis Supreme Court keeps the other branches from straying too far from current and historical cultural values. Kind of like a drift anchor. They aren't there to drag us back to the values of the sixteenth century. They are there to keep the legislature and executive branch from going on a tear about something due to the passions of the moment.

Every Justice on every Supreme Court has interpeted the COnstutuion. That's what they are there for. The idea that connservatives are trying to adhere to original meaning is naive at best and deceptive at worst. Conservatives just want to interpete so as to suit their prediclictions like everyone else.

So it is iteresting to see what kind of country conservtive Justices would like us to be as contrasted to what liberal or moderate Justices want.

RE: rape convictions. I know very little about this. Jes says that a convictoin cannot be made just on the woman's say so. ARe there any crimes where someone can be convicted just because someone else says so? I think it is normal to require evidence other than someone's word.

I also don't believe that adult women "cry rape" often but children make false claims of sex and physical abuse all the time. A nearby urban school district did a study of accusations made by students against staffmembers and found that the majority were deliberate fabrications. IN fact it turned out that adult staff members were more likely to be abused by a false accusation than a student was to be the target of actual abuse. NOt surprisingly most of the false accusations were made by sixth graders. (the real abuse was more of a high school phenomenon).

[Sebastian]

"On a day to day basis Supreme Court keeps the other branches from straying too far from current and historical cultural values. Kind of like a drift anchor. They aren't there to drag us back to the values of the sixteenth century. They are there to keep the legislature and executive branch from going on a tear about something due to the passions of the moment."

And they aren't there to assert consensus when there isn't one. Do YOU think there is a nationwide moral consensus that the death penalty is wrong for some 16-17 year old murderers (Roper) or that that LWP should be completely unavailable (Graham)?

I'm pretty sure that it will be difficult to find any commentors here who really believe that. (And that probably includes even Jesurgislac who keeps dodging the question and ignoring the evidence I've already provided).

Yet the Court claims that.

So even if your formulation of what the Court is supposed to do is correct, the Court went well beyond "keeps the other branches from straying too far from current and historical cultural values".

Right?

[Julian]

http://news.suite101.com/article.cfm/supreme-court-rejects-juvenile-life-sentence-in-non-homicide-case-a238409

"Under the Supreme Court's ruling, Florida's industrial prison complex system must release 77 people who committed non-homicide crimes as juveniles and were sentenced to life in prison without a possibility of parole. Seventy-seven people means that Florida has more than half of the 129 such cases among the 50 states."

What metric do we use to determine a national consensus on LWOP for nonhomicide juvenile offenders? I don't know what the distribution of the remaining 52 cases is, but should the laws on the books be the sole yardstick?

[tfbush]

I think that you are misreading the Comstock decision. The issue in that case was about the scope of federal powers, not the rights of the individual. The Court expressly avoided the question whether the continued confinement of a sex offender past the completion of his sentence violates his due process rights. It only considered whether the power to do so is limited to the states. If you believe that this continued confinement does violate due process rights, then presumably you would object to it regardless of which level of government is acting. You would not be arguing for a narrower scope of federal powers.

[Jesurgislac]

wonkie: Jes says that a convictoin cannot be made just on the woman's say so.

Well, you don't have to believe me. You can check whatever resources are available via your local rape crisis helpline.

According to RAINN, about 60% of sexual assaults are never reported to the police. About half of the rapes that are reported to the police lead to an arrest: about 4/5th of those arrested will be prosecuted, and less than 2/3rd of those prosecuted will be convicted, and of those who are convicted of a felony, just over 2/3rds will spend time in jail. RAINN points out that means that even if a rapist commits a sexual assault that is reported to the police, he still only runs a 1 in 8 chance of spending time in jail. Those are good odds, if you're a rapist.

Sebastian: And that probably includes even Jesurgislac who keeps dodging the question and ignoring the evidence I've already provided

Huh? Sebastian, you initially cited no evidence that you thought the public consensus in the US was evolving towards harsher punishments for crimes committed while under 18. I pointed this out, and you then came up with the factor that "In the last 20 years, at least four states have added LWP as possible juvenile sentences for certain crimes, and none have removed it, leaving 37 states (out of fifty) with it for non-homicide crimes." Now to complete that evidence train, you need to show that the four states which added LWP did so as a measure of added harshness - and not because (for example) they had decided to substitute LWP for the death penalty.

I'm not ignoring you. I just didn't realize I needed to walk you through the baby steps of presenting an evidence chain. I note that you have not yet provided the kind of detailed information that would show that the grassroots consensus is in favor of treating children who commit crimes more harshly in 2010 than they were in 1985 - but I don't expect you to be able to dig that up in an hour or so.

Or ever, frankly, but if you can, I'll certainly pay attention: it's a topic worthy of a front page post, I think, since you might also want to consider whether the US's legalization of kidnapping, torture and indefinite extrajudicial imprisonment, for people accused of terrorism, includimng children, has affected public consensus positively towards the idea that American criminals deserve to be treated more harshly, too. If so, you might want to consider if in your view Supreme Court justices should slavishly cater to the bloodthirsty whims of the American people, or if they should act as a moral balance, opposing "cruel and unusual punishments" even when what the public say they want is cruel and unusual punishments.

[Jesurgislac]

Incidentally, I don't actually think that what state legislatures do is any evidence of a public consensus. The US media frenzy against politicians who appear "soft on crime" suggests that when considering the merits of legislation on the basis of its effect on your career, a politician does well if they vote in favor of harsher punishments, less well if their opponent in current or future race can get to point to a vote and declare that THAT so-and-so wanted (name specifically awful recividist) to walk free.

Of course the end result of this kind of ramping up and up is that eventually, someone will propose legislation making it illegal to be alive in the US, Fox News will turn to in a publicity frenzy that points out how many heinous crimes per year are committed by living people, a few liberals will weakly point out that lots of living people don't commit crimes, but within a year, everyone in the US will either be dead, a zombie, or a corporation. Differences between the two last categories are left as an exercise for the reader.

[Sebastian]

"Well, you don't have to believe me. You can check whatever resources are available via your local rape crisis helpline."

Or you could check the law, which says that you absolutely can convict solely on the woman's say so. I just served on a rape case. The prosecutor repeatedly reminded us that we were allowed to convict solely on testimony from the victim. Fortunately we didn't have to, there was also DNA evidence. I mean obviously you have to believe her, but the idea that a conviction legally (or in fact) requires more than believable testimony is incorrect.

"I'm not ignoring you. I just didn't realize I needed to walk you through the baby steps of presenting an evidence chain."

Nice, you're not only ignoring it, you're also being an ass.

First, my claim was that there isn't a consensus of the type claimed by Supreme Court. They weren't claiming that it WAS evolving. They claimed that it HAD evolved. If there were an actual consensus, it would be pretty obvious.

Second, I don't have to prove any particular intention of the 37 states that have LWP for non-homicide and the 44 that have it for homicide (I'm anticipating the next Kennedy lie). Even if they did it just to replace the death penalty (which Kennedy pretended has *note the present tense* an already existing consensus against) they still appear to believe that it is an appropriate punishment to have available. If 37 states believe it is an appropriate punishment, that is pretty darn strong evidence that there is NOT an actual existing, nor right-on-the-edge-of-existing moral consensus in the US for the proposition that LWP should not exist for minors.

The idea that I have the burden to research much more deeply than that is just silly.

If it were ACTUALLY true that there was a consensus, it would be obvious, and there would be evidence for that proposition all over the place. If it were even really true that the consensus was clearly moving in that direction, there would be evidence all over the place.

I'm not making a claim about the direction the consensus is evolving. I don't know. If it is really evolving at all (which I doubt) it is evolving VERY slowly and we can't be sure in which direction.

The claim that it is obviously moving, and obviously moving against LWP, is the lie.

And that just isn't good enough to support a radical break with past case law.

[Sebastian]

"Incidentally, I don't actually think that what state legislatures do is any evidence of a public consensus. "

Yes, I'm shocked. Especially now that we know that if it were evidence it would cut really hard against your argument.

Remember, the argument is that Kennedy claims there IS a public consensus.

Why is it so darn hard to find evidence FOR that proposition? Why is this radically new public consensus so darn ephemeral? You'd think that an actual public consensus, or actual evolution of a public consensus would be really obvious.

[Julian]

Sebastian, can you please respond to my 11:22 a.m. comment?

That statistic indicates that, for minors who commit nonhomicide offenses, the bulk (77/129 in the U.S.) of LWOP sentences are in Florida. I don't know what the distribution of the rest are, and I have not been able to find it on google.

Does this go some way towards demonstrating that such sentencing is rare outside of Florida? And ergo that a consensus is emerging against its application?

[Julian]

Sorry, "bulk of LWOP sentences" meant for minors who committed nonhomicide offenses.

[Sebastian]

I'm out the door for 4 hours, but why would that be an indication that there was a consensus against using it? Why couldn't that just be that other states are using it more judiciously? (Which you would think would be appropriate). I don't think anyone is arguing that LWP for a 17 year old ought to be routine, right?

So the Court is really placing us in a bind if we want to keep it. That we should either use it routinely, and thus risk overpunishing, or use it judiciously, and then lose the option. Why should that outcome be judicially mandated?

[Jesurgislac]

Sebastian: First, my claim was that there isn't a consensus of the type claimed by Supreme Court. They weren't claiming that it WAS evolving. They claimed that it HAD evolved. If there were an actual consensus, it would be pretty obvious.

So if your contention is the whole thing is a complete muddle and thete's absolutely no consensus in the US about how the law should deal with juvenile offenders, why do you feel the Supreme Court shouldn't take the moral high ground? Or is the problem that the Supreme Court is looking at the international consensus in countries not hidebound by 18th-century ideas?

Or you could check the law, which says that you absolutely can convict solely on the woman's say so.

Or you can talk to your local rape crisis center, who are likely to have much more realistic and extensive information on is required to get a rapist convicted in court, than a recent jury member in one case... or a lawyer whose speciality does not include either prosecuting accused rapists or defending them.

[Julian]

Sebastian, you say that 52 cases of LWOP sentencing for juvenile nonhomicide offenders in 49 states isn't consensus against such sentencing, it's the courts being judicious. I'm sure the Florida courts thought they were being judicious in each of the 77 LWOP sentences they applied. Every other state seems to think LWOP is only applicable very, very rarely. If the distribution of LWOP sentences for juvenile nonhomicide offenders is clumped in a couple of states (I wish I had the stat on this, does anyone know?) it would be fair to say that the vast majority of states are opposed to applying it. Right? The numbers matter here.

Right now my impression is that you think the remaining 52 LWOP cases are divided pretty evenly among the 49 nonFlorida states, which (in your eyes) means not that they oppose such sentencing, but that they are strongly for very rarely doing it. Is that right?

[Mike Schilling]

That is,

People who represent a danger to others can be kept out of circulation. There are procedures for them to appeal and be released should their condition improve.

Minors can not be declared a danger to others who will never become anything else, and imprisoned for life based purely on that speculation. (As well, of course, on the desire of legislators, prosecutors, and judges to appear tough on crime.)

Sounds OK to me.

[Brett Bellmore]

"that the man's unsupported word, against all other evidence, that the woman he assaulted consented, is allowed to override any other proof. "

And here we have on display the essential extremism of 'feminist' thought on rape: That the presumption of innocence should be replaced with a presumption of guilt.

Jes, if you have two people who claim different things about an event, an no independent evidence to prove which of them is right, you don't know that the woman is telling the truth. That's the problem with your position, that's the problem with "studies" which assume that all "unsubstantiated" accusations are honest.

You've got a problem with the presumption of innocence: Women don't automatically prevail against men under it.

[Jesurgislac]

And here we have on display the essential extremism of 'feminist' thought on rape: That the presumption of innocence should be replaced with a presumption of guilt.

I forget how many times I've had to explain this to guys who get all huffy about it:

In a court of law, a man who has been accused of rape or any other crime is entitled to be presumed innocent until proven guilty - which often seems to be interpreted by courts and media as a woman consented unless she can prove otherwise.

but, just because a man has been legally acquitted and won't have to do jailtime, doesn't mean he didn't commit rape. It just means he'll suffer no legal penalty. The vast majority of rapists never do.

Jes, if you have two people who claim different things about an event, an no independent evidence to prove which of them is right, you don't know that the woman is telling the truth.

If Fred tells me that you wanted to be punched in the face, and you tell me you didn't aak to be punched the face, Fred just did it against your will, and I have no independent evidence to know whether you or Fred is telling the truth, should I conclude that I have no idea if you wanted to be punched in the face because no one but you and Fred were present when fist connected with face?

What if you tell the police and the police - after grilling you for two days about whether or not you enjoyed being punched in the face - decide there is enough evidence that you didn't actually want to be punched to press charges against Fred?

What if Fred, after all that, is acquitted because he sticks to his story that you asked for it, and the jury conclude that with just your word against Fred's, how do they know what went down?

Does that mean that neither you nor anyone else ought ever to refer to that time when Fred assaulted you - since the jury concluded that Fred could be telling the truth, you would therefore dismiss your own memory of actually getting punched?

Most rapists are acquitted. That means they never suffer any legal penalty, and when they rape someone again, the jury won't be allowed to know about the previous rapes they were acquitted of. This is extremely beneficial to rapists, but there seems no reason why the fact they got away with committing rape shouldn't be publicly discussed - the rapist's victim does not disappear, just because the man who assaulted her was found "Not Guilty" in a court of law.

[Sebastian]

"So if your contention is the whole thing is a complete muddle and thete's absolutely no consensus in the US about how the law should deal with juvenile offenders, why do you feel the Supreme Court shouldn't take the moral high ground? "

First of all, which side is the moral high ground? The whole problem is that there isn't a consensus.

Second, it isn't their job to take the moral high ground if there isn't a consensus. They ought to let the other political branches hash it out. And it definitely isn't their job to change the operating procedure given a lack of consensus.

Third, it isn't their job to try to justify their meddling with a lie about whether or not a consensus exists.

[Sebastian]

Julian, first of all I don't think that the legislative acts are the best evidence of a consensus one way or another. I'm not like Jes, saying that they are NO evidence. I'm just saying they are somewhat indirect if you want to get a hold of some moral consensus.

But so far as it goes, MY personal read on the situation would be something like this:

People in the US are VERY reluctant to impose LWOP on a 17 or 18 year old. They want to see evidence that the juvenile has committed very bad crimes and done so repeatedly. Fortunately for us, there aren't a super large number of such juveniles. Florida is likely going beyond that and overimposing LWOP on cases that the rest of the country would find inappropriate. That doesn't mean that LWOP in general is considered totally beyond the pale (the Supreme Court position), but rather that Florida is not being as judicious as the rest of the country would. (Unless Florida has some sort of youth crime wave that isn't typical. I don't know if the Cuban refugee populations are much more violent, or if there is a concentration of violent drug gangs or something that explains it. I tend to doubt it, but there is always that possibility.) If Florida is over-using LWOP, that doesn't mean that there is a general consensus against LWOP. It means merely that Florida isn't being judicious enough in employing it.

Consensus is a strong word. Finding evidence of a consensus usually isn't super-hard, because consensus beliefs are by definition held by a vast majority of the population. The fact that we have to look so hard to find any evidence whatsoever of this Supreme Court-alleged consensus, tends to prove that it definitely isn't a consensus.

At this point you're having to project 3rd-hand guesses into legislative intents and criminal procedure practices to even find slight hints of this alleged consensus. That is pretty weak. If that is REALLY the level of shifting consensus that it takes to move the cruel and unusual clause, then we should be ok with torture, because I can easily find evidence that there has been a trend in the direction of being much more permissive about torture. (It is EXTREMELY well documented right here on this blog).

Of course that isn't REALLY the level of evidence necessary. The Supreme Court is lying about that.

[Jesurgislac]

Sebastian: First of all, which side is the moral high ground?

The side against locking a 16 or 17 year old up for life without parole.

Life without parole is a sentence that ought to be imposed only when someone is clearly going to be a permanent danger to society. It is the moral alternative to the death penalty, where there's a case to be made that the person convicted will go on and on committing heinous crimes against other people unless they're stopped.

No teenager ought to be subject to the death penalty for crimes committed when a child. Therefore, no teenager ought to be subject to life without parole for crimes committed when a child.

That's the moral high ground. It doesn't require a mass polling to know it.

Second, it isn't their job to take the moral high ground if there isn't a consensus.

Well, that's a very civil law view of judges. It's not what judges are supposed to do in a common law judiciary. But then, so many conservatives would evidently prefer a civil law country to a common law country - at least where the judges keep taking the moral high ground rather than doing what the right-wingers tell them they should.

Third, it isn't their job to try to justify their meddling with a lie about whether or not a consensus exists.

As you acknowledge yourself in your comment to Julian, even by your own evidencial standards there is a consensus that LWP isn't something that teenagers ought to be subject to - because the vast majority of court decisions are not subjecting them to it.

[Brett Bellmore]

Jes, the consensus isn't that this is something "teenagers" ought not be subject to. It's that this is something the vast majority of teenagers, not having committed multiple crimes of a particularly outrageous nature, shouldn't be subject to.

It's rare because the conduct that causes you to get this sort of sentence is rare. The vast majority of adults don't get life without parole, either. Does that mean there's a societal consensus against LWP for adults? No.

The "cruel and unusual" clause wasn't about barring harsh penalties called for by the law. It was about forbidding judges from getting inventive, and sentencing a convict to some particularly horrific, novel form of torture. Which judges had been known to do, from time to time. But the judiciary really dislikes noticing when a constitutional prohibition is aimed at THEM.

[jesurgislac]

It's that this is something the vast majority of teenagers, not having committed multiple crimes of a particularly outrageous nature, shouldn't be subject to.

Sebastian wasn't able to provide much proof of consensus, you've provided none at all, just your own "It Stands to Reason" judgement...

As for a global consensus that the right thing to do with children is not to lock them up for life for crimes committed before their 18th birthday:

According to Amnesty International and Human Rights Watch, there are now about a dozen people outside the United States and Somalia who were sentenced to permanent imprisonment as children: South Africa has four, Tanzania has one, and Israel has seven. In contrast, the United States has 2,270 children serving such a sentence, including 227 in California. cite

Conservatives certainly like to campaign on the bodies and lives of others. Apparently, yes, locking up children for life without parole has become something the US does, just as until recently, the US killed children as a conservative selling point for "tough on crime".

To present this as some kind of national consensus, that Americans have just all agreed to be more brutal and vicious to children than other nations, and it's the job of Supreme Court Justices to follow popular opinion, is ... well, conservative, I suppose. (Hello, William Scott: Sebastian says you were right, all those years ago, to follow popular opinion and not try to set a moral standard.)

[Sebastian]

"As you acknowledge yourself in your comment to Julian, even by your own evidencial standards there is a consensus that LWP isn't something that teenagers ought to be subject to - because the vast majority of court decisions are not subjecting them to it."

That doesn't even make sense as an argument. Of course a vast majority of teenagers are not subject to it. A vast majority of teenagers aren't doing things that should subject them to that serious of a punishment. It would be like arguing that a vast majority of people don't get chemotherapy THEREFORE chemotherapy must never be appropriate.

And your explicit assumption that you have the moral high ground is typical, but so far as I can tell not generally accepted in the US on this subject.

So far you, and the Supreme Court, have asserted the existence of a moral consensus in the US for which there seems very little to no evidence. You might just be ignorant on the subject of the US in this area. They are lying.

[Sebastian]

Also you keep insisting that I haven't shown a consensus FOR life without parole. Nothing in this discussion requires that. My logic only requires that there not be a US moral consensus against it.

The Supreme Court made a radical break with previous precedent (which BTW is not how common law is supposed to work, so your civil/common law distinction doesn't help you). They justified that change by appealing to an allegedly changed moral consensus in the US.

Evidence for that alleged moral consensus is sorely lacking.

[Jesurgislac]

Sebastian: That doesn't even make sense as an argument. Of course a vast majority of teenagers are not subject to it. A vast majority of teenagers aren't doing things that should subject them to that serious of a punishment.

One of the teenagers whose case I found when I was googling on this issue, was a girl who, at 16 after having been a prostitute from the age of 13, killed her pimp, who had been grooming her since she was 11. I'm sure you're aware of this case: Sara Kruzan.

Sara Kruzan was a sexually abused child who killed the man who was primarily responsible for abusing her. The vast majority of girls who are sexually abused in childhood do not murder their abusers. This one did, and apparently - if you were aware of this case which I suspect you probably were - that merits her being locked up for life without parole. That's unlikely to protect her from further sexual abuse, but it will certainly protect the men who rape her in future from being murdered by her.

So yeah, I think I do have the moral high ground. The idea that it's appropriate to respond to an abused and damaged child by locking them up for the rest of their lives in jail, is profoundly immoral.

So far you, and the Supreme Court, have asserted the existence of a moral consensus in the US for which there seems very little to no evidence.

Fine: there is an immoral consensus in the US that damaged children ought to be subject to lifelong abuse in prison.

As plainly, there is a moral consensus internationally that it's profoundly wrong to treat children in this way.

Your belief that the judges ought to follow popular opinion, insofar as they can discern it, rather than their own judgement, is absolutely against the role of the judge in a common law system - it's what judges fall to, as in Dred Scott case, rather than what they aspire to...

[Sebastian]

"Your belief that the judges ought to follow popular opinion, insofar as they can discern it, rather than their own judgement, is absolutely against the role of the judge in a common law system "

No, that isn't how the common law system is supposed to work. Even in the UK.

[Jesurgislac]

For an interesting discussion (on Balloon Juice) on how extremist right-wing views have become the public norm in the US despite massive grassroots dissent, see How does the right do it?

Sebastian, seriously, in the US judges may be supposed to consult popular opinion before they use their legal judgement - given you have a system where some judges are elected, I can see how that would arise - but no, it's no part of the common law tradition in the English common law system from which the US common law system was cloned.

[Brett Bellmore]

Jes, if they're the norm, they are, by definition, not extremist. The tendency to define the 'center' as wherever YOU are, and puzzle over how the majority of the population could be to one side, or the other, of that 'center', is something I call the 'Polemic' fallacy. You aren't, as it happens, the center of the universe.

[hairshirthedonist]

Spartans were the norm in Sparta, but still extremists.

[Jesurgislac]

Jes, if they're the norm, they are, by definition, not extremist.

Nazis were the norm in the Third Reich, but still extremists.

Hutu Power were the norm in Rwanda in 1994, but still extremists.

The Taliban are the norm in many parts of Afghanistan today, but still extremists.

American conservativism may own most of the media in the US today, and present their extremist beliefs as if they were the cultural norm, but they are still extremists.

[Brett Bellmore]

Yeah, right. So you think you ARE the center of the universe. Don't expect me to humor you.

[Sebastian]

Jesurgislac, I don't believe you know very much about how the common law system is supposed to work in the UK. It most certainly isn't about judge pretending to create new moral consensus. The common law has always been largely about applying OLD consensus to new situations. That is even more true in the UK than it was in the US.

By way of example, you might want to know that the death penalty was not abolished in the UK by judicial fiat, but by an act of the House of Commons.

[hairshirthedonist]

Personally, I like to think of myself as the middle of the universe. It sounds less self- er, centered. Sometimes, when I'm feeling crappy, I think of myself as the alimentary canal of the universe. I live in New Jersey, which is sometimes referred to as the armpit of the world (or of New York). I'm not sure how to square all of that, or square a circle, at least not with something more than a compass and straightedge. I'll humor myself, thanks.

Jes, can you move your elbow a little to the left? I think it's in my spleen.

Oooh, look, another radius!

(This might be a mildly amusing comment were it not for all the previous Thullen exposure. Oh, well...)

[Hartmut]

Nazis were the norm in the Third Reich, but still extremists.

I think the standard German was not much different in extremism before and after Hitler came to power (i.e. rather low). I think of them more like the satanist nuns in Pratchett/Gaiman's Good Omens. At worst pure punch-clok villains. But that was enough for the extremist leadership to commit all the crimes of nazism without real risk of getting overthrown by "the people". The average German 'nazi' could have done happily without WW2 (or at least the parts starting with the invasion of the SU) and even most antisemites would have been content with the Nuremberg laws.
It's an old cliche that Hitler would still be a national hero, if he had died in late 1938 (or one day after the French capitulation but that's less certain).
We should also not forget that the transformation of German society planned by the Nazis had not gone that far yet (compare e.g. Harris' Fatherland for what the result would have looked like).
One could say the same about the 'conservatives' in the US. The 'ideal' society of Norquist and co-ideologues would be hell on Earth for most outside the tiny elite. Not to speak of the Kristianists(TM) who literally want Hell on Earth (with themselves watching from the celestial stands) and in their most extremist fcations want to begin with murdering 90% of US population (and >>90% of the rest of the world*). As someone said or implied further up in the thread, the Kristian(TM) Taliban could easily be worse than the Muslim ones.
I digress.
Extremism can only be defined in comparision to a standard. But (at least in the US) there is no consent at all what this standard is. One could well reason that the US has two of them, each considered to be the center by a large part of the population (and with local supermajorities). The left one would be slightly to the right of the European on most (not all!) topics, the right one is far to the right (of Europe again) but at an angle. The US right is not simply in 'nazi' territory but a mixture of 'old' European conservatism (type late 19th/early 20th century) plus components that simply do not exist over here and are thus pretty uncomparable. In a thought experiment the US could be split into two parts** with each keeping one of the two standards without major change (in a monopolar distribution a split would lead to a major shift of the new centers from the old).

*compare that to the thoughts of some leading Bolsheviks (e.g. Sinoviev) who considered killing 10% to be sufficient to 'persuade' the rest.
**not necessarily geographically

[Splenetic Jes]

Seb: I don't believe you know very much about how the common law system is supposed to work in the UK.

I don't believe you can know very much about the legal systems in the UK. Scots law is a civil law system: England, Wales and Northern Ireland have a common law system. England and Wales have the same common law system: Northern Ireland common law, like US common law, was cloned fron the common law system of England.

I am not a judge nor a lawyer but your idea that judges in England/Wales or Northern Ireland are supposed to roll with public opinion because that's how common law works ... does not correspond to any idea of the role of judges in common law I have ever seen expressed by any lawyer or any judge in England, Wales, or Northern Ireland.

By way of example, you might want to know that the death penalty was not abolished in the UK by judicial fiat, but by an act of the House of Commons.

More accurately, the death penalty for murder was abolished in England & Wales and in Scotland in 1965 by Act of Parliament - written, as was usual for legislation to cover two different legal systems, in two parts. The death penalty for murder was abolished in Northern Ireland by a separate Act of Parliament in 1973. In 1998 the 6th Protocol of the European Convention on Human Rights, which prohibits capital punishment, was ratified by the House of Commons, which removed the death penalty permanently. I think the last working gallows in Great Britain was taken down in the 1990s - it's now housed in a museum in London.

hsh Jes, can you move your elbow a little to the left? I think it's in my spleen.

Sorry!

*wipes elbow*

[Sebastian]

"I am not a judge nor a lawyer but your idea that judges in England/Wales or Northern Ireland are supposed to roll with public opinion because that's how common law works ... does not correspond to any idea of the role of judges in common law I have ever seen expressed by any lawyer or any judge in England, Wales, or Northern Ireland."

I said: "It most certainly isn't about judges pretending to create new moral consensus. The common law has always been largely about applying OLD consensus to new situations. That is even more true in the UK than it was in the US."

I'm pretty sure that 'roll with public opinion' is not a particularly fair characterization of that.