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Tuesday, October 06, 2009

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.


Posted by Dan Markel on October 6, 2009 at 05:59 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink

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