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Wednesday, July 21, 2010

How Do We Go From Off the Wall to On the Wall? With the first jump...

If you've not seen it yet, head over to Balkinization and check out Jack's interesting take on Randy Barnett's constitutional activism. Sharing ambition to engage in a form of constitutional "innovation," though disavowing any suggestion that I'm making a "frivolous" argument, I've persuaded myself, more or less, that the best understanding of some recent Supreme Court cases requires some radical restructuring and review of punishment under the Eighth Amendment. For instance, not only do I think the "penal agnosticism" of Ewing has been overruled or at least substantially constrained sub silentio, but I now also think that minors may not be retributively punished--at all, or at least absent some larger transformation of individualized inquiry into competence and non-infancy in other contexts. Of course, that doesn't mean juvenile justice closes shop. Rather, the structure for addressing juvenile wrongdoers must be non-retributive: focused on containment of risk and rehabilitation of the person to the extent possible. 

This is all tentative and subject to future disavowal, of course, when my own children eventually throw these pages in my face before they are 18...in the meantime, I'd be grateful for any reactions via email to this exceedingly short piece, now on SSRN, and slated for publication in the October 2010 issue of the Federal Sentencing Reporter. That issue will include other folks' reflections on the recent SCOTUS case in Graham from a stellar group of scholars including: Richard Frase, Rachel Barkow, John Stinneford, Alice Ristroph, David Gray, Eva Nilsen, and Youngjae Lee. Kudos as always to Michael O'Hear for organizing the conversation with such panache.

Posted by Dan Markel on July 21, 2010 at 01:27 PM in Article Spotlight | Permalink

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Comments

Dan,

If I understand your argument correctly, you're pretending that a case or two with many complicated strands has a true essence that you see but no one else does: You then argue that if you're right that the case has a true essence that you identify, it has radical implications -- implications which, it so happens, match your policy preferences. Am I right about that, or am I misrepresenting the structure of the argument?

Posted by: Orin Kerr | Jul 27, 2010 1:33:47 AM

You're right about some of that, wrong about other aspects. For example, I'm not the only one who reads Panetti as significantly constitutionalizing "communicative retributivism." At least a few other scholars (e.g., Linda Ross Meyer and Pamela Wilkins) I believe share the same view and have written something to that extent.
As to the implications and my policy preferences, I think you're extrapolating, probably unfairly. FWIW, the essay adverts to some reluctance about the policy implications. In any event, thanks for the reductionism! Reminds me of poor Allison Porchnik.

Posted by: Dan Markel | Jul 27, 2010 8:42:44 AM

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