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Tuesday, May 18, 2010
More on Comstock and Graham
Like Rick (see the post below), I'm interested in the light that these two cases shed on each other. Both cases involve practices that are now widely available in the statutes of most U.S. jurisdictions. In Comstock, this is civil commitment on steroids, triggered by a range of sex crimes, including some relatively minor ones. In Graham, this is a mandatory life term for certain crimes, as applied to juvenile offenders. While these tools of social control exist on the books in most places, they are at this point used relatively rarely -- at least when viewed in the context of the high-volume criminal justice systems.That's true in both cases.
What explains the different outcomes in the two cases, if both settings involve relatively common statutory powers that are used relatively infrequently? It could be based on the Court's prediction of future usage levels. If the civil commitment tool will be used more frequently in the future, while the life term for juveniles will be used less frequently in the future, the Court simply anticipates that trend by cutting off a practice that would die of natural causes.
Or it could be based on the Court's guess about the intensity of public preferences in favor of each of these social control tools. Under this theory, the fact that the civil commitment laws were deployed against sex offenders was critical. Or what about this explanation? Graham is best explained because lawyerly analogical reasoning allows us to see the connection to the death penalty cases. The archetypal starting point for Comstock is not obvious.
Posted by Ronald Wright on May 18, 2010 at 01:21 PM in Criminal Law | Permalink
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Comments
A factual correction/clarification to your post: Neither Graham nor Sullivan involved a "mandatory life term." Although juvenile LWOP sentences in some states have resulted from the interplay of mandatory juvenile-transfer rules and mandatory LWOP rules that left judges without discretion, that is not the case in Florida. Almost all life sentences in Florida, outside capital murder, are discretionary. In fact, in Graham, the probation department recommended a *four-year* sentence, and I believe the prosecution asked for thirty years, but the judge chose to impose the maximum of life.
In fact, all or almost all of the 77 Florida juvenile, nonhomicide LWOP sentences were imposed by similar outlier/hang-em-high judges who had the discretion to impose a sentence less than life. I think this fact has something to do with Justice Kennedy's rejection of Chief Justice Roberts's suggested "case-by-case" approach as unworkable - it's not necessarily that Kennedy mistrusts state courts/judges in general, but that he mistrusts the kind of courts/judges that would impose these sentences in the first place.
Posted by: Juvenile Attorney | May 19, 2010 3:58:23 PM
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