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Friday, June 29, 2012

20 quick reactions to the Juvie LWOP cases (Miller and Jackson)

I had the chance to read the Mandatory Juvie LWOP cases this morning and thought I'd share some reactions and questions I had for those of you who have read the opinions also. [Some comments will be cryptic to those who haven't read--sorry.] Admittedly, many of these reactions are concerns I have as I think through the recent cases' relevance to the constitutional arguments I'm making in Luck or Law, my work in progress having to do whether there's reason to think that indeterminate sentencing schemes (for adults) are unconstitutional. So I hope you'll forgive any sense of looking at this case from the hammer-nail perspective. After the jump, 20 rushed observations and questions.

1. First, I noticed Justice Kagan's loose language in the first paragraph talking about "our cases' requirement of individualized sentencing for defendants facing the most serious penalties." The cases she later refers to have to do with the death penalty only (b/c Harmelin is still good law and allows mandatory LWOP for adults) and in fact don't require purely individualized sentencing, but rather require that some finding more than a mere killing be present (ie., Gregg is still good law). So it's important that we don't equate Kagan's description of the case law as amounting to the same kind of individualized sentencing present in Williams v. New York.

2. I was surprised that more of the majority didn't join in the concurring opinion by Breyer and Sotomayor. Why do you think at least Kagan and Ginsburg didn't join in?

3. Here's my biggest question. I have trouble understanding the problem with the idea of a mandatory statute if it is one that builds in the determinations of culpability that are so important to the majority. For example, say a state passed a statute that roughly said: if you're a) 17, and, b) upon a state-funded (or privately funded) psych eval, turn out to show no basis for diminished culpability because you're incredibly smart and mature, never experienced any abuse or neglect, and c) you intentionally killed a bunch of people, and d) there are no other mitigating factors that a judge (or jury) could find by a preponderance of evidence having to do with a factor that we've not already alluded to in this statute, then e) we want you to sit in prison for the balance of your life. No exceptions to LWOP, in other words, unless there's an express determination of mitigating factors by the court/jury. In situations where there were findings of mitigating factors, then LWOP could categorically not be used.

If you leave out the parole option, this addresses all of what bothers the Court in Miller so long as it's a judge/jury that has a chance to make a determination of (global) culpability prior to sentencing. And yet, it seems like the Court is requiring that no hint of mandatoriness is allowed even when there is a much narrowed class of persons affected. Am I wrong? Why couldn't something like this also address the issues d/p cases for adults post Woodson/Lockett. 

I don't get why it is constitutionally unkosher for the legislature to set out ex ante the criteria for global culpability analysis, especially when it leaves a safety valve for ex post deviations when the decisionmaker seeks to mitigate on the base of a factor not previously considered and embraced (or expressly rejected) by the legislature?

 4.  In referring to Miller's prior offenses, Kagan referred to criminal mischief as "criminal mischief." Are the scare quotes there because of doubts about the nature and contours of the crime. Typically it's a crime against property not involving theft, such as defacement or destruction.  So why the scare quotes for that but not for truancy?

5. I'm interested, like many other crim law theorists, in the relevance of bad luck and resulting harm. The Court imposes a distinction between homicide and nonhomicide offenses (fn 6) even though the presence of a dead body might be a function of bad luck to the offender. If an offender intends to kill someone but fails to do so, shouldn't a legislature be permitted from a constitutional perspective to make attempts to calibrate punishment to culpability rather than harm? I'm not saying mandatory LWOP should be available for any juveniles--in fact, as a policy matter, I don't think juveniles can even be retributively punished, and I'm not sure they can from a constitutional perspective either. I'm just curious about the line-drawing going on. I worry that the Court might unwittingly be signing on (or reaffirming from Graham?)  a position that is rejected by many if not most crim law folks. I'm not sure this can easily be disregarded as dicta either. Am I wrong about that?)

6. Kagan's description of Miller's case had a tincture of blaming the victim. She took special effort to mention that the person killed by Miller was an adult who was drinking and getting high with Miller. This came up as the kind of fact that might mitigate Miller's culpability or the wrongfulness of the action. Is this the kind of mitigation we want judges and juries to make? (Color me doubtful.)

7. It seems the clear holding from the case is that the institutions of parole must always be available in every jurisdiction for juveniles who are convicted (even though it's clearly constitutional to remove parole for anyone convicted as an adult). I think I can sign on to this but since I'm skeptical that parole as presently practiced for adults is constitutional because of how it permissibly operates in a lawless fashion, I worry that this new constitutional mandate for juveniles is problematic too. I guess it's fair to note that the court works one case at a time and whatever may be unconstitutional about parole is not before the court re: this case. (I worry that the Court has too sunny a view about parole and that this blinds them to the triviality of their remedy here.)

8. I shared Justice Alito's observation that the Kagan opinion used the word "children" to refer to all minors. This is a rhetorical move, and not a regrettable one necessarily, but perhaps somewhat misleading and at least worth noting.

9. As a meta-matter -- reflecting on the sources or the ratio decidendi -- the Court focused on precedent's trajectory and what had to be preferred policy views (that I share) rather than much looking at text or history or objective trends about evolving standards of decency. Again, I don't necessarily disagree with this move or the ultimate decision, but it's always important to note how the various modes of interpreting the Constitution either support or conflict with each other. (Indeed, I wonder how Richard Fallon would view the reasoning of this case. In a famous HLR article on constructive coherentism in constitutional interpretation, he put precedent the lowest ranking in terms of privileged sources. By roughly disregarding the "unusualness" here, did the Court botch this decision on Fallon's view?)

10.  Looking at Kagan's last paragraph, it seemed more evidence for the view that negative retributivism serves as a constitutional value. This was a position I attributed to the Court here, in discussion of the Panetti case, among others. 

11. I always enjoy the idea of constitutional math. This case reduces to: Graham plus Woodson/Lockett = Miller.

12. Re: Breyer's concurrence: what if you lack intent to kill but nonetheless kill someone as a juvie: would he think LWOP is permissible? If so, wouldn't this embrace of moral luck upend the values of Tison? In other words, isn't felony murder constitutionally crappy in the absence of evidence showing that the principal's wrongdoing is also attributable to the accomplice? I would hope that the focus for imposing the most severe punishments would be on the culpability of the offender and not the accidental or reckless appearance of a dead body. Cf. my earlier point about moral luck in note 5.

13.  Re: Roberts' dissent, it seems from the first couple pages that the mere fact of pervasive punishment practice is enough to make it not unusual and therefore categorically not an 8A violation. This has interesting implications for my indeterminate sentencing argument; b/c indeterminate sentencing is still the dominant sentencing procedural practice, it means that if the argument I want make is to get any lift, it would have to be done under a non-8A provision, at least to appeal to Roberts and the 3 other conservatives. The only way around that might be to appeal to the historical argument Laurie Claus makes about the cruel and unusual clause as a harbinger of equal protection values. This was an interesting reading of the 8A and the 1689 Bill of Rights. Anyway, something I'll have to think about. I guess the mere fact that Roberts' view is a dissenting view might mean that I can still argue there's an 8A argument against ISS because unusualness is not really all that important anymore...just thinking out loud here, not sure I'm persuaded by this.

14. The various dissents all reflect the concern that opinions have a dynamic effect in shaping attitudes toward decency and punishment. And they all worry about this development because of how it might allow judges to displace democratic assessments of the policy issues. (See the evaluation of the Court's claim that LWOP for some juvies "will be uncommon.")

15. It's no doubt a trite and certainly too broad-brushed an observation but here it is: the conservatives seem to have less trouble permitting democracy to do its work in the context of punishing minors than in the context of allowing it pass social welfare legislation. Flip it around and you note the liberals are more skeptical about democracy when it comes to punishing kids than they are with managing 1/5 of the economy through health care legislation. Yeah, I think that's about right :-)

16. Re: Thomas's dissent, gotta give him credit for his convictions re: the anemic use of the 8A. So, on his view, it's constitutionally fine for the mandatory imposition of the death penalty on 14 year olds for a variety of non-homicide offenses. Wow. Ok, seriously, why is it the case that the history is dispositive of the way to interpret the original public meaning of the words? At best it is relevant evidence about the expected application of the framers but how does that fix the semantic meaning let alone provide a decision rule? I don't get it entirely. Or, perhaps I get it, but I don't think CT and AS have explained their math in these opinions adequately.

17. I wish Thomas' opinion would rely more directly on the historical sources for his claims about the history instead of the judicial opinions that reflect his view of the history. I'm particularly troubled by what I see as a conflict b/w the legal history of the discretion allowed to judges in cases like Williams 1949 (and also told by Stith and Cabranes in 1998 book on fear of judging) and the story about discretion told by Thomas in this case (or even Apprendi's majority). 

18. Re: Alito's dissent: why doesn't he mention the fact that Coker also used foreign law, not to mention some of the earlier 8A cases?

19.  Alito's reference in n. 2 to the grounds for sentencing guidelines is interesting for my LOL project. I wonder if he's open to the constitutional values of guidelines or just the policy benefits.

20. Dramatic ending to the opinion: "The Constitution does not authorize us to take the country on this journey."

Ok, that's it. I'm out. Happy weekend!






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Also, I noticed #6 too, and find it to be of a piece with the rehabilitationist mood in the majority opinion: the victim in Miller was an adult, the defendants were children. We need to recognize that these children were exposed to very bad influences [vide the extensive rotten social background evidence recited by the court], including influences applied by the adult victim himself. And we need further to recognize that with the right sort of punishment, and under the influence of the right sorts of people, these children would not have acted like this, or, at least, will not do so any longer.

Posted by: Marc DeGirolami | Jun 30, 2012 6:33:05 AM

Dan -- very smart observations. I posted some (less incisive) thoughts here: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/06/rehabilitation-ascending.html

As to your #5 and on the issue of retributivism for juveniles, I actually think that as a descriptive matter, much of the core of retributive punishment is pretty much absent from J. Kagan's opinion. There are some obligatory passing references, but there is very little retributivist analysis at all. So it might be that the Court is coming to your view without (yet) saying as much.

Posted by: Marc DeGirolami | Jun 30, 2012 6:20:55 AM

I have some thoughts about # 3 that I'll hope to put together at some point, if I'm less busy, but right now I want to ask about the project mentioned in #19. Does it involve cute and/or funny pictures of cats?

Posted by: Matt | Jun 30, 2012 12:37:47 AM

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