Dear Dahlia, Walter, and Judge Posner,
Thank you for letting me crash your party for a quick post about the court’s ruling on life without parole for juveniles who commit murder. First, though, I can’t resist asking you all a few questions about today’s big rulings on Arizona’s immigration law and Montana’s campaign finance restrictions.
Do you think, as I’m inclined to, that the Arizona decision is largely a win for the Obama administration, because Kennedy’s majority opinion underscores that states can’t make up their own criminal penalties to deal with immigration? And do you think it’s at all surprising that the courts’ four moderate-liberals didn’t insist on hearing the Montana case—since it only takes four votes to grant review—even though they knew they’d lose on the merits down the line, 5-4, what would have been Citizens United, the Sequel? I know I would have bought a front-row ticket to that show.
But first, child murderers. In a 5-4 split of the usual suspects, with Kennedy on the liberal side, Justice Elena Kagan wrote for the majority that states can’t impose a mandatory sentencing scheme of life without parole on juveniles who commit murder. After today, a judge can still mete out life without parole (LWOP, for short) for a juvenile killer—but only after having the chance to consider an alternate sentence. And Kagan went out of her way to say that this should make LWOP an “uncommon” sentence for a murderer who is under the age of 18 when he commits his crime.
I see this as a fairly small but still significant step in expanding the definition of cruel and unusual punishment—the Eighth Amendment standard for declaring a sentence off limits. It’s incremental because two years ago, the court ruled unconstitutional mandatory LWOP for teenagers who commit crimes other than murder. Today, the court simply extended the reasoning of that ruling, Graham v. Florida, to teenage killers. Not surprising, right? Especially since the whole idea behind Graham was that minors are less culpable than adults in part because their brains aren’t fully developed. Once again today, the court relied on the research of Laurence Steinberg at Temple University, whose studies of the adolescent brain have been crucial to this line of cases. Steinberg has found that teenagers tend to have less impulse control and more proclivity for risk, and as Kagan says, these findings mean the court’s decisions rest “not only on common sense—on ‘what any parent knows’—but on science and social science as well.”
I don’t want to imply, though, that Miller was a slam dunk. At oral argument, it seemed far from clear that five justices were willing to rule out mandatory LWOP for everyone up to age 18, no matter how brutal their crimes. It’s one thing to say that the judge should have had a more merciful option than life in prison for Kuntrell Jackson, who was 14 when he was convicted and sentenced for robbing a video store where a clerk was fatally shot, when Jackson didn’t fire the gun himself. It’s another to worry about the fate of Evan Miller, who Kagan acknowledges committed a “vicious murder” at 14, when he and a friend beat a neighbor and set fire to his trailer after drinking and getting high. But Kagan makes the best of these facts by noting Miller’s history of abuse and neglect at the hands of his parents.
What mattered most for the majority, as NYU law professor Rachel Barkow put it to me in an email this morning, is simply its finding that “juveniles are different.” Which is interesting, because the court used to emphasize in Eighth Amendment cases that “death is different”—that the death penalty was a distinct and terrible species of punishment. The old promise was that the court wouldn’t meddle with states outside the realm of capital punishment. Now we are in a world where life without parole is also being singled out as heinous, because it is hopeless.
So far, the court is concerned about hopelessness, however, only for juveniles. I wonder, though, if that limiting principle will hold. In dissent, Chief Justice John Roberts called out today’s decision as “merely a way station on the path to further judicial displacement of the legislative role in proscribing appropriate punishment for crime.” Is Roberts right, do you think—does this decision open the door to others like it?
And what do you make of Roberts’ key objection that the court abandoned its previous method of analysis of whether a punishment was “unusual” in light of “evolving standards of decency”? In older cases—in outlawing the execution of the mentally disabled, for example—the court totaled up the small number of states to allow such a punishment and used that as a reason to stop them. Kagan couldn’t do that today because 29 states allowed mandatory life without parole for juvenile murderers. So she fancy-danced her way around that number. Roberts, however, wrote: “Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence.”
This is an old debate, of course. Who got the better of it today?
All the Best,