Dear Walter, Dahlia, and Emily,
I've now read Miller v. Alabama, decided by the Supreme Court on Monday, which held that mandatory life imprisonment for juvenile murderers (two 14-year-olds) violates the Eighth Amendment's prohibition of "cruel and unusual punishments." I don't object to the result, but the case is a good illustration of how unmoored constitutional law has become. The analysis part of the opinion begins with two quotations from Supreme Court opinions, one that the cruel and unusual punishments clause "guarantees the right not to be subjected to excessive sanctions" and the other that the clause "flows from the basic 'precept of justice that punishment for crimes should be graduated and proportioned." These propositions have no basis in the text of the Eighth Amendment (imprisonment is not cruel, and mandatory life sentences for juvenile murderers is not unusual, at least in the United States) or the English legal history that lies behind it or punishment practices in 18th century, as the court more or less confesses in the same paragraph with a corny quotation from another Supreme Court opinion: The concept of cruel and unusual punishments is based on "the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area—we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.
I don't object to a loose construction of the Constitution; there isn't any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is. But it would be nice if interpretation could be based on something more than gut. We need evidence-based law as we need evidence-based medicine. The Miller opinion cites approvingly the use of social science data in an earlier Supreme Court opinion (Roper) dealing with the application of the cruel and unusual punishments clause to minors, but those data were and are unconvincing. The court's use of them to bolster a decision reached on other, I would say emotional or ethical, grounds, illustrated what might be called "law office" social science, a counterpart to the "law office" history deployed by "originalists," and equally tendentious.
I am struck by the court's reference to "brain science." The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children (if teenagers can be called children) rather than of the teachings of brain science. If the court had said—what I imagine the justices in the majority feel, that emotion dictated the outcome—that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor.
I would like to comment very briefly on the Montana campaign contributions decision. I think the court was right to do what it did. I don't say this because I agree with the Citizens United decision. I don't. But a presidential campaign is not the right time to revisit the issue. The prospect that the court might overrule the decision, or more likely modify it, would create enormous uncertainty at a time when the voters' and the politicians' circuits are already overloaded.
Judge Richard A. Posner