Graham and Comstock

I don’t have a clue as to whether sentencing a juvenile to life in prison without parole for anything short of murder constitutes “cruel and unusual punishment.” I rather tend to think Justice Thomas has the better of that argument.

But I’m certain it’s almost invariably piece of stupid cruelty. Will Terrance Graham, having assisted in two robberies before his eighteenth birthday, be such a dangerous man at the age of 45 that he’s worth keeping locked up? Unless Florida judges have exceptionally accurate crystal balls, there’s no way of guessing. Statistically, Graham will be safer to have out at that age than any twenty-year-old armed robber.

Too bad we have to argue about this stuff through the fog of Constitutional counting of dancing angels instead of taking a look at the data, and then asking to what extent we think that a 45-year-old is morally the same person as the young robber who used to inhabit his body.

On the other hand, while it’s quite possible that Graydon Comstock is in fact “sexually dangerous,” but the notion of keeping someone locked up indefinitely after the completion of his sentence because of the crimes he might commit in the future makes me ill, even putting aside the question of what business the Federal government has dealing with sexual assault, other than on Federal reservations.

Comments

  1. says

    I might be missing something, but thinking the punishment is almost invariably cruel doesn't seem to fit Justice Thomas' argument. I'm wondering Mark misspoke (miswrote?) in supporting Thomas. Maybe he meant Roberts because the "almost" qualifier supports the case-by-case analysis.

  2. Sebastian H says

    The Supreme Court's ability to discern changing moral trends when a super-majority of states seem to disagree with them is really quite amazing. Who knew that they were so deeply in touch with the trends and thoughts of the common people.

  3. Fred says

    I wish the linked article gave more detail about the crime. "Home invassion robery" sounds like breaking and entering to me but the word "invassion" gives it a violent spin and makes me wonder if there was some threat to residents, etc.

    In any event, a seventeen year old does not have an adult understanding of consequence. It is a matter of brain development rather than years of expierience. For that reason a sentence of life (with or without parole) seems very excessive for any crime but one so horrendous as to indicate a personality disorder that is unredeamable.

    The fact of the overwhelming concentration of these kinds of extreem sentences in one state (Florida) indicates a political and/or cultural aberation that needs examination.

  4. jimbo says

    Justice Thomas helpfully points out that, at the time of the drafting of the Bill of Rights, States could hang children as young as 7. How far do you want to take this slavish devotion to Original Intent, Sir? Are you saying you're still 3/5 of a man?

  5. Anderson says

    (1) "Stupid cruelty" sounds like a pretty clear Eighth Amendment violation.

    (2) The states have been using civil commitment since who knows when. So I presume Prof. Kleiman is rendered ill by those laws as well? The only issue in Comstock, I thought, was the federal authority to do with federal prisoners what the states have been doing with state prisoners.

  6. Barry says

    jimbo says:

    "Justice Thomas helpfully points out that, at the time of the drafting of the Bill of Rights, States could hang children as young as 7. How far do you want to take this slavish devotion to Original Intent, Sir? Are you saying you’re still 3/5 of a man"

    If we were to go to Original Intent, he'd have more problems than that – his marriage

    would be, um, 'problematic'.

  7. James Wimberley says

    The SCOTUS Opinions here for Graham and Comstock.

    Justice Thomas' dissent in Graham gives some details of the second crime that IMHO support the majority decision:

    Graham reoffended just six months after his release. At a probation revocation hearing, a judge found by a pre-ponderance of the evidence that, at age 17 years and 11 months, Graham invaded a home with two accomplices and held the homeowner at gunpoint for approximately 30 minutes while his accomplices ransacked the residence.

    Preponderance of the evidence, mind! For life in a Florida jail!

    The majority of 5 led by Kennedy referred to international judicial practice, here as an additional aid in interpreting the "cruel and unusual" clause. Stevens' successor, Kagan or anyone else, will surely maintain and solidify the internationalist block. Neither Roberts nor the dissenters thought it worthwhile to reiterate their now vain opposition to foreign reference. Good.

  8. Barbara says

    Civil commitment has a long and tortured history for protecting the civil rights of mentally ill people, but Comstock is really about enumerated powers.

    So you read it here first: this is the first volley in any challenge to the HCR legislation on the grounds that it exceeds Congress's authority.

    From the opinion:

    The federal statute before us allows a district court to order the civil commitment of an individual who is currently “in the custody of the [Federal] Bureau of Prisons,” §4248, if that individual (1) has previously “engaged or attempted to engage in sexually violent conduct or child molestation,” (2) currently “suffers from a serious mental illness, abnormality, or disorder,” and (3) “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” §§4247(a)(5)–(6).

    * * *

    The question presented is whether the Necessary and Proper Clause, Art. I, §8, cl. 18, grants Congress authority sufficient to enact the statute before us. In resolving that question, we assume, but we do not decide, that other provisions of the Constitution—such as the Due Process Clause—do not prohibit civil commitment in these circumstances. Cf. Hendricks, 521 U. S. 346; Addington v. Texas, 441 U. S. 418 (1979). In other words, we assume for argument’s sake that the Federal Constitution would permit a State to enact this statute, and we ask solely whether the Federal Government, exercising its enumerated powers, may enact such a statute as well. On that assumption, we conclude that the Constitution grants Congress legislative power sufficient to enact §4248. We base this conclusion on five considerations, taken together.

    * * *

    We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    * * *

    Under the question presented, the relevant inquiry is simply “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power” or under other powers that the Constitution grants Congress the authority to implement. Gonzales, supra, at 37 (SCALIA, J., concurring in judgment) (quoting United States v. Darby, 312 U. S. 100, 121 (1941)).

    * * *

    Neither Congress’ power to criminalize conduct, nor its power to imprison individuals who engage in that conduct, nor its power to enact laws governing prisons and prisoners, is explicitly mentioned in the Constitution. But Congress nonetheless possesses broad authority to do each ofthose things in the course of “carrying into Execution” the enumerated powers “vested by” the “Constitution in the Government of the United States,” Art. I, §8, cl. 18—authority granted by the Necessary and Proper Clause.

    * * *

    Moreover, §4248 is “reasonably adapted,” Darby, 312 U. S., at 121, to Congress’ power to act as a responsible federal custodian (a power that rests, in turn, upon federal criminal statutes that legitimately seek to implement constitutionally enumerated authority, see supra, at 7–8). Congress could have reasonably concluded that federalinmates who suffer from a mental illness that causes them to “have serious difficulty in refraining from sexually violent conduct,” §4247(a)(6), would pose an especially high danger to the public if released. Cf. H. R. Rep. No. 109–218, at 22–23. And Congress could also have reasonably concluded (as detailed in the Judicial Conference’s report) that a reasonable number of such individuals would likely not be detained by the States if released fromfederal custody, in part because the Federal Government itself severed their claim to “legal residence in any State”by incarcerating them in remote federal prisons. H. R. Rep. No. 1319, at 2; Committee Report 7–11, App. 69–75; cf. post, at 6 (KENNEDY, J., concurring in judgment). Here Congress’ desire to address the specific challenges identified in the Reports cited above, taken together with its responsibilities as a federal custodian, supports the conclusion that §4248 satisfies “review for means-end rationality,” i.e., that it satisfies the Constitution’s insistence that a federal statute represent a rational means for im-plementing a constitutional grant of legislative authority. Sabri, 541 U. S., at 605 (citing McCulloch, 4 Wheat. 316). See Jinks, 538 U. S., at 462–463 (opinion for the Court by SCALIA, J.) (holding that a statute is authorized by the Necessary and Proper Clause when it “provides an alternative to [otherwise] unsatisfactory options” that are “obviously inefficient”).

    * * *

    Fifth, the links between §4248 and an enumerated Article I power are not too attenuated. Neither is the statutory provision too sweeping in its scope. Invoking thecautionary instruction that we may not “pile inference upon inference” in order to sustain congressional action under Article I, Lopez, 514 U. S., at 567, respondents argue that, when legislating pursuant to the Necessary and Proper Clause, Congress’ authority can be no more than one step removed from a specifically enumerated power. See Brief for Respondents 21–22; Tr. of Oral Arg. 27–28. But this argument is irreconcilable with our prece-dents. Again, take Greenwood as an example. In that case we upheld the (likely indefinite) civil commitment of a mentally incompetent federal defendant who was accused of robbing a United States Post Office. 350 U. S., at 369, 375. The underlying enumerated Article I power was the power to “Establish Post Offices and Post Roads,” Art. I, §8, cl. 7.

    And so on.

    Look at who concurred and dissented and on what grounds.

  9. Brett Bellmore says

    "If we were to go to Original Intent, he’d have more problems than that – his marriage

    would be, um, ‘problematic’."

    No, not really. On several scores:

    1. Interracial marriages were never regarded as unconstitutional. Attempts to so amend the Constitution failed.

    2. Weren't even illegal in all the states at the time the Constitution was adopted, or any time thereafter. The state Thomas married in, Massachusetts, repealed it's law over 150 years ago.

    3. And originalists regard amendments, (Such as the 14th…) as amending that meaning. One of the first applications of that amendment, before the Supreme court gutted it, was overturning anti-miscegenation laws.

    I suspect you have a very bizarre notion of what originalism implies.

  10. says

    I'm still stuck trying to get my head around any notion of justice that is anything but utilitarian. The whole concept of retribution seems very tenuous.

  11. Sebastian H says

    "Too bad we have to argue about this stuff through the fog of Constitutional counting of dancing angels instead of taking a look at the data, and then asking to what extent we think that a 45-year-old is morally the same person as the young robber who used to inhabit his body."

    We don't HAVE to argue it that way, the Supreme Court just doesn't let us do otherwise.

  12. John in Nashville says

    Has Justice Thomas–that intrepid "originalist"–ever expressed his view as to whether Bolling v. Sharpe was decided correctly in 1954? That decision held that racial segregation of the public schools of the District of Columbia is unconstitutional–not as a denial of equal protection guaranties of the Fourteenth Amendment (which applies only to the States)–but as a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.

    If the intention of the drafters of the Bill of Rights during the late eighteenth century controls, would there be any constitutional impediment to requiring separate drinking fountains for Negroes in the District of Columbia?

  13. K says

    Is it really the case that the original intent of the framers of the 14th Amendment was to forbid anti-miscegenation laws? Their defenders in the 1960s certainly claimed otherwise. See Alfred Avins, "Anti-Miscegenation Laws & the Fourteenth Amendment: The Original Intent," Virginia Law Review 52 (Oct. 1966): 1224-1255. (Contemporary originalists have relegated Avins to the status of an embarrassing footnote, but he was a fairly significant figure in its evolution during the 1960s.)

  14. says

    Mark's obsrvation on Comstock deserves comments too. The Justices thought that it wasn't much if stretch from committal for insanity to committal for sexual dangerousness. Really? In the type case of the first, the Virgin Mary say is telling someone that they ought to kill any redhead they meet. The tests for pyschosis of this sort should surely be pretty objective. (You have to omit the catchall category of "psychopathy"; is the lack of a conscience a form of insanity?) Sexual dangerousness is much more subjective; little more than the professional guesses of psychiatrists whether a criminal is likely to reoffend after a long time with no opportunity. More expert input please on this, and the parallel with executive detentions under the "war on terror".

  15. Brett Bellmore says

    "If the intention of the drafters of the Bill of Rights during the late eighteenth century controls, would there be any constitutional impediment to requiring separate drinking fountains for Negroes in the District of Columbia?"

    See, there's your problem, right there: Any originalist would tell you, that the intention of the drafters of the Bill of Rights only applies in so far as the Constitution wasn't subsequently amended, subsequent to which you have to look at the intention of the drafters of the amendment. That is, if they're an original intent sort of originalist, but similar reasoning applies in all schools of originalism. Amendments amend.

    And I'm not a mind reader, but the lower courts DID interpret the 14th amendment as overturning anti-miscegenation laws until the Supreme court decided to spike the amendment.

  16. John in Nashville says

    Brett, the Fourteenth Amendment applied to the States, and my hypothetical did not involve miscegenation laws. Bolling v. Sharpe was grounded in Fifth Amendment Due Process guaranties (and expressly did not rely upon the Fourteenth Amendment), because the District of Columbia is a federal enclave. Ergo, Jim Crow laws in D.C. (which did exist) operated independent of Fourteenth Amendment Equal Protection guaranties.

  17. Anderson says

    I’m still stuck trying to get my head around any notion of justice that is anything but utilitarian. The whole concept of retribution seems very tenuous.

    "He's killed all 3 of his wives during domestic quarrels, but he's perfectly nice if he's not living with someone, so let's not put him in prison, let's just require him to live alone. He's got a good job and will contribute more to society out of prison than in it."

    Utilitarian? Yes. Retributive? No. Work for you? Hope not.

  18. Barry says

    Me: “If we were to go to Original Intent, he’d have more problems than that – his marriage

    would be, um, ‘problematic’.”

    Brett: "No, not really. On several scores:

    1. Interracial marriages were never regarded as unconstitutional. Attempts to so amend the Constitution failed."

    I never said that – can you read English?

    "2. Weren’t even illegal in all the states at the time the Constitution was adopted, or any time thereafter. The state Thomas married in, Massachusetts, repealed it’s law over 150 years ago."

    Do you even know the basic facts of 'Loving vs Virginia'? They were not married in Virginia, which didn't matter a bit to Virginia law – ****being married*** was a crime for inter-racial couples.

    "3. And originalists regard amendments, (Such as the 14th…) as amending that meaning. One of the first applications of that amendment, before the Supreme court gutted it, was overturning anti-miscegenation laws.

    I suspect you have a very bizarre notion of what originalism implies."

    And it only took until the 1960's for that decision. Heck, it only took until the 1960's and 70's to really implement the 13th, 14th and 15th amemdments.

  19. says

    “He’s killed all 3 of his wives during domestic quarrels, but he’s perfectly nice if he’s not living with someone, so let’s not put him in prison, let’s just require him to live alone. He’s got a good job and will contribute more to society out of prison than in it.”

    But the problem with that scenario is that it isn't utilitarian, either from a deterrence or social protection standpoint. As for retribution, I still see no philosophical basis.

  20. Sebastian H says

    "But the problem with that scenario is that it isn’t utilitarian, either from a deterrence or social protection standpoint."

    Huh? It is classic utilitarian. So long as he is required to live alone, his job will contribute more to society as opposed to us paying huge amounts of money to keep him in prison. Deterrence is fulfilled by a requirement that he live alone.

    "As for retribution, I still see no philosophical basis."

    The whole question of proportionality in punishment is based on retribution: how much punishment does he deserve? And interestingly it is philosophically very difficult to have utilitarian punishment schemes without either introducing retributive proportionality questions or opening yourself up to very crazy situations (for example the idea that publicly punishing someone whether or not you are fairly sure of their guilt can deter just as much as if you are sure of their guilt, or that you can hold someone indefinitely until they are rehabilitated, even if the underlying crime is trivial).

    That is what makes Steven's response that in the 18th century a 7 year old could theoretically be executed for stealing $50 so ridiculous. As a matter of actual societal change on punishment, that would be viewed as too much retribution for the crime. It wouldn't pass a legislature anywhere, and most very hard core crime and punishment types would reject it.

    THAT is what a real change in US moral consensus looks like.

    The idea that there already exists, or is a very close by moral consensus that the possibility of the death penalty for 16 or 17 year old murderers should be removed (Roper) or that LWP should be totally unavailable (Graham) is just a lie. A lie made by Supreme Court justices, but still a flat out lie.

  21. K says

    And it only took until the 1960’s for that decision.

    The claim evidently is that there was an originalist golden age (maybe before Pace v. Alabama?) when the original intent was acknowledged & anti-miscegenation statutes were struck down. This seems to be the claim, but the history indicates that the 14th Amendment's framers did not intend it to touch these laws. I mentioned Avins (with whom Virginia consulted in its original-intent defense in Loving.) Alexander Bickel & R. Carter Pittman also wrote on the subject.

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