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Tuesday, May 18, 2010

Were We Indecent in 1980?

In Graham v. Florida, the Supreme Court held that it violated the constitutional prohibition against cruel and unusual punishments to imprison someone with no possibility of parole based upon crimes, other than homicide, committed while a juvenile.

These lines (at page 40 of the pdf.) in the concurring opinion by Justice Stevens, joined by Ginsburg and Sotomayor, jumped out at me (emphasis mine):

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete .... Standards of decency have evolved since 1980. They will never stop doing so.
Were we really indecent in 1980? It was not that long ago.

The sweeping ruling means the following criminals will get a parole hearing as a constitutional right (these are both actual examples cited in Justice Robert's separate opinion concurring in the result on the facts of Graham's crimes, but not the sweeping ruling):

Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin.

Nathan Walker and Jakaris Taylor, who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.
Eugene Volokh puts it well, that these are judicial preferences masquerading as objective societal analysis (emphasis mine):

They are applying their own views of what society should do, and then trying to add an objective sheen to those views by talking about impersonal “evolving standards of decency,” social change, accumulating knowledge, and reason and experience.

Yes, indeed. Take the two examples quoted above from the Roberts opinion. Society hasn't changed on how society wants such people punished. Society is smart enough to recognize that there are some crimes so horrific, and some criminals so depraved, that they should not be in society, ever.

Society hasn't changed since 1980. Only the Supreme Court has changed.

Related Posts:
Sotomayor Threw O'Connor Under The Bus
Supreme Court Reverses Sotomayor
Yes To Sotomayor

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  1. Yes. I fear the Supreme Court is beginning to look at themselves, especially with the addition of Obama appointee(s), as a court of Supreme beings, not just justices.

  2. I am beginning to wonder if the so-called "conservative majority" on the Supreme Court is in fact a sham. This majority view is a travesty of true justice, as indicated by Justice Roberts' examples you quoted.

    What is the definition of oligarchy? "[A] form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few" --dictionary.com

    These "majority" Supremes, along with Obama-Reid-Pelosi, are the embodiment of an oligarchy. They are ruling; regime is a fitting term for this gang.

  3. I interpreted "evolving standards of decency" as "defining deviancy down". I think we are a coarser society than in 1980. It is not unusual to hear vulgar language and behavior not only in entertainment venues, but at the local high school. And we are becoming numb to it. It seems we are becoming animal like in our response to the beauty of life. And in the animal world, we are told, the strong survive. Imagine a world with government condoned human predatory animals on the loose. And they wonder why gun sales are so high.

  4. Question - given the other SCOTUS decision mentioned yesterday (federal gov't can hold "sexually dangerous" persons after their sentence is completed) how do these two decisions line up? They seem contradictory.

    Perhaps it is the job of the federal government to now intercede in state justice to ensure states make "sexually dangerous" convicts lifers.....? The examples you quoted that Justice Roberts highlighted are both examples of "sexually dangerous" convicted criminals. That would be an over-stretch of federal power, if that is the case. Curiouser and curiouser.

  5. Unfortunately, after BHO's two picks, Ms Ginsburg will drop from the first to the third most liberal member of the court.

  6. The thing is, even if society changes - the CONSTITUTION DOESN'T. The Supreme Court is supposed to hold us to the Constitution, not the other way around. These people sicken me.

  7. How about electing officials who will pass legislation limiting the jurisdiction of the courts? I think that is a Constitutional power of the Congress. Any constitutional lawyers out there?

  8. Because the Court decided that it is cruel and unusual to put a teenager in jail for life for all crimes other than homicide, does not mean that those that perpetrated your examples of depravity will actually be released. They may be granted parole hearing but a parole hearing does not necessarily lead to release.Remember most murderers in this country truly only serve on average 5 years in prison as well.The problem with sweeping legislation is that it attaches itself to the depraved and those that make the kind of mistakes whereby society helps them learn and change course.

    The Consitution is a living document, written in such a way that it can be interpreted by every generation because the founding fathers knew that society would change and would put its own stamp on society. In fact i believe if you read the federalist papers Madison actually even alludes to that being the reason for much of the Constitution's vagueness.

    It is also my understanding that since SCOTUS' jurisdiction is written into the Constitution you would need to amend the Constitution in order to change its purpose. The rest of the judiciary was created by The Judiciary Act and is therefore changeable by a simple law.

    Of course, this is just my reasoning and understanding of Consitutional law. However, I am not a law professor so I am willing to stand corrected and would be glad for a lesson if I need to be corrected.

  9. Well, yes we were indecent in 1980. Jimmy Carter was in the White House, Tip O'Neill was Speaker of the House and Jim Wright was majority leader, and Senate majority leader was ex-Klansman Robert Byrd. No coup here. Americans elected them.

  10. "Evolving standards of decency" are you serious? It is not that our society has become more decent it is the fact that we tolerate every kind of evil, because we are oblivious to it's very existence. Cruel and unusual punishment is what the victims suffer, not the criminals.