Graham & Comstock & SCOTUS, Oh My!

I'd thought I might wait until tomorrow to offer first thoughts.  You know, let opinions float about in the mental ether for a day before I started blowing hard about them.

But hell, I'm a blogger and this is a blog so it's on to instant (more or less) punditry.

First the shorthand results:

• Graham v. Florida - 8th Amendment prohibits LWOP for any kid who doesn't kill (5-4, opinion by Kennedy); 8th Amendment prohibits LWOP for Graham, but maybe not for all kids who don't kill (Roberts concurring); don't be silly (Thomas, joined by Scalia and for the most part by Alito) (Alito briefly and alone explaining that Roberts is as off the tracks as Kennedy & Co, though he doesn't put it that way).
• US v. Comstock - Necessary and Proper Clause of the Constitution means Congress can do pretty much whatever it thinks is necessary and proper including, as relevant here, impose civil commitment on the mentally ill, sexually violent who have finished serving their federal prison terms and whom the states would obviously just let roam about raping and pillaging at will (7-2, opinions by Breyer [joined by Stevens, Ginsburg, Sotomayor, &; Roberts], Kennedy [the Clause doesn't really let Congress do just anything but this is within it 'cause gosh darn it somebody's got to do this, and if the states would just step up . . . .], & Alito [it's necessary for the federal government to ensure that people who commit federal crimes and don't get rehabilitated also don't get out even when their sentence is over, that's the whole point of the sentence: it's only the prison part that has to end just because the sentence does]); nonsense: that's necessary and proper to what's specifically authorized by the Constitution, and there's nothing in the Constitution that authorizes Congress to prevent random raping and pillaging as long as it doesn't cross state boarders - and maybe even it does (Thomas, mostly joined by Scalia).

OK, I probably haven't been totally fair in my descriptions - especially of Comstock - but the general idea is right.  And if you haven't picked up on it yet, I think Graham is clearly right and Comstock clearly wrong.

Let's start with some thought of how these decisions are supposed to be made.  Graham is an 8th Amendment case.  That Amendment says

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

Graham deals with the "cruel and unusual punishment" part.  There's been a lot of carping about it over the years from Scalia and Thomas, but the Court has accepted for decades now the plurality's statement in Trop v. Dulles.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. 

There are problems with that rule.  As a practical matter, Scalia is right that a punishment is cruel and unusual, at any moment merely because of the happenstance that five members of the Court happen to find sufficiently offensive to prohibit.  For all the blather and purported legal analysis that surround the Court's opinions, it really does come to that.  Of course, it always has.  And if plucking out the eyes (see Oedipus Rex and King Lear for two literary instances of eye destruction as a form of punishment, albeit not a judicial one) should happen to become something with which five members of the court are comfortable, then it will be constitutional.  (Though I suspect that if it were before the Court today, Scalia would find it unconstitutional while Thomas might well not.)

But it is the rule, and its repudiation doesn't really take us very far.  Even Thomas, the most strident voice for another rule, says that the 8th is intended to prohibit punishments intended to be torturous.  But how does one decide?  Oh, yeah.  By asking what's beyond the pale.  Which is pretty much what the "evolving standards" thing does.

So the question is whether LWOP for a non-homicide offense by a kid is beyond the pale.  Frankly, it seems to me an easy call.  I've taken a stab at answering it before, and I'm not going to repeat that whole thing here.  So here's the really short version: LWOP is death in prison.  It's the death penalty without the formal end being a murder.  We don't kill kids (Roper v. Simmons) and we don't kill for non-homicide (Kennedy v. Louisiana).  Kennedy explained it this way.  

[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis. 

But that's really too easy.  The reality is that we shouldn't be doing the functional - if not machined - equivalent of the death penalty for anyone.  Certainly not kids.

Is there no hope of redemption?  No chance of rehabilitation? No reason we'd wish to provide even a possibility?  Is our goal to provide hell?  (See the words over the gates of Hell, Dante's Commedia, Inferno 3.009: "Lasciate ogne speranza, voi ch'intrate," Abandon all hope, you who enter here.)

LWOP should be unconstitutional across the board. Certainly for kids and for those who don't kill.

And then there's Comstock.  Here the technical question is not whether the government should be allowed to lock people up forever because they might commit crimes if they are released.  If that question had been posed, I suspect the answer might have been different.  The question, however, was whether the Necessary and Proper Clause of Article I of the constitution.

The Congress hall have power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 

You can read that broadly or narrowly, which is pretty much how you can read every abstract statement.  Typically, the so-called liberals on the Court read the Necessary and Proper Clause broadly. From their perspective, Congress has the power to do pretty much whatever it wants unless there is something that specifically constrains it.  The so-called conservatives are inclined to read the Clause narrowly.  From their perspective, Congress can do nothing that isn't specifically authorized.*

The formal argument was whether the authorization to have federal crimes, which requires prisons to hold federal criminals, makes it necessary for the feds to ensure that prisoners who are released but dangerous will not be released upon states that aren't sufficiently interested in preventing the danger.  It strikes me as self-evident that the answer is "No."  The connection's too weak, too attenuated.  There are too many steps.  Of course, if you believe that the government exists to protect everyone from everything and can (or must) do whatever is possible to achieve that protection, you come to a different conclusion.

But you really don't need to be a government minimalist to say that Comstock reads the Clause too broadly.  The question is really what enumerated power cannot function if even a dangerous federal prisoner is released from custody.  The answer, of course, is that there's not a one.

It's about that simple.

Doug Berman and Scott Greenfield and I'm sure others note the mix of today's opinions.  Berman explores the political and PR implications.  Greenfield notes that the two, "taken together,  offer no coherent penal philosophy."  Sure enough.  But then, what would we expect from a court that itself has no coherent philosophy at all.

Justice Brennan used to speak of the Rule of Five.

With five votes, you can accomplish anything around here.

Yep.  It's not particularly powerful as a judicial philosophy, but yep.

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*Both groups, of course, are completely hypocritical about this.  Congress can do what they favor and cannot do what they oppose.  Jeffrey Toobin captures that hypocrisy nicely in this week's New Yorker.