What Would Madison Do?

Death in Prison.

That really is, as I've said repeatedly (check the search box), what an LWOP sentence means.  Life without the possibility of parole.  Without hope.  Without chance.  Regardless of rehabilitation.  Regardless of good sense.

It's a terrible sentence.  A sentence of despair.

Yet it's different from death as death itself is different.  It's what Justice Stewart said in Gregg v. Georgia.

[D]eath is different in kind from any other punishment imposed under our system of criminal justice. 

Which is of course true.

But then, maybe, so is LWOP.

A year ago, in Graham v. Florida, the Supreme Court said that the 8th Amendment to the Constitution prohibits a sentence of LWOP for a juvenile who did not commit homicide.  Last week the Wisconsin Supreme Court gave its answer to the next question:

Does the 8th Amendment prohibit a sentence of LWOP for a juvenile who did commit homicide?

The case is State v. Ninham, and the answer, according to the Wisconsin Supreme Court, is that LWOP for a 14 year old who committed homicide is just fine.

I haven't written about Ninham because I really didn't have anything much to say except that it was just deeply offensive.  LWOP is different.  So are kids.  Enough.

I've done that sort of post before, certainly, but ho hum.

And then, this morning, Doug Berman raised a question that's worth considering.

Might the Framers have viewed LWOP more like torture than like a death sentence?

Ninham makes clear that nobody made that argument.

Ninham does not argue that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

But Justice Ziegler's majority opinion addresses the question anyway.

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-year-old child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23-24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting).

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted. . . .

Well, maybe.

But Berman wonders.

But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.
I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

It strikes me that this is not merely an academic question.

At least two justices on the Supreme Court (Thomas and Scalia) are ostensibly committed to the proposition that the Constitution and its Amendments mean exclusively what they were understood to mean at the time they were adopted.  (Thomas's descriptions of how he determines that is generally more linguistic and Scalia's more historical, but they both claim a form of originalism.)

Make a strong enough case and add their votes to at least three of the plausible 5 votes otherwise available for the broader proposition that LWOP and kids don't go together and you get a curious but compelling majority.

Will it happen?  Not in Ninham I don't imagine.  It's an easy case to punt on the question since the argument wasn't made below.  But the door is now open.

We ought to be prepared to walk through it.