Stickin' It to the Supremes - and to the Kids

The Supreme Court speaks.  Government officials must obey.  Because ours is a nation of laws. 

So they say.

Alternatively, they can, model themselves after Andy Jackson.  You know the story.

When the Supreme Court refused Georgia's attempt to seize Cherokee lands (Wooster v. Georgia), a defiant President Andy Jackson is said (although it's probably apocryphal) to have responded, "John Marshall has made his decision; now let him enforce it." Regardless of whether he said it, Jackson sent in troops to remove the Cherokee demonstrating that he meant it.

This is not a post about the Affordable Care Act, not about the decision in NFIB v. Sibelius or how governor after governor has announced that his state won't comply.  In fact, none of those governors is refusing to honor what SCOTUS said.  They've got a legal right - not without consequence, but a legal right - to refuse to implement some of the provisions.  For good or ill, they're taking advantage of that right to undercut the law.  Which, as I say, they have a perfect right to do.

Anyway, I'm not writing about that.

Instead, I'm writing about Terry Branstad, the Eighth Amendment, and LWOP. And the Supreme Court's ruling in Miller v. Alabama.

But I have to begin with Raymond Taylor, Jr.  He is, if you believe (as did the jury) the testimony at his trial, a monster.  The jury found him guilty of some 81 counts of rape and other offenses committed on his step-daughter from the time she was 9 until she was 15.  (The jury was never asked to return verdicts on counts 82-140; I don't know why.)

Horrible crimes get horrible sentences.  The judge gave Taylor 8 consecutive life sentences to be followed by (or perhaps preceded by, it's less than clear, though the prison system seems to think preceded by) 642 years and 6 months in prison.

Fortunately, Taylor has hope. On April 29, 2735, he'll have finished with the term of years. After that, he'll only have to serve out the remainder of his life 8 times before he's released.

The sentence is, of course, a joke.  Oh, it's real enough in the technical sense that it was imposed by a judge and he's begun serving it, but it's a joke in the same way that Bernie Madoff's 150 year sentence is a joke.  It's not real because it cannot be served. It's LWOP with a pretense otherwise.

Which brings me to this guy.

Governor Terry Branstad

He's Terry Branstad, Governor of the Hawkeye State (that's Iowa). And he's righteously pissed at the Supreme Court which put the people of his state at risk by declaring in Miller that mandatory sentences of LWOP for people who killed as juveniles are unconstitutional. There are, it seems, 38 of them doing LWOP in Iowa prisons.  And now they must all be released.

Or not.

In fact, the Supremes didn't say that anyone needs to be released.  It said, rather, that before a juvenile can be sentenced to LWOP there must be an individual determination that it's an appropriate sentence for this kid in this case.  LWOP for kids remains available as long as it isn't mandatory.

While courts and lawyers across Iowa were trying to figure out how to apply Miller to those 38 prisoners, Branstad found a solution.

He commuted all the sentences.

No more LWOP, so no need for individual determinations of whether LWOP was appropriate in this or that case.

Of course, Branstad didn't let anyone out.  He knew how bad an idea that was since every one of those kids should serve LWOP.

And so they will, almost certainly.

Even though none of them will have an LWOP sentence.

They're all eligible for parole. Of course, eligibility for parole and actual parole aren't the same thing.  Eligibility says nothing about actually getting out.  Still, it means they've got a chance.

Just as soon as they've served 60 full years in prison.  Which, given the demographics of prison, likely means that most of them will first become eligible for parole right around the time they die. In prison.

Really, Branstad could have made it simpler.  He could have converted the LWOP sentences to sentences of 150 years each. Which would achieve the same thing.

Sticking it to the Supreme Court.

But without the sham.

h/t Doug Berman

Turnabout Is Fair Play and All That

All right.  Maybe it's unseemly for me to be pleased when someone is sentenced to 28 years in prison, which for a guy who's 61 is effectively a life sentence.

But maybe not too unseemly when it's Mark Ciavarella, Jr. 

That's the guy was formerly, and formally but only nominally, the Honorable Mark Ciavarella, Jr.  You know, the Juvenile Court Judge felon who took bribes and kickbacks to deprive kids of fair hearings and counsel and then send them off to juvenile detention centers for the most trivial of offenses.  He made millions from the scheme.

And now he's got a 28 year sentence.

I complain here about judges who care more about the next election (or appointment) than about enforcing the rules.  I complain about judges who are prosecutors in disguise (and sometimes it's not much of a disguise.

Ciavarella wasn't like that.  Plain and simple, he was a crook.  He used his office to line his pockets at the expense of kids.  He violated the rules and the law with something very close to impunity.  He ruined lives.  Thousands of them.  Abused his office.  Betrayed the public trust.

Maybe it's unseemly of me.  But I don't represent Ciavarella.  In this case, I'm just a citizen.

28 years seems about right.

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.

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.

 ______________

*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.

It Just Takes Longer (with Update)

When a jury is deciding whether to sentence someone to death or to life without the possibility of parole (LWOP), all it's really deciding is how the person is to die. Either way, the sentence is death in prison. It's just that LWOP doesn't include a murder. And the expectation, if not always the reality, is that it takes longer.

That's a piece of what the Supreme Court will be considering Monday morning in a pair of related but not identical cases: Graham v. Florida and Sullivan v. Florida.* I've made reference to these cases and the basic issue they raise a few times now (here and here and here). This time I want to give them more direct attention, both because they are up right now and because they give me an opportunity to say some other things. (Were it not for the digressions and asides, would you read this blawg at all? Would I write it?)

Both cases emerge from this stark fact reported by Adam Liptak in Saturdays N.Y. Times.

There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.

And although they differ in what may be legally significant ways (whether the differences have actual legal significance is something we won't know until the court actually rules), they raise the same fundamental question.

Does the Constitution allow an LWOP sentence for a crime in which nobody was killed when the crime was committed by a person before the age of 18?

There are three starting points when you try to offer a legal answer, depending on how you view the Constitution and the Supreme Court. There's a fourth if you just engage in the RealPolitik of the Court.

1. If you're a narrow-minded textualist who believes that things are generally permitted if they are not forbidden, you look at the words of the Constitution and notice that it doesn't say anything about either children or life without parole (or life or parole, for that matter) and wonder if there's something in the words "cruel and unusual" that applies here anyway.
2. If you're a believer in precedent, you look at what the Court said in 2005, in Roper v. Simmons (the death penalty for juveniles is unconstitutional) and wonder whether LWOP for kids is different in meaningful ways from death for kids. And you look at Kennedy v. Louisiana and wonder whether the rule about no death for non-homicides also means no LWOP.
   
3. If you believe in balancing tests, you look at the awfulness of the crimes and mutter about equivalence and rehabilitation and sentences that seem over the top.
   
4. If you're a believer in a growing, breathing, living Constitution, you look at what's going on in the states and search your heart and read the statistics and decide just how yucky you think it is to put kids away forever.
   
5. If you're a cynical outside observer engaged in RealPolitik, you try to figure out what Sonia Sotomayor and Anthony Kennedy will do.

It should be no surprise to anyone who's read this blawg for a bit that I've got a foot in most of those camps. (Don't try to count my feet. It's a metaphor.)

Textualism
Analytically, you really do have to start with the text. And it's true that the text really doesn't say anything about LWOP or kids. It allows the deprivation of both life and liberty with due process. (That's the Fifth Amendment and the Fourteenth.) And it prohibits "cruel and unusual punishments." (The Eighth Amendment, applied to the states through the Fourteenth.) But it doesn't give any actual guidance about what process is due or when a punishment is cruel or unusual or both. (Nor does it specificy whether it is prohibiting cruel punishments, unusual punishments, or only punishments that are both cruel and unusual.) Damn confusing document.

But even the most literal-minded textualists are willing to acknowledge (I think) that something doesn't have to be specifically forbidden in order to be forbidden. There's at least some Fourth Amendment limitation on wiretaps, for instance, even though there were no wires to tap when the Bill of Rights was adopted and the word doesn't appear. The thing is that we know what the most rigid textualists think about cruel and unusual punishment. Justice Thomas, joined by Justice Scalia told us in Baze v. Rees. It involves some sort of torture. (I'm omitting citations without indication.)

[T]he evidence we do have from the debates on the Constitution confirms that the Eighth Amendment was intended to disable Congress from imposing torturous punishments. It was the absence of such a restriction on Congress' power in the Constitution as drafted in Philadelphia in 1787 that led one delegate at the Massachusetts ratifying convention to complain that Congress was "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." Similarly, during the ratification debate in Virginia, Patrick Henry objected to the lack of a Bill of Rights, in part because there was nothing to prevent Congress from inflicting "tortures, or cruel and barbarous punishment[s]."

But the text need not be read so narrowly, need not be constrained by Patrick Henry's fears. And, anyway, who's to say that LWOP for kids isn't torturous?

Precedent
Then there's Roper. The Court said, as it routinely does, that death is different. And it said that kids are different. From that (and from looking at the states and the world and the data and their hearts), five of the Justices concluded that the death penalty for juveniles was unconstitutional. It's a starting point, perhaps. But where in the case does it start? If Roper is essentially about death, because death is different, then it's irrelevant. If Roper is essentially about kids being different, then it's relevant but doesn't really give an answer.

Are they different enough for LWOP to be prohibited? There is, of course, no proper answer to that question. It is, rather, a law school question. Lawyers and judges routinely pay verbal obeisance and declare fealty to it. We argue by analogy (A like B, therefore A; no, A is like the rejected C, therefore not A.) because that's the proper framework for what we do. Whether it has any real world application is a wholly different matter.

Balance
Balancing tests work this way. You look at the importance of something, and then you look at the problems with it. Then you decide whether it's more important or more problematic.

High courts love balancing tests because they let them do whatever they want. Lower courts like them less because they can't always pass the buck and say that the high court forced this or that decision. Lawyers can live with them in practice because they allow us to argue whatever we want though they make it tough to give clients the information they want. (Will I win?) Clients hate them in practice because they want advice and information that's exact (Will I win?), and all we can do is give probabilities or discuss arguments.

In these cases, the test goes something like this. (I was going to do this with a catchy graphic of the scales of justice, but I can't figure out how.)

Weigh this: There are horrible crimes committed by incorrigible kids. We need to protect the public by locking 'em up forever.

Against this: Everyone has some possibility of redemption and kids especially have the ability for rehabilitation. We don't need to throw away the keys.

Living Constitution
You know. It's the rule that says the Constution means whatever it means today, regardless of what it meant when adopted - or last week, for that matter. At it's most vacuous, it's bomfog (an acronym coined by reporters covering Nelson Rockerfeller who used to talk in all his speeches about the brotherhood of man and the fatherhood of god). More substantively, it's what allows consideration of all those things that are more than Horatio dreamt of in his philosophy.

What does it do here? Who's to say? Roll everything up and see what happens.

Kennedy and Sotomayor
Sometimes you just have to do the math. Scalia and Thomas dissented in both Roper and Kennedy. If they don't believe the constitution prohibits the death penalty for juveniles who kill or for people who don't kill, it's about impossible to see why they'd think it prohibits the death penalty for juveniles who don't kill. Roberts and Alito weren't on the Court when Roper was decided, but they were there to dissent in Kennedy. I don't imagine anyone doubts how they'll vote.

Breyer, Ginsburg, and Stevens, the Court's centrists (no matter what the press keeps saying, there hasn't been a true liberal on the Court since Brennan and Marshall retired), said you can't kill kids and you can't kill people who don't themselves kill. It's a fair bet, though far from a sure thing, that they'll say you can't put kids who don't kill away forever.

And then there's Kennedy and Sotomayor.

Kennedy is, of course, the justice of literary bomfog. ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," he said Lawrence v. Texas, roughly quoting himself.) He's the closest thing to an old-fashioned libertarian conservative on the court today, but he's not particularly close. Since Justice O'Connor resigned, it's been clear that, on close questions, the Constitution ultimately means what he thinks it means. But what he thinks is hard to pin down. He opposed the death penalty for kids and for non-killers. But LWOP? Your guess is as good as mine.

And then there's Justice Sotomayor about whom we can simply say that we don't know.

OK, that's the framework analysis. Now, what does it all mean? On the one hand, it means that the law is, and the Constitution says, whatever five of the nine justices say it does. It means that the smart money is on Anthony Kennedy to decide Sullivan and Graham. It means that they may well come out differently.

Sullivan was 13 when he was sentenced to LWOP; Graham was 19, though he was 16 at the time of the underlying crime, so age may make a difference. So may the processes by which the cases got to the court. One or the other (or both) may be found to have waived the issue by not pursuing it properly in the lower courts. And, of course, their crimes and criminal records are different. Will any of this matter? Nobody knows.

But this isn't about prediction. It's about what's right. So let me begin with the caveat.

Scalia is not wrong to denigrate approaches to constitutional interpretation that are wholly divorced from its actual words and the framers' intentions, but we should be taking them as springboards for rather than limitations on analysis. If the Constitution means whatever five of nine justices happen to think it means this week, then it means nothing. It's just a vehicle for anarchy.

On the other hand, the Constitution is broad. And while some of its terms are simple enough. (One must be 35 years old to be President.) Others are remarkably squishy. (What is due process, anyway, and how much is due?) And, of course, our world is not the world of 1787 when the Constitution was adopted, or 1791 when the Bill of Rights was. Interpretation isn't, and really can't be, as ministerial a task as Scalia and Thomas often like to say, as Chief Justice Balls 'n' Strikes maintained at his confirmation hearings, or as the wise Latina told us at hers. And thank god.

So let's look at what we're talking about. Juveniles. Kids who were under 18 at the time of their crimes. That's an arbitrary age cut-off, of course, but it's what we use for many things, and it will have to do. They were convicted of doing seriously bad things (in Graham's case doing more while on probation). Their current sentences are death in prison with no possibility of release. It's a nightmare sentence. And it is, frankly, nuts.

Put aside the horror of a life confined and wholly without hope. Ask why we must keep the death bed patient in prison. Out of fear of just what do we refuse to release the quadraplegic? What's the point behind a sentence that allows for no review ever? And then apply those questions to kids.

If you don't believe the neurological and psychological studies of children, then perhaps you can believe the anecdotal evidence.

Here's Alan Simpson, Republican, who served 16 years in the Senate after his own childhood bouts with arson, burglary, and gun violence, writing in the Washington Post.

When a young person is sent "up the river," we need to remember that all rivers can change course.

And here's former juvenile offender, and unsuccessful Detroit City Council candidate Raphael Johnson, writing in Newsweek,

I'm proof that people, especially teens, can't be judged by the worst thing they ever did.

Sister Helen Prejean likes to make that same point: None of us is as bad as the worst thing we've ever done. And ultimately nobody is without hope of redemption.

These cases don't ask about actually releasing juveniles. They ask about possibility. Not should Sullivan or Graham be released someday but should they be allowed to seek release, and should there be a mechanism for granting it if it seems like a good idea at the time.

Put the legal and constitutional arguments aside, if you will. Ask the proper question: Why the hell would we want to impose LWOP on anyone? I get that it's something other than death to help avoid executions. But on it's own terms it's cruel and pointless. And, by the way, it's likely that it makes prison administration harder.

Now we'll return to the Constitution. A punishment that makes no logical sense and has no ultimate rational purpose except cruelty for its own sake, should be prohibited as cruel and unusual and as government action without due process. There's really never a constitutional justification for LWOP.

It's death in prison. Death penalty light.

The kids should win.

Alas, that's a goal, not a prediction.

UPDATE

Doug Berman predicts that however these cases come out, neither will be decided on a 5-4 vote.

---------
*The Court will round out its morning with a case involving patent law, Bilski v. Kappos, about which I have absolutely nothing to say.

Let Us Now Praise

Once in a while, the courts just do something bold. They see a real problem and they decide to fix it. It doesn't happen often, but when it does, we really ought to sit up and take notice.

The ranting public defender, S, over at Preaching to the Choir, has been following the story of the corrupt juvenile court judges in Pennsylvania's Luzerne County Court (here, here, and here). You know, the ones who took the bribes and kickbacks, and thereby made millions, for depriving kids of fair hearings and counsel and then sending them off to juvenile detention centers for the most trivial of offenses. Tonight she has the latest news, and good news it is.

In an extraordinary 9 page opinion, the Pennsylvania Supreme Court reversed, vacated, dismissed, and sealed the records of, quite literally, thousands of juvenile convictions from a more than five-year period. The state urged the court to remand so that case by case determinations could be made. The court said, and said emphatically, that it would not do that.

[Judge] Ciavarella’s admission that he received these payments, and that he failed to disclose his financial interests arising from the development of the juvenile facilities, thoroughly undermines the integrity of all juvenile proceedings before Ciavarella. Whether or not a juvenile was represented by counsel, and whether or not a juvenile was committed to one of the facilities which secretly funneled money to Ciavarella and Conahan, this Court cannot have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially while he labored under the
specter of his self-interested dealings with the facilities.

In short, there is ample support in the materials properly before us to assess the bases cited by Judge Grim for his finding that all juvenile adjudications and consent
decrees entered by Ciavarella between January 1, 2003 and May 31, 2008, are tainted. Accordingly, we DENY the Commonwealth’s request to remand.

That's language you don't see very often. Then again, you don't see a case like this too often.

What's striking, of course, is that the court not only did the right thing, it did it forcefully and gloriously. You can't trust anything a corrupt judge did, the court said, so none of it counts. And since the kids were already abused, we're just going to let them all (actually, it's nearly all) off the hook. Enough.

Wow.

Credit where it's due

Robert Brundage was a well-loved figure in Toledo.

He was raised here, played the cello in the Toledo Youth Orchestra, attended the University of Toledo, went off to earn a doctorate in biophysics at Brandeis, stayed in Massachusetts where he worked as a scientist and engineer and owned a sound-recording company. A bit over a decade ago, he came back to Toledo.

Toledo loved him for coming back but especially for what he brought back: a commitment to community activism. Social justice, he was there; the environment, he was there; the arts, he was there; education, he was there. And wherever it was, he got there on his bicycle, traveling through the mixed neighborhood where he lived and was known. He embodied what he was and what he did. (See story here.)

And then he was killed.

He was biking home from, naturally, a meeting of the Jobs for Justice Coalition. Then, according to police and prosecutors, a 15-year old kid, Dai'Lahntae Jemison, punched him once, knocked him to the ground, and stole his bicycle. When he hit the ground, Brundage suffered a brain injury. Two weeks later, he died. (Story here.)

Shock and outrage and horror. The sort of crime we call senseless and the sort of loss we call tragic. And Dai'Lahntae Jemison, who had been charged with aggravated robbery was now charged with murder.

Because Jemison was 15, the case went to Juvenile Court where the ostensible goal is rehabilitation rather than to adult court where the ostensible goal is to punish the hell out of people. But because he was 15, and because the crime was murder, Jemison could have been transferred to the adult system. All it required was a showing of probable cause (that he might plausibly be found guilty) and he was "not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions." (The relevant statute is here.)

The prosecutor asked for the transfer, as the prosecutor always does. The Toledo Blade had a lead editorial explaining that Jemison should go into the adult system so that he could be sent to prison for life. (It could have been life without parole, though the Blade doesn't mention that.)

The pressure was on. And then something that just shouldn't be newsworthy happened. The judge, Connie Zemmelman, did the right thing. She considered the evidence before her (and good for Joanne Rubin, who represented Jemison and made a first-rate record), considered what the law required of her, and determined to keep him in the juvenile system. The state didn't prove he wasn't amenable to rehabilitation there.

This is no small thing for an elected judge in a high profile case in a community as small as Toledo and with a lock-'em-up-and-throw-away-the-key editorial policy in the local paper.

But there's this thing we call the Rule of Law. Judges aren't supposed to decide cases based on emotions, on the roar of the crowd, on the basis of newspaper editorials. The fact that Brundage was an exceptionally decent man or that the Old West End where he lived and where the crime occurred has too high a crime rate or that kids need to be warned that this sort of thing shouldn't happen has nothing to do with what Connie was to decide.

She was to look at specific factors and the evidence before them, and weigh them. And she did.

In her opinion explaining why she refused to transfer Jemison, she wrote this:

I feel compelled to acknowledge the tragedy of losing any life to such a senseless act. This is especially notable where the life taken involves someone like Mr. Brundage who has been a tremendous asset to our community. This act of violence will have a lifelong effect on Mr. Brundage's survivors, friends, and on Dai'Lahntae Jemison. These considerations are certainly relevant at the time of the ultimate disposition in this case - but they are not pertinent to the question of whether Dai'Lahntae Jemison is amenable to treatment in the juvenile justice system.

Amen.

KIDS

The title of this post is the title of the song in Bye Bye Birdie, you know (if you're of a certain age, anyhow), the one Paul Lynde sang on Broadway and in the movies, the one with the questioning refrain, "What's the matter with kids today?" In the musical, it was an expression of parental frustration. The kids were, ultimately, just fine.

Back in the day (almost any day, I suspect), in response to complaints about how terrible our generation was - unlike the decency and respectfulness of our parents' generation, people circulated blocks of quotations (everything from the Bible to Hitler, and I've been looking for the Hitler quote to post a link but haven't found it - please pass it along if you've got it) showing that every generation has said this about the next.

In the 50s, we saw that generation gap reflected odd ways in the popular culture, with young people presented as threatening the safety and social norms of a prior generation in films like The Wild One and in the rise of rock 'n' roll (also racially tinged) and its careful and qualified admission into the mainstream through, for instance, the near censoring of Elvis' hips on The Ed Sullivan Show. In the 70s it was showing up as theme in such television shows as All in the Family. By the 80s, the generation had shifted so that the conservative child in Family Ties
proved the threat to his liberal parents.

And of course it continues today. Sometimes the kids are fine, sometimes they're not. But always there's the threat. "What's the matter with kids today?" And what will we do about it?

One option, one we always turn to when we're scared, is the penal code. So a number of jurisdictions have tried to criminalize sagging pants. Others have brought (or threatened to bring) felony charges for sexting (see here and here and, self-referentially, here, for instance).

And then there's the matter of punishment.

In Roper v. Simmons, the Supreme Court held that because juveniles lack the maturity and self-control of adults, they could not, consistent with the Eighth Amendment be subjected to the death penalty. This coming term, the Court will be looking at two cases from Florida (Graham v. Florida and Sullivan v. Florida that ask whether the Eighth Amendment prohibits a sentence of life without parole for juveniles convicted of non-homicide offenses.

The number of children currently serving LWOP sentences almost defies comprehension. Back in 2006, Doug Berman blogged about the problem (thanking Howard Bashman for a citation to a story in the Philadelphia Daily News which seems no longer to be available). Berman also provided the link to this report from Amensty International and Human Rights Watch. It's chilling.

And now there's the problem of the real kids. A new report issued by The Lyndon Johnson School of Public Affairs at the University of Texas, From Time Out to Hard Time: Young Children in the Adult Criminal Justice System, focusing on children under 13 being tried and sentenced as adults. Yesterday's NY Times carried this editorial urging Congress and the states to enact legislation to restrain the trend. Doug Berman quoted the editorial at length and linked to the report. Arbitrary and Capricious linked to both the editorial and the report. And now I've done it.

I'm not naive. There are kids who've done terrible things. But they're kids. It's the grownups who are supposed to exercise restraint.

So, finally, here's the answer to the question Paul Lynde asked:

What's the matter with kids today?

Adults.

Ohio v. Texas

In a cyclical process, I learned from Grits for Breakfast today that Doug Berman posted his pleasure at discovering that Texas has now eliminated life without the possibility of parole (LWOP) sentences for juveniles. Berman, in turn, learned about it from Scott over at Grits, so the world spins in its way. Except for the fact that it's Texas.

The U.S. Supreme Court is going to be considering two cases this year (Graham v. Florida and Sullivan v. Florida) on whether it is unconstitutional to sentence a juvenile to LWOP for a crime other than murder.

Meanwhile, Ohio chugs along having decided that LWOP should always be an available sentence for aggravated murder. I take some responsibility for that law, which has its virtues, but also its problems.

It used to be that LWOP was a possible sentence only in capital cases. So when prosecutors wanted LWOP, they had to bring death specifications. No big deal, since in the ordinary case, any prosecutor who wanted LWOP really wanted death. But for juveniles, where death wasn't an option, prosecutors still brought death specifications.

Then I won Robert Harwell's appeal. (State v. Harwell, discussed here.) Suddenly, those juveniles charged with death specifications were entitled to all the protections of people actually subject to death. The state didn't want that. So the General Assembly amended the law. Now, LWOP is available for aggravated murder without death specifications.

Juveniles can now get LWOP without receiving any special legal protections. That's bad for kids. On the other hand, it makes it easier for adults to get LWOP, and, therefore, makes it easier for prosecutors not to seek death sentences - or to agree to take death off the table in exchange for a plea. Good for adults, bad for kids.

And then there's Texas where the legislature just said no juvenile can get LWOP.

When I moved to Ohio from Texas in 1989, I thought I was going to a more enlightened place. It's true we don't execute as many folks here as they do there (no place else in the nation comes close to matching Texas on that score, of course), though we're the killingest state in the north. And thanks to my good lawyering, kids here are in some ways worse off than kids there.

Can't win for losing.