Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly... hopefully not irreparably... broken.
First, from the New York Times:
NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN'T MURDERED.... In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can't receive life sentences if they haven't killed anyone.
By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.
The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.
"The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law," Justice Anthony Kennedy wrote in his majority opinion. "This the Eighth Amendment does not permit."
The Eighth Amendment, of course, prohibits cruel and unusual punishments.
Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham's fate.
In Justice Kennedy's majority ruling, he made note of the "global consensus" against life-sentences for youths who haven't committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.
In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old ... Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."
and in a complete reversal of logic, this judgement:
AP: High Court: 'Sexually Dangerous' Can Be Kept in Prison
WASHINGTON (May 17) -- The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered "sexually dangerous" after their prison terms are complete.
The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered "sexually dangerous."
"The statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others," said Justice Stephen Breyer, writing the majority opinion.
President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.
The act, named after the son of "America's Most Wanted" television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.
A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.
The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered "sexually dangerous."
But "we conclude that the Constitution grants Congress legislative power sufficient to enact" this law, Breyer said.
Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.
Nothing in the Constitution "expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power," Thomas said.
Thomas was joined in part on his dissent by Justice Antonin Scalia.
It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.
In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.
In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.
Both cases however, highlight a major problem with our "justice system" today: We can't deal effectively with our criminals, our prisoners, or our prisons.
There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.
Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.
There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.
In the case of the criminals under 18 being imprisoned for life because of sentence enhancements... The problem here isn't that it's a 17 year old in prison for life for something other than rape or murder... Its that "sentence enhancements" even exist at all.
Firstly, I think the whole "global consensus" thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)
Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.
When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.
However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.
If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.
One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow "evolving moral standards" and case law in other countries, to know whether one is violating the law.
In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.
All that said however I agree that the law in question should have been struck down, just for a different reason.
I believe that "sentence enhancement" conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.
Certainly, there can be special circumstances, but they shouldn't increase punishment; a maximum punishment should be set, and that's it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.
The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.
In the second case, we again have an issue of inappropriate sentencing.
Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.
For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).
Some things require ultimate sanction, and serious sex crimes are among those things.
On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot...
Which just reinforces the point: We're broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn't mean what it says it means.
The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER... It's disgusting. It's abhorrent to the very nature of our country, and our constitution.
Three strikes laws, sentence enhancements, sex crime laws... All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can't achieve the goals they're trying to achieve, with the techniques and tools they are using.
We're broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the "casual criminal" (and we are all "Casual Criminals" now). But we need to do it, without destroying what it means to be American.
In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).
The first thing we need to acknowledge, is that the so called "war on drugs" has not only failed, but was wrongly conceived in the first place.
Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn't reduce drug use at all. It doesn't reduce crime at all, in fact it increases it. It turns people who might otherwise be productive... or at least LESS of a drag on our society; into total dependents. It frequently makes them into "harder" criminals.
It just doesn't work.
Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.
Then there is the question of the proliferation of felonies... Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them...
Felonies are supposed to be reserved for "high crimes". Those things which must be punished by long term removal from society.
Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).
The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.
What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc...).
Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.
Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.
Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.
But that's all related to the practical issue.. The pragamatic justice as it were..
The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.
That isn't law, or justice; and it isn't what our country is supposed to be.
