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Jewish World Review May 19, 2010 / 6 Sivan 5770 Only Roberts gets juvenile sentencing case right By Robert Robb http://www.JewishWorldReview.com | In striking down a sentence of life without parole for a juvenile armed burglar, the U.S. Supreme Court demonstrated the problem when it does the right thing for the wrong reason. The 8th Amendment to the Constitution forbids "cruel and unusual punishments." This particular sentence was unusual in a couple of respects. In the first place, life without parole is an unusual sentence for armed burglary in Florida, the state in question, and anyplace else. Moreover, the circumstances that gave rise to this sentence were highly unusual and arguably improper. The juvenile, Terrence Graham, originally entered into a plea bargain for armed burglary. Adjudication was withheld and Graham was given three years probation with the first year in jail, with credit for time served. Graham was subsequently alleged to have attempted another burglary, while still a juvenile. The life without parole sentence was imposed for the first offense after a finding that Graham violated his probation. Nevertheless, it is clear from the comments of the sentencing judge at the time, that the sentence was strongly influenced by the alleged additional burglary - to which Graham had never pled guilty nor been found guilty. In a concurring opinion, Chief Justice John Roberts looked at the circumstances in this particular case and concluded that Graham's punishment was, indeed, unconstitutionally unusual. That, however, isn't the way the majority of the justices decided the case. Four justices joined an opinion by Anthony Kennedy that found that, for juveniles, all life sentences without parole constitute cruel and unusual punishment for any nonhomicide crime regardless of how heinous and depraved. Rather than decide Graham's case, they used Graham's case as an excuse to issue a categorical ban. In doing so, the court relied on one of those judge-made rules with no grounding in the actual language of the Constitution. This one reads almost like a parody of the "living Constitution" theory law professors teach but no would-be judge admits to supporting during confirmation hearings. Here's what the judge-made rule says. And to borrow from Dave Berry, I'm not making this up: Determining what constitutes cruel and unusual punishment is based upon "the evolving standards of decency that mark the progress of a maturing society." According to the majority opinion, the fact that 37 states and the federal government allow for some juveniles to be sentenced to life without parole in some circumstances isn't an indication of the prevailing "standards of decency." Instead, the fact only 12 jurisdictions have actually meted out such a sentence, and most of such sentences are in Florida, indicates a consensus against the practice. The slippery and disingenuous nature of this reasoning is easily demonstrated. How many states does it take to preserve the constitutionality of a particular punishment? The court never says. And the evolution can only take place in one direction. After the court declares a particular punishment unconstitutional, any consensus moving in the opposite direction is forbidden. Basically, the court is acting as a superlegislature, forbidding punishments that offend the sensibilities of a majority of the justices, using a manufactured "consensus" as a rationale, and then outlawing any movement or indication to the contrary. Clarence Thomas' dissent in the case, joined by Antonin Scalia and in part by Samuel Alito, does his usual excellent job of making mincemeat of the ungrounded and slippery reasoning of the majority opinion. But he also takes issue with Roberts' take on the case as going beyond what the court has previously done in considering the unusualness of sentences in individual cases. The 8th Amendment, however, is an individual right grounded in the Constitution's general promise of equal justice under law. Unless the Supreme Court is willing to take an independent look at sentences applied in individual cases, the protection against "unusual" punishments is meaningless. Of nine justices, only one - Roberts - got the role of the court right. That's discouraging. Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here. Robert Robb Archives © 2010, The Arizona Republic

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