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May 28th, 2010

Judging Morality

May 22, 2010

Recently, the U.S. Supreme Court held that a life sentence without the possibility of parole for a juvenile convicted of a crime other than homicide was unconstitutional. In Graham v. Florida (2010), the Court found that this sentence violated the 8th Amendment’s prohibition on cruel and unusual punishment, though it acknowledged that such a sentence may not have been understood by the drafters of that Amendment as being unconstitutional.

Graham, a juvenile at the time, and two of his friends attempted to rob a barbeque restaurant in Jacksonville, Florida. The robbers eventually fled the scene without taking any money, but not before they assaulted the manager with a metal bar. Pursuant to a plea agreement, Graham pled guilty in exchange for probation.

Less than six months after telling the court that “this is my first and last time getting in trouble,” Graham was involved in an armed home invasion in which they held the occupants at gun point while they ransacked the home looking for money.

Later that same evening, Graham was involved in another home invasion in which one of his accomplices was shot. After dropping his wounded friend off at the hospital, Graham led police on a high-speed chase until he crashed into a telephone pole. In later questioning by police, he confessed to having been involved in two or three other home invasions prior to that night.

The court revoked his probation and sentenced him to life in prison, finding that, “[g]iven your escalating pattern of criminal conduct, it is apparent to the Court that you have decided that this is the way you are going to live your life and that the only thing I can do now is to try and protect the community from your actions.”

Since Florida does not have a parole system, Graham’s only hope of release was by executive clemency…or judicial empathy. A majority of the Supreme Court, relying on its amorphous 8th Amendment standard of “evolving standards of decency,” ruled that the sentence violated the Cruel and Unusual Punishment Clause because it denied juveniles “any chance to later demonstrate [their fitness] to rejoin society.”

Justice Kennedy, writing for the Court, held that, though the 8th Amendment did not necessarily prohibit a life sentence for a juvenile, it required states to “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

Justice Stevens, along with Justices Ginsburg and Sotomayor, sought to justify in their concurrence the Court’s power to gauge the “evolving standards of decency” by arguing that: “Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time…”

While that may be true, this standardless standard gives judges little guidance as to when and how far society has changed. But that is entirely the point of this and all other liberal judicial maxims—they are dressed up in just enough constitutional trappings to appease at least some of the public, while also vague and fluid enough to allow the justices ample ability to indulge in their favorite policy decisions.

“Evolving standards of decency” is nothing more than the substitution of the Court’s own judgment in place of the legislatures’ as to when, “in the light of reason and experience,” a criminal punishment should be changed or modified. And in doing so in this case, it rejected the judgment of Congress, the District of Columbia, and 37 states which had allowed life sentences for juveniles in certain non-homicide cases and replaced it with its own.

Some commentators have commended the Court’s decision, calling it the “right thing.” But a morally “right” decision does not make a constitutionally “right” decision. Because judges are not arbitrators of morality but of the law, they must not, as Alexander Hamilton noted in Federalist #78, “substitute their own pleasure to the constitutional intentions of the legislature.”

Judges are tasked by the Constitution with interpreting that document as its language was originally understood, not to attempt the impossible task of measuring the moral pulse of the country. It is long overdue, therefore, for the Court to abandon once and for all its unconstitutional “evolving standard of decency test.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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