<< News Scan | Main | Valor Stolen Again >>

Lemons to Lemonade in Miller v. Alabama

As a matter of Constitutional law, it seems to me that the dissents in Miller had the better of the argument.  But for those worried that Miller is nothing more than the continuation of the slow chipping away of both capital punishment and LWOP, with Justice Kennedy providing the key vote (see Roper and Kennedy v. Louisiana), let me try to provide some cheering up.  Miller is different in one very important way.

The Left had been hoping that Miller would spell the end of LWOP for juveniles.  In fact, that absolutist  position got nary a vote.  To the contrary, Miller did what Roper and Kennedy failed to do, i.e., provide for  --  indeed, demand  --  individual consideration, case-by-case.  To say, as the majority did, that JLWOP will be "uncommon," is to say that there are cases in which it is warranted.  To have a SCOTUS majority explicitly on board for that position is, in my view, a significant (even if in context disappointing) victory for the prosecution side.

I believe that is what the New York Times was attempting to capture when it quoted me on the outcome:

Nearly as suddenly, violent crime began to ebb across the country. The reasons for the drop-off are vigorously debated, with many liberals denying any link to incarceration rates. But William G. Otis, a top Justice Department official under the first President George Bush who is an adjunct law professor at Georgetown University in Washington, said there was little doubt in his mind that one reason for the decline was that "the people who have been committing these crimes are now in jail."

Still, he expressed satisfaction with Monday's ruling because it reduced reliance on mandatory sentencing and gave discretion back to judges who may still decide to put someone away for life.

"It's a mistake for the system to carve out classes," he said. "You should look at each case individually." 

Just so that I won't be misunderstood, my "satisfaction" with the opinion in Miller lay in its rejection of a blanket rule barring LWOP and its embrace of a case-by-case approach, not in its Constitutional holding that a penalty in force in 29 states is cruel and "unusual."

I take further heart that the case-by-case approach was set forth by Justice Kagan, giving credence to her confirmation hearing testimony that she would not adopt the one-size-fits-all rule for death penalty cases used by Justice Marshall, for whom she clerked.


For those who care about the rule of law, rather than the rule of judges, this decision is a lemon. Yes, the result may not be horrible, but the Court is getting out of hand on these sorts of issues.

Legislatures have the right to dictate that those who murder don't get out of prison ever. Kagan's snide commentary about inadvertence etc. is beneath contempt.

With Justice Kennedy having the view he does, our side is at risk every time there is a sentencing case involving juveniles. It is from practical necessity, rather than enthusiasm (much less agreement) that I point to the lemonade we can squeeze out of this one.

I wish I could be an optimist, but I think Chief Justice Roberts opinion is prescient: with the majority asserting that juvenile LWOP should be uncommon it has already laid the framework for the latter part of a subsequent broad "cruel and unusual" challenge down the road.

The president we elect in November will likely appoint the successors of justices on both sides of the ideological divide, tipping the court one way or the other. This election looks more and more critical every day.

Leave a comment

Monthly Archives