On the Latest Eighth Amendment Cases

This week’s decisions forbidding states from applying mandatory life sentences to individuals under 18 have been well-covered elsewhere, but I had a couple points to make. First, from the opening paragraph of the dissent Alito angrily read aloud from the bench:

Even a 17½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teach- ers is a “child” and must be given a chance to persuade a judge to permit his release into society. Nothing in the Constitution supports this arrogation of legislative authority.

But, of course, even looking carefully at Alito’s argument you’ll note that Miller and Hobbs holdings don’t prohibit states from giving life sentences in cases like this; they just require them to give individualized consideration. Presumably, a “17½-year-old who sets off a bomb in a crowded mall” will still get life without parole even after this week’s holding. (And if there was an unusual case where this didn’t happen, well, even had the cases come out the other way nothing would require states to give sentences as harsh as Samuel Alito considers appropriate.) The problem with Alito’s hypotheticals is that no state in the country limits mandatory life sentences to particularly heinous mass killings, so there’s when discussing mandatory life sentences it’s misleading to focus on them. And, in fact one of the cases decided by the Court this week involved a mandatory life sentence given for the kind of “felony murder” that makes the whole category dubious — a 14-year-old was held fully responsible for a murder he not only didn’t commit or intend but also probably couldn’t reasonably foresee. The new rule would allow a life sentence for Alito’s hypothetical mass killer while not requiring a life sentence for the latter case where it’s patently unjust, while Alito would require a life sentence in both cases. Alito has a nice ongoing shell game going with respect to felony murder statutes. Here, he uses a hypothetcial mass killer to bootstap a defense of a mandatory life sentence to a 14-year-old who didn’t kill or intend to kill anybody, while in 2008 he used the fact that people are (absurdly) given death sentences for felony murder in some states to defend permitting states to execute people for sexual assault.

Anticipating this objection, Alito tries out a slippery slope argument: “the Court apparently permits a trial judge to make an individualized decision that a particular minor convicted of murder should be sentenced to life without parole, but do not expect this possibility to last very long.” The problem here is that where sentencing is concerned, there has been a great deal of traction on the slippery slope. Indeed, too much. In theory, the Eighth Amendment has prohibited disproportionate sentences for decades, but states are still free to give life sentences to people for stealing three golf clubs or life without parole for possessing 672 grams of cocaine. It’s true, as Alito says, that “The majority goes out of its way to express the view that the imposition of a sentence of life without parole on a “child” (i.e., a murderer under the age of 18) should be uncommon,” but since outside of Alito’s fevered imagination it’s uncommon for teenagers to commit brutal mass murders it’s not really clear what this proves.

There is one point on which I agree with Alito — the Court in these cases largely abandons the “emerging consensus” logic for interpreting the Eighth Amendment that Kennedy had been increasingly criticized for (especially in Roper v. Simmons, where the “merging consensus” was rested on very shaky foundations.) Kagan didn’t really have a choice, since mandatory life sentences to minors were more common 2012 than they were in 1982. Unlike the dissenters, however, this doesn’t really bother me. I don’t see why the cruel and unusual punishment clause should be different than the other constitutional provisions the Court is (for better or worse) required to interpret. We don’t require a broad popular and legislative consensus to apply other constitutional rights, and there’s no reason to require one to apply the rights guaranteed by the Eighth Amendment. What matters is whether Kagan’s interpretation is reasonable on its own terms, and it is.