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On Monday, the Supreme Court ruled 5-4 that sentencing minors who have not murdered to life without parole violates the Constitutional ban on "cruel and unusual punishment." Henceforth, all minors who are incarcerated for crimes other than homicide must be given a parole hearing and considered for release. That doesn't mean that they have to be granted parole, but it does mean they have to be given that second look.

Those who stand by the "children shouldn't be punished as adults" argument are pleased, though many wish the court had gone further. Those skeptical of the way the "cruel and unusual" language has been used in recent years are predictably displeased--particularly since the majority opinion, written by Justice Kennedy, looked abroad for part of his argument about life without parole being "cruel and unusual."


  • Right Won't Be Happy Steve Benen looks at Kennedy's mention of a "'global consensus' against life-sentences for youths who haven't committed murder." This will "likely enrage the far-right," Benen predicts, " which tends to throw a fit when justices take note of international developments."
  • Children Mature, Nations Mature That's The New York Times editorial board approves of the decision, saying "[the ruling] recognizes that children mature and should not be irrevocably punished for a childhood act short of killing. But it also recognizes that nations mature--that standards of justice and constitutional principles change over the centuries and should be reinterpreted by new generations." The board also praises Justice Kennedy for "braving the catcalls of nativists" to look to examples in foreign law.
  • Pluses and Minuses  The Heritage Foundations's Cully Stimson is glad "the Court upheld the constitutionality of life without parole (LWOP) for juvenile killers," but takes issue with the rest of the decision: "the Court misread the meaning of the Eighth Amendment, which simply does not speak to this issue. Furthermore, it cites to foreign law to justify its result, and relies on the rarity of juvenile LWOP sentences to strike them down, rather than recognizing that this just means they are imposed judiciously."
  • Yes, Calling This 'Cruel and Unusual' Constitutes an Updated View of 'Cruel and Unusual' "The Court's majority opinion does indeed reflect an 'independent judgment' that the Eighth Amendment bans such sentences," agrees political science professor Scott Lemieux at Lawyers, Guns, and Money. But where he differs with Justice Thomas, who argued this very thing in a dissent, is that Lemieux isn't sure that "there's something wrong with this. Exercising independent judgment is what courts do when exercising judicial review." Lemieux also points out that "it's impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified." Even Antonin Scalia, he notes, has said he would object to a sentence of flogging, even though flogging might not have seemed "cruel and unusual" at the time the Constitution was written.
  • Is This a 'Philosophical Meta-Joke'?  Dodd at Outside the Beltway is absorbed by the contradictions of the court's various Monday rulings. He quotes the dissent: "The Court is [now] quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied re-entry into society, but insists that a 17-year-old who rapes an 8-year-old and leaves her for dead does not." He also can't figure out how this ruling makes any sense given another judicial ruling: "Legislatures are now permitted to hold already convicted criminals past the end of their sentences, but they may not make the subjective determination that near-adults convicted of heinous crimes may be permanently removed from civil society."
  • Why This Is a Reasonable Decision   Jill at Feministe reviews:
It's important to point out that this isn't about giving anyone a get-out-of-jail-free card. It's not saying that no juvenile should be in prison for life. But juveniles do not have the same brain development as adults--they lack the same degree of impulse control and the ability to fully appreciate the consequences of their actions. This case simply allows a parole board to evaluate the offender's record and efforts at rehabilitation.
  • Let's Not Pretend the Status Quo Is Just  The American Prospect's Adam Serwer concurs with Kennedy's argument that "none of the interests generally served by criminal justice 'retribution, deterrence, incapacitation, and rehabilitation' apply equally to homicides committed by juveniles." Furthermore, Serwer points out that " black youth receive LWOP sentences at a rate of 10 times that of white youth. History casts a long shadow over the implementation of criminal justice in America, particularly when it comes to the subjective judgments of who is a monster and who isn't."
  • Let's Not Pretend This Ruling Resolves the Matter  Seasoned Supreme Court journalist Lyle Denniston notes the many matters this ruling leaves open for further challenges and clarifications--including when the juvenile must come up for parole.
  • The Wrongness of Looking to International Law  Cato's Ilya Shapiro argues that "reliance on indefinite international norms undermines both the democratic process and the rule of law," and though "looking to international example is prudent when designing constitutions and drafting legislation," it's something that should be "[left] to the political branches."
  • And the Disingenuousness of It National Review's Andy McCarthy, citing brutal punishments involving amputations in Sharia law, thinks
It would be nice if Justice Kennedy and the rest of the Court's transnational-progressives would come clean and admit that when they cite foreign law, they are selectively mining other countries and international tribunals for leftist standards that transnational progressives find congenial. Quite apart from the impropriety of relying on foreign law to interpret America's Constitution, the thought that the justices are honestly, objectively seeking out some sort of universal consensus--rather than rationalizing the imposition of their own pieties--is farcical.
  • By the Way: Society Hasn't Actually Been Moving in This Direction "I know of no evidence that society as a whole has changed in the direction of treating life sentences for juveniles as 'indecent,'" writes Eugene Volokh, addressing the "cruel and unusual standard." In fact, he continues, "to my knowledge, since 1980, there's been a general increase in severity of punishment in the U.S., and something of a shift in favor of treating minors as severely as adults." Thus, the majority justices are actually "applying their own views of what society should do."

This article is from the archive of our partner The Wire.

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