Set Irony To Maximum

SexOffender The Supreme Court handed down two rulings today which, from almost any other institution, one would be forced to conclude were intended as some sort of philosophical meta-joke. First, in Graham v. Florida, Kennedy rules for a 6-3 Court that, unless there’s a murder involved, it violates the Eighth Amendment to sentence a juvenile to life without parole.

Justice Thomas dissents, noting not only the inherent flaw of the decision’s loose notions of moral culpability, but the grotesque consequences it entails:

“Death is different” no longer. The Court now claims not only the power categorically to reserve the “most severe punishment” for those the Court thinks are “the most deserving of execution,” but also to declare that “less culpable”persons are categorically exempt from the “second most severe penalty.” No reliable limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third, fourth, fifth, or fiftieth most severe penalties as well.

[This despite the fact that, for years,] the Court found that the excessiveness of one prison term as compared to another was “properly within the province of legislatures, not courts,” precisely because it involved an “invariably… subjective determination, there being no clear way to make “any constitutional distinction between one term of years and a shorter or longer term of years.” …

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. [Emphasis added.]

Contrast with United States v. Comstock, wherein Breyer writes for a 7-2 Court that sex offenders can be held indefinitely, even after completing their sentences.

Justice Thomas again dissents, disagreeing with the the Necessary and Proper Clause extends beyond Congress’ enumerated powers to include such laws as this. The heart of that argument is worth repeating here since it will doubtless be one we’ll be revisiting many times in the next few years:

During the State ratification debates, Anti-Federalists expressed concern that the Necessary and Proper Clause would give Congress virtually unlimited power. Federalist supporters of the Constitution swiftly refuted that charge, explaining that the Clause did not grant Congress any freestanding authority, but instead made explicit what was already implicit in the grant of each enumerated power. Referring to the “powers declared in the Constitution,” Alexander Hamilton noted that “it is expressly to execute these powers that the sweeping clause… authorizes the national legislature to pass all necessary and proper laws.” James Madison echoed this view, stating that “the sweeping clause… only extend[s] to the enumerated powers.” Statements by delegates to the state ratification conventions indicate that this understanding was widely held by the founding generation.

Roughly 30 years after the Constitution’s ratification, McCulloch firmly established this understanding in our constitutional jurisprudence. Since then, our precedents uniformly have maintained that the Necessary and Proper Clause is not an independent fount of congressional authority, but rather “a caveat that Congress possesses all the means necessary to carry out the specifically granted ‘foregoing’ powers of §8 ‘and all other Powers vested by this Constitution.'”

It is difficult indeed to reconcile these two simultaneous rulings. 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.

In most cases, I prefer bright-line rules to “balancing tests.” But I don’t make a fetish of it. Thus, even leaving aside the jarring contrast between these rulings, it is inexplicable to me how the Court could have thrown out its longstanding rule that balancing competing societal interests in making sentencing decisions is the proper province of legislatures to reach the result in Comstock. But substituting one bright line for another, more clement one at least has the small advantage of erring on the side of prudence where lifetime sentences are concerned. That only serves to highlight the immense wrongness of the Graham ruling.

For decades we have seen sex offender punishments spiral out of control. Until today, the Constitutional excesses have mainly been in the form of ever-increasing post hoc sentencing enhancements related to how long someone convicted of peeing in public years ago will continue being treated the same as a a newly convicted child rapist. Today’s ruling will pour gasoline on the conflagration. Juxtaposed against the stripping away of the legislature’s longstanding power to send child rapists away for life if they happened to commit the crime the day before their 18th birthday, this farcical, results-based judicial activism (which will only allow them to be held permanently by extra-constitutionally extending whatever sentences they can now be given) is beyond comprehension.

FILED UNDER: Congress, Crime, Law and the Courts, Supreme Court, US Constitution, , , , , ,
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.


  1. Michael Reynolds says:

    I’m not sure I see irony here, let alone maximum irony. Would it have made more sense to allow 16 year-olds to be locked up forever while mentally-unbalanced sex offenders are loosed upon society?

    I have serious doubts about the sex offender finding, but there’s really not much irony in believing that children should be treated differently than adults, or that society should be protected against confirmed sexual predators.

  2. Mithras says:

    This seems like a lot of hyperventilating over not much. Juveniles can be sentenced to life with the possibility of parole, which is still life. No one serious believes that a 45-year-old is the same person as a 15-year-old, so officials must at least consider whether they’ve rehabilitated themselves. Of course, nothing the court said today will force states like Florida and Texas to actually grant parole.

    As for sex offenders, Megan’s Law-type statutes are out of hand, but states have always been able to use civil commitment to keep sex offenders confined after their prison sentence ends. (This is also true, by the way, for the very small number of people who “get off” due to an insanity plea – those found “guilty but mentally ill” are locked up for longer on average than those found just plain guilty.) Today’s decision just allows the federal government to do the same.

  3. I’m not sure I see irony here, let alone maximum irony.

    The irony is that Comstock renders Graham completely moot: even if Graham gets parole now, Comstock can be used to throw him right back in prison as a dangerous person.

    It seems the combined ruling is that it’s fine to hold people indefinitely, just so you pretend it’s not indefinite.

  4. PD Shaw says:

    The problem with phrases in the Constitution like “cruel and unusual” and “necessary and proper” is that they don’t lend themselves to bright line tests.

    I support the notion that “death is different.” And I don’t think that it de-uniquifies death to say that mental capacity has to bear on the issue of whether a punishment is cruel or unusual. A kid that was deemed not old enough to responsibly drink a beer simply cannot be judged to be a fully grown adult when it’s convenient for society. I certainly think non-parole, a conclusion of non-reformability, is cruel and unusual for someone under 21.

    I also don’t have a problem with federal law governing the conditions of safe release from federal prisons, particularly where the states are given first opportunity at this issue. But I’m a Hamiltonian.

  5. Dodd says:

    The irony is that Comstock renders Graham completely moot: even if Graham gets parole now, Comstock can be used to throw him right back in prison as a dangerous person.

    It seems the combined ruling is that it’s fine to hold people indefinitely, just so you pretend it’s not indefinite.

    I tried to anticipate how people would respond to this and spell it out. I guess I missed the mark. You’ve summarized it well, but it goes beyond that, too.

    This isn’t about treating children differently from adults. It’s about stripping away a long-recognized power of the legislature on imaginary Constitutional grounds with one hand while blatantly ignoring the Constitution to grant them a power the document expressly forbids with the other. It’s a travesty.

  6. PD Shaw says:

    It seems the combined ruling is that it’s fine to hold people indefinitely, just so you pretend it’s not indefinite.

    I don’t believe that issue has been reached yet. The SCOTUS did not address whether putting someone into civil custody after completing a criminal sentence was unfair. They assumed that a state could pass such a law and considered whether the feds could do so as well. Apparently Comstock gets to argue those other issues in the Court of Appeals next.