Graham V. Florida: We learn, sometimes, from our mistakes

The Supreme Court ruled 6-3 against sentencing minors convicted of crimes other than murder to life imprisonment without possibility of parole. The dissent was written by Clarence Thomas, joined by Scalia and Alito.

Thomas first rejected the idea that the Supreme Court is better able to judge whether such sentences are proportionate to the crime committed than are legislatures, judges or juries: “I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task”. Boy, ain’t it the truth.

Indeed, he rejects the notion that punishments which are grossly disproportionate are unconstitutional, that is, that they are cruel and unusual.

The majority argues that there is an evolving standard of public opinion which now opposes locking up minors and throwing away the key. Thomas disagrees, and we’ll get to that, but first he denies that the constitutionality of a punishment rests on what he dismissively calls a “snapshot” of public opinion. Worse, he says, the Court only allows for evolution away from draconian punishments: why, there might be a “pendulum swing in social attitudes” in favor of more drastic punishments.

In support of his contention that there is a consensus among the American people for imprisoning minors for life for crimes other than homicide, Thomas notes that such imprisonment is allowed under the laws of 37 states (the Supreme Court often uses laws, no matter when enacted, as a proxy for public opinion, which leads it to declare in effect that laws are constitutional because they are laws), while only 5 states ban it. He rejects as completely irrelevant to determining the current acceptability of such punishments that in 26 states these laws have fallen into disuse.

And hell, if you go back to the 18th century, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Good times, good times. This is Thomas’s gold standard for moral acceptability: hanging little children for property crimes. Stevens, concurring with the majority, writes, “We learn, sometimes, from our mistakes.” It’s like he’s never even met Clarence Thomas.