The Wise Men (and Woman) tell us that it is morally disproportionate to sentence a juvenile violent offender to LWOP for any crime short of homicide. Their Constitutional argument? Well, by golly, the Court itself has decided that only the Court gets to decide whether a particular penal practice violates the Eighth Amendment... so in effect, a bare majority of five ivy-league, ivory-tower justices can override the democratically enacted laws of the people to whom the Founders entrusted the question of what is or is not a "cruel or unusual" punishment. The cloak for this naked exercise of raw political power is that our five Oligarchs will first determine that "evolving standards [sic] of decency" require that they intervene to declare a punishment to be in violation of the Eighth Amendment.
Justice Thomas makes this modest reply:
The news of this evolution will, I think, come as a surprise to the American people. Congress, the District ofColumbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile nonhomicidecases, and those judges and juries have decided to use it in the very worst cases they have encountered.Justice Stevens, who is thankfully retiring, chastised Justice Thomas' "rigid" approach (meaning: respect the limited role of the judiciary and let the legislative branch set punishments). Quoth Stevens, "Standards of decency have evolved since 1980. They will never stop doing so."
The Court does not conclude that life without paroleitself is a cruel and unusual punishment. It instead rejects the judgments of those legislatures, judges, and juries regarding what the Court describes as the "moral"question of whether this sentence can ever be "proportionat[e]" when applied to the category of offenders at issue here. Ante, at 7 (internal quotation marks omitted), ante, at 1 (STEVENS, J., concurring).
I am unwilling to assume that we, as members of thisCourt, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.
We well know that criminal advocates and death penalty abolitionists fondly hope and dream that these so-called "standards" will evolve so much that the death penalty will be considered inhumane, and all LWOP sentences cruel and unusual. By the way-- what kind of "standard" is it that undergoes constant flux according the moral judgment of the Ivy League fraternity that is the 5-justice majority?
The march of the criminal's lobby goes on, looking for the day when the death penalty is again ruled unconstitutional, and states are forbidden even from imposing LWOP on offenders. Once the principle is admitted that long periods of incarceration can be violative of the Eighth Amendment, the sky is the limit for the crime lobby, and after LWOP falls, mandatory minimum sentences will be next.
Is there any doubt where Elena Kagan will end up on this issue?