>> Tuesday, November 10, 2009
There's something very depressing about the oral arguments on juvenile sentencing yesterday. It's not just that, at best, the court seems headed towards a content fre...er, "minimalist" balancing test. In theory, I don't even have a problem with proportionality review in these cases; it's true enough that it doesn't make much sense to say that a 17-year-old could never get l-w-p for 1st degree murder while a 19-year-old could get l-w-p for armed robbery. The problem is that balancing tests are exactly as good as the courts applying them, and given the current composition of both the Florida courts and the federal courts...there's not a lot of room for optimism. One suspects that, aside from maybe 1 or 2 egregious cases involving adolescents, we'll get a Kennedy special in which the Court holds open the theoretical possibility that a sentence could be unconstitutional while in practice never finding a non-capital sentence disproportionate.
But it really goes beyond that. There's something jarring about these cases -- which in the Sullivan case involved not only a draconian sentence but procedural defects that should be unacceptable if he was 40 -- being addressed at an angle that will have the least impact. That's not the fault of the lawyers -- their job is to shock the consciences of Kennedy and/or Roberts, and for their clients the lower the impact the better their chances. But even if the prisoners here end up with more reasonable sentences, it fundamentally seems like an evasion of the real issues. For the same reason, I can't imagine why people got so exercised about Roper v. Simmons. I suppose it's nice that zero rather than maybe one or two 17-year-olds will get executed per decade, and the outcome of the case is defensible (even if Kennedy's opinion is typically shaky.) But it allows the Court to pat itself on the back for its humanity, while leaving in place a system in which innocent people with buffoonishly inept counsel can get railroaded to the death chamber based on tarot card readings. Window dressing doesn't make this structure much less ugly.