In Graham v. Florida, the Supreme Court held that it violated the constitutional prohibition against cruel and unusual punishments to imprison someone with no possibility of parole based upon crimes, other than homicide, committed while a juvenile.

These lines (at page 40 of the pdf.) in the concurring opinion by Justice Stevens, joined by Ginsburg and Sotomayor, jumped out at me (emphasis mine):

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete …. Standards of decency have evolved since 1980. They will never stop doing so.

Were we really indecent in 1980? It was not that long ago.

The sweeping ruling means the following criminals will get a parole hearing as a constitutional right (these are both actual examples cited in Justice Robert’s separate opinion concurring in the result on the facts of Graham’s crimes, but not the sweeping ruling):

Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin.

Nathan Walker and Jakaris Taylor, who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.

Eugene Volokh puts it well, that these are judicial preferences masquerading as objective societal analysis (emphasis mine):

They are applying their own views of what society should do, and then trying to add an objective sheen to those views by talking about impersonal “evolving standards of decency,” social change, accumulating knowledge, and reason and experience.

Yes, indeed. Take the two examples quoted above from the Roberts opinion. Society hasn’t changed on how society wants such people punished. Society is smart enough to recognize that there are some crimes so horrific, and some criminals so depraved, that they should not be in society, ever.

Society hasn’t changed since 1980. Only the Supreme Court has changed.

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Related Posts:
Sotomayor Threw O’Connor Under The Bus
Supreme Court Reverses Sotomayor
Yes To Sotomayor

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