Posner Speaks

[And Also: A sentencing policy blog has discussed the cases in detail and has a good post challenging Thomas' originalism dissent, including the assumption that mandatory life imprisonment obviously follows from mandatory death sentences of the Founding Era. But, that is not necessarily true.  Life imprisonment might be worse.  Some "volunteers" do want to die, including one case in NY some years back that split the siblings of the victim.] 

A tweet informs me that Tom Goldstein thinks the ACA will be upheld, not fully convinced, but on balance sure enough to make a position. Not really worth linking to the SCOTUSBlog post on the matter and you know, "fwiw." Still, my heart says "yes," and my head says "that is a reasonable thing to say." Anyway, a tweet (another way to spend time online, as if there aren't enough) links Judge Posner's take on the individualized sentencing for minors ruling yesterday. In part:

The analysis part of the opinion begins with two quotations from Supreme Court opinions, one that the cruel and unusual punishments clause "guarantees the right not to be subjected to excessive sanctions" and the other that the clause "flows from the basic 'precept of justice that punishment for crimes should be graduated and proportioned." These propositions have no basis in the text of the Eighth Amendment (imprisonment is not cruel, and mandatory life sentences for juvenile murderers is not unusual, at least in the United States) or the English legal history that lies behind it or punishment practices in 18th century

Posner takes up so much that one can forgive some weak reasoning, but really, this is thin gruel. [He's okay with the ruling, btw, just is sorta upset about how they got there.] The opinion is not about imprisonment itself being "cruel," it is about life imprisonment for minors without providing individualized treatment of all the factors. Wrongful imprisonment can violate the clause. Reliance on history also is not a "textual" matter. And, as I noted, just because something is not "unusual" doesn't necessarily mean it is saved under the clause (e.g., I can hate jam and ham, and still hate jam alone). Finally, what exactly is "unusual" in this context? If 1% (one number cited during the oral argument) is involved?

"the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law

Why not? It isn't totally evolved, yes, but that is akin to saying a sloth is not fully evolved vis-a-vis a human. Our penal system in various ways is better than it was in the days when Posner was a boy, when there were less due process rights down to the ability of the poor to get counsel (however flawed) at all in many states. Later, he says that he wishes (channeling Colbert) that he wished (I can hear a Disney song in my head) judges could do more than rule by their "gut" in cases like this. They do. As in many cases, something that might be called a judicial gut might very well be the final factor. Still, that isn't the only thing used.

The discussion overall among the participants is fairly interesting, including various remarks Posner made. But, I find this lazy.