La Société, C’est Moi

Here’s Justice Stevens’ concurrence in Graham v. Florida, a decision holding that the Cruel and Unusual Punishment Clause bars states from sentencing under-18-year-old criminals to life imprisonment without parole, except for homicide:

In his dissenting opinion, Justice Thomas argues that today’s holding is not entirely consistent with the controlling opinions in Lockyer v. Andrade, 538 U. S. 63 (2003), Ewing v. California, 538 U. S. 11 (2003), Harmelin v. Michigan, 501 U. S. 957 (1991), and Rummel v. Estelle, 445 U. S. 263 (1980). Post, at 7–9. Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, see Weems v. United States, 217 U. S. 349, 373–378 (1910), this argument suggests the dissenting opinions in those cases more accurately describe the law today than does Justice Thomas’ rigid interpretation of the Amendment. 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, post, at 8–9, and n. 2.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

There are lots of possible views about how the Cruel and Unusual Punishment Clause should be interpreted. But the one thing that strikes me as clear is that this decision has nothing to do with society changing, knowledge accumulating, “we” in the sense of society learning from our mistakes, or “standards of decency” evolving since 1980.

If Justice Stevens is correct that the majority opinion is inconsistent with the cited precedents from 1980 to 2003 — and it’s not at all clear that there is such an inconsistency, since those precedents are pretty mushy, and since they didn’t deal with juvenile offenders, a factor that both the majority and Chief Justice Roberts’ dissent sees as highly noteworthy — the reasons for the change are simple: A change in the Court’s personnel, and possibly a change in one Justice’s (Justice Kennedy’s) views.

I know of no evidence that society as a whole has changed in the direction of treating life sentences for juveniles as “indecent.” To my knowledge, since 1980, there’s been a general increase in severity of punishment in the U.S., and something of a shift in favor of treating minors as severely as adults. It’s possible that the matter is different specifically as to life terms for juveniles committed of non-homicide crimes, but Justice Stevens points to no evidence whatsoever that this is true.

Rather, it seems to me that Justice Stevens — and in large measure Justice Kennedy’s majority opinion (see especially slip op pp. 16-24) — aren’t really applying a standard based on societal “evolving standards of decency,” or for that matter “knowledge” in the sense of knowledge of objective fact. 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.

Perhaps the bottom-line results the Justices would reach are correct, under some defensive moral or practical analysis; I haven’t studied the subject closely enough to have any seriously thought-through view on how the Cruel and Unusual Punishment Clause should be interpreted. But let’s be blunt here about what is actually going on.