While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.
Today, the Supreme Court held, for the first time, that the Constitution prohibits sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide case. In Graham v Florida, the Court established this new rule which, for the first time, extends the special treatment of juveniles to non-capital cases. The majority opinion was written by Kennedy, with Stevens, Ginsburg, Breyer, and Sotomayor concurring. Justice Roberts, agreed that it was unconstitutional to impose that sentence on the juvenile defendant in the case, but would not have created a rule that would apply to all other juveniles in all other cases.
There are many noteworthy aspects to this decision that will have a large effect on Eight Amendment cases moving forward. But no less striking is the concurring opinion of Justices Stevens, Ginsburg and Sotomayor that contains the quotation above. It is one of the most biting and sarcastic smackdowns of a Justice one will ever read in a Supreme Court opinion. The concurring opinion is very short and is set forth in full below.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, concurring.
In his dissenting opinion, JUSTICE THOMAS argues that today’s holding is not entirely consistent with the controlling opinions in (citations omitted). Given that “evolving standards of decency” have played a central role in our Eighth Amendment jurisprudence for at least a century, (Citation omitted), 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, . . . .
While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old . . ., the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.
The disrespect that Justices Stevens, Ginsburg and Sotomayor showed for Thomas is completely warranted by the absurdity of his opinion. His mind is so lacking in ability that it is unable to comprehend that acceptable standards of conduct and behavior can evolve over time. One would have to read his whole dissent to get the full flavor of Thomas' crimped thought processes but here is an example
The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As the Court has noted in the past, however, the evidence is clear that, at the time of the Founding, “the common law set a rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on a person as young as age 7.” Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries 23–24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards.
So if the founders thought it was OK, it's fine by Thomas. That would of course include whipping people, putting them in stocks, and, Thomas' favorite,
capital punishment for offenses ranging from “ ‘run[ning] away with . . . goods or merchandise to the value of fifty dollars, . .
One last note. Scalia and Alito signed on to Thomas's dissenting opinion but even Alito could not agree with that portion of Thomas' opinion. Hope springs eternal.
