One dissenting opinion averred that the original intent of the Amendment was to prohibit only the means of punishment. But, in the early days of the nation, punishments were often public humiliations or death, commutation and pardon were fairly widespread (think: Whiskey Rebellion); and, judges and juries alike would refuse to enter a guilty verdict if the proposed punishment were too harsh. In 1791, bloodletting was a common medical practice, considered helpful and neither cruel nor unusual. Unless it seeks to reintroduce scarlet letters, stockades, public whippings and jury nullification, it is safe to dispel the assumption of this version of original intent argument.
Despite having no data to support it, another dissenting opinion feared that these juveniles, if ever released, would murder again. Even for adults, sociopaths aside, homicide is rarely a repeated offense. The crux of the cruelty of the mandatory punishment is that it denied juveniles all opportunity for reform. In the cases at bar, the boys were both 14 years old; both had been exposed to conditions of life that a civilized society should be ashamed to admit even exist in our midst. One child lived with intergenerational violence and the other was the victim of abuse and neglect who had been plied with drugs by the victim himself. The majority denounced only a mandatory punishment that ignored all mitigating circumstances.
However, what begs response is that four members of the Court determined that if the punishment is not unusual - if it is popularly administered - even if cruel by any other measure - even if it shocks the conscience - there is no review under the Eighth Amendment. This distasteful crowdsourcing approach to criminal justice disregards history.
Recall the problem of factions: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Federalist No. 10 Madison argued that a large, strong federal government would protect against the whim of the frenzied mob. As enlightened statesmen would not always be in charge, the federal government, he argued, would prevent a poor, but popular, idea from taking hold. He did not absolve any element of government from its role in diluting the effects of factions.
In the United States, the legislative model has failed to ensure a fair criminal justice system. There is no accountability of legislators at the state or federal level who create harsh laws. Legislators want to be re-elected and voters of all backgrounds, colors, creeds, religions and economic strata want to have safe streets. Therefore, tough on crime slogans and statutes prevail regardless of the effect on society at large or whether they improve safety. Putting aside that the crime in question in Miller v. Alabama was murder, universally regarded as one worthy of severe punishment, and putting aside that the issue in question was a mandatory punishment for a particular class of defendants, the most disturbing portion of the opinion is that four members of the Court agree that if a punishment is popular, it is unreviewable.
Elected officials do not promise to study the effect of the criminal code on safety, pledge to modify the number and character of crimes and to mediate the harsh sentences that do not protect people. Most voters have no idea how crimes are defined, what the minimum standard of proof is, what the sentencing ranges are for various offenses and whether they carry a mandatory term, minimum or absolute. It is fair to say that, whether effective or not, most people like the idea of harsh punishments for the convicted. Legislators, therefore are not accountable to any identifiable electorate when they enact severe, even cruel, criminal statutes and punishments.
Further, because people are utterly unaware of the criminal codes and justice systems in their states, they are not outraged at some of the effects unless and until they become aware by virtue of a friend or family member accused or convicted. Neighborhoods most disproportionately impacted by the criminal code have so little voice legislatively and in court as jurors it is barely above a whisper. The daring individual who speaks up and seeks to alert the masses to the reality of their folly is ridiculed and humiliated if not silenced. But, even if the dissent’s theory held true and those affected possessed a voice loud enough to be heard and the masses did understand the consequences of actions under the criminal codes in their states, just because a punishment is popular does not make it Constitutional. Quite the opposite.
Madison warned that factions cannot be eliminated, but the idea of a national identity professing individual liberties would cure their mischiefs. This declaration affirmatively denounces the dissent. Faction-driven discriminatory policies are, indeed, within the purview of the federal government and therefore the province of the Court. When nine young boys (falsely accused of rape faced trial with counsel appointed that day) were convicted and sentenced to death, it was wildly popular in Alabama. Although not on an Eighth Amendment argument (that would prevail in later years regardless of its popularity), the Court stepped in. Powell v. Alabama, 287 U.S. 45, 57 (1932).
Powell v. Alabama discussed an idea of procedural law inherent in the Fourteenth Amendment, not dependent on, or even mentioning, the Bill of Rights, in which one of the rights of due process was the guiding hand of counsel. Although stymied by the Court and Congress, the Framers of the Fourteenth Amendment did intend for it to have broad reaching effects – to incorporate the Bill of Rights- but also, it seems, something more. When ratified, popular voices urged prison reform, care for the poor, the infirm and mentally ill, and education for all children; it was a time when the ideals of equality, peace and Union permeated the national voice. Its language is far too broad; its goals far too enormous, the conflict preceding it was far too bloody for limits:
No State shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution 14th Amendment, Sec. 1.
As to the expanse of the Fourteenth Amendment, “[o]ccasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.” Adamson v. California, 332 U.S. 46, 68 (1947) (Murphy, J. dissenting). This echoes Madison’s call to affirm individual liberties in the face of unfair practices, no matter how pervasive. The purpose, indeed, of the federal government is to prohibit authoritarian practices whether driven by a despot or by the masses. This is precisely why the Fourteenth Amendment ensures not only process but equal protection of the laws.
Whether in 1791 or 1868 or 2012, laws, pressed into being by factions antithetical to establishing justice, require federal review and remedy. If the purpose of forming one nation from several states prompted and ratified the Constitution, and if that nation espouses ideals of liberty and freedom and equality and fairness and democracy, then is it not incumbent upon that nation – whether in the Legislative, Executive or Judicial arm to protect these ideals? Do we not, as a nation, hold a duty to counter a majority or minority, that seeks to disenfranchise the rights of other citizens or the permanent and aggregate interests of the community?
The dissenting opinion of Miller v. Alabama suggests that it is not the province of the Court to address punishments that, even if cruel, are commonly practiced. But, mob rule is neither the backbone of the Constitution nor the republican form of government it created. Whenever any element of authority, whether it be state or federal, fails to deliver on the promise of liberty, courts are duty-bound to enter the fray. When the legislative model fails, it matters not whether the argument arises under an article of the Constitution or one of its first ten amendments or broader, heretofore unchartered, protections of the Fourteenth Amendment, when civil and individual liberties are at stake, we fail to uphold the Constitution we swore to defend whenever we abdicate responsibility.
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