Judge Posner Weighs In On Recent SCOTUS Decisions

Supreme Court Year in Review Entry 8: Justices should use more than their gut and “brain science” to decide a case.
Richard A. Posner
June 26, 2012

I've now read Miller v. Alabama, decided by the Supreme Court on Monday, which held that mandatory life imprisonment for juvenile murderers (two 14-year-olds) violates the Eighth Amendment's prohibition of "cruel and unusual punishments." I don't object to the result, but the case is a good illustration of how unmoored constitutional law has become. 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, as the court more or less confesses in the same paragraph with a corny quotation from another Supreme Court opinion: The concept of cruel and unusual punishments is based on "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, a real disaster area—we imprison a higher fraction of our population than a