Supreme Court Cites Unapproved UN Treaty

One of three Supreme Court cases whose decision was announced on 17 May 2010 was Graham v. Florida.  Graham was involved in an armed robbery when he was 16 years and 6 months old with two others, one of whom beat a restaurant owner with a pipe with two blows to the head.  Graham was tried as an adult and pleaded guilty to armed robbery with assault or battery and another crime.  The armed robbery with assault charge is punishable by life imprisonment under Florida law.  Graham was given probation while in adjudication was withheld and served the first 12 months in detention.  When Graham was 17 years and 11 months, he and two accomplices invaded a home and Graham held the owner at gunpoint for 30 minutes while his accomplices ransacked the house for valuables.  Graham's defense asked that the Supreme Court rule that any non-homicide crime committed by someone less than 18 years old be ruled "cruel and unusual punishment" and therefore unconstitutional due to the Eighth Amendment.  Six Justices agreed to this.  Justices Clarence Thomas, Scalia, and Alito dissented.

The majority basically argued that there is a predominance of opinion in our evolving moral beliefs that sentencing anyone younger than 18 years old to life imprisonment without possibility of parole for a non-homicide crime is cruel and unusual punishment.  Justice Kennedy held that youth's minds are sufficiently undeveloped that such punishment is disproportionate to any non-homicide crime.  The main opinion of the Court was written by Justice Kennedy, who made this argument and partially backed it with reference to the United Nations Convention on the Rights of the Child of 1989.  The U.S. has not ratified this treaty agreement, which considers the best interest of the child to be more important than the best interest of the parent.  In Sweden, it has been used to remove a child from his home because his parents were homeschooling him. Only the U.S. and Somalia have not signed this treaty, though a number of signers are known to be in violation of it.

Justice Thomas wrote a dissent, which presented two main lines of argument against the majority opinion.  First, he argues that the courts held that cruel and unusual punishment meant that methods of torture were prohibited and they stuck to this line of reasoning for 170 years.  Life imprisonment for those under 18 for non-homicide crimes without parole was never considered to fall within the cruel and unusual punishment prohibition.  In recent times, the Court has ruled in particular cases that the punishment had to be proportionate to the crime as the majority did here, but that is not a requirement according the Constitution.  The concept was known when the Constitution was written, because that requirement was found in 6 state constitutions of the time.  The Framers of the Constitution did not make proportionality a requirement in the Eighth Amendment.  But even when making this proportionality argument, Thomas says "Graham must establish not only that his own life-without-parole sentence is “grossly disproportionate,” but also that such a sentence is always grossly disproportionate whenever it is applied to a juvenile nonhomicide offender, no matter how heinous his crime."  Justice Scalia joined with this argument.  I would argue that such issues are very complex and probably ought to be left to the states and not be decided on the federal level.  This seems to be in agreement with Justice Thomas's viewpoint.

The second argument made by Justice Thomas was that:

According to the Court, proper Eighth Amendment analysis “begins with objective indicia of national consensus,” 3 and “[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures,” .... As such, the analysis should end quickly, because a national “consensus” in favor of the Court’s result simply does not exist. The laws of all 50 States, the Federal Government, and the District of Columbia provide that juveniles over a certain age may be tried in adult court if charged with certain crimes.4 See ante, at 33–35 (Appendix to opinion of the Court). Fortyfive States, the Federal Government, and the District of Columbia expose juvenile offenders charged in adult court to the very same range of punishments faced by adults charged with the same crimes. See ante, at 33–34, Part I. Eight of those States do not make life-without-parole sentences available for any nonhomicide offender, regardless of age.5 All remaining jurisdictions—the Federal Government, the other 37 States, and the District— authorize life-without-parole sentences for certain nonhomicide offenses, and authorize the imposition of such sentences on persons under 18. See ibid. Only five States prohibit juvenile offenders from receiving a life-without parole sentence that could be imposed on an adult convicted of the same crime.6 No plausible claim of a consensus against this sentencing practice can be made in light of this overwhelming legislative evidence.

The sole fact that federal law authorizes this practice singlehandedly refutes the claim that our Nation finds it morally repugnant. The additional reality that 37 out of 50 States (a supermajority of 74%) permit the practice makes the claim utterly implausible. Not only is there no consensus against this penalty, there is a clear legislative consensus in favor of its availability.

Both Justices Scalia and Alito joined with Justice Thomas in this argument.

It is perfectly clear that the moral consensus that matters in the majority decision is simply that of the Democrat elitists.  Justice Thomas completely demolished their pretense in finding a moral consensus on cruel and unusual punishment being a categorical prohibition of life imprisonment without parole for any non-homicidal crime committed by anyone under 18.  The majority argument that their argument is respectable because it agrees with the U.N. Rights of the Child Treaty is also disturbing.  First, it has no applicability under U.S. law.  Second, the U.N. stated Rights of the Child is clearly a wrong theory of rights and one inconsistent with the rights of the individual in our American tradition.  Third, if the argument that all of these nations agreeing on this treaty produces a respected argument for their version of child rights, then one could as easily argue that the fact that none of these nations has adopted the U. S. Constitution means that we should not be obliged to abide by our Constitution ourselves.  This latter argument is in fact held to be true by many of the Democrat elitists.  But, Supreme Court Justices should be rational enough to recognize the several fallacies of using this argument.  I suspect that they were so aware of the weakness of their overall argument that they were simply desperate to do anything at all to try to bolster it.  The Democrat elitist mindset would be favorably impressed by this foolish argument, so it was used despite its real legal and logical vacuousness.

It is interesting that recent studies have been indicating that the human mind undergoes such development that the truly adult mind is not formed until many people are well into their 20s.  There has also been interesting work that shows that an expert in many areas takes about 10 years to optimize his brain structures and functions for his area of expertise.  An interesting question arises.  Is it possible that many more children would achieve much more adult-like mind development if our parental, education, and societal expectations pushed them to take on more self-responsibility at a younger age?  I was pushed to be more responsible and my brain development by 16 was much more adult-like than that of most of my contemporaries.  Compared to children today, that discrepancy would be even greater.  In any case, while there are many young people whose minds become adult-like only in their late 20s, there are still many who achieve that level of development much earlier.  Perhaps in time, the age for driving, serving in the military, and voting will be determined by a scientific examination of the individual's brain.  I wonder if the incentive to drive at 14 rather than 25, vote at 16 rather than 30, and serve in the military at 18 rather than 22 would be enough that more children would work harder to develop their brains?