Legal Commentary

If you've not seen it yet, head over to Balkinization and check out Jack's interesting take on Randy Barnett's constitutional activism. Sharing ambition to engage in a form of constitutional "innovation," though disavowing any suggestion that I'm making a "frivolous" argument, I've persuaded myself, more or less, that the best understanding of some recent Supreme Court cases requires some radical restructuring and review of punishment under the Eighth Amendment. For instance, not only do I think the "penal agnosticism" of Ewing has been overruled or at least substantially constrained sub silentio, but I now also think that minors may not be retributively punished--at all, or at least absent some larger transformation of individualized inquiry into competence and non-infancy in other contexts. Of course, that doesn't mean juvenile justice closes shop. Rather, the structure for addressing juvenile wrongdoers must be non-retributive: focused on containment of risk and rehabilitation of the person to the extent possible. 

This is all tentative and subject to future disavowal, of course, when my own children eventually throw these pages in my face before they are 18...in the meantime, I'd be grateful for any reactions via email to this exceedingly short piece, now on SSRN, and slated for publication in the October 2010 issue of the Federal Sentencing Reporter. That issue will include other folks' reflections on the recent SCOTUS case in Graham from a stellar group of scholars including: Richard Frase, Rachel Barkow, John Stinneford, Alice Ristroph, David Gray, Eva Nilsen, and Youngjae Lee. Kudos as always to Michael O'Hear for organizing the conversation with such panache.