The Best Worst Argument

When it comes to an issue like retroactivity of ending mandatory life without parole for juveniles, following the Supreme Court’s decision in Miller v. Alabama, there is no shortage of credible people ready to provide strong arguments in support.  It’s so easy, even I can do it.

But arguments against it? Not so easy. Even harder to find some credible source, which no doubt left the New York Times scratching and clawing to find someone, anyone, to be the spokesman for the losing side of the debate.  Enter Kent Scheidegger, co-blogger with Bill Otis at Crime & Consequences, the voice of the Criminal Justice Legal Foundation. Its motto is “Lorem, reorum screw eos,” because everything sounds better in Latin.

And so the New York Times Room for Debate gave Scheidegger a platform to explain why mandatory life without parole sentences are what society needs to keep us safe from killer kids. He opens forcefully:

Is the guy blowing out 18 candles on his birthday cake a fundamentally different person than he was the day before?  Of course not.  It is one thing to say, as a general matter, that “children” are different from “adults” and quite another to say that people are neatly divided into two discrete groups, cleanly separated at the 18th birthday.  The notion that science supports such a sharp division is preposterous.

Now bear in mind that Scheidegger isn’t a dope, and recognizes a facially bad argument a mile away.  He knows that there has to be a line drawn somewhere to distinguish a child from an adult, and that the line drawn is 18 years of age.  Is it “preposterous” that science doesn’t support the division between 17 years, 364 days, and 18 years?  Absolutely, but then, he knows exactly why this is, and no matter how “preposterous” it may be, it is no more preposterous than any other line drawn. That’s the nature of lines, and Scheidegger knows it as well as anyone else.

What he’s hoping is that the reader won’t know it, won’t recognize that he’s playing a logical trick on them so they won’t realize that the preposterous division is just as preposterous as charging the defendant who stole $499 worth of widgets with a misdemeanor, but the guy who stole one dollar more gets a felony. See how lines work?  But as Scheidegger well knows, without lines, divisions in criminal law would be unconstitutionally vague and arbitrary, and he certainly wouldn’t want criminals to get away on such technicalities.  Frankly, I wouldn’t either, though they are hardly technicalities to me.

Scheidegger’s essay is short, even by Room for Debate standards, which reflects his offering every conceivable argument available to him.  He’s only got one more:

Does that mean we have to go back and reopen all the prior murder cases?  What about the families of murder victims, who thought the killer was safely put away for good?  Must they reopen the wounds and relive the horror in order to prevent release of a monstrous rapist-murderer?

If he played a cute trick in his initial assertion, Scheidegger used every trick in his bag on this one.  Families of murder victims? Safely put away? Reopen wounds and relive the horror? Prevent release? Monstrous rapist-murderer?  The only thing he left out was that the rapist-murderer dressed poorly.

To call this a strawman doesn’t come close to characterizing the rich scope of Scheidegger’s fantasy case.  The problem is that while there will certainly be people who committed terrible crimes involved, that being the nature of some juveniles who got mandatory LWOP sentences, the rest of it is pure, bizarre fear-mongering.

There is nothing to suggest that child killers will be sentenced to a spanking and stern lecture after Miller. They aren’t going anywhere on the front end, as the back end, life without parole, was the subject of the decision.  More importantly, the Supremes didn’t hold that no juvenile could be sentenced to life, but only that they couldn’t be sentenced to mandatory life, because the sentencing court had to be able to consider their age as a mitigating factor.

Bottom line, after considering all the horrific factors that Scheidegger throws against the wall, is that the sentence could end up the same, or similarly harsh (such as 100 years with possibility of parole).  See how that works? Will this make people too afraid to sleep at night?  Is 100 years inadequate to provide for our safety from this devil-child?

But even Scheidegger recognizes that this is a system with potential to go awry.  That he does so, given that there isn’t an accused who wouldn’t benefit from capital punishment according to the CJLF, is a huge concession.  But he’s got a fix for this:

Judgments properly rendered under the law in effect at the time should remain intact.  For cases in which a person has truly reformed, there is always the safety valve of executive clemency.

Problem solved!  Now if they still had burning at the stake, it might be problem, but we’ve grown so much since then.


3 comments on “The Best Worst Argument

  1. Gatekeeper

    I don’t want to bickering, but it’s Miller v. Alabama. Not Arizona.

    By the way, I agree with your article. Scheidegger would devote more time to writing his comment. I read his blog. He isn’t much sympathetic, to put it mildly, but not dump either. He has a fixed opinion over the debate, and we must accept it.
    I personally don’t like the gubernational clemency. It’s not create a meaningful opportunity (with Kagan’s words). it’s just a tool in the hand of the governor, who can use it to his/her political aims. The perfect example is Iowa and Terry Branstad.

  2. Marc R

    I think I’ve been harrassingly repeating the point: while much blame lies with state court judges refusing to apply Miller, and other judges think they’re being cute by “following Miller” and switching in 70 years for LWOP, the crux of the blame has to lie with SCOTUS here. They focused dozens upon dozens of pages to bolster their rhetoric. Yet one sentence discussing retroactivity would have fixed all this mess.

    State prosecutors amaze me they can tell a judge with a straight face that this is merely a procedural, not a substantive change, in the law. And it’s equally amazing a procedure that allows a 13 yr old, who has gotten a ged/college degree/tutors all while in prison, to never get a parole hearing.

    The average adult with an LWOP sentence goes in around 29 yrs of age versus 16 for children with LWOP sentences. Assuming life expectancies the same for prisoners regardless of their conviction dates, well that’s a substantive due process issue. IMHO.

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