Much will no doubt be written about the curious votes and finely honed statements of the two decisions handed down by the Supreme Court today.  In U.S. v. Comstock, the Court upheld a law allowing the detention in perpetuity of a defendant who has completed his sentence, but is believed to be mentally ill and a dangerous sex offender.  In Graham v. Florida , the Court held it’s a violation of the cruel and inhuman punishment clause to sentence a child to life in prison without parole for a lesser crime than homicide.

The former decision puts people in prison for what they have yet to do.  The latter preaches proportionality as a fundamental tenet of punishment.  No doubt a thorough reading of the decisions will produce provocative discussion, but a cursory reading produces mere confusion.  Is there a rational thread that follows through the court’s view of punishment?

From my seat, the Graham decision is wonderful, as it’s long been clear that the venality ascribed to children by over-zealous lawmakers is a disgraceful and disastrously wrong fiction created to pander to the knee-jerk anger of shut-in newspaper readers.  These are children.  They have the capacity to do wrong, but not the understanding.  They should not be given death over the long haul in prison.  It shouldn’t be for homicide, and absolutely shouldn’t be for whatever crime gets the lawmakers re-elected, short of homicide.

But how do we square the Court’s burst of rational thinking and conscience with the Comstock decision?  Did they forget the word “proportionality”?  When a defendant has served his sentence, paid his debt to society, how does switching the name of the punishment and holding the defendant in prison for the rest of his life make sense?

The proportionality argument, which incorporates the notion that eventual release serves as an incentive for a person to not commit the greater offense, and hence receive the more severe punishment, dies in Comstock.  The sex offender who will never be released if he lets the child live has every incentive to kill.  The one sane enough to refuse the incentive may still be subject to perpetual imprisonment.  Regardless, this approves of the idea of imprisoning a person for something he has yet to do. 

There can be no proportionality for a crime not committed.  There can be no rational end to something that a person never did.  Are there animals out there, sick and disgusting, who will harm children and who, if each of us were left to our visceral reactions, we would personally offer to exact a punishment, there’s no doubt.  But this is a law, an institutional response.  Once we break through the wall of imprisoning people for what we fear they might do in the future, where is the conceptual ledge that stops our slide?

Sure, the law offers some protections via due process, albeit with the lesser standard of clear and convincing evidence despite the open end of imprisonment.  Sure, the fear evoked by wild-eyed sexual predators is one that strikes abject fear in the heart of every parent.  Of course we do not chose to sacrifice our children on the altar of abstract notions of law.  But that’s why we have institutions, like the Supreme Court if not Congress, that are expected to protect us from ourselves, our collapse into panic and anger.  They are supposed to protect the worst among us from our tyranny.  They are supposed to be better than us, and make us better by their existence.

There isn’t any way to reconcile these decisions, as the thread between them seems never to meet.  Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance.  But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption. 

Taken separately, these decisions offer much to chew on.  Taken together, they offer no coherent penal philosophy.  Taken that they come from the same court on the same day, they offer no clue what we stand for.

Perhaps more thoughtful discussion later.  For now, nothing but confusion.