FedSoc Lunch Event: Adult Sentencing for Adult Crimes

On February 11, 2014, The Harvard Federalist Society hosting an event titled “Adult Sentencing for Adult Crimes” featuring Charles D. Stimson. Mr. Stimson is a Senior Legal Fellow at the Heritage Foundation where his work focuses on a number of substantive legal areas including Juvenile Sentencing. In 2009, Mr. Stimson and his co-author Andrew Grossman published a short book, Adult Time for Adult Crime, with the Heritage Foundation arguing that sentencing juveniles to life without parole (“JLWOP”) for homicides and other violent crimes was Constitutional and occasionally warranted.

Mr. Stimson began his presentation by lamenting that he had no counterpoint against whom to engage in a collegial discussion. He nevertheless promised to attempt to present both sides—though definitively stating his confidence in his own conclusion. Instinctively moving forward to compensate for law students’ general reluctance to sit in the front row, Mr. Stimson read excerpts from his book, specifically, describing the heinous crimes committed by Ashley Jones, one of the several case studies contained in his report. Comparing this detailed description with a sanitized version of the facts in a report from the Equal Justice Initiative, Mr. Stimson explained that this imbalance led him to study JLWOP. The Equal Justice Initiative, Mr. Stimson hypothesized, was intent on completely doing away with JLWOP, and colored its information toward that end. Namely, its report featured pictures of children (7-8 year-olds) as opposed to the juveniles (teenagers) that JLWOP laws were actually affecting. Its studies on JLWOP used strong assumptions, creating hypothesized numbers, which were later cited authoritatively in court documents. It made arguments about international law that were either false or misleading. And it did not distinguish between juvenile murderers and petty criminals. Applauding the opposition’s efforts and acknowledging their rights to argue, Mr. Stimson emphasized that he wanted to balance out the informational playing field in the name of federalism.

The issue for Mr. Stimson was broader than Ashley Jones. He did not condemn her, but used her merely as an example. Citing an abnormally high violent crime rate, especially among juveniles, Mr. Stimson said that in 2009, 43 States and 90% of the American population had JLWOP statutes. To correct this issue, Mr. Stimson argued, the States have the prerogative to adopt sentencing schemes that incapacitate malicious teens and ensure that they will commit no more heinous crimes. He declined to go into further detail about the number of JLWOP sentences handed down, however because of bad record keeping in the States. Nevertheless, he emphasized that there are very few juveniles who are even eligible for the sentence, who receive it.

Simply put, Mr. Stimson argued that life without parole for juveniles may sometimes be warranted, and is certainly constitutional, so long as a State’s legislature adopts a statute authorizing the sentence. He noted that these statutes only authorize JLWOP for major crimes, like the ones committed by Ashley Jones. After Graham v. Florida, there could be no JLWOP for merely violent crimes, but murder remained a sufficient underlying crime. And following Miller v. Alabama, there could be no more mandatory JLWOP. But Mr. Stimson further suggested that the Court indicated sotto voce in Miller that it is now finished with JLWOP cases, unless a Teague issue arises—as it might since there are currently 1300 inmates on “LWOP row.” Thus, the law will remain as it stands: JLWOP is a Constitutional punishment for homicides as long as the sentence is not imposed mandatorily.

Despite the lack of formal opposition, the audience raised several incisive questions. First, it was asked whether Mr. Stimson believed that juveniles were incapable of rehabilitation, to which Mr. Stimson responded that he did not know—but the broader point remained that such a question was best posed to and answered by legislators. Next, Mr. Stimson was asked about founding-era sentencing structures. He replied that they were draconian, and usually required death, but noted that no one argues for the death penalty for juveniles. Originalism in Eighth Amendment jurisprudence, he noted, is very rare. Finally, Mr. Stimson was asked whether, if Ashley was abused, as the Equal Justice Initiative claims, and if she is capable of rehabilitation why she should still spend her life behind bars. Mr. Stimson answered that this was not the point. As an adoptive child, he acknowledged the tragedy and fact of child abuse, and he affirmed that such abuse could corrupt a child. Indeed, he even stated that during his time as a federal prosecutor, he never sought JLWOP. Still, he went on to point out that the court rejected Ashley’s abuse argument, and underlined that his point is not about social science or JLWOP policy. As befits a Federalist Society lunch event, Mr. Stimson underlined the federalism issue: It is for the States to decide how to punish juvenile murderers.

Full Disclosure: I worked for Mr. Stimson during the summer of 2012 in his capacity as a Senior Legal Fellow at the Heritage Foundation and as a trial judge for the Navy JAG. Together we wrote a research paper for the Heritage Foundation, which can be found here

Penn Law Prof. Waxes Nostalgic about Bygone Moral Regulation

Christopher Dillon Liedl, Guest Writer

University of Pennsylvania Law School Professor, Amy Wax, delivered a talk entitled “Education, Marriage, and Class in America” to the Harvard Federalist Society this past Tuesday, October 29. A graduate of both Columbia Law School and Harvard Medical School, Professor Wax has been a professor at Penn since 2001 teaching courses on social welfare law and civil procedure.

Opening her talk with a discussion of contemporary family trends, Professor Wax observed how the conception of marriage has shifted over the last half-century from a cornerstone model upon which a successful life together would be built, to a capstone model, added to an already successful life. This higher bar to marriage, coupled with a better educated female population, has led to a shortage of “marriageable” men. As a result, men are increasingly “playing the field” rather than settling down, particularly in the black community where 74% of births occur out of wedlock. Paradoxically, while the cornerstone model of marriage has raised expectations for marriage, she notes that expectations for childbirth seem to have decreased.

While the rate for out-of-wedlock births among whites remains far lower than among blacks, white America is far from homogenous across income and education levels. Rather, in stark contrast to the traditional model, working class whites are much more likely than affluent whites not to marry and experience much higher divorce rates. Yet at the same time, low-wage immigrants still marry at high rates. Professor Wax poses the question, “why is white America coming apart?”

Professor Wax’s ultimate answer to this question is not economic, but moral: moral deregulation has allowed what was once a society tightly clustered around shared values and norms to diverge into a society with stark differences in outcomes between the top and bottom. Even if all members of society didn’t subscribe to the social mores (such as those prohibiting extra-marital childbirth or multi-partner fertility), they generally adhered to them. In Professor Wax’s opinion, this was the “great equalizer.” With the advent of the sexual revolution, this uniform regulation was thrown into chaos with those individuals less able to regulate themselves and their sexual behavior falling behind.

Parallel divergence can be observed with regards to norms about weight gain and overeating. Professor Wax describes the norms some 50 years ago as revolving around cooked sit-down meals, prohibiting snacking between meals, and discouraging seconds. These norms now exist only within sub-cultures; there is no longer the dominant pan-culture enforcing these norms. The result is wild divergence in eating habits and the accompanying physical consequences, with those individuals less able to control themselves more likely to become obese.

Professor Wax points to individual differences in local vs. global (short-term vs. long-term) decision-making as a key driver for this divergence. Take the example of infidelity in a relationship and assume that infidelity has a higher local value while fidelity has a higher global value. However, given that there is no single rational actor but rather a series of individual actors with individualized local-global preferences, an individual actor may constantly prefer local over global. This raises the question of whether cheating is truly a lapse in judgment or a way of life.

Professor Wax indicated that there is a strong correlation between socioeconomic status and local-global decision-making. This is likely because advanced education and the demanding jobs that require such education promote and rely on global thinking. An illustrative example was soldiers discharged from the military and offered either an annuity or a lump sum at a high discount rate. Those discharged soldiers from lower socioeconomic backgrounds were overwhelmingly more likely to accept the lump sum.

In Professor Wax’s view, the responsibility for rebuilding these elements of civil society that have been deconstructed lies beyond the purview of government. State services like welfare will ensure that people won’t starve, but it won’t help them advance or improve. Ultimately, government involvement can only tear down, not build up this moral structure. Instead, the ruling elites who set the tone of national policy need to find the courage to say that some things are better than others, that fathers have certain responsibilities, and that we need to make decisions more globally than locally. However, this is unlikely to happen because elites are doing just fine as inequality grows and the rich get richer. Elite cultural institutions are alive and vibrant; it’s the poor churches that are dying as working class whites practically stop attending. This if further unlikely to happen because of a growing reluctance to stigmatize ex post certain states (e.g., single motherhood), leading to an inability to make ex ante distinctions. Citing Ross Douthat’s Bad Religion, Professor Wax criticized modern religions that offer only therapeutic validation without any call to higher, better behavior. If social institutions are to repair the damage done to American moral capital and keep the bottom from spiraling further away from the rest of society, then Professor Wax would say they need to embrace the role of insisting on behaviors that run counter to the current individualist norm.

The Harvard Federalist Society Presents: “Private Management of Public Lands”

On Tuesday, November 5, 2013, The Harvard Federalist Society hosted John A. Baden, Ph.D., to speak on the topic “Private Management of Public Lands.” Baden is the founder and chairman of the Foundation for Research on Economics and the Environment (FREE) based in Bozeman, Montana. FREE promotes free market environmentalism as a way to protect national parks, forests, and wild lands. Matthew Stephenson, Harvard Law School professor, offered a response. Stephenson’s areas of interest include Administrative and Constitutional Law, as well as Environmental Law.

Baden’s discussion paralleled his recent paper, “Preserving America’s Wild-lands when Governments are Broke & Broken: A proposal for institutional and ecological entrepreneurship,” which specifically addresses the topic of free market environmentalism in light of the recent government shutdown. According to Baden, the traditional approach to the management of parks and wild lands—management by federal institutions—is failing, has been failing for some time, and is unsustainable in the future.

The reason for this failure is in an inherent problem of the approach: the politicization that necessarily accompanies federal management. According to Baden, the government shutdown at the beginning of October, during which national parks and monuments were closed to the public and veterans were turned away from the WWII memorial, is indicative of this problem and foreshadowing of future issues. We can expect that as pressures upon the federal government continue to increase, funds will be shifted to other resources and maintenance of federal lands will inevitably fall by the wayside.

Baden’s proposed solution to this predicament is the transfer of management of parks and wild lands to fiduciary trusts. He cited three major advantages of these trusts over management by politically dependent agencies: greater sustainability, more transparency, and a higher burden of proof. They offer greater sustainability than sustained yield laws because they are obligated to preserve the corpus of the trust. They are more transparent than freedom of information laws because they are legally obligated to open their books to the beneficiaries. Furthermore, in a challenge to management efforts by governmental agencies, the burden of proof is on the challenger; trustees, on the other hand, bear the burden of proof themselves.

In response, Stephenson questioned the true problems that Baden was attempting to solve by this proposed transfer of federal land management to fiduciary trusts. While politicization and poor management were the two primary concerns addressed by Baden, Stephenson argued that these were neither particularly strong issues nor the true catalysts behind Baden’s proposal. Although Baden asserted as incontestable the poor management record of federal agencies, Stephenson pushed back a bit on this, suggesting that it is not quite so clear that trusts would in fact do a better job than federal agencies in the management of these lands. Similarly, Stephenson posited that the politicization of land management might not be a significant issue either, particularly when compared to the politicization that exists in other agencies.

On the other hand, Stephenson saw Baden’s proposal as a way to address the issues of chronic long-term fiscal sustainability and acute overreaction to perceived fiscal problems. Although Stephenson questioned the degree to which these actually are issues, he acknowledged that to the extent that they do exist, the use of trusts might be a clever way to shield parks and wild lands from them.

In conclusion, however, Stephenson emphasized the need to evaluate the credibility of the commitment of these trusts to the management of parks and wild lands. How will trusts be designed? How will their success be measured? What kind of control will the government have over them? What if we do not like what they are doing? What if the government tries to take the land back? These questions should be taken into account if fiduciary trusts are to be given management responsibilities of parks and wild lands.

Baden’s article is available at http://www.free-eco.org/insights/article/preserving-americas-wild-lands-when-governments-are-broke-broken-proposal