Attorney General Jeff Sessions is changing the Obama-era soft-on-crime policies, but unless something is done about the out-of-control courts, we will suffer from judicially mandated jailbreak in the coming years.
Late last week, a Virginia district judge threw out the sentencing of Lee Malvo, the infamous D.C. sniper, who, along with his partner John Allen Muhammad, murdered 10 people in the D.C. area in 2003. Years after Malvo was sentenced to life in prison without parole for the murders in Virginia, the judge has overturned his sentence because he was only 17 at the time of the murders.
But haven’t we been sentencing juvenile murderers to life in prison without parole and even execution since the founding of our country?
Sure, but the courts control this country and can rewrite our Constitution at any time. In this case, the Supreme Court rewrote the Eight Amendment and applied the rewrite retroactively to potentially all existing criminals serving life in prison without parole for crimes they committed as minors. This district judge, a Clinton appointee, applied the Supreme Court case to Malvo.
Here’s a brief background on this insanity.
Last spring, the high court (in Montgomery v. Louisiana) retroactively applied the Miller v. Alabama decision, which “struck down” most state laws sentencing juveniles to life in prison without parole. In the 2012 Miller opinion, Justice Kagan, writing for the majority, found that the Eighth Amendment’s “cruel and unusual punishment” clause precludes states from issuing such sentences to juvenile murderers under most circumstances. The subsequent 2016 decision in Montgomery, authored by Justice Kennedy, applied this decision retroactively to as many as 2,500 murderers serving life in prison without parole for murders committed as juveniles. Judges were to determine, in the estimation of Kennedy, which inmates were “incorrigibly” lost and not eligible for parole. Chief Justice Roberts joined with the five liberals, while Scalia, Thomas, and Alito dissented.
Now we are seeing how deeply consequential this decision was, given that a mass murderer who should have been executed now has an opportunity to re-open his sentence and potentially be eligible for parole. All because the unelected courts are overruling basic state criminal justice laws that have existed since our founding.
As Justice Thomas said in the Miller ruling, “the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights.” Yet once again, the court ruled that the Constitution as adopted is unconstitutional. Now the trial judges can engage in retroactive jailbreak, releasing dangerous and violent criminals against the will of the people who enacted criminal laws. And again, I will note that this same court stands idly by as states violate the plain meaning of the Second Amendment with prohibitions on concealed and open carry or thumb their noses at immigration law.
The Montgomery case was one of Scalia’s final dissents. He lambasted Kennedy for making up his own standard of “incorrigibility” and noted the absurdity of trying to figure out who in the prison system serving life is incorrigible and who is redeemable. He predicted that this would lead to categorically barring life in prison without parole in all cases.
[I]n Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.”
Both Thomas and Scalia noted that the court created an entirely new constitutional right to retroactively overturn convictions that were completely constitutional at the time they were passed. Hence, with the ever-evolving standards of the legal profession’s “Constitution,” they can order judicial jailbreak at any time for any reason. In this case, the district judge, as predicted by Scalia, used the full latitude to give a reprieve even to a cold-blooded monster like Lee Malvo.
Isn’t it tragic how these same judges who say it’s cruel and unusual to sentence mass murderers to life in prison without parole actually block states from cutting off taxpayer funds to Planned Butcherhood? They also prevent states from imposing simple health regulations on abortion clinics so that babies don’t undergo cruel and unusual deaths. For the infant victims of abortion, lethal injection would be far less cruel and unusual than the “dilation and evacuation” method of abortion protected by a district judge in Alabama last year!
The courts were responsible for the crime wave of the ’70s. If nothing is done to stop them, they will spawn a new crime wave in the coming years.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.