Prison Law Blog

Sara Mayeux

Posts Tagged ‘john paul stevens

On Reading Graham: Justice Stevens and Thomas’s Ahistorical Historical Assumptions

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Graham v. Florida is, not surprisingly, getting a lot of coverage around the legal blogosphere today. In addition to my earlier links, check out the coverage at Solitary Watch and California Corrections Crisis. Rather than rehash what other blogs have more capably covered, I wanted to highlight one point of disagreement between Justices Stevens and Thomas, which may be of minor import legally speaking, but of great interest to me as a student who divides her time between the law school and the history department.

Justice Stevens, in his brief concurrence, accuses Justice Thomas of embracing a “static” view of the Eighth Amendment in which “cruel and unusual” means forever and always whatever it meant at the time of the founding. Thus, says Justice Stevens, it would be A-OK with Justice Thomas for a state to execute a 7-year-old for stealing $50. I noted above that this point of disagreement is of minor legal import because (pace perhaps Justice Thomas?) the Supreme Court has held in other cases that it’s unconstitutional to impose the death penalty for non-homicide crimes and for crimes committed by juveniles, and moreover, I can’t imagine any state today would actually try to execute a 7-year-old for petty theft. But the putative disagreement is fascinating for another reason, insofar as it betrays some ahistorical assumptions that both Stevens and Thomas seem to be making about history.

Justice Stevens is referring to this footnote in Justice Thomas’s dissent:

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