Consistency, thy name is not the U.S. Supreme Court.

But on May 17, it was more inconsistent than usual. In U.S. v. Comstock et. al., it held that it’s legal to hold certain types of criminal offenders past the end of their sentences¹. On the exact same day, in Graham v. Florida, it held that it’s illegal to hold certain types of criminal offenders until the end of their sentences².

What am I missing here?

There were some differences between the two decisions. Comstock involved (presumably adult) sexual offenders and federal law; it was argued based on the “Necessary and Proper” clause in Article I, Section 8 of the U.S. Constitution. Graham involved juvenile offenders and state law; it was argued based on Constitution’s Eighth Amendment.

The cases were, indeed, quite different in a legal and Constitutional³ sense. However, with respect to criminal law and procedure, the decisions are totally opposite. Despite that, both of them will have significant effects when it comes to the relationship between sentencing and time served, regardless of whether it’s in federal or state courts.

We’re going to be easier on juvenile offenders. We’re going to be harder on sexual offenders.

But the way we’re going to do it is by having criminal procedure interfere with the courts’ imposed sentences. It’s not going to be by taking another look at the sentencing guidelines themselves.

Am I the only one who thinks that’s a rather backward approach, particularly since the Supreme Court has also made decisions about sentencing guidelines? Am I the only one who’s wondering what message the Supreme Court is sending to lower level courts?

Let’s put this issue in the right place. It doesn’t belong in the hands of the judicial branch. It belongs in the hands of the legislative branch.

The easier, more consistent and elegant solution is to look at sentencing guidelines. It’s also the solution that better represents the will of the people, since legislators have a more direct responsibility to the voters.

There are plenty of lawyers among our legislators. They make our criminal laws. To the Supreme Court I say, “let them do it.” Don’t interfere with their authority and undercut the lower courts, especially if it’s with inconsistent decisions.

1. http://www.supremecourt.gov/opinions/09pdf/08-1224.pdf
2. http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf
3. A well-presented and rather neutrally annotated copy of the U.S. Constitution can be found at http://www.senate.gov/civics/constitution_item/constitution.htm.