The author also doesn't explain how "judicial civil disobedience" will be limited to his preferred agenda. It seems to me very many laws are arguably unjust, and I recall a judge in Alabama that refused to abide by a federal court's order to remove a ten commandments monument because such an order was unjust.

The case in the note about the personality-disorder defendant is troubling. But isn't there something more direct, in terms of directing a insanity verdict or something similar, to account for that? I mean, is the civil disobedience supposed to let her out after a few years? (Asking honestly out of ignorance...)

Orin,

For what reasons do you think Professor Berman assumes we would want to read the note? I doubt that he finds any merit in these ideas, and would speculate that he's simply hesitant to criticize some anonymous 2L's first foray into legal scholarship too harshly, even where the criticism is well-deserved. After all, "notable" and "merits a full read" are not exactly ringing endorsements-- the same could be said of an article offered to demonstrate a new low to which legal scholarship has sunk (and this note might well be "notable" for that purpose).

"Equally important is that, given full information, the public is unlikely to lend mass incarceration strong political support."

Just like the public wouldn't support capital puni....oh wait, just like an "informed" public wouldn't support capital punishment! Seriously, did Justice Thurgood Marshall just come back from the dead and write a Harvard Law Review note?

"The selectivity will ensure that disobedience is saved for rare, especially unjust circumstances...."

...like every crack, firearm, and immigration sentence a judge doesn't like. This note betrays an ignorance of how far some judges already go in below-Guidelines sentences in a variety of cases.

And I think "merits a full read" is an endorsement. Can't read everything fully. And I can't see why we'd want to read this one.

a similar argument was made in the 1850s, urging judges to refrain from enforcing the fugitive slave act (about which i am currently writing a book). in one significant ohio case, the defense lawyer argued to a federal district judge that he should indeed accept impeachment rather than support slavery.

in massachusetts, a state judge -- who was also a federal commissioner, as was common in those days -- was in fact removed from office (by legislative address, an alternative to impeachment) because he had entered judgment for a slaveowner and sent a fugitive back to virginia.

Should we be scared that this unnamed Harvard 2L will likely be clerking for an influential judge in a couple of years? I know I am.

Orin et al.,

Thanks for generating an interesting debate over the note I posted and over the reasons I called it notable and a must read. As one commentor noted, the parallel to judges enforcing slavery laws back when (or maybe even upholding abortion laws or gun laws or other controversial/unpopular laws today) provides a great subject for debate.

It is also worth noting that a few judges have claimed to have quit the bench because of harsh sentencing laws (Judge John Martin comes to mind).

Thanks again,
DAB

I wonder whether the author has found some principled basis for restricting civil disobedience to judges. If not, I have no idea why a prison warden shouldn't practice some civil disobedience of her own and disregard the judge's sentence in favor of the sentence clearly mandated by the guidelines. After all, what's good for one branch of the government has got to be good for another, right?

At least partial judicial nullification does seem to happen, so a descriptive note about the subject (maybe with anonymous survey results) might be interesting.

As an example, I would draw attention to the death penalty cases in California federal trial courts for habeas review, which pretty regularly take years to get any attention from the judge (as in 7+ years). This happens with apparent non-opposition from the AG. I happen to think it is laudable, but OK might find it grounds for impeachment (or at least censure).

De facto nullification does work both ways, of course - there are judges who routinely decide cases (at least internally) when they cross the threshold, based on bias or prejudice.

That works, more often than not, to the disadvantage of the upstart or non-powerful side of the case.

I'd like to step aside from the discussion and point out something remarkable.

Three years ago, Brian Leiter took issue with a student book review published in the Harvard Law Review because of its tacit endorsement of intelligent design. Rather than question the merits of the piece (which shouldn't have been that hard to do), Prof. Leiter instead "outed" the anonymous author, engaged in ad hominem attacks, and swore to do his best to prevent that student from achieving success on the academic market.

In contrast, Professor Kerr, who obviously disagrees vehemently with the student note in question here, sticks to challenging the merits of the note itself, in turn fostering a healthy but cordial debate with Professor Berman and other interested parties. And while some of the commenters offer more pointed statements about the author him or herself, there's no indication that anyone -- least of all Prof. Kerr -- wishes to "out" the anonymous author for his or her controversial and arguably ill-advised arguments.

In short: thanks, Prof. Kerr, for not being an asshole like Brian Leiter.

(Postscript: the student Prof. Leiter threatened is actually having a very successful post-law school career, proving, if anything, that Brian Leiter has all the influence of a summer intern.)

OK suggests that judicial nullification won't work because of reversals and impeachments. In my experience, he's partly wrong. We are taught that the judiciary is a hierarchical structure with the supreme court at the top and lesser courts which must follow what the supreme court says. The reality is that the supreme court takes a few hundred cases a year out of, what, a million? some large number anyway. And judicial impeachment almost never happens,and if it does, the judge usually has other career options open. In 1960, in Talley v California, the court ruled that the government can't require disclaimers on political literature. Yet governments still do this,and lower courts half the time let them get away with it. There is no effective way to obtain compliance with unpopular supreme court decisions. Occasionally, Cooper v Aaron, the Supreme Court puts it foot down about something and lower courts tend to go along, but this is the exception rather than the rule. Sentencing courts have wide discretion in how they handle cases and how they cooperate or not with prosecutors. A judge who finds this case note persuasive, can take steps to move in that direction, with little fear of impeachment, and knowing that not every case will result in being overruled by a higher court. Generally, most judges don't like getting overruled, and will be cautious about spending their reputation capital, but it's an option to risk a certain amount of it to accomplish policy preferences.

The casenote begins by emptily telling us "Justice and freedom are not words and slogans, but ways of life. . . So often we cannot find America’s commitment to these values: we cannot find it in our streets and in our schools or in our projects and in our prisons."

You mean we are losing our commitment to freedom even in PRISONS? Golly!

However, Prof. Berman, the student writing the casenote certainly believes that the choice IS justified, saying explicitly that the panel should have overturned the defendant's punishment. And that, it seems, is the issue that has attracted so much attention.

Considering the thousands and thousands of laws out there, it is safe to say that there will always be "manifestly unjust" laws out there. Or rather, there will always be laws that somebody thinks are "manifestly unjust." Are we safer letting judges make that call, or elected legislatures? Or juries? Now THAT is a real debate worth having.

Doug,

I don't think I follow. I realize that you have strong views that existing sentencing law is unwise; you want prison sentences to be shorter in most cases. The question is, what to do about it? The student author shares your views of policy, but the author's proposed solution -- for lower court judges to just ignore the damn law and do whatever feels right to them -- seems to me like an obvious nonstarter. Based on your comment above, it seems that you agree it is a nonstarter. At the same time, you seem to think it is valuable for judges to be informed that they at least have the option to take this admittedly dangerous and wrong path -- subject to reversal, and in extreme cases, impeachment and removal from office.

But I guess I don't understand the value in that. First, surely judges are acutely aware of their options. Take the student author's advice to Judge Reinhardt. The student author claims to be enlightening Judge Reinhardt that he can ignore the law and vote his personal policy preferences. But I think it's widely understood based on Judge Reinhardt's judicial record that he is abundantly aware of this option. Second, pointing out nonstarter options seems of limited value. Judges always have the option of wearing duck costumes to court and going around the courthouse quacking; the mere fact that this is an option most judges don't consider doesn't make the idea valuable.

So I guess I don't understand what you see as the value in the note: What is the author telling the judges that the judges don't know but would be better off knowing?

Orin,

Let me repond by shifting this debate a bit by asking about your subsequent post giving attention to the fact that an Arizona murderer went to his execution with a smile, a picture of his daughter, and said "Go Raiders" as his last words. What do you see as the value in your post?

Is it more valuable for people to think about this murderer's reaction to his approaching execution than for them to think about an a HLS' student's reaction to harsh sentencing laws? Do you think this murderer's reaction, in your words on my blog, "should be accorded any influential effect"? Or, put in other terms of yours, "what is your post telling readers they don't know but would be better off knowing"?

Of course, I appreciate when I read your posts that you are not endorsing everything you report (though perhaps you, too, are a Raiders fan). Rather, I surmise that you post some items simply because you think it would be interesting or beneficial or perhaps just fun for readers to think about the items you mention. The same goes for me (and also I think for the author of the HLR case note).

Am I missing something, or it is fair to suggest that you are expect my blogging (and the a 2L's writings) to live statisfy a different standard than you hold yourself in your own blogging?

JRM: Orin was not providing a general report or an analysis of Arizona's execution; his post headline wass "Killer's Last Words." Similarly, my post headline was "Notable HLR casenote urging judicial civil disobedience." Like Orin, I was reporting something that I though readers would find interesting or beneficial or perhaps just fun to read.

I am not asserting that harsh criticism of the casenote is inappropriate, but I don't quite understand why I should be harshly criticized for thinking readers would find the casenote interesting or beneficial or perhaps just fun to read (for a variety or reasons, including what sort of vision of legal scholarship is being embraced at the Harvard Law Review these days). Of course, as some other commentors have noted, this long comment chain in some sense highlights the effectiveness of the HLR note in generating thoughts (just as Comer's last words were apparently effective in generating thought, since I do not think Orin always reports every killer's last words).

One last point: though I hope to hear Orin's explanation for his post on "Killer's Last Words," I hope everyone else might refocus their sentencing energies on the brewing legal/policy debates surrounding Lewis Libby's possible punishment (backstory here).

Based on his/her obvious antipathy for prison, I think the author of the HLR casenote would likely urge Judge Walton to impose a non-prison for Libby. I would like to hear what others think Judge Walton should give to Libby. Personally, I am really struggling to figure out what sentence I think is appropriate in the Libby case; and I find the parallels to another sentencing case now before SCOTUS (the Rita case) to be very interesting.

The Libby case is also interesting because many persons are urging President Bush to use his constitutional authority to do, though the exercise of his pardon power, a more extreme version of what the HLR note wants judges to do in some cases. I wonder if Orin believes a presidential pardon in the Libby case would be "admittedly dangerous" because of how it might undermine rule-of-law values (in a case that is FAR more high-profile than Marion Hungerford's).

Of course, the President's pardon/clemency authority is constitutionally sacrosanct, while judges justifiably are not given any formal pardon/clemency authority. Another way one might read the HLR note is as a (far-fetched) suggestion that judges should consider exercising a kind of illegal clemency authority for the Marion Hungerfords of the world because these pitiful defendants will never get the same Presidental consideration as the Mark Richs and Caspar Weinbergers and Lewis Libbys of the world.

Doug writes:

Let me repond by shifting this debate a bit by asking about your subsequent post giving attention to the fact that an Arizona murderer went to his execution with a smile, a picture of his daughter, and said "Go Raiders" as his last words. What do you see as the value in your post?

Is it more valuable for people to think about this murderer's reaction to his approaching execution than for them to think about an a HLS' student's reaction to harsh sentencing laws? Do you think this murderer's reaction, in your words on my blog, "should be accorded any influential effect"? Or, put in other terms of yours, "what is your post telling readers they don't know but would be better off knowing"?

Of course, I appreciate when I read your posts that you are not endorsing everything you report (though perhaps you, too, are a Raiders fan). Rather, I surmise that you post some items simply because you think it would be interesting or beneficial or perhaps just fun for readers to think about the items you mention. The same goes for me (and also I think for the author of the HLR case note).

Am I missing something, or it is fair to suggest that you are expect my blogging (and the a 2L's writings) to live statisfy a different standard than you hold yourself in your own blogging?

Yes, Doug, I think there are several things you are missing.

1) What drew attention to the HLR note was not that you linked to it, but that you personally recommended reading it. You described it as "notable" and one that "merits a read." You are an expert in sentencing law, and when an expert in sentencing law says that a student note in sentencing law is "notable" and "merits a read," that seems like an effort to get people to read the note and consider its argument seriously. When readers asked you why you thought the note was "notable" and "merits a read," however, you haven't seemed to want to provide an answer: Instead you have repeatedly tried to change the topic to something else.

2) I linked to the execution story for the same reason the Drudge Report did: It's jarring that a person would chose his last words to be "Go Raiders!" Of course, different people will draw different lessons from it, which is why my post had no commentary and instead opened it up for the 40+ comments that followed. I tend to think it shows the killer's utter depravity --- here a cold-blooded killer was essentially poking fun at others for taking his life so seriously that they want a quote from him as his "last words" -- but I didn't want to be heavy handed in the post and figured I would just provide the link.

3) Just to be clear, I did not mean to endorse or disparage the Raiders, or take any position on the Raiders or any other NFL franchise.

The note-writer would have been better off making an argument for jury nullification, which actually has some precedent in the history of this nation (even though judges and most lawyers hate it). The simple ability to inform a jury that they have this power would be a huge change in the way trials are handled,

NaG, The Constitution of the State of Georgia enshrines jury nullification, providing that:
Article I, Section I, Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors.
(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant
shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
The reaction of judges and lawyers is to prohibit judges from telling jurors they are the judges of the law and to hold any lawyer who tries to tell them so in contempt of court.

Jameso et al.,

I am troubled by the obligation one creates for bloggers if it is "worrisome" that I linked to a provocative casenote without detailing its lapses. I view blogging as a means to contribute to a robust/diverse marketplace of ideas and to share the ideas of others, not just as a means to articulate my own views and to attack the ideas of others.

Orin today posted a study of how student editors pick law review articles. Was it "worrisome" that Orin did not highlight the failure of the study to examine and discuss the impact of "expedite requests"? I'd understand all the worries if I called this casenote "effective" or "doing a great job" (which is how I described another HLR casenote which should be getting more attention). But all I said was that the note was notable. Yeesh.

Also, to again contextualize the reason I find the note notable, the point isn't merely that a Harvard 2L doesn't like federal sentencing realities. The point is the HLS 2L made a considerable effort (aided by other HLR editors) to express antipathy in a HLR casenote (and the author's obvious failure to express antipathy in a way that avoided triggering such a strong reaction from Orin and others in this thread).

To be honest, it's not the HLR casenote that has provoked reaction -- after all, there are plenty of poorly reasoned casenotes out there that nobody bothers to read. What provoked reaction is that a recognized expert in sentencing law chose to draw attention to it. Suddenly, a law review article that 99.99% of us would have probably never bothered to read, much less take seriously, came onto the radar.

Bernie: Yes, it's true that courts have worked hard to wipe out the prospect of jury nullification, perhaps in direct contravention with the plain meaning of applicable law. And perhaps legislatures aren't especially interested in telling juries that they have the power to simply ignore the laws that legislators spent so much time writing and enacting. But there have been several historical treatises on jury nullification as practiced in America, and it would be at least somewhat credible for the HLS writer to explore that route rather than suggest that which is obviously ridiculous.

Prof. Berman: I'm not advocating that judges necessarily do anything. I think there are other ways to remind jury members of their power to nullify. And I think any number of those avenues are a thousand times more reasonable than telling judges to flat out ignore the law.

The Harvard Law Review casenote addressed a very serious problem in the law and took a very provocative position. Professor Berman says it's worth looking at. What on earth is the problem with that?

After all this to-do, I think Professor Berman and other law bloggers will now have to think twice about saying a piece is noteworthy or interesting or worth a full read. And perhaps the same with respect to their other comments. Bloggers ought not to be exempt from criticism, but they ought not to be raked over the coals for something as petty as this.

One of the advantages of legal blogging is its speed and informality, but if this affair is an example, then bloggers are going to end up being held to the same standards as the authors of much more scholarly and formal writing.

Thanks for the apology, Orin, which means a lot to me. Note the headline of my post: "Notable HLR casenote urging judicial civil disobedience." What struck me as notable was the call for judicial civil disobedience, not the ranting against long sentencing terms. And that's why I thought the piece merited a full read; I thought it only fair to the author that his/her call for this extreme judicial response be not subject to simply a sound-bite attack.

To provide an interesting new spin on what I've learned here, this whole thread provides for me yet another reason to be a textualist: this thread developed not really because of any text in my post, but rather because of your sense of the "reasons" for my post. Justice Scalia is on to something when he urges a focus only on the text rather than on debates of perceived reasons behind the text. Now I just hope textualism prevails in Claiborne and Rita...

What a double standard. Imagine that a conservative member of the Harvard Law Review had written a case comment urging judges to apply this civil disobediance doctrine and stop enforcing, say, anti-discrimination laws, on the ground that such laws unjustly limit employers' rights of free speech and free association. The hypotetical note would also make a few nice quotes from Leviticus and the Old Testament noting how sodomy is an abomination (because no one could possibly disagree with the author's viewpoint on this, right?) Then imagine that Randy Barnett, who also happens to disagree with most anti-discrimination laws, cites to the note and says that it is "interesting" and "worthy of a full read". Does anyone think that criticisms would be as mild as Orin's original criticism of Berman's post? If anything, I would say that Barnett in this hypothetical would be forced to make an immediate retraction/apology or else see his career permanently endangered merely for suggesting that such an article would be worth reading.

I tend to defend inquiry into the macro premise that Doug Berman felt inherent in the note, but think he chose a very poor vehicle for rolling out a nuanced and historical view of judicial nullification as he would relate it to the current lack of sentencing discretion and anecdotally or statistically absurd results.

There has been more context, i.e. cultural and jurisprudential precedent, cited in these comments than in the note itself. Although there is rich ground to explore here, those decrying the inflexibility and injustice of the current federal sentencing regimen are ignoring the social forces that brought about the existing paradigm: dissatisfaction with exercise of discretion by judges.

Doug must now create a dissatisfaction with the lack of discretion for judges. Certainly an outcry from the judiciary is already underway and judicial nullification at the extreme end of this reaction is a worthy topic of discussion but not through the prism of this note.

That is not to deny that citing to the note has generated thoughtful commentary here and no doubt elsewhere. But if one's desire were to challenge the status quo in a thoughtful way, I would think it unadvisable to generate even the appearance of a possible salutary citation to this note without carefully qualifying that interest such that Orin and we would not have to devine it.

The semantic of debating post titles with Orin is fair to a degree, but Orin does not associate himself or his scholarship with the kind of loaded ideology purporting to be scholarship that this legal note represents. It is not as if the Arizona Republic is a legal journal reporting in a stately manner on the state of the law.

If the notewriter had wanted to engage in a principled discussion of the analogy between the predicament of Hungerford and fugitive slaves rather than spew 8 pages of pabulum on social justice (having nothing whatsoever to do with the second word in this fraudulent euphemism), it might have been a comment worthy of a publication claiming to emanate from one of the more learned fonts of thought on law and public policy in the country.

The underlying argument is really one for a technocracy of humanities professors (oxymoron not intended lest its employment intellectually nullify my point):

"the voices of academics and evidence from social
scientists are largely ignored." (page 6 of the note)

With due respect to those who practice teaching as much as law amongst the conspirators here, remind me which branch of government academics and social scientists represent.

A point very well made above in this thread by John Mayne, is how far out of the mainstream this note is - not so much for its procedural advocacy of civil disobediance, but the underlying social justification for its employment in this context.

The reactions in various quarters to opinions perceived [or deliberately depicted] as being outside the mainstream in the opposite direction (call it on the given occasion right-leaning , conservative, Lochnerian, christian fundamentalist etc.)is so vitrolic as to prevent their nuanced discussion. (the reaction to the Harvard note that incorporated an acceptance or argument for intelligent design recalled by blackdoggerel being a good example).

Institutionally, it means that organizations actually willing to engage in such discussion, e.g., the Federalist Society, whether composed of a prejudiced component or not,are all but prevented from even carrying that dialogue into the larger culture, or where de facto censorship fails, certainly not without a semantic baggage having nothing whatsoever to do with the substance of any instant argument.

Ah well, we freemasons of the law will never get out due.
Good argument here. As with most threads here (maybe excepting gay marriage and a few particularly hotbutton topics) it did not descend into the depths of ad hominem drepravity, notwithstanding Doug's notion that he felt it headed that way.

Brian

Doug,

as I said at the outset of my post, I concur with asking the questions regarding the absurd outcomes in sentencing and even with notions that judges who find such outcomes shocking to their conscience may intervene in ways that violate the rule of law.

In terms of incarceration rates and terms the most obvious area of our agreement might be to end the drug war. But you aren't seriously suggesting that prosecuting the pale latter day imitation of Bonnie and Clyde act at the root of the note is a misguided priority?

Arguably the writer really takes more issue with prosecutorial discretion than judicial discretion in the sense of piling on the charges. But its funny that the writer of the note isn't advocating a freer regimen with regard to firearms as that is where all the piling on comes from.

The district court sentenced Hungerford to 4.75 years for conspiracy and robbery, 5 years for the first firearm charge, and 25 years for each of the next six firearm
charges (to run consecutively, as required by statute), for a total of 159.75 years.

and the woman says:

I have not done anything illegal. I did not go about
with any gun. . . . I didn’t take any money. . . .

This sounds as much like a kid excusing stealing music (that's from personal experience after exposure to youth who justified stealing CDs in the same manner that kids justify taking music on the internet -- 'it ought to be free man'. Perhaps more to the point, it sounds like Paris Hilton wondering why continuing to snub her nose at legal norms is going to end her up in the slammer. (And Paris Hilton doesn't even qualify as a pale imitation of Frances Farmer.)

Hungerfords words bespeak a relativistic view of the criminal life as much as insanity on its face. If she truly isn't capable of understanding right and wrong then the issue is competent assistance of counsel.

On the general question, while your sentiments are quite worthy of attention in a country committed to freedom, the idea that the extent of incarceration taken out of context can tell us something about our society's commitment to freedom is less obvious than it might seem.

The price of the freedom to own firearms has been set as non-lenient punishment should you be involved in a crime in which they are employed. And, of course, the other alternative is for them to be banned altogether, an assault on freedom in and of itself, and then what. To satisfy people who think that there is too much incarceration we just give a slap on the wrist to anyone who violates this prohibition.

As much as I think there is merit to your concerns I think there are equally logical arguments that a freer society that essentially leaves people to their own personal recognizance might be expected to set trip wires for amoral behaviors to the extent that they threaten or harm other individuals. Thus instead of groupthink and limited options in society keeping everyone in line, options are open but if you violate the social contract, away you go.

I don't mean this in a didactic or totally agreeing way, but as a filter through which to view government policies that result in losses of freedom. As much as I am moved by the auto-cogence of your concerns, I find it a greater violation of freedom that the government thinks they can interfere in my relation with an employee or an employer and we don't have people up in arms over that (except we few defenders of Lochner). If we're going to have substantive due process undergirding the pro-choice position (albeit if afforded to increasingly viable unborn youth who knows where it would go) and now it is proposed that essentially the same mechanism ought to control in absurd sentencing results, lets restore Lochner to a place of less revilment in our jurisprudence.

Brian

Couple quick points, Orin, on a topic I'd love to explore a lot more:

(1) the concept of incarceration as a formal punishment for crime was largely unknown to the Framers; colonial era jails were mostly for debtors and for pre-trial detention before corporal or capital punishments were imposed after a conviction.

(2) I believe the first "modern" prison developed in Philly in 1790 and the prison movement thereafter grew though the 1800s as a progressive response to the perceived flaws with corporal and capital punishments.

(3) Though never achieving the vision of reformers, prisons were initially viewed as a place for reformation; prisoners, in fact, often had "modern" conveniences before others. (I've heard that the famous Eastern State Penitentiary had indoor toilets before the White House.)

(4) I have not seen any serious originalist critique (or originalist defense) of modern sentencing/imprisonment systems. I'm not a constitutional historical, so perhaps there is a lot more here than I know about. But, as I have said, I tend to think the Framers would have been troubled by the governments locking lots of people in small cages for long periods of time. And yet, the Framers clearly were comfortable with governments terminating life for crime, so perhaps the lesser(?) power of incarceration necessarily comes with greater power of execution.

I have much more to say on this and related topics --- e.g., I am pretty sure radifiers of the 14th amendment approved of faith-based prisons --- but this perhaps provides a running start to a new post.

Orin: I guess I have always understood the Framers to be wary of government power restricting the "blessings of liberty," and modern incarceration seems (short of execution) the most extreme form of government restriction on personal liberty. Notably, even banishment leaves a defendant free (albeit in another part of the world), and corporal punishment may hurt a lot, but it does not generally restrict the ability to, in the Declatation's words, pursue happiness.

Significantly, throughout the 1700s, the colonies started restricting the application of the death penalty and most lesser punishments were public in the educative tradition (e.g., stocks, public lashings, scarlet letters, etc.). I also think the severity of death penalty seems not quite so great during the colonial period when life expectancies were likely in the 30s or 40s for the less-well-to-do.


I suppose I am making some inferences when concluding that the Framers would be troubled by locking up a drug dealer or small-time crook for life (e.g., Harmelin, Ewing), but I have not seen any evidence to the contrary.

Does that make sense? Do you know of any basis for asserting that the Framers would have been supportive of broad government powers to lock many people in small cages for very long periods of time?