She was very mature for 14

If a man Antonin Scalia's age were caught in bed with a teenage minor he would find himself in court facing statutory rape charges.

He could try to argue that the girl in question was very mature for her age -- that she was in some way an exception to the general rules, mores and laws distinguishing between minors and adults. He could even try to argue that the girl in question was, essentially, acting like an adult, and because she was acting like an adult he ought to be tried as though he she were one.

These arguments won't work, however. Every statutory rapist tries to make the same case, to deny that minors and adults are, and ought to be, considered in different categories under the law.

So it's good to see the Supreme Court of the United States finally reject the perverse logic of the statutory rapist in its 5-4 ruling yesterday that, as Charles Lane reports in The Washington Post, "it is unconstitutional to sentence anyone to death for a crime he or she committed while younger than 18."

The dissenting opinion was written by Justice Scalia, whose opinion on the competency of minors, William Saletan notes in Slate is rather elastic, if not bipolar.

Scalia is, famously, a practicing Roman Catholic. Yet here he finds himself unambiguously on the opposite side of unambiguous church teaching.

So, can we expect the kind of media circus we saw last year regarding John Kerry's weekly attendance at mass? This is, after all, a prominent public official, who is Catholic, taking a very public stance in direct opposition to church teaching. Will publicity hungry bishops elbow their way to the microphone to declare that they will refuse Scalia communion in their parishes? Will cable news networks follow the justice to church each week?

Don't bet on it. That would only happen if the bishops and reporters so allegedly concerned with Kerry's Catholicism last year had been acting honestly out of principle, and not just out of partisan hackery.

In any case, I don't want to see a repeat of last year's foolishness. Supreme Court justices, like United States senators, have a duty to uphold the Constitution, even when it varies from official Church doctrine. Scalia's dissenting opinion yesterday was wrong not because he was being a bad Catholic, but because he was being a bad jurist.

And you probably shouldn't let him anywhere near your teenage daughters, either.

Comments

[julia]

that was brutal. Thank you.

[Brandon]

love it, Fred.

[Peatey]

LOL Fred,

I love your perspective!

[Straw Man]

Great straw man, can I play, too?

One young man that Justice Kennedy just saved from the death penalty was Lee Boyd Malvo, otherwise known as one of the Beltway Snipers.

For weeks, he kept the nation's capitol in fear of randomly being shot while we pumped gas or came out of a Home Depot. He murdered people all over my state, many of whom who had families with children who will never see their parents again. Moreover, he did so in an express attempt to aid Osama bin Laden and Al Qaeda in terrorizing the United States in the immediate aftermath of September 11. Thanks to Justice Kennedy, this poor child no longer has to fear justice! Heck, maybe he'll even swing parole in 10 years after some unelected judge finds long sentences for minors who commit murder to be "cruel and unusual"? I'm sure he'll come out a well-adjusted and patriotic American.

Thanks.

(Sorry, I forgot we were supposed to just take it and smile when the Left uses undemocratic insitutions to subvert the will of the people...next thing you know, I'll be questioning Democrats' patriotism for trying to protect terrorist mass-murderers!)

[locutor]

Nice trolling, straw man. Are you really an asshole, or do you just play one on the web?

Malvo's a BAD BOY, and no one here is claiming otherwise. He's going to be locked up for a long, long time. No one here is advocating his release.

Maybe your idea of justice is to put you alone with him in a dark room? JUSTICE is not defined as " we get to do whatever we like to him "

And, "undemocratic institutions" ??? "Subverting the will of the people" ---what, we don't have enough of "the mob rules" for your taste.

Brownshirt.

[cjmr]

I'm sorry, executing Malvo would be vengeance, not justice. The court didn't say that juveniles couldn't be tried as adults for committing very adult crimes, just that they couldn't be sentenced to death. The option of life in prison without parole is still very real for him. I think it highly unlikely he will ever be paroled.

I live in Bowie. I drive almost daily past the middle school where Malvo shot the youngest victim. At the time I lived in Laurel, where they didn't shoot anyone, but I lived within walking distance of a shopping center where they apparently stopped to get food but didn't shoot anyone (according to the Wash Post). I wasn't terrorized--I went about my business, albeit more carefully than usual. And for the record, I walked to that shopping center for groceries at least 4 times during the sniper situation.

By the way, it was all that long ago that a gentleman who considered himself to be a well-adjusted and patriotic American committed an act of terrorism that killed far more people than the Beltway snipers did. Perhaps you remember him? Timothy McVeigh?

yo, genius? NIneteen states allow child executions. That's nineteen out of fifty. Hardly a majority, unless you're Antonin Scalia and you've already forgotten from your Lawrence dissent that the sense of the community should be the basis of laws regulating ickiness.

[David]

Well, let's not be too hard on him. There is a history of straw men needing brains...;)

[JRoth]

Ignoring strawholes, I want to use this forum to underline:

How can anyone read Saletan's article and still insist that Scalia is some sort of f-ing genius?! It drives me insane.

It seems like a session doesn't go by without Scalia offering up one of these vitriolic, asinine, self-contradicting opinions (and never was the term more appropriate), yet not an article on Scalia goes by without lauding his brilliance. Bullshit! Sophistry, maybe. Hackery, absolutely. Blind arrogance, no question. But genius? I reserve that term for honest men and women, not clever hypocrites.

[Peatey]

How can anyone read Saletan's article and still insist that Scalia is some sort of f-ing genius?! It drives me insane.

JRoth, in all fairness, I think geniuses can choose to lie or be inconsistent. Because he's so often dissenting, Scalia usually just mocks the internal consistency of the majority; a task he IS good at. Read the opinion by itself and Scalia comes across as smarter than Kennedy. As long as he remains the impotent dissent, I think he is the perfect foil to keep the majority on its toes, unlike Thomas, who just seems incapable of convincing any Justice that his approach is right.

[Stephen]

I agree with JRoth: Scalia is clever, but he is no genius. All too often we equate good vocabulary and clever wordplay with intelligence.

As far as Scalia's role is concerned, I really don't want 1/9 of the highest court of the land to be there merely because his deranged "interpretations" of the law serve to keep the majority on their toes, especially because this nutjob is Bush's template for judicial picks.

Scalia's one of those "really good Christians" who I wish could enter into their reward a bit early.

[Beth]

Scalia is enough to make me wish there were a way to impeach SC Justices. I was oddly relieved to learn Scalia had dissented on this decision. If he had made a good or even compassionate decision, I would have had to wonder if the world wasn't really coming to an end. (If that's not a sign of the apocolypse I don't know what is.)

JRoth, I agree with everything you wrote except this: "But genius? I reserve that term for honest men and women, not clever hypocrites." Genius has to do only with intelligence, and intelligence can exist independently of morality, decency, or anything else that marks someone as a worthwhile human being. One can be completely dangerously delusional and still be a genius (seen "A Beautiful Mind"?) I don't think I'd class Scalia as a genius (I'd think a genius would be able write decisions that were less obviously rooted in dogmatism), but his skill at twisting previous decisions and evidence of 'original intent' to fit his own preconceived notions of what government should be like bespeaks an above average intelligence at the very least.

Fred, I wonder if you might one day write a piece on Scalia's idea of 'separation of church and state.' I know you're not a lawyer, but the intersection of government and religion seems right up your alley, and since a guy who's against it, or is at least committed to minimizing it, seems likely to become the next Chief Justice, it may be worth a look.

Finally, while others have already done a fine job of skewering our scarecrow, I can't resist adding my 2 cents. I don't know what's more absurd, calling the Supreme Court an undemocratic insitution or suggesting the current Court is leftwing.

[JRoth]

I don't want to come off as defensive, but I do want to be clear: Scalia may be a genius by objective definition. But that word has (when not attached to "evil") a strongly positive connotation in this culture. Since Scalia uses much of his "genius" in the service of dishonest hackery, I resent the readiness with which the positive term is bestowed upon him.

Last year there was one of these pseudo-thoughtful rightwing memes about the "left" valuing cleverness over... whatever it is that is supposed to make righties so great. Godliness. Godhead. Whatever. Point being, Scalia's sophistry is the essence of clever-not-smart. Smart people don't sneeringly accuse others of hypocrisy when the others are consistent, and the sneerer is flip-flopping. But clever people love to pull that kind of BS. Throws your opponents off their game, you know.

Think of the distinction between being strong and being a bully. Most bullies are strong, but no adult would write admiringly of a bully's strength (note that I am fully aware that the press corps regularly describes Bully Bush as "strong"). Similarly, if Scalia weren't smart, he wouldn't be where he is. But he uses his smarts the way a bully uses his strength, and I find it highly offensive when the press lauds his genius without deploring his sophistry.

[Jeff]

This is old news on Scalia. In Jan. 2002 at Pew Forum on Religion and Public Life (link), he stated the Church's teaching on the death penalty was incorrect. I don't recall any bishops suggesting he should be denied communion. The teaching on the death panalty isn't as unambiguous as, say, the teaching on abortion. The short version is that while the death penalty may be necessary to defend society, those cases are virtually non existent in the modern world.

[wvmcl]

The question I always ask death penalty boosters, and one I've never gotten a good answer to:

If the death penalty is such a necessary deterrent to murder, why is it that the countries of the European Union have a murder rate one fourth that of the U.S. more than 40 years after they abolished the death penalty?

(The answer I usually get is something along the line of "we have more black people than they do. Don't bother. It's not even true.)

[Gus]

In Slate, Saletan wrote: "At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions," Scalia writes. "Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes." Therefore, he concludes, they don't support Kennedy's "categorical prohibition of the death penalty for murderers under 18."

There's a fair amount of truth to that statement. Psychologists (for ex., Jonathan Kellerman in Savage Spawn: Reflections on Violent Children) have noted for some time that sociopathic criminals usually start young and do NOT stop their crimes when they become adults. They just get better at committing them. Catching and incarcerating them forever even before they turn 18 is often the only way to keep other people safe. Some may even deserve death, but giving it to them only makes the state their unethical equal.

That said, Scalia's "all or nothing" view of the situation is typical of right-wingers; by that definition, he should oppose mandatory sentencing laws because even some ADULTS don't appreciate the nature of their crimes. But I believe he has strongly supported such laws, including "three strikes" and federal death penalty laws. (I wonder where he stands on the execution of mentally ill or disabled folks -- physically adult, mentally children?)

[julia]

He went even further. He said that anyone who felt that their catholic faith would keep them from imposing the death penalty should resign from the judiciary, since they would unable to do their job by carrying out the law.

[bellatrys]

Scalia's the good Catholic who told Harvard that he thought orgies would be good to release tension, but he was obliged to oppose them because of something not particularly coherent or consistent, in spite of being personally in favor of them.

Which, combined with his rumored Opus Dei involvement, creates some really disturbing visuals.

This is also the guy who wouldn't let people take notes or journalists report on his speeches, and had the police confiscate them illegally, so much for freedom of the press - I guess when you start hearing the things he says, you understand why he didn't want them out there being MST3K'd.

He's just another ideological, hypocritical conservative Catholic, like all the ones I grew up with in Texas and from the Beltway from the early 70s on. Nothing to see, move along...

[Brandon]

Straw Man,

Do you know what a 'straw man fallacy' is? I ask because I fail to see anything in Fred's entry that could even be REMOTELY construed as a straw man fallacy, (or any type of red herring argument for that matter.) It's a bit of a pet peeve of mine that when people use arguements by analogy (like Fred did above) and some folks don't like those arguments, they resort to the farmiliar 'straw man' cat calls. Frankly, if you can't play ball with the big kids you probably should keep your pie hole shut around arguments you don't, can't, or (worst of all) won't understand.

I'm also a touch confused about your use of the phrase, "can I play, too?" Do you mean to infer that you, too, were going to use a straw man argument. If that was your intent, and I'm not sure why you would want it to be--but you did say that you wanted it to be--you've failed miserably. You didn't use a straw man fallacy, really, in your retort. However if by "can I play, too" you meant, "can I use all sorts of bad logic" then, my friend, you've succeeded. Gloriously.

And, to that, I raise my glass. Congrats on being voted dumbass of the day.

[Mabus]

With all due respect, locutor, in order not to be an undemocratic institution the Supreme Court would have to be publically elected. There are good reasons for them not to be elected, awkward as it is sometimes, but that doesn't make them democratic.

To tell the truth, I'm always leery of drawing arbitrary lines--statutory rape included. (No, I am not a statutory rapist.) In an ideal world, people would be judged mature or immature on the evidence of their behavior, not on the time of their birthday. We don't live in that ideal world, and it's not always possible to tell from someone's behavior whether or not they're mature enough for certain privileges or restrictions. But that doesn't mean it's never possible.

I'm on the fence on this one. It seems to me that certain vicious crimes, by their very nature, imply (a rather twisted sort of) maturity. And the notion of not being able to execute a murderer because he slashed someone's throat five minutes before midnight the day before his birthday is disturbing to me. Moreover, although Straw Man's overall argument is badly put together, he's right about one thing--if law has to be based on societal standards, and those standards are rapidly changing, then how do we know life imprisonment won't be declared cruel and unusual tomorrow? There's something peculiar about the idea that the government should be subject to _peer pressure_ about who it executes (notes argument that only a small number of countries still execute minors).

All in all, the decision is defensible, and has been well defended. I won't be picketing over it or anything. But I can't say my mind is at ease.

[julia]

I'm on the fence on this one. It seems to me that certain vicious crimes, by their very nature, imply (a rather twisted sort of) maturity.

Wow.

That's a really sad statement.

[R. Mildred]

if law has to be based on societal standards, and those standards are rapidly changing, then how do we know life imprisonment won't be declared cruel and unusual tomorrow?

I feel you're being stupid on purpose, but I'll humour you, what besides killing all underage murderers, or statutory rapists do you suggest? you can't decied that life imprisonment might be unethical tommorrow without having a third option to offer, could you? No, you're suggesting something that is viewed by people who aren't crazed vengeance monkeys as unethical today is untainable because someday in the future someone might decied that the only other option is unethical. I applaud your wingnuttery, I really do.

Nevermind the fact that people locked up for life can have their sentence changed later on, is jesus bringing the innocent dead back to life in your world?

There's something peculiar about the idea that the government should be subject to _peer pressure_ about who it executes

Yeah, how many countries needed a fucking civil war to get rid of slavery? Executing children, because that's what you're in favour of, will get a few innocents, do you want to pull the switch on them? for every totally sociopathic child of advanced mental years, a totally innocent child getting injected into the next world, this system isn't perfect and whenever the only sensible way of viewing such a fact relies on a 15th century witchburning mentality, if their not a witch, then at least they'll die a good clean christian death, if they are a witch they'll use their powers to escape of course, but at least then we'll know they're a witch won't we?
Pro-fucking-life, it's just a joke it really is.

[Adam]

"notes argument that only a small number of countries still execute minors"

Surely only a very small number of countries execute anyone at all? And aren't the only countries who execte juveniles places like Somalia etc?

[Mabus]

Julia> I don't see how it is a "sad statement". Slitting someone's throat and dumping them off a bridge is certainly not the action of a healthy adult, but neither is it the action of a child.

Mildred, please calm yourself. Why is it that every time I make a dissenting statement I am assumed to be an idiot or crazy?

Perhaps I badly worded what I said; I was picking life imprisonment as an example of something that _might be_ considered cruel and unusual, not singling it out as the only other option. Even so, I think my meaning should be clear--there is more to morality than "majority rules". Reverse it--was the first nation to abolish the death penalty morally wrong because all other nations still imposed it? We can be a small minority and still be right in our actions.

As for the rest, you're right that no system is perfect. The death penalty shouldn't be invoked lightly. But taking it off the table entirely is also dangerous. You might notice that I said I didn't actually _disagree_ with the decision, only said that it makes me uneasy.

But no, I'm just evil and not worth listening to.

[julia]

It's sad because judging agency by the outcome of our actions is, in piagetan terms, something we're supposed to be done with by the time we're five or six.

Doing something bad does not make you an adult.

[Mabus]

Thank you for the explanation, Julia. I wasn't thinking about Piaget's theory last night. I was thinking more in terms of ability to carry through effective plans, or holding up under pressure. (I am given to understand many adults can't bring themselves to kill someone; part of basic training is to wear away this inhibition.) Or just plain moral blindness...children hit and bite, but they rarely seem to hold the kind of malice murder takes.

Perhaps, properly speaking, a person capable of killing is "off the charts" entirely--adult in some aspects and child in others.

[Donny]

[Scalia] said that anyone who felt that their catholic faith would keep them from imposing the death penalty should resign from the judiciary, since they would unable to do their job by carrying out the law.

Hmmmm. I wonder how Scalia would apply this reasoning to the case of the hyperreligious pharmacist who refuses to dispense AIDS drugs and birth control pills because he has "moral" objections to fairies and fornicators?

[Beth]

JRoth, I agree, there's something creepy about Scalia being called a genius, especially without a qualifier. It's just that one of my pet peeves is the way people confuse intelligence with wisdom or good sense. We assume, for example, that racists must be morons, but that's simply not true. I could write the most complex program in the world and install it on the most advanced computer ever created, but if I tell it things fall upwards and fire is cold, it's going to produce incredibly 'stupid' conclusions. The same is true of people. Their 'stupidity' is usually the result not of lack of intelligence, but bad programming. Scalia is a prime example of that.

Mabus' comments are certainly a target rich enviornment. I'll just go after a couple of the worst.

First Mabus argues that the Supreme Court is "undemocratic" because it's members aren't directly elected. By that standard, America is an "undemocratic" country. We don't vote on laws, we don't vote on budgets, we don't vote on foreign policy. Virtually everything this nation does must be undemocratic as well. But maybe Mabus means "undemocratic" as a compliment, because he/she obviously thinks the people are incapable of governing themselves. The whole basis of Mabus' argument against "societal standards" is that society can't be trusted because its too likely to make stupid decisions.

There's something peculiar about the idea that the government should be subject to _peer pressure_

Except we're not talking about "peer pressure" here. If the SC outlawed executing minors because all the other countries are doing it, that would be "peer pressure." What we're talking about is "citizen pressure," and yes, that is 'peculiar.' It's peculiar to a form of goverance known as 'democracy.'

[Deborah White]

Excellent point about the hypocritical differences in the Catholic Church's support of Democrats and Republicans.

[Jason]

Mabus, a lot of states have taken the death penalty off the table to no real ill effect. So objectively, from looking at crime data, you are simply one hundred percent wrong.

[Gus]

hi, Mabus & all,

Perhaps, properly speaking, a person capable of killing is "off the charts" entirely--adult in some aspects and child in others.

That's way too general. Almost anyone is capable of killing under the right circumstances. I think you mean killing FOR PLEASURE, and that's a major distinction.

I wouldn't say such a person is either adult or child in the sense I think you mean (behaviorally), but they ARE "off the charts." People working with socipaths commonly say that they aren't like the rest of us in their whole way of seeing the world, and that may be supported by neuroimaging. Moral blindness isn't accurate: They typically KNOW what's right and are often very good at pretending, but they commit their crimes becasue they LIKE it.

I'm on the fence on this one. It seems to me that certain vicious crimes, by their very nature, imply (a rather twisted sort of) maturity. And the notion of not being able to execute a murderer because he slashed someone's throat five minutes before midnight the day before his birthday is disturbing to me.

I can understand that. If that were the only reason for making such a decision, it would disturb me too, b/c a lot of age issues are purely arbitrary. But it's not.

For me, the fact that ANY innocent people sit on death row and/or have been executed (many before the use of DNA testing that would've freed them)is enough of a reason for prohibiting the DP. I don't think justice can be perfect, but when it makes a mistake, there needs to be a chance to correct the error, and the DP doesn't allow for that.

Isn't Scalia's (or any other self-professed Christian) support of the DP effectively his playing God and thereby violating his own faith?

[Mabus]

Beth, Supreme Court justices are not elected at all. They are appointed, and at that on an irregular basis that leaves them increasingly out of touch with the general populace as they age in office. Removing them is almost impossible, so they are almost totally insulated from public criticism.

Surely only a very small number of countries execute anyone at all? And aren't the only countries who execte juveniles places like Somalia etc?

It has been repeatedly pointed out (both in Kennedy's actual argument and in several forums I frequent) that only a few countries still have the death penalty, and that even fewer execute minors, among them such uninspiring names as China. I realize that this was not the entirety of the argument, but I question its validity as a measure of proper action nonetheless.

Gus, I meant to write "capable of killing prior to adulthood". It's a particularly egregious omission and I am appropriately abashed.

Thanks for being kind. Several people have not noticed, so I will repeat: executions leave me deeply uncomfortable, just as they do you. I have, however, learned to distrust such gut reactions. For me, they are usually both wrong and inconsistent. I simply believe that executions are a vital, if regrettable, tool of last resort in dealing with a few very dangerous people who will, if they can, kill more people than mistaken guilty verdicts ever will.

[Gus]

Mabus, why is the DP "vital?"

I doubt(as I suspect you do) that life imprisonment will ever be declared "cruel and unusual;" it really IS the last resort a sane society has to deal with people who simply cannot be allowed to walk free. For that reason, we don't NEED a DP; killing somebody for their crimes may seem appropriate, but it doesn't return the victim(s) to life, it doesn't heal wounded family members, etc.

What I'd like to see is some form of life imprisonment in which they actually DO something constructive to make up for their crimes, at least in some respect. I know, they can't bring the dead to life any more than the state can. But I'm sure there's SOME way we can make prison really be a place of restitution for victims and, for those who are capable of it, rehabilitation. (Obviously, most of the people we're talking about don't fall into the second group.)

For those who CAN be reformed, there should be lots of mandatory therapy. For those who can't... I'm not sure what's appropriate. A scifi novel, Charles Sheffield's Aftermath, had an interesting concept (one that admittedly contradicts the idea of restitution I mentioned above): Instead of imprisonment, he has prisoners being sentenced to suspended animation for their terms. Multiple killers get multiple life sentences... meaning they probably die in susp. anim. in, say, 150 yrs rather than 60. Lesser crimes get shorter stays.

The benefit of that is that such criminals are no risk to escape and require minimal maintenance, and if someone's found to be innocent, they can be awakened fairly easily and haven't had to face the traumatizing (or in fact criminalizing) life characteristic of today's prisons.

Of course, we could also figure out some way of recreating the ancient practice of Exile -- kick criminals out and let them fend for themselves. Historically, we know it works -- Australia was founded that way, but it has evolved into a functional democracy & pretty much was one from the beginning (a far cry from the gang-rule that dominates in prisons). The only problem is where to send them; that will eventually be solved as we develop a real spacefaring civilization (if we live that long).

[animus]

Of course, we could also figure out some way of recreating the ancient practice of Exile -- kick criminals out and let them fend for themselves. Historically, we know it works -- Australia was founded that way, but it has evolved into a functional democracy & pretty much was one from the beginning (a far cry from the gang-rule that dominates in prisons).

This is utter nonsense. Do you know anything about the history of Australia?

[Beth]

Supreme Court justices are not elected at all.

Gee, not even a little bit?

Most of those things you decry as "undemocratic" about the SC were put there deliberately by the framers of the Constitution to ensure that it would be free from political pressure. I'm not sure what the fact that they're appointed an irregular basis has to do with anything. As for the fact that they age in office, well, it's sad, but I don't think there's much we can do about that.

[Gus]

Animus,

Probably not nearly as much as I should. I know it was originally settled around 60,000 yrs ago; obviously I wasn't referring to the Aborigines. Europeans first landed there only a few centuries ago, and the first major white colonies were Botany Bay and other communities for convicts & others who weren't wanted in Britain (or chose to leave). Some of them were brutal, to both whites and natives...

OK. Looking at it, I'm realizing I know shit about Australian history. Educate me.

(That doesn't really change the basic point of my suggestion about exile, though. That's a completely different issue.)

[animus]

Rather than recap the whole of Australian history, I'll just cover the points you asserted.

The colony of New South Wales was not established by dumping a number of convicts on the beach and leaving them there. Along with the prisoners came a large number of guards. Under guard, the prisoners built barracks for themselves and for the troops, raised crops, and so on. The early colony was not an anarchy of society's rejects, but a military base with a handy supply of convict labour.

As such, the colony was run by a governor sent out from Britain. Although having formal power, several of the early governors were too weak to maintain control over the corrupt military establishment, especially when the local officers had better connections back home than they did. But effectively, the military (headed by the governor) was running the place. This remained true for some time, even as some convicts were paroled, or had their sentences expire but were still not allowed to return home; they joined a slowly growing number of free settlers who had decided to try homesteading in the new continent. Eventually, the free and freed colonists demanded a voice in government, and got it. Which was British colonial policy anyway.

So it was not a case of order arising from chaos, but of a military dictatorship relaxing (along perfectly predictable lines) into a Westminster parliamentary democracy. Each of the colonies followed a somewhat different path, but none of them started off without some sort of imported authority. Eventually, the colonies joined under a federal constitution to become the Commonwealth of Australia.

I've left out a whole lot here, and probably given a very misleading impression of how things happened, but my point, and I do have one, is that nowhere in Australia do you find a bunch of abandoned criminals left to develop their own social systems.

[Gus]

Thanks, animus. Serves me right for using analogies without doing my homework.

Obviously, the system there worked (at the expense of a lot of Natives), but would it have if the military weren't involved? What prevented the establishment of a permanent military regime?

Today, it would be a lot harder to do something like that without some kind of technology or impassable distance (ie another planet) that would prevent the convicts from rejoining society. Heinlein imagines such a system in some of his books (esp. Revolution in 2100) in which a section of land is essentially walled off (using technology that kills anyone crossing it)& criminals are sent there to fend for themselves. They create mini-states & villages and mostly just survive, but are constantly watched by undercover agents.