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May 19, 2010

Did the Chief initially have (but then lose) Justice Alito's vote in Graham?

As my prior posts highlight, I am intrigued and taken by many aspects of the substance of Chief Justice Roberts' concurrence in the Graham Eighth Amendment case.  But, in re-reading this opinion today, I was also intrigued and taken by a surprising pronoun in this paragraph from page 6 of the Chief's opinion:

JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment.  Post, at 26 (dissenting opinion). That distinction is important — indeed, it underlies our rejection of the categorical rule declared by the Court.  But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here.

The use of the pronoun "our" in the two spots highlighted here suggests to me that, at some point, Chief Justice Roberts may have believed he had a fellow-traveler prepared to sign on to his separate concurring opinion finding Graham's sentence's unconstitutional based on "traditional" case-by-case proportionality review.  I suppose it is possible that one of the five Justices in the Graham majority was the expected fellow-traveler, but I think it much more likely that Chief Justice Roberts was writing with the expectation that Justice Alito would be willing to join his opinion.  My speculation seems supported by the fact that Justice Alito ultimately did not sign on to Parts II and IV of Justice Thomas's dissent in Graham (as well as Justice Alito's separate little opinion saying he ultimately did not think defendant Graham had properly presented/preserved a case-by-case proportionality attack on his sentence).

Of course, all we know for sure is what is will in the US Reports, so maybe I am reading too much into a royal pronoun.  But it strikes me as a very interesting and quite important story for the future of noncapital Eighth Amendment jurisprudence if Justice Alito is largely in agreement with the substance of Chief Justice Roberts' approach to proportionality review.  Specifically, it means that (assuming a Justice Kagan follows in the path of Justice Stevens) now there may be as many as 7 Justices prepared (and even eager?) to breathe significant new life into Eighth Amendment review of noncapital sentences.

Some recent related posts with Graham analysis:

May 19, 2010 at 07:38 PM | Permalink

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doug, do you remember in the transcript of the oral arguments, Roberts asked counsel why they shouldn't just employ the three step test in Harmelin and Alito followed up suggesting the same approach?

Thomas and Scalia may not be ready to breath life into anything but in his dissent Thomas said he, and Scalia, did not find an inference of gross disproportionality. So, they are now at least acknowledging that a component of gross disproportionality exists in the Eighth Amendment in the noncapital context. Which means 9 believe Kennedy's approach in Harmelin is the law.

bruce

Posted by: bruce cunningham | May 20, 2010 1:02:29 AM

Or maybe it is a manifestation of Robert's ego --"our" is similar to the royal "we"

Posted by: k | May 20, 2010 8:35:05 AM

The use of the pronoun "our" in the two spots highlighted here suggests to me that, at some point, Chief Justice Roberts may have believed he had a fellow-traveler prepared to sign on to his separate concurring opinion finding Graham's sentence's unconstitutional based on "traditional" case-by-case proportionality review.

I believe that concurrences are practically always written in the first person singular, even when other justices sign them. Your hypothesis would require a rare “joint concurrence,” which strikes me as highly unlikely.

More likely is that the Chief had hoped that his view would be the Opinion of the Court, or at least a plurality.

Specifically, it means that (assuming a Justice Kagan follows in the path of Justice Stevens) now there may be as many as 7 Justices prepared (and even eager?) to breathe significant new life into Eighth Amendment review of noncapital sentences.

I am afraid not. Even Justice Kennedy, who clearly is more liberal in his thinking than Justice Alito or the Chief, allows only the narrowest kind of proportionality review. Just look at the very severe sentences he has voted to uphold. This is a thicket he is far from eager to wade into, much less the other two.

Posted by: Marc Shepherd | May 20, 2010 9:02:35 AM

This makes sense from what I remember of oral arguments. Alito was really pushing age to be part of a case-by-case proportionality analysis, even more so than Roberts.

Posted by: Meagan | May 20, 2010 10:11:58 AM

speaking strictly from the north carolina viewpoint, I am enthusiastic about Graham and the clarity with which the court embraced the concept of gross disproportionality of sentence to offense violating the eighth amendment.

Our judges are still adhering to the outdated position that any sentence within the range allowed by the legislature is constitutional per se. I thought Marbury v Madison made clear that courts, not the legislature, interpret the constitution. Kennedy has a line reaffirming Marbury in his opinion.

bruce

Posted by: bruce cunningham | May 20, 2010 10:17:54 AM

Not true. Deference or a presumption of constitutionality is not the same as a per se rule:

"In applying the Supreme Court's decisions in Andrade and Ewing, our Court must continue to apply the "grossly disproportionate" principle, remembering that "'only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.'" State v. Hensley, 156 N.C. App. 634, 577 S.E.2d 417, 421 (2003) (quoting State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983))."

Posted by: ungrateful biped | May 20, 2010 11:13:46 AM

I guess Alito just couldn't bring himself to not side with the government in a criminal case. Gosh, the horrors. He wouldn't have slept until the first Monday next October.

Posted by: DEJ | May 20, 2010 11:17:07 AM

Look at the very severe sentences he has voted to uphold. This is a thicket he is far from eager to wade into, much less the other two.

Posted by: Maternity nursing clothing | May 20, 2010 1:24:40 PM

ungrateful biped, I assure you that in Hensley the court did not address the threshhold question of whether there was an inference of gross disproportionality between the sentence and the offense. Our judges don't understand the difference between facial challenges and as applied challenges.

I have lost dozens of claims of cruel and unusual punishment and not a single order or opinion has inquired whether there is an inference of gross disproportionality and if so engaged in the intrajurisdictional comparison and interjurisdictional comparison.

Most recent loss was April 5, in which the judge wrote "Our Supreme Court has held that sentences that do not exceed the permissible statutory penalities cannot be held to be cruel and unusual punishment, State v Robinson, 271 N.C. 448 (1967)."

bruce

Posted by: bruce cunningham | May 20, 2010 2:16:04 PM

Didn't Thomas (and Scalia) only argue that there was no inference of gross disproportionality in the alternative, *after* arguing that the whole idea of proportionality review of noncapital sentences was an erroneous interpretation of the Eighth Amendment?

My understanding of that dissent was: "There should be no Eighth Amendment review of the length of noncapital sentences. Solem, Harmelin, etc., are wrongly decided/reasoned. But even assuming that there is a noncapital proportionality principle, and that it is governed by Harmelin, the facts of this case still don't demonstrate a violation of the principle."

Posted by: Anon | May 20, 2010 4:57:25 PM

anon, you're right, but that is further than they were willing to go in Ewing. They wouldn't even play the game in Ewing. In Graham, at least they played the game after arguing that the game shouldn't exist.

so that is some progress.

bruce

Posted by: bruce cunningham | May 20, 2010 6:01:25 PM

The Chief Justice placed a great deal of weight in his analysis on the fact that nobody asked for a sentence as serious as the one proposed. His analysis saw the issue as having as much to do with an abuse of judicial discretion as sentence that was in the abstract, constitutionally unreasonable for the offense. Indeed, as his references to high profile media cases makes clear, the Chief Justice was of the opinion that many instances of the same criminal offense could justify the juvenile sentence imposed.

Rather than true proportionality analysis, I think one might see a presumption, at least in certain kinds of cases, that any sentence significantly longer than that recommended by either the prosecution or the department of corrections is excessive, a presumption that might apply with particular force in juvenile cases. The Chief Justice's approach is as much about due process and abuse of judicial discretion as it is about substantively unreasonable sentences. It recalls the distinction between procedural and substantive unconscionability in contracts.

Notably, the majority opinion also made a point of focusing on categorical rather than a particularistic proportionality oriented review.

The point about this possibly having been a plurality opinion, presumably with both Alito and Kennedy joining is also a good one. I wouldn't be surprised if Judge Kennedy was initially inclined to join the Chief Justice's opinion, but then was persauded by Justice Stevens in a strong last favor asked during his service on the court request.

If Justice Kennedy was swayed in this way, an analysis close to that of the Chief Justice might be more successful in future cases.

For example, if this read on what happened is correct, the most hopeful cases in which to make juvenile LWOP progress would be those where the prosecution did not request juvenile LWOP, but the judge imposed it anyway.

But, the Chief Justice's rule wouldn't have much impact. Judges rarely impose sentences which are much longer than those requested by the proescution in serious crime cases, particularly those involving juveniles (the one case in a metro Denver county where that happened in a case involving a lawyer in a firm where I worked was legendary and often retold as an example of the room for judicial caprice). And, my sense is that a large share of LWOP cases involve mandatory minimum adult sentences for first degree murder in cases where a juvenile is charged as an adult, and the prosecution keeps the first degree murder charge either in order to retain plea bargaining leverage, or because felony-murder is an easier charge to prove than ordinary second degree murder.

Graham was anomolous in the fact that juvenile LWOP was imposed in a case where a mandatory minimum was not implicated.

Perhaps the Chief Justice, Kennedy and Alito might be persauded, however, by a case where the judge and prosecutor essentially say on the record that a sentence less than the mandatory minimum required by state law would have been sufficient and that the sentence imposed was "excessive" in some sense. Those cases are rare, but they do happen and in the face of the de facto demise of a meaningful pardon regime, perhaps the judiciary will fill the need for an escape route from excessive mandatory minimum sentences in cases where the crime does not seem to fit the punishment (e.g. the recent case of the Nevada woman sentenced to life for propositioning a teenage boy and having him touch her breasts).

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