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January 30, 2011

"'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences"

The title of this post is the title of this new paper now available via SSRN authored by Alison Siegler and Barry Sullivan. Here is the abstract:

In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense.  There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument.  Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance.  Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically.  The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision.  Death was different no longer, but the Court did nothing to explain why that was the case.

The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests.  The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case.  The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence.  The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead.  In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.

January 30, 2011 at 02:08 PM | Permalink

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Comments

This is the top of the slippery slope. At the middle is the closing of prisons, and the at the bottom is the end of punishment in favor of huge government program giving insight therapy to serial killers, with their own individual staff to prevent the occasional lapse in judgment from turning into someone's death.

Posted by: Supremacy Claus | Jan 30, 2011 4:47:02 PM

I am curious whether anyone on the blog agrees with Justice Thomas, as I do, that after Graham, "death is different no longer."

In other words, can a death sentence be the subject of a balancing, rather than categorical, test to decide if a particular sentence in a particular case offends the constitution?

If the answer is "yes" then Graham has implications that I doubt even Justice Thomas foresees. I believe Graham supports an argument that if a categorical test can be applied to a noncapital case, then a balancing test can apply to a capital case. I have one case in which I am contemplating making an argument that under the facts of the case, a sentence of death is grossly disporportionate to the crime. I doubt anyone could argue that the case is among the worst of the worst and that the death sentence should be stricken.

bruce

Posted by: bruce cunningham | Jan 30, 2011 8:24:55 PM

Graham, hopefully, is the high water mark of judicial disregard of the law. The whole case is just plain silly. First of all, why is "parole" magic? Parole can be absolutely discretionary, or even subject to gubernatorial review. So how is the right to the opportunity for parole any different from executive clemency? In other words, what appears to be constitutionally required is that there be something called a parole board which basically can deny parole for any reason it feels like, just like a governor can. That's a pretty odd distinction.

And why does the opportunity for parole have to be decided at the time of the sentence? Why can't it simply be an individual court case once the guy has served for 30 years or so?

Posted by: federalist | Jan 30, 2011 9:53:07 PM

I believe we are witnessing a struggle to repackage the social control paradigm. The courts are shifting from a course-grained to a fine-grained way of thinking about social control. Course-grained social-control paradigms are oversimplified.

Decision-makers are beginning to access the social control problem in a reasoned way, which takes the form of a jeopardy argument. First the person in question committed a crime, which is the priming premise of the argument. That crime is the core part of a criminal offense, the base premise. Finally we conclude that the person in question is a criminal offender who has a substantial risk of committing another crime. Decision-makers respond to each of these propositions in different ways, as the authors of this paper seem to recognize.

A different Eighth Amendment analysis has to be made for each of these three kinds of responses, not just one as with a fine-grain social-control paradigm.

Posted by: Tom McGee | Jan 30, 2011 11:16:56 PM

@federalist:

"In other words, what appears to be constitutionally required is that there be something called a parole board which basically can deny parole for any reason it feels like, just like a governor can."

I'm not sure I agree; I think under Graham if parole boards routinely deny parole to individuals who committed very serious other-than-murder offenses before 18, even when a long time has passed since the commission of the crime, there will undoubtedly be challenges on the basis that the state has violated Graham by not offering a sufficiently "meaningful" prospect of eventual release on parole, a term that the Court's majority didn't define (how could it have?).

Posted by: guest | Jan 31, 2011 4:17:46 PM

hmm

"I'm not sure I agree; I think under Graham if parole boards routinely deny parole to individuals who committed very serious other-than-murder offenses before 18, even when a long time has passed since the commission of the crime, there will undoubtedly be challenges on the basis that the state has violated Graham by not offering a sufficiently "meaningful" prospect of eventual release on parole, a term that the Court's majority didn't define (how could it have?)."

You mean the same thing they have done for a DECADE with sex offenders after the end of their sentence making it official and completely legal with their illegal CARR decision last yer.

Posted by: rodsmith | Feb 1, 2011 1:33:01 AM

If Death is not different, then does it not bring into question all mandatory minimums of any kind in all cases? I think so.

Posted by: Scott | Feb 1, 2011 2:33:04 PM

I was going to mention that Kennedyesque mention of "meaningful", but decided against it because it's so amorphous. As things stand now, parole can be 100% discretionary. Moreover, the Court just decided Swarthout v. Cooke, which seems to say that parole is solely in the province of the states.

Just goes to show how silly this Graham decision is.

Posted by: federalist | Feb 2, 2011 9:22:44 PM

Guest, as I suspect you know, that is already the practice of many parole boards (to deny parole reflexively for certain crimes). Moreover, in many states, the governor has to approve paroles and almost never does so for violent crimes.

Where I differ from you is in thinking that the SCOTUS will care. I don't think they will want to open the Pandora's box of having to enforce the "meaningful" part of meaningful opportunity for release. I think they will take the availability of parole at face value despite any and all evidence that the actual possibility of parole in a given state or case is illusory. Then they can have their cake (grandiose, rhetorical Eighth Amendment pronouncements about human dignity) and eat it too (little disruption to the status quo, not too many difficult, controversial cases for the lower federal courts).

Posted by: Anon | Feb 8, 2011 6:07:50 PM

Is it just me, or does this article seem staggeringly similar to a Case Comment in the Harv. L. Rev. that you previously linked to on this site? http://sentencing.typepad.com/sentencing_law_and_policy/2010/12/scotus-reflections-in-harvard-law-review-covers-graham-and-padilla-effectively.html. It seems almost word-for-word at parts...

Posted by: Guest | May 1, 2011 5:18:57 PM

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