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February 11, 2012

"Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence"

The title of this post is the title of this timely article by Professor Mary Berkheiser which was recently posted on SSRN. The piece is timely not only because next month the Supreme Court is scheduled to hear oral argument on two follow-up Graham cases, Jackson and Miller, but also in light of the heated blog discussion earlier this week over the sentencing of a 15-year-old thrill killer in Missouri.   Here is the article's abstract:

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles.  Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes.

That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed.  Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides.  The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration.  With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972.  In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham.  Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.

February 11, 2012 at 06:34 PM | Permalink


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"Youth is different" appears to be yet another pretext (a false use of the law) to protect and enable criminality. It is on greased slippery slope toward total immunization, empowerment and freeing of all the criminals. Why? Criminals generate lots of government make work jobs for lawyers. Victims and deceased criminals do not.

These criminal were likely clearly identified at age 3. How? Because they acted then the exact same way they do now. The crime meter was likely spinning even faster than it is at 15. The intensity diminishes with age, that's all. Rehabilitation is yet another lawyer fictitious doctrine, just the age of 18 is a lawyer made up fictional landmark. The twenty million FBI Index Felonies victims, including 17,000 murder victims are quite real. The murder rate may not be 17,000 a year. There are 100,000 unresolved missing persons reports a year. The murder rate may really be 70,000. Thank the rent seeking, criminal enabling lawyer.

Posted by: Supremacy Claus | Feb 11, 2012 11:47:07 PM

As of December 31, 2007, there were 105,229 active missing person records in NCIC. Juveniles under the age of 18 accounted for 54,648 (51.93%) of the records, and 12,362 (11.75%) were for juveniles between the ages of 18 and 20.*
During 2007, 814,967 missing person records were entered into NCIC, a decrease of 2.53% from the 836,131 records entered in 2006. Missing person records cleared or canceled during the same period totaled 820,212. Reasons for these removals include: the subject was located by a law enforcement agency; the individual returned home; or the record had to be removed by the entering agency due to a determination that the record was invalid.

Posted by: claudio giusti | Feb 12, 2012 4:02:39 PM

Claudio: You are a government official. You know better than I do. Government statistics have no credibility. Always multiply by two. In the case of rape, multiply by ten.

Posted by: Supremacy Claus | Feb 12, 2012 6:58:54 PM

why not divide by half ???????

Posted by: claudio giusti | Feb 13, 2012 3:58:43 AM

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