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April 21, 2010

SCOTUS to keep us waiting for juve LWOP rulings in Graham and Sullivan

As detailed in this post late last week, I thought there was a real chance that the Supreme Court might this week finally issue rulings in Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida which were argued nearly six months ago.  But, as detailed here at How Appealing, the three rulings handed down today by the Justices were all concerning civil issues, and I believe it is unlikely we will get any more opinions issued until at least next week.

Though I am disappointed, I am not surprised that the Justices are taking their time with Graham and Sullivan.   As I have explained in prior posts, these cases have the potential to be the most consequential non-capital sentencing Eighth Amendment rulings in the Court's history.  Getting tese rulings done right is a lot more important than getting them done quickly.  In addition, I suspect that there will be multiple opinions in these cases no matter how they get resolved.  Indeed, the continuing delay reinforces my gut feeling that we may get four or five or even more separate opinions in these important Eighth Amendment cases.

April 21, 2010 at 10:28 AM | Permalink


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While Graham and Sullivan are very important in terms of reducing the extent to which a few individuals in quite a few states in the United States (particularly Florida) receive sentences far more harsh than they could have anywhere else in the world, at a system-wide level these cases are far less consequential. The Booker line of cases probably had a much greater impact on average sentence length in the United States, for example.

Juvenile LWOP is quite rare relatively to the number of death row inmates out there, or to the number of adults serving LWOP or de facto life sentences as a result of recidivism considerations even though their final crimes were often very modest (particularly in California under the three strikes law).

Certainly, these are important cases. If 8th Amendment arguments are rejected in both cases, then the 8th Amendment is effectively dead for another generation. But, their direct effects even if both sentences are struck down is quite modest, and if only one of the sentences is struck down, we are left with the nearly meaningless 8th Amendment status quo are a direct effect that is perhaps 10% as great - a few dozen cases impacted perhaps out of more than a million people in prison.

Posted by: ohwilleke | Apr 21, 2010 6:17:59 PM

I am very interested in the methodology employed by the court in reaching whatever decision they reach. If they say that Justice Kennedy's concurring opinion in Harmelin v Michigan is the rule, and therefore "clearly established", it will have a big impact in North Carolina and the Fourth Circuit. Currently, our state courts do not follow the three step test in Harmelin/Ewing and our federal habeas courts deny that there is clearly established federal constitutional law. Which essentially means that our courts believe that any sentence within the limits allowed by the legislature is per se constitutional.

I await the decisions with great anticipation.

bruce cunningham

Posted by: bruce cunningham | Apr 21, 2010 6:50:58 PM

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