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May 17, 2010

Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?

The opinion for the Court in Grahamstates at the outset and stresses in various settings that the ruling is directly applicable only to nonhomicide offenses.  Nevertheless, the logic and language of the opinion puts special emphasis on the diminished culpability of juvenile offenders as a class and on the unique severity of a life without parole prison sentence.  Consider, for example, this paragraph toward the end of the opinion for the Court in Graham:

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Obviously, this paragraph mentions that the juvenile defendant's severe LWOP punishment was "based solely on a nonhomicide crime."  Still, if we replace the word "nonhomicide" with, say, "less serious homicide," the paragraph retains all its force.  Consequently, I suspect that lawyers for any and all juvenile offender sentenced to LWOP for a killing that was not first-degree murder may argue that the logic and language of Graham readily extended to cases involving lesser homicides.

I am not sure if there are many (or even any) juvenile killers who are serving LWOP sentences after conviction for homicides that did not qualify as first-degree murder under applicable state law.  I am sure that, if such sentences are currently in place, lower courts are going to have to decide whether and how to give effect or to cabin some of the broader logic and language used by the Court in Graham.

Early posts on the Graham ruling:

May 17, 2010 at 12:04 PM | Permalink


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How will this decision affect felony murder convictions and those convicted under the accountability theory? Even under those statutes, convictions run the gamut from defendants who had a more active participation in the homicide versus those who had no knowledge of the crime that was about to take place, etc.

Posted by: Jacki Gansch | May 17, 2010 12:41:48 PM

Should read: "This we will not permit." The 8th Amendment has nothing to say about this.

Posted by: federalist | May 17, 2010 1:09:30 PM

The less serious murder cases situation would be non-triggerman felony murders. Kennedy's opinion expressly affirms the case that held that the death penalty for adults who commit non-triggerman felony murders was still good law, and also drew upon the non-capital offense for non-murder balancing test.

This case doesn't resolve the juvenile non-triggerman LWOP case.

Also, by reasoning that Israel in allowing juvenile LWOP only for murder and attempted murder doesn't constitute allowing juvenile LWOP for non-murder offenses, Graham may even open the door to states that have it continuing to allow juvenile LWOP for attempted murder. Realistically, I think that LWOP for attempted murder isn't going to become common, but I do suspect that this issue will be litigated anew.

The DIG of Sullivan also leaves open the issue of how much age apart from a juvenile/non-juvenile distinction matters in LWOP cases. Many states in reaction to the ban on the death penalty for 15 year olds (or younger) but not 16 and 17 year olds also made LWOP available to offenders aged 16 and 17, but not to 15 or younger.

The odds that SCOTUS will find LWOP unconstitutional for triggerman murder by a 17 year olds have probably decreased (although Chief Justice Roberts exaggerates the case in his concurring opinion in stating that the decision has already been made).

But, the juvenile felony murder accomplices facing LWOP do look sympathetic under the Graham analysis, and a 14 year old facing LWOP looks more sympathetic than someone a few days short of eighteen.

Posted by: ohwilleke | May 17, 2010 1:58:38 PM

Federalist: "Should read: 'This we will not permit.' The 8th Amendment has nothing to say about this."

This is a typical talking point, but it presumes as a premise the S.C. does not have the power to interpret the Cruel and Unusual Clause and that little "technicality" is left out of the argument. (Unless, of course, the Court interprets it in an agreeable light. Then the Court does have that rightful power to interpret. Gun rights, anyone?)

Posted by: George | May 17, 2010 1:59:21 PM

The deceased might have a bit of trouble deciphering the phrase, "less serious homicide."

Posted by: Bill Otis | May 17, 2010 5:15:01 PM

Bill, all manner of violations of the law causing deaths are not even crimes. They are merely accidents resulting in civil liability. For example, deaths at off shore oil rigs and in coal mines are very rarely prosecuted as homicides.

Intent has always been an important aspect of the appropriate punishment for homicide, and juvenile status goes to capacity to formulate legally meaningful intent.

Posted by: ohwilleke | May 20, 2010 7:53:45 PM

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