Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes

Having now had a chance to read and reflect on all the opinions in Graham, I have created a new topical archive entitled "Assessing Graham and its aftermath."  Because there is so much to the opinions in Graham, and because there may be tens of thousands of defendants serving actual LWOP or functional LWOP sentences, I have a feeling that this new post archive will get filled up quickly.  And for this first post in this archive, I have decided to use the tasty term Graham crackers to describe what I view to be the really deep and really hard (and thus really tasty) intellectual questions that necessarily follow the Court's landmark ruling in Graham. 

1.  Rules versus standards:  Due in part to Chief Justice Roberts' especially interesting work in his concurrence, my first set of Graham cracker comments relate to the old law professor chestnut of "rules versus standard."  The backstory here is that historically the Court's approach to the Eighth Amendment involved a lot of case-by-case standard setting for both capital and non-capital claims.  But, in recent years, the Justices through rulings in Atkins and Roper and Kennedy have embraced bright-line rules for deciding which kinds of offenders and offenses cannot be subject to the death penalty. 

The big jurisprudential move by the majority of the Court in Graham is the determination that, for some largely unexplained reason,  "the categorical approach" here provides "the appropriate analysis."  And that move in turn leads the Court to embrace a "categorical rule" that the Eighth Amendment "prohibits the imposition of a life with-out parole sentence on a juvenile offender who did not commit homicide."   Especially interesting here for sentencing fans is that the majority's defense of a categorical approach to the Eighth Amendment in Part III-C of Grahamis quite reminiscent of Justice Scalia's defense of a "bright-line" approach to the Sixth Amendment in Blakely.  (Put more directly, I read Part III-C of Grahamas Justice Kennedy (and Justice Breyer) saying to Justices Scalia and Thomas, "Ya want constitutional rules instead of standards, we'll give ya constitutional rules instead of standards."

Chief Justice Roberts' concurrence, which is fascinating on many levels, does not really take issue with the majority's central conclusion that the LWOP sentence given to Terrence Graham violates the Eighth Amendment's prohibition on cruel and unusual punishments.  Rather, CJ Roberts is troubled that the majority has "fashion[ed] a categorical rule" rather than preserved a "case-by-case approach to proportionality review."  As hinted above, I think of Justices Breyer and Kennedy as generally drawn to constitutional standards instead of rules; but CJ Roberts was unable to get any other Justice to embrace his affinity his chosen approach.  (This leads to even deeper inside-baseball questions about whether CJ Roberts initially assigned the opinion to Justice Kennedy hoping to get a case-by-case ruling, or whether CJ Roberts initially wrote what was to be the opinion for the whole Court but then could not get anyone on board.)

The dissenters in Graham, of course, are not keen for either the rules or standards approach here, but the chief gripe seems to be who writes the law, not what the law says.  Justices Scalia and Thomas have said or suggested in the past that they do not think the Eighth Amendment limits anything but the method of punishment, and the really big news out of the dissent seems to be Justice Alito's apparent agreement that the Supreme Court ought to view the Eighth Amendment as essentially non-justiciable in a large number of settings.

2.  Subconstitutional Echoes:  Whether and how lower courts and litigants apply and extend/limit Graham as a matter of Eighth Amendment doctrine will surely provide plenty of fodder for this blog and for broader debates over the role and important of appellate constitutional review of very long prison sentences.  But I am always eager to think about the next set of ripples in the sentencing pond, and in this setting I find it especially useful to consider whether and how actors and advocates in the legislative and executive branches might be impacted by Graham.

For example, there has been some legislative talk in Congress about a federal law urging states to do away with juve LWOP sentences for all crimes, including homicides.  Similarly, Texas last year banned LWOP for juves who commit murder and a number of states have bills pending along the same lines.  Does Grahammake more likely or less likely the legislatures eliminate juve LWOP sentences across the board.

Similarly, how my sentencing commissions and/or state prosecutors and/or the US Justice Department and/or Governors respond to Graham?  Advocates for rehabilitation-oriented justice systems will likely urge a number of policy-making bodies and players to take the logic and language of Grahambeyond nonhomicide offenses and beyond juve offenders.  Opponents of rehabilitation-oriented justice systems wil resist such efforts.  As of this writing, I think it is very hard to predict who will have the upper-hand in debates over the echoes of Graham outside of courtrooms.