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May 17, 2010

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

GC 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.

May 17, 2010 at 03:56 PM | Permalink


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Let me see if I have this right: If courts don't apply a legislatively santioned punishment with sufficient frequency, and 5 out of the 9 Justices don't like the punishment, the Court is empowered to declare the legislatively sanctioned (but unused and disliked) punishment violative of the 8th Amendement? For the life of me, I can't find the Court's power to act as a policy review board in the Consitution. But then, my reading skills aren't as well honed as the 5 justices who now rule on the propriety of our democratically enacted laws.

Posted by: Paul | May 17, 2010 4:45:04 PM

When all is said and done, the bottom line is that five justices don't like this, and therefore it is unconstitutional. There really isn't anything else to say.

Posted by: federalist | May 17, 2010 4:50:17 PM

“...my reading skills aren't as well honed as the 5 justices who now rule on the propriety of our democratically enacted laws.”

Well, it’s no different than when conservative justices declare liberal laws unconstitutional—as they have, in fact, done on numerous occasions. Unless you believe that the Supreme Court can never declare a law unconstitutional, you must accept that there will sometimes be 5-4 cases doing just that. And once you accept that such cases will exist, you cannot possibly expect that they will be confined to the situations you personally agree with.

Posted by: Marc Shepherd | May 17, 2010 5:20:58 PM

Paul: Do you have the same reaction when a majority of Justices find unconstitutional "legislatively sanctioned" provisions of federal and state laws pursuant to the vague terms of the First or Second Amendments? I understand the general concern with SCOTUS seeming to put their policy preferences ahead of those of legislatures, but isn't this concern implicated in the striking down of any duly enacted law pursuant to vague provisions of the Bill of Rights? Or do you see something distinctive and especially troublesome when this is done in the 8th A context and not in others?

Posted by: Doug B. | May 17, 2010 5:22:36 PM


I'm as troubled by Citizens United and Heller as I am by Graham (less so by Citizens United, though). In fact, I think life without parole for juveniles in any context is plain ridiculous. That being said, I don't see any sound jurisprudential basis for saying that the imposition of life without parole violates the 8th Amendment.


As I just said, I don't "personally agree" with LWOP for juveniles. I also don't "personally agree" with anti-democratic policy judgments rendered by 5 un-elected lifetime appointees being read into the Consitution. You obviously don't belive there is a way to exclude "liberal" or "conservative" bias from the Supreme Court's decision making process. Or, perhaps, you don't care so long as your perferred political outlook is the prevailing view. Maybe I am naive or overly sanguine, but I believe the Court can and should at least attempt to decide cases based on neutral and generally applicable principles. Principles such as federalism and deference to the will of the people (unless the people's will is in clear violation of the Consitution).

Posted by: Paul | May 17, 2010 6:02:46 PM

Paul: Do you see "any sound jurisprudential basis" for SCOTUS finding any legislatively enacted punishment unconstitutional? If you view the 8th Amendment (or the 1st or 2d or others) should be kind of like the 9th Amendment and have no real counter-majoritarian bite in the face of enacted laws, I see your point. But to say that Justices should only strike down aws that are "in clear violation of the Consitution" is just to beg the hard question as to the role of SCOTUS in all settings, not to answer it in this setting.

Posted by: Doug B. | May 17, 2010 6:11:26 PM


I agree that things aren't as simple as my short answer seems to indicate. But, "this setting" seems to call out for deferring to the numerous state legislatures' and Congress' policy determination regarding LWOP for juveniles. The Court should err on the side of upholding legislative enactments. It seems to me that in Graham it did not. I also understand that "clear violation of the Constitution" begs the question - but, that doesn't mean that the "hard question" shouldn't be answered (or attempted to be answered) by resort to the structure of government set forth in the Constitution. And of course, in hard cases, the answer will not be clear. Graham, in my opinion, wasn't a hard case.

Posted by: Paul | May 17, 2010 6:51:47 PM

"In fact, I think life without parole for juveniles in any context is plain ridiculous. That being said, I don't see any sound jurisprudential basis for saying that the imposition of life without parole violates the 8th Amendment."

So you're willing to say that that the punishment is plainly ridiculous. But you're not willing to say that it's plainly cruel. Interesting. If you don't think it's cruel, what makes you say that it is ridiculous?

Posted by: Michael Drake | May 17, 2010 8:26:37 PM


You're missing the point. Just because I think something is ridiculous doesn't mean it's unconstitutional. Do you really believe that every punishment a minority of people think is "cruel" should be found to violate the 8th Amendment?

Posted by: Paul | May 17, 2010 10:15:38 PM

Paul, I don't think I missed your point. I was merely asking you a question about your own policy views. The reason I asked is that if it were your view that the punishment in question is "plainly cruel," for instance, it would then be difficult for you then to say that the issue presented was a "hard question" requiring deference in favor of the legislative enactments in question. Right? That so, you can see that your own judgment about the legitimacy of the Supreme Court's decision is inextricably bound up with your own judgment about the substantive policy behind the law. (The same of course goes for everyone else.)

Posted by: Michael Drake | May 18, 2010 1:01:46 PM

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