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May 18, 2010

Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence

As I indicated in my Graham crackers post yesterday, I see Chief Justice Roberts' concurrence in Graham to be fascinating on many levels (full Graham opinion is here). Let me explain a bit more, and then in essence give the last word to Justice Thomas to highlight why the Chief's work in Graham makes the potential future of the Eighth Amendment perhaps even more fascinating.

First and perhaps most important, Chief Justice Roberts' Graham concurrence shows, yet again, that he is an independent and unpredictable thinker (and thus a potential swing vote) on challenging sentencing issues that reach the Court.  Serious sentencing fans already know that Justice Alito is almost always going to vote with the prosecution in criminal cases that divide the Court, and early evidence suggests that Justice Sotomayor will be a predictably consistent vote for criminal defendants in tough cases.  But, the Chief Justice's votes in cases like Cunningham and Ice  (not to mention Gall and Kimbrough) show a pro-defendant streak in sentencing settings that merits notice and reflection.  Grahamtakes this SCOTUS sentencing story to a new level, and especially highlights that the Chief is not inclined to merely try to replicate the work of his old boss, the late Chief Justice Rehnquist, in these settings.

Second and perhaps most interesting, Chief Justice Roberts' Graham concurrence shows that, at least in in some criminal justice settings, he is willing to write for himself and just for himself.  I am not sure if this is the only significant solo separate opinion that Chief Justice Roberts' has written in recent Terms, but it is the only one in the criminal justice arena that I can recall.  That the Chief opted to take the time to author such an astute and interesting solo concurring opinion in Graham suggest to me (1) that he is really personally invested in improving Eighth Amendment jurisprudence, (2) that (as explained in my Graham crackers post) he is drawn more to flexible case-by-case standards than to firm categorical rules in this (and perhaps other?) constitutional criminal justice settings.

Third and perhaps most consequential, Chief Justice Roberts' Graham concurrence could readily be seen as an invitation to a more robust consideration by lower courts of the Eighth Amendment as a real limit on all sorts of non-capital sentences.  Footnote 1 of the Graham dissent of Justice Thomas makes this point clear:

Both the Court and the concurrence do more than apply existing noncapital proportionality precedents to the particulars of Graham’s claim. The Court radically departs from the framework those precedents establish by applying to a noncapital sentence the categorical proportionality review its prior decisions have reserved for death penalty cases alone.  The concurrence, meanwhile, breathes new life into the case-by-case proportionality approach that previously governed noncapital cases, from which the Court has steadily, and wisely, retreated since Solem v. Helm, 463 U.S. 277 (1983).

I do not see anything in the Chief's concurrence that suggests he is troubled with his concurrence being read to "breath[] new life into the case-by-case proportionality approach."  In fact, I see the Chief's failure to take issue with Justice Thomas' characterization as evidence that he would like to breath new life into Eighth Amendment review of non-capital sentences.  And if this is true, perhaps we may see the Justices taking up more and more Eighth Amendment challenges to non-capital sentences during the Roberts era.

May 18, 2010 at 12:16 PM | Permalink


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The difference between Roberts's analysis and the majority's analysis strikes me as analogous to the difference between as-applied and facial constitutional challenges. The frustrating thing about the majority opinion, and the appeal of Roberts's approach, is that facial challenges should be much harder to win than as-applied challenges; yet, because of the quirks of Eighth Amendment jurisprudence, the "categorical" analysis is much less constrained than case-by-case proportionality analysis is.

There is at least one kind of overlap between Robert's opinion in Graham and his votes in the Sixth Amendment cases. In practice, the Sixth Amendment cases have led to much more discretionary sentencing. Roberts's vote in Graham reflects his comfort with judges making unavoidably subjective discretionary judgments in sentencing.

Posted by: matth | May 18, 2010 3:14:07 PM

The argument by the majority -- as was the case in various 1960s cases and some free speech ones (suggesting it is not simply a 8A quirk; in the past, abortion also more often fell in this category) -- is that sometimes facial challenges are the better way to go given that discretion is not only "unavoidably subjective discretionary" but likely to lead some to fall in between the cracks when the risk is too great.

Some have noted Stevens over the years has been a case by case man in a diverse range of cases too. There is a value to that. Some also suggest Roberts was trying to find some middle of the road approach, given five votes were already there. His more pragmatic tendencies have been discussed various times. Perhaps another adjective applies, but yes, there is some charm in that.

Posted by: Joe | May 18, 2010 5:10:39 PM

your observations about Roberts are right on the money, Doug. I already have two cert petitions making eighth amendment challenges to noncapital cases, and have several more cases pending in NC courts and trial courts. I am so excited about the majority and Roberts' opinions that I am going to immediately get a copy to a judge who has taken under advisement a challenge I have made to an habitual felon sentence of 8 years for possessing one tenth of a gram of crack cocaine.

Tell me if you think I'm stretching, but I think all nine justices acknowledge Kennedy's three step test in Harmelin as established law. Thomas' opinion is a departure from his and Scalia's position in Ewing. They still argue that the founders were addressing modes of punishment, boiling in oil, etc, but at least in Graham Thomas gave a hat tip to stare decisis by saying he found no inference of gross disproportionality, which made unnecessary any further comparisons.

Seems to me Alito found the Harmelin attack procedurally barred because he says that Graham argued only categorical. Roberts effectively countered that.

You're right. Roberts surrenders more easily to stare decisis than Scalia and Thomas. His Cunningham vote, as you point out, being a huge example, in which he joined chastising Alito. Apprendi is safe even when Stevens departs.


Posted by: bruce cunningham | May 18, 2010 5:28:29 PM

I could be way off base, but I see these sentencing cases as kind of reflecting Roberts' inner Catholic sensibilities. I think in most areas of law he's fairly rigid, and on the substance of criminal laws pretty much a hawk, but on these sentencing issues he appears slightly more generous, or at least believes in discretion on a case-by-case, i.e. defendant by defendant, basis.

The most telling part of his concurrence in Graham was his recounting how immature the defendant was, including Graham's claim at sentencing that he should be allowed lenience so he could "do whatever it takes to get to the NFL." You could kind of hear Roberts's heart breaking at how pitiful that was. He then contrasts it with some grisly stories of gang-rapists who he felt might well deserve LWOP.

Overall, it was an interesting opinion. I think the difference between former prosecutor Alito and Roberts on this -- and most other sentencing related issues -- has been interesting. I'll put it this way: if Alito ever serves as a district court judge, I wouldn't want to be a defendant sentenced by him.

Posted by: Gregory | May 19, 2010 11:40:48 AM

Just finished trial today. My client, who had just turned 14 years old at the time of the crime, was convicted of capital murder as and aidor and abettor. He got life without the possibility of parole. It was alleged that he particiapated in a roberry, or attempted robbery, and another young man shot the viticm killing him. In Mississippi my clients knowledge that someone woudl be shot or his intent is irrelevant and he is just as guilty as the shooter. Mississippi give the judge no discretion at all on the sentence, it MUST be life without parole. The shooter in this case was convicted of straight murder and got life WITH parole. I think Graham can apply to this case as the judge had not discretion and the district attorney, who is allowed to make the charging decision, essentially decides the sentence. I moved to quash beforehand on collateral estoppel grounds based on a jury basically failing to find him guilty of capital murder. The judge would not allow me any lesser crime instructions. If anyone has any suggestions for my motion for new trial based on sentence or has any cases on this issue please let me know. This is a travesty.

Posted by: Dustin N. Thomas | Jul 30, 2010 7:59:59 PM

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