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May 17, 2010

Some notable quotables from the opinion of the Court in Graham

Based on my first read of the Supreme Court's Graham opinion, I have a feeling I will be reading the opinion dozens, if not hundreds, of more times; in Graham, there is so much "there there."  Here are just a few of the many lines from just Justice Kennedy's pinion for the Court that jumped out during my first read (with cites left out):

[Our] cases underscore the essential principle that, underthe Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes....

The concept of proportionality is central to the Eighth Amendment....

Actual sentencing practices are an important part of the Court’s inquiry into consen-sus. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question ispermitted by statute discloses a consensus against its use....

The judicial exercise of independent judgment requires considerationof the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question....

Roper established that because juveniles have lessened culpability they are less deserving of the most severepunishments....  No recent data provide reason to reconsider the Court’sobservations in Roper about the nature of juveniles.  As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differ-ences between juvenile and adult minds....

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms ofpunishment than are murderers....

It follows that, when compared to an adult murderer, ajuvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the of-fender and the nature of the crime each bear on the analysis....

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable.  It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence....

Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity....

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.  What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.  It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.  Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.  The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society....

An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.

May 17, 2010 at 11:38 AM | Permalink


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Is is just me, or does the Court's opinion open the door to a reconsideration of adult LWOP sentences for non-homicide crimes? True, the Court talks about "twice diminished moral culpability," but its ultimate decision was rooted in part in the fact that LWOP is "different." Presumably the "different" nature of LWOP applies to 20-somethings as well, who themselves have plenty of time to redeem their prior lives? Plus, as the Court observed, a chance at release does not equate to release, so why shouldn't an adult offender also have a chance at release presuming that he has proven redemption, etc.?

As a policy matter, I think the decision is dead on. But as a legal matter, the analytical bologna is becoming sliced so thinly that it is more a product of fiat than reasoned analysis.

Posted by: Res ipsa | May 17, 2010 12:16:58 PM

I'm a public defender in a state that has abolished parole via "truth in sentencing" legislation. (The only adjustment of a prison sentence is that the department of corrections *may* release someone after service of 85% of the term.)

My immediate question, in light of the penultimate excerpt, is whether there's now a viable 8th Amdt. challenge to a sentence in my state that guarantees, as a practical matter, that the offender will never be released. E.g., a defendant who's 20 years old at the time of sentencing, and who's given a total of 100 years to serve.

Certainly it seems that way if the defendant was <18 at the time of the offense. What about a 20 y.o. offender? Etc.

Posted by: dgj123 | May 17, 2010 12:50:50 PM

I think the answer to both questions is, “yes in theory; no in practice.” It was clearly critical to the outcome in this case that the punishment was LWOP, and that the defendant was a juvenile. Remove either factor from the case, and most likely the petitioner does not win. All of the recent SCOTUS cases like this one have depended on Justice Kennedy’s fifth vote, and he is clearly not willing to carry his reasoning to the outer limits of its logic.

I think you’ll see some nibbling at the edges of existing precedent, but outside of the juvenile context I am not sure how much farther it can go without a fifth liberal vote.

Posted by: Marc Shepherd | May 17, 2010 1:01:10 PM

Do "[a]ctual sentencing practices" in states (such as California -- with over 700 on death row for decades) "disclose a consensus against its use"?

Posted by: paul | May 17, 2010 2:50:37 PM

Graham is a remarkable opinion and went much further than I anticipated. I did not anticipate a win for the defendant on categorical grounds. Rather, as Roberts did in his concurrence, I expected no more than the Harmelin/Ewing three step test on a case by case basis. But, I think the various opinions can be read to suggest that everyone, even reluctantly Thomas and Scalia, are on board with the three step test (Thomas' opinion says he sees no inference of gross disproportionaltiy, and spends most of his time attacking the categorical approach.

Stevens' opinion is poetic. Thomas' response to it in his last sentence is snarky.

Lots and lots of good stuff here. It clearly states that North Carolina is off the mark on not even acknowledging the notion of gross disproportionality review. We have an opposite categorical approach. If the legislature said it, the judges can't touch it.

bruce cunningham

Posted by: bruce cunningham | May 17, 2010 3:48:21 PM

unfortunatly age has become a all too common method of categorizing people. Perhaps that is a fopa of the baby boomer generation. .....


Posted by: Sarah "How Do I Have A Girl" Smith | Jul 8, 2011 11:14:13 AM

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