Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"

Scott Hechinger, who wrote one of the first thorough reviews of the Supreme Court's Eighth Amendment work in Graham (first discussed here), now has written this commentary for Georgetown Law Journal's online companion, Ipsa Loquitur, which explores the two new juve LWOP cases recently taken up by the Court.  The piece's full title is "Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs," and here are snippets:

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included.  This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing....

Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.”  Notably, the cases also ask the court to recognize a new, distinct category of defendants — or subcategory of juveniles — deserving different treatment under the Eighth Amendment: those fourteen and younger....

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham.  In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”  Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis.  As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could — and may — decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection — where JLWOP is unconstitutional in all circumstances, including homicide — than older juveniles aged fifteen to seventeen.  Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around.  The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.”  This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham....

Perhaps the clearest distinction ... between the two age categories seems to be in national sentencing consensus.  For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham).  This “extreme rarity” — as the petitions put it — is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

A few recent related posts on Jackson and Miller and related issues:

• What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"