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November 13, 2011

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:

November 13, 2011 at 08:45 AM | Permalink


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Of course the "national consensus" of which the article speaks is that LWOP for 14 and younger should be imposed very seldom, not never. And the rationale for viewing juveniles differently -- that their relative lack of development may create reasons for leniency absent from older offenders -- argues against mandatory LWOP for juveniles, but scarcely against EVER imposing that sentence.

If some 15 to 17 year old's might deserve it based on the individual circumstances of their cases, it's impossible to believe that absolutely no 14 year old could deserve it. Any supposed "national consensus" for such a notion would have to be spun out of thin air.

The correct result here is the application of the Roberts analysis in the Graham concurrence.

Posted by: Bill Otis | Nov 13, 2011 9:04:21 AM

The article implies that the decisions will be based on feelings of the Justices, feelings that trump state legislation. Whatever developmental differences these defendants have from other murderers, the millions of adolescents who chose to not kill also have. That leaves the arbitrary feelings of the rent seeking lawyers on the Supreme Court. All justifications will be pretextual.

The sole logical argument, which we will not get? LWOP is an unlimited license to kill in prison with absolute immunity. Lesser sentences may deter these heartless killers a little more. That assertion is totally without proof, and should be considered unauthorized human experimentation with the lives of many future murder victims. There are many more prison murders than executions in the country, by an order of magnitude. Thank the lawyer for protecting the vicious, murderous predator.

Posted by: Supremacy Claus | Nov 13, 2011 12:01:08 PM

What should not be forgotten is that for the murder victim and family, the age of the criminal murder does not change the fact that a person was murdered. In one of these cases, an innocent woman was slaughtered by these children.
If the crime is heinous, LWOP is the only sentence, regardless of the age of the criminal

Posted by: JIm | Nov 13, 2011 3:18:32 PM

"This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham...."

I don't get this. In what way would *any* ruling in a homicide case overturn Graham? Graham was limited on its facts to nonhomicides. Huh?

Posted by: Anon | Nov 13, 2011 5:17:12 PM

With respect to the victims' families, there will be plenty of Justices on the Supreme Court who will not care that life with the possibility of parole is a life sentence of fighting release.

This whole thing is ridiculous. Does the Constitution, as opposed to the arrogance of those on the Court who see fit to impose their ideas about crime and punishment on the rest of us, really require that the juvenile criminal code be calibrated to deal with the amount of participation etc. Also, assuming that the Court makes the principal/accomplice distinction that is sought, settled sentences will have to be reopened. This would pull the rug out from under the State, which could have sought to introduce evidence of increased culpability on the part of the juvenile.

The other question, left unanswered in Graham, is why now? Why not let one of these little monsters serve 30-40 years and then make their claim. The answer is, of course, institutional arrogance.

Posted by: federalist | Nov 13, 2011 8:00:39 PM


Thank you for this question, which absolutely has merit. Perhaps the more delicate - if not accurate - way to put it would have been "challenge/question the logic of" or even "undermine" instead of "overturn." For while you're right that Graham was limited on the facts of the case to nonhomicides only, the decision rested on and was inextricably tied to the "twice diminished moral culpability" of nonhomicide juvenile offenders. And as I discuss in my commentary, J. Kennedy went out of his way to distinguish juvenile nonhomicide offenders from homicide offenders to safely (read: get a majority to) extend the Eighth Amendment protections to JLWOP for nonhomicide. This was not a case like Roper where Kennedy made passing reference to LWOP as a viable alternate: in Graham, the decision rested on the distinction between homicide and nonhomicide offenses + juvenile status. This is not to say I agree with J. Kennedy or the limited outcome in Graham, or that the Court couldn't or shouldn't hold JLWOP unconstitutional for homicide offenders, for as I say in the commentary, much of the logic of the majority opinion in Graham (intl law, diminished culpability, brain science, penological goals, etc.) also seems to be applicable to homicide offenders. But 1.5 years post Graham, given little change in national consensus for 15-17 year olds, for the Court to hold JLWOP unconstitutional for juvenile homicide offenders of all ages would certainly seem to do far more than just "extend" Graham.

Posted by: Scott Hechinger | Nov 13, 2011 8:03:56 PM


Your comments puzzle me because I do not understand Graham the same way you do. It's true that Kennedy talks about the diminished capacity of juveniles but the key word to me in that sentence is "moral". As I understand Graham the foundation for the opinion is not cognitive or even psychological but the reading of the sociological tea leaves by the court. In other words, I don't read the opinion by Kennedy to lay a foundation for its ruling in any national or international /scientific/ consensus about the state of juvenile brains but rather seeks to infer a national consensus based upon actual penological practice. I know that several briefs have talked about 'brain science' but I think Graham rejects that approach by explicitly embracing an alternative.

I see a case where the court has, in essence, merely banned as unconstitutional a practice that most states were not engaged in to begin with. That's basically all there is to the case I fail to see how you see more in it.

Posted by: Daniel | Nov 13, 2011 10:33:33 PM

Law reviews have more bad puns than a five year old's joke book.

Posted by: Joe | Nov 14, 2011 8:46:45 PM

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