"Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence"

The title of this post is the title of this timely article by Professor Mary Berkheiser which was recently posted on SSRN. The piece is timely not only because next month the Supreme Court is scheduled to hear oral argument on two follow-up Graham cases, Jackson and Miller, but also in light of the heated blog discussion earlier this week over the sentencing of a 15-year-old thrill killer in Missouri.   Here is the article's abstract:

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles.  Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes.

That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed.  Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides.  The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration.  With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972.  In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham.  Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.