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July 17, 2017

When will SCOTUS take up a follow-up to Graham and Miller?

The question in the title of this post is prompted in part by this recent Atlantic article headlined "The Reckoning Over Young Prisoners Serving Life Without Parole." Here are excerpts:

It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.

Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole....

What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.

I was a bit surprised that SCOTUS took up the Miller case so soon after they decided Graham, and now I find myself a bit surprised that SCOTUS has not seemed much interested in the further development of this new line of Eighth Amendment jurisprudence. (Of course, the Montgomery case clarifying that Miller must be applied retroactively is a recent ruling in this arena and it (arguably) broke some new jursprudential ground.)

July 17, 2017 at 12:29 PM | Permalink


I plunk down a $million. I say, kill this child. Most of you would still have a lot of physical trouble carrying out the act on someone innocent, looking up, forlorn, even if desperate for money. That restraint comes from brain inhibitory mechanisms.

Those are missing in many of the people sentenced. Current technology can take things away, voices, paranoia, angry moods, even urges to drink, impulsivity, short attention spans.

To my knowledge, if a brain function is missing, there is no way to instill it. That may be corrected with CRIPR/cas 9 technology, but not very soon.

We all mellow out with age. However, even if calmer and more poised, that inhibition against killing innocent people will still be missing. More may be required to provoke, but the ability to kill will never go away.

All released life term prisoners should be moved into homes surrounding those of the Justices of the Supreme Court. Their grand children can then come to visit the Justices.

Posted by: David Behar | Jul 17, 2017 12:43:10 PM

The Supreme Court, outside of capital cases, have not shown much concern [except to restrain lower courts in various respects] in applying the Eighth Amendment punishment provision. One they set in place the rule regarding non-capital offenses, the logical next step was capital offenses. It handled that, using a more flexible approach.

Then, they had to deal with some technical matters regarding applying the rule. This split the justices as is. Chief Justice Roberts' concurrence in Graham very well might in a few years be the median position, but for now, it is not surprising a 5-4 Court is not inclined to examine this issue much more. They can allow the lower courts some room to apply what they did so far.

Posted by: Joe | Jul 17, 2017 1:15:48 PM

Hopefully, DJT will get to replace Kennedy (and a 'rat Justice) and we can be done with this whole farce.

Posted by: federalist | Jul 17, 2017 1:25:23 PM

I dunno federalist, Roberts seems squishy on this stuff.

Posted by: justme | Jul 17, 2017 4:02:53 PM

Yes he is. Roberts is a statist and a believer in the majesty of the courts--so he gets a little squishy from time to time, hence my hope for two replacements.

Posted by: federalist | Jul 18, 2017 9:15:31 AM

"majesty of the courts"

Not thinking Alito, Thomas and Gorsuch are necessarily against the "majesty of the courts," and on various issues they are more supportive of the courts overriding the will of popular majorities. Maye, it is a question of oxes.

Posted by: Joe | Jul 18, 2017 9:58:50 AM

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