Limits to Life: SCOTUS Issues Decision in Graham

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Category: Criminal Law & Process, U.S. Supreme Court
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The Supreme Court finally issued its long-awaited decision in Graham v. Florida this morning.  And it turns out that the Eighth Amendment may not be so toothless after all: the Court held that sentencing a juvenile to life without parole for a nonhomicide crime violates the Cruel and Unusual Punishment Clause.  Graham received an LWOP sentence for a botched robbery at age sixteen.  The Court overturned Graham’s sentence, holding that states must at least “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (24).  Thus, the Court did not preclude life sentences per se for juveniles, but rather focused on the availability of parole:

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. (24)

Graham breaks a string of defeats in the Court for Eighth Amendment challenges to prison terms.  Although the Court has been quite active in recent years in using the Eighth Amendment to regulate the death penalty, the Court had seemed uninterested in imposing limitations on the use of lesser sentences.  Of course, LWOP for a juvenile robbery is pretty extreme, so it would be premature to infer from Graham that the Court is going to get more involved in regulating long prison terms.

Not suprisingly, Justice Kennedy authored the majority opinion.  He has been the swing Justice in the Court’s recent Eighth Amendment cases, and there was little doubt that he was going to be part of the majority in Graham whichever way it came out.  Slightly more surprising is that Chief Justice Roberts concurred in the judgment, making the final vote 6-3 (instead of the more typical 5-4 in Eighth Amendment cases).  Based on this and a few other recent cases (for instance, with respect to jury-trial rights), it seems to me that Roberts is not as much an automatic vote against  defendants as his predecessor, Chief Justice Rehnquist.  It is also interesting to see the Justice Sotomayor voted with the majority, suggesting that she may adhere to the position of her predecessor (Justice Souter) in supporting robust Eighth Amendment rights.  Would a Justice Kagan do the same?  Justice Stevens was part of several tenuous majorities in this area, meaning that his replacement has the potential to bring about some major changes in the Court’s Eighth Amendment jurisprudence.

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2 Responses to “Limits to Life: SCOTUS Issues Decision in Graham”

  1. Peter Heyne Says:

    The next question will be the constitutionality of life without parole (LWP) for a juvenile convicted of felony murder.

    In the previous capital punishment (not LWP) felony murder cases, e.g., Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), key factors were the nature of the crime and the defendant’s involvement therein. Thus, a wheel-man who was not even on the scene of the armed robbery went bad was given clemency. But not so for two brothers who busted their murderer dad out of prison, armed him, helped carjack some innocent motorists, and stood by doing nothing as their dad shot the family, which included a 2-year-old (like the horrific scene of the Misfit in Flannery O’Connor’s “A Good Man is Hard to Find”). Such acts, the Court held, were done by “major participants”–not just minor actors–“with reckless indifference to human life” that merited the ultimate punishment.

    But those were death penalty cases, and “death is different.” For non-capital cases, the Court has used a “gross proportionality” test. However, here, Justice Kennedy has written that the “gross proportionality” test (from Harmelin and Ewing) for a defendant’s individual sentence is not appropriate for LWP. Rather, “a sentencing practice itself is in question…a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” Thus, just as with LWP for non-homicide crimes, LWP for felony murder would follow the “categorical approach” of Atkins, Roper, and Kennedy. Under this approach, the categorical diminished culpability of juveniles (per Roper) is critical.

    Under this categorical culpability analysis, Justice Kennedy wrote 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 of punishment than are murderers.”

    Thus, in a particular felony murder case, so much will depend on if the juvie defendant foresaw that life would be taken. If he gave his buddy a gun to rob a store but was not there at the 7-11 when the bullets started flying, there would be questions of fact to establish the reasonable foreseeability of death, e.g., if the buddy had said anything about actually capping anyone, if the buddy had a reputation for being violent, if the buddy was in a gang, etc.

    Also, the Court has weighed international law, and Justice Kennedy noted that only 1 other country, Israel, actually imposes LWP on juvies, and that the 7 Israeli prisoners were convicted of homicide or attempted homicide. It is unclear if Israel has felony murder. But attempted homicide per se involves more culpability than felony murder, which hinges on the underlying felony and the def.’s involvement (as above).

    All told, I foresee that LWP for felony murder will be a 5-4, like Tison and Roper, with Kennedy once again swinging the vote for the defendant.

  2. Thanks for such a thoughtful comment, Peter. I agree with your analysis. Another question that will be interesting post-Graham is whether LWP will be restricted as to mentally retarded defendants. The Court’s reasoning in banning the death penalty for juveniles very closely paralleled its reasoning in banning the death penalty for the mentally retarded. I think it would be hard for the Court now to treat the two groups differently with respect to LWP.

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