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Court Holds Life-Without-Parole For Juveniles Unconstitutional

[ 24 ] May 17, 2010 |

Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.

Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified. In this sense, the majority opinion is actually more consistent with the text and original meaning of the Constitution than the dissent.

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Comments (24)

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  1. Anderson says:

    For once, I kinda thought Roberts had the better of the argument:

    A holding this broad is unnecessary because the particular conduct and circumstances at issue in the case before us are not serious enough to justify Graham’s sentence. In reaching this conclusion, there is no need for the Court to decide whether that same sentence would be constitutional if imposed for other more heinous nonhomicide crimes.

    A more restrained approach is especially appropriate in light of the Court’s apparent recognition that it is perfectly legitimate for a juvenile to receive a sentence of life without parole for committing murder. This means that there is nothing inherently unconstitutional about imposing sentences of life without parole on juvenile offenders; rather, the constitutionality of such sentences depends on the particular crimes for which they are imposed. But if the constitutionality of the sentence turns on the particular crime being punished, then the Court should limit its holding to the particular offenses that Graham committed here, and should decline to consider other hypothetical crimes not presented by this case.

    • Scott Lemieux says:

      It’s superficially convincing — until you remember that to work the balancing test would require application by the courts that imposed and upheld the sentence in the first place. It’s hard to see how anything but a categorical rule would work, and given the extreme unlikelhihood that life without parole would ever be a just sentence for a 16 year old convicted for a nonhomicide offense the Court’s majority has the better of the argument.

      • matth says:

        “[T]o work the balancing test would require application by the courts that imposed and upheld the sentence in the first place….”

        This is true of every constitutional standard governing criminal law and sentencing. (Sentencing is unusually subjective: but that’s as much an argument for leaving discretion with the sentencing courts as it is for taking that discretion away.)

        I take your point about the “extreme unlikelihood” of a juvenile committing a non-homicide LWOP-worthy crime to be that there would be little purpose to a case-by-case rule, because almost every non-homicide juvenile LWOP (“NHJLWOP”?) sentence is unconstitutional. But just because constitutionally-permissible NHJLWOP sentences are rare, does not mean that they are rare in the (very small) population of actual NHJLWOP sentences. Maybe most actual NHJLWOP sentences are handed down for heinous rapes by 17-year-old repeat offenders. I don’t know, and the Court’s opinion doesn’t tell us.

        • Anderson says:

          This, plus I am not so keen on finding no contradiction between “emerging consensus” and “independent judgment.”

        • Jenavir says:

          This is true of every constitutional standard governing criminal law and sentencing.

          Which is why categorical rules can be necessary where a punishment is rarely (if ever) constitutional.

      • walter says:

        My only problem is how do you make a decision for juveniles which does not include all juveniles as what makes a difference in their ability to be more reabilated then those who committ more serious crimes a juvenile is a juvenile no matter what the crime maybe. Now we are seperating one juvenile from another which is just as unfair as life without parole itself for all.

    • Reuben Unicruz says:

      Yeah, quite. But look at the other countries,they
      only have four or no juveniles at all sentenced to lwop, compared to the US, we have almost 10,000. So, does that mean we are the only cruel nation against youth delinquents?

  2. Joe says:

    Curious — did anyone else find it a bit off putting that Roberts cites by name (and brief news accounts) some teens that he thinks might not warrant the relief he would apply here? Also, his totality of the circumstances judgment seems a bit arbitrary. I can see him requiring a judge or jury being required to have the option.

    Thomas’ FN 3 is also misleading. He cites an opinion by of all people Thurgood Marshall to crticize the majority for ignoring the “threshold” question of original understanding of the cruelty and unusual nature of the practice at issue.

    The opinion cited follows up the cite (the very next sentence) saying that courts ALSO have the use the evolving standards of decency rule. Also, why is Thomas’ citation of Blackstone regarding detention (or maybe execution) of minors really overly helpful respecting keeping them detained for potentially sixty or so years.

    The penal system was in its infancy — such long term detention is really something of a different question, showing again, selective citation.

  3. rea says:

    Burning at the stake–not abolished by statute in Great Britain until 1790. Clearly permissible in the US today under an “originalist” view of the 8th Aemdnment, right?

  4. Anderson says:

    Curious — did anyone else find it a bit off putting that Roberts cites by name (and brief news accounts) some teens that he thinks might not warrant the relief he would apply here?

    Well, thanks to the majority, he’s not going to be sitting in judgment over whether they should have to do life w/o parole.

    • Joe says:

      I’m not sure that totally removes my concern with singling out people by name like that.

      The majority it should be emphasized just decided they couldn’t be sentenced to LWOP. In practice, in theory, every single one could be held for life as long as there is merely some possibility that they could get out.

  5. David Nieporent says:

    Stevens’ opinion is fundamentally dishonest. He writes (as you quote):

    the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

    But in fact the entire point of this decision is to create a static approach to the law, to stop standards of decency from evolving. No matter how many people agree in 2025 that 17-year olds should be given LWOP for certain crimes, Stevens and his gang have forced the law to be static, have prevented us from evolving past his untethered personal views.

    • Scott Lemieux says:

      This is silly. If the rule turns out to be unworkable, it can be overruled.

      • David Nieporent says:

        This is nonresponsive. I didn’t say anything about “unworkable.” I said that the decision makes the law static, that it prevents the law from reflecting evolving standards of decency.

        Stevens is on the bench because, in theory, he is good at manipulating word-symbols to interpret texts – not because he has some special insight into “decency.” If you want to know what our society’s standrards of decency are, ask a legislature. Oh – but Stevens says you can’t.

        • Paulk says:

          I have no idea what this is supposed to mean. It doesn’t do anything to evolving standards. The court has merely justified its decision based upon what current standards have evolved into. Society is perfectly free to decide at some future point that life without parole is not cruel and unusual.

          The court is evaluating a vague term for contemporary times and disallowing arbitrary application of that standard. Stevens is tweaking Thomas not for arguing that the standard should be different but that the applicable standard here is the one established by the Founding Fathers, which is ridiculous.

    • Jenavir says:

      It’s also silly because one could say that about any Constitutional rule. The whole point of the Bill of Rights and judicial review is to check the majority’s tolerance of harsh treatment of minorities.

  6. Ed says:

    No matter how many people agree in 2025 that 17-year olds should be given LWOP for certain crimes, Stevens and his gang have forced the law to be static, have prevented us from evolving past his untethered personal views.

    If you mean that the United States will join the rest of the civilized world in not imprisoning youngsters for life, yes.

  7. [...] Monday Random-Ass Roundup: We Love The Kids. blackink12 on May 17th, 2010 Good news. We’re joining the civilized world again: Society changes. Knowledge accumulates. We learn, sometimes, from our [...]

  8. Teqzilla says:

    It is absurd to argue that you are removing powers from democratically elected legislative bodies and entrusting them to 9 lifetime appointees in the interests of reflecting societies changing standards of decency.

    So absurd that i’d call the court’s majority insane if I thought they really believed it. As it is i’ll just call them unprincipled assholes.

    Lets be honest. Kennedy and the concurring justices didn’t give a shit about whether life without parole for juveniles is constitutional or not. They don’t believe it can ever be justified and were determined to find it unconstitutional based upon their personal beliefs on the matter. The Kennedy opinion is not remotely convincing, it is the shit that shit would shit could it shit. It is motivated reasoning at its most motivated and least reasoned.

    In summary, fuck scott lemeuix. No capitalization for your french/possibly canadian ass name and I didn’t even scroll up to check if I spelled it correctly.

    • Jenavir says:

      Wow! What an insightful comment!

      Except, you know, not. Our legal system entrusts certain matters to 9 lifetime appointees, including interpretation of what’s “cruel” and “unusual.” The court is supposed to use independent judgment to figure out what those terms mean.

  9. Brian says:

    Scott,

    I agree with the decision, and with your comments, but it detracts from what you say when you report that the defendant was sentenced to life merely for violating his parole. As I understand it, he violated his parole by participating in an armed robbery. Your point is well taken and doesn’t need to be enhanced by minimizing the defendant’s misdeeds.

    • Scott Lemieux says:

      He can’t be treated by the law as if he was guilty of armed robbery unless he’s actually charged and convicted of the offense. If the state chooses just to charge him with a parole violation, he has to be treated on that basis in the eyes of the law.

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