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No to JLWOP

Would Clarence Thomas really support the execution of a seven-year old?  That was actually the most definitive answer given in the Supreme Court's decision on Monday in Graham v. Florida

Terrence Graham robbed a restaurant when he was 16, was prosecuted as an adult, but was placed on probation after writing a letter to the judge insisting that "this is my first and last time getting in trouble" and promising "to do whatever it takes to get to the NFL."  (In light of recent events, the latter statement, in terms of foreswearing future criminality, is roughly akin to vowing to join the Crips.)  That lasted six months, when Graham participated in a home invasion robbery.  The judge, incensed that Graham had squandered the chance he'd given him, sentenced him to life in prison without parole on the probation violation.

As I'd mentioned in my discussion of the case after oral argument in November, Graham's biggest hurdle in getting this overturned is that the Court's 8th Amendment jurisprudence on non-capital cases is virtually barren:  the Court has consistently rejected claims that a particular prison term is disproportionate to the offense.  Kennedy, writing for the 5-member majority in Graham (Roberts concurred in the judgment), acknowledges as much, noting that "it has been difficult for a challenger to establish a lack of disproportionality" in the first classification of 8th Amendment case,  those concerning the length of a term-of-years sentence.  In those cases, though, the comparison had to be made between the gravity of the crime and the severity of the penalty. 

In this case, we're dealing with "a particular type of sentence as it applies to an entire class of offenders."  The Court has used that "categorical" approach in death penalty cases, in holding that juveniles and the mentally retarded can't be subject to execution, and in holding that nobody can be executed for a non-homicidal crime.  Even though Graham's case does not involve the death penalty, this "categorical approach" is the "appropriate analysis."

To determine this, the Court looks to the "evolving standards of decency" as reflected by the laws in this country and others.  There's always been a fudge factor there.  In Atkins v. Virginia, the Court found a clear trend away from executing the mentally retarded:  since the Court had upheld such a sentence in 1989, 18 states adopted laws prohibiting the practice.  The Court tried to emulate that in Roper v. Simmons, noting that a majority of the states did not permit execution of persons who'd been juveniles when they'd committed the crime.  That majority was cobbled together by including states which did not permit capital punishment at all; if you excluded those, a clear majority permitted execution of juveniles.  Two years ago in Kennedy v. Louisiana, the Court determined that since the vast majority of states didn't permit execution for non-homicide offenses, the 8th Amendment banned that, too, ignoring the fact that there the "clear trend" was in the opposite direction:  five states had adopted laws permitting it within the past year, and it was being contemplated in several more.  And in Atkins and Roper, the Court tooks pains to mention that foreign countries almost universally rejected the death penalty for juveniles and the mentally retarded, while it was completely mum on that subject in Kennedy.  For good reason:  those countries which do have capital punishment allow it for a wide range of offenses.

The "count the legislatures" approach may be a problem here, too, because 37 states and the District of Columbia allow LWOP sentences for juveniles.  So Kennedy eschews that in favor of looking at "actual sentencing practices."  When he does, he finds that throughout the country there are 129 juvenile non-homicide offenders serving life without parole; 77 of them are in Florida, and the other 52 are concentrated in ten other states.  That's rare enough for the majority to conclude that the imposition of that sentence is indeed "unusual."

The Court borrows heavily from Roper in establishing the second prong, that the sentence is cruel.  Juveniles have "a lack of maturity and an underdeveloped sense of responsibility," and thus, while "a juvenile is not absolved of responsibility for his actions, his transgression is not as morally reprehensible as that of an adult." 

So does Graham get out?  No, all the state is required to do is "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."  How to do that?  Well, that's up to the state to figure out.  Also, a cautionary note:

While the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life... 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.

Stevens' concurring opinion is an even stronger call for the "evolving standards" analysis: 

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 alater time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.

It also gives him the opportunity to lay some snark on Thomas, who "would apparently not rule out a death sentence for a $50 theft by a 7-year-old."   The comment is prompted by Thomas' argument in favor of using as the standard for what is cruel and unusual the "modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," and his observation that "at the time of the Founding, the common law. . . theoretically permitted even capital punishment to be imposed on a person as young as age 7." 

So what's it all mean, other than what it plainly says:  you can't impose a life without parole sentence on a juvenile for a non-homicide offense?  Probably not much.  Here's an interesting thought, though:  given the fact that Ohio law permits juveniles to be tried as adults for a wide variety of offenses, and given the current state of our sentencing law, which permits "max and stack" sentences at a judge's whim, what happens when a judge sentences some 17-year-old to 110 years in prison for series of robberies?

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