The Supreme Court recently handed down its decision in Graham
v. Florida.[1] The case involved a juvenile, Graham, who
was sentenced to life in prison after being convicted as an adult of a nonhomicidal
crime. The offense, a home invasion robbery, was his second; the first was
attempted robbery. Due to Florida’s abolition of parole, the judge’s imposition
of a life sentence meant that Graham was constructively sentenced to life
without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional
under the Eighth Amendment.
Somewhat surprisingly, the Supreme Court invalidated
Graham’s sentence by a 6-3 majority. By a 5-4 majority, the Court declared the
practice of sentencing juveniles to life without parole for nonhomicide crimes
categorically unconstitutional under the Eighth Amendment’s Cruel and Unusual
Punishment Clause. Chief Justice Roberts was the lone crossover vote; he agreed
that the sentence in Graham’s particular case violated the Eighth Amendment,
but was unwilling to declare such sentences categorically unconstitutional. Otherwise,
the case was split along the traditional ideological lines, with Justice
Kennedy playing his usual role as the swing vote. What makes the result in this
case unusual is that the Court seems to have made a significant break from its
past jurisprudence on sentencing. In fact, Graham may have completely altered the landscape of the Court’s Eighth Amendment
jurisprudence. While the old approach was summed up by the adage “death is
different,” the new approach may be that “kids are different.” In addition, the
Court may have exposed itself to a whole host of difficult sentencing issues
down the line.
I. The Traditional Approach: “Death is Different”
Until Graham, the
Court generally adopted a bifurcated approach to sentencing, with different
lines of precedent for death penalty and non-death penalty cases. When it came to
the death penalty, the Court was willing to address issues categorically, not
concerning itself solely with the facts of the case at bar. For example, in Roper
v. Simmons[2] the
Court declared the application of the death penalty to juveniles unconstitutional
regardless of the underlying facts. But when it assessed nondeath sentences in
the Eighth Amendment context, the Court was typically far more deferential to
the states. It had only been willing to invalidate sentences individually, and
only then where the sentences failed an ambiguous “proportionality” standard.[3] So, for example, while the Court invalidated one sentence of life without
parole for an offender’s seventh nonviolent crime in Solem v. Helm,[4] it also upheld a life sentence for possession of a large quantity of cocaine in Harmelin v. Michigan. In Graham,
though, the Court was faced with, and upheld, a challenge that merged these two
doctrines: “a categorical challenge to a term-of-years sentence.”
Justice Thomas, filing the primary dissent in Graham, argued that the majority’s decision was a
significant break in the Court’s jurisprudence, a break which he believed to be
problematic. Among his other arguments, Justice Thomas claimed that the adage “death
is different” (that the death penalty was treated differently by the Court than
terms of years or other, less harsh sentences), which held favor with the Court
at least until Graham, is itself now dead.
The fact that death was treated differently by the Court stemmed
from its severity. As recently as Roper, the Court has noted that
“[b]ecause the death penalty is the most severe punishment, the Eighth
Amendment applies to it with special force.” Accordingly, a broad range of
substantive and procedural rights apply to capital defendants that do not apply
to other defendants, even those accused or convicted of homicide. The
dissenters’ main fear going forward appears to be that the Court’s death
penalty jurisprudence is no longer isolated from the rest of criminal
procedure, and that one regime may slowly spill over into the other.
II. Ideological Difficulties After Graham
The question now seems to be whether death is indeed still
different. Let us for the sake of argument assume that the Court in its current
make-up is willing to approach the death penalty and term-of-years sentences
identically, or at the very least more similarly. Such an approach would be
likely to have serious repercussions in its sentencing jurisprudence. By
treating death and nondeath sentences similarly, the Court could go in one of two
directions. First, it could start backpedaling on its recent decisions restricting
the use of the death penalty, reserving categorical decisions for only the most
barbaric of punishments (say, drawing and quartering). After all, if death is
no longer different, the Court may see little reason to approach it with the more
skeptical eye that it has in the recent past. This result would actually be a
boon to the conservative wing of the Court, as it would allow the Court to
return control over such decisions to the states and bring the Court’s interpretation
of the Eighth Amendment closer in line with what they believe is its original
meaning. It could mean the reversal of decisions such as Roper and Atkins
v. Virginia.[5]
Of course, this is an unlikely scenario. The Court’s
decisions categorically restricting the death penalty, such as Roper and
Atkins, have been decidedly fairly recently. The ideological makeup of
the Court, even with the recent appointments of Justices Sotomayor and Kagan,
appears unlikely to change on this issue. Furthermore, the Graham decision was, if anything, a logical extension of Roper, so to believe that
it would lead down the path to overruling decisions such as Roper is illogical.
The Graham opinion cited significant language from Roper discussing the developmental issues juveniles face which are not present with
adult offenders. It presented evidence that juvenile offenders still have
significant amounts of psychological development ahead of them, and that
therefore the prospect of rehabilitation is much more realistic than it is with
adult offenders. The Graham Court also noted that juveniles are less
likely to understand the true effects and consequences of their crimes than are
adults, and that therefore the retributive value of such sentences is much
lower than it is with adult offenders. Finally, the Court recognized that the
mental calculus of juveniles who contemplate criminal activity is too
incomplete to fully comprehend the potential consequences of such crimes. To
that end, the deterrent effect of life sentences without parole adds little to
the general deterrent effect of imprisonment.
It is more likely, then, that Graham will lead to
the categorical approach used in Roper and Atkins being taken in
other non-death penalty cases. This is what the conservative wing of the Court
fears. For example, one logical extension of Graham may be to
categorically invalidate life without parole for all nonhomicidal
offenders, including adults. Despite the Court’s reliance on the differences
between juvenile offenders and adult offenders, it would not be too much of a
stretch to envision the Court citing the rehabilitative goals of imprisonment
in nullifying such a practice, particularly in light of the fact that those
imprisoned for life without parole are typically excluded from many of the
rehabilitative activities provided, such as psychological therapy and
education.
Graham may also lead to the Court taking a more
liberal approach to the death penalty as a practice. Granted, the logical
extensions are not as clear. But Graham could be one step in a slow shift towards mandating less and less severe
sentences for certain classes of offenders. More prohibitions to the death
penalty along the lines of Roper and Atkins, as well as more restrictions on
harsh sentencing such as Graham, could
be added until the death penalty is so restricted that it is nearly impossible
to impose. This could eventually lead the Court to decide that the death
penalty itself is archaic, unproductive, and contrary to the Eighth Amendment.
The slippery slope argument that follows is obvious. If I
were a conservative leader developing talking points, I would say that the road
that began with Roper and continued with Graham could lead not
only to the abolition of the death penalty altogether but to the Supreme Court
(an unelected body drawn from the intellectual elite, I would remind the
public) determining the appropriate sentences for every crime on the books in
every state. But slippery slope arguments, effective oratorical devices though
they may be, rarely have any basis in reality. It is difficult to foresee any
circumstance in which the Court would wish to engage in any sort of term-of-years
sentencing assessments aside from the most severe or disproportionate cases.
Still, Graham may not signal an end to the Court’s
willingness to categorically invalidate nondeath sentences, especially with regard
to nonhomicidal crimes. There are two potential philosophical approaches that
the Court could take that would indicate this might be the case, but neither
one of them sound in what Justice Thomas sees as the eradication of the “death
is different” approach to sentencing.
The first approach that the Court could take would be to
maintain that “death is different”-just not necessarily the death of the
defendant. Perhaps, instead, it is the death of the victim that makes a case
“different,” or the fact that the death of either the defendant or the victim
is at issue. After all, Graham invalidated life without parole for non-homicidal
cases. The Court said nothing about invalidating juvenile life without parole
for homicide offenses. This approach could be easily extended to the realm of
adult offenders. Were the Court to adopt this extension of “death is
different,” it would provide a clear line at which categorical inquiries would
end and only “narrow proportionality” inquiries would exist.
Another approach is that death is still different in the
traditional sense, but that the Court now recognizes that kids are different as
well. The Court could try to maintain separate jurisprudences for adult and
juvenile sentencing. For adult offenders, “death is different” could be the
same as it was before the Graham decision, and now, after Graham,
juvenile offenders may be subject to an entirely different sentencing approach.
While juvenile sentencing is generally at most as harsh as adult
sentencing, the Court could choose to vary it in several areas to demand even less
harsh sentences. The Court has already taken two steps down this path with Graham and Roper.
Given the language used in the majority opinion in Graham,
“kids are different” seems to be the more likely approach. In fact, Justice
Kennedy seemed to be fighting against the idea that the approach in Graham should be extended to adult offenders. He quoted numerous studies to support
the notion that juvenile offenders are psychologically different from adult offenders
and that different levels and methods of incapacitation, deterrence, and
rehabilitation are appropriate for juveniles and adults. If the Court wanted
to, it could have easily taken the opportunity presented in Graham to
invalidate all sentences of life without parole for nonhomicidal offenders
regardless of age. The fact that the Court did not do so suggests that the
Court intends to treat juvenile sentencing differently from adult sentencing.
Having separate approaches for adult and juvenile
sentencing would also mesh with the Court’s general Eighth Amendment
jurisprudence, which looks to evolving social standards when assessing whether
a punishment is constitutional. As we learn more about juvenile psychology, it
stands to reason that we will learn more about the appropriate punishments and
treatments for juveniles. This may lead to our societal standards of decency
evolving more quickly towards less harsh sentences for juveniles than for
adults, especially if there is no corresponding evidence that adult offenders
would benefit from the same types of punishment as juveniles.
III. Practical Difficulties After Graham
For most states, the result in Graham is simple to
follow: they can simply offer the possibility of parole to any juvenile who
receives a life sentence. But there would still remain a whole host of
potential practical issues involved in nearly any sentencing scheme.
One such practical question arises in states like Florida,
which has entirely abolished the practice of parole. This means that unlike
other states which maintain their parole systems, states like Florida are
categorically barred from sentencing a juvenile to life imprisonment. The only
way the state could now give such sentences would be to reinstitute some sort
of parole system to handle those juveniles given life sentences for nonhomicide
crimes. This could be a viable option, especially in light of the fact that
such sentences are relatively rare, leaving administrative costs relatively
low.
What seems more likely is that states like Florida will
simply assign lengthy term-of-years sentences to such offenders. Technically, a
sentence of one hundred years’ imprisonment without the possibility of parole
to a sixteen-year-old nonhomicidal offender does not violate the Eighth
Amendment under the letter of Graham. As Justice Alito noted in his
brief dissent, “[n]othing in the [Graham]
opinion affects the imposition of a sentence to a term of years without the
possibility of parole.” Certainly, though, such a sentence would violate the spirit
of the decision. After all, a one hundred year sentence is effectively a life
sentence, yet a judge in any state would seem to be permitted to give juveniles
one hundred year sentences without the possibility of parole. This is a glaring
loophole. The Court will at some point be forced to address the
constitutionality of juvenile sentences of less than life, with no possibility
of parole, especially where the term of years is so long that it is practically
a life sentence.
It will be interesting to see what happens at Graham’s
resentencing. If he is given a term of years sentence that is effectively a
life sentence, that sentence will almost certainly be challenged; Graham could find
his case back in the Supreme Court. Regardless of whether Graham is the
particular defendant, a challenge of this nature is practically inevitable. The
Court must have known this when it handed down its decision in Graham,
and one would like to think that it has a plan for such a scenario.
Here, if anywhere, is where the slippery slope argument is
best applied. On the one hand, it is highly unlikely that the Court would
render its own opinion in Graham toothless by upholding a one hundred year
sentence without the possibility of parole to a nonhomicidal juvenile simply
because the sentence was not styled as a life sentence. On the other hand, it
is also difficult to see the Court engaging in the analysis necessary to
enforce Graham if the states decide to try to circumvent it. The Court
would have to establish some sort of numerical ceiling on the length of
sentences that could be given to juveniles convicted of nonhomicide crimes
where there is no possibility of parole. This kind of analysis is not one that
the Court engages in either routinely or eagerly.
Another potential practical issue involves the actual
likelihood of being paroled. If a state had parole on the books but never
released anyone on parole, then that state could also give sentences which are
essentially life without parole to juveniles convicted of nonhomicide crimes. These
sentences, much like a one hundred year sentence with no possibility of parole,
would be in line with Graham in the
most technical sense only. If the Court wished to prevent such sentences from being
imposed, it would be forced to determine how often or under what circumstances a
state must release prisoners on parole in order for the parole system to be
considered viable. Again, this is not the type of analysis that the Court is well
equipped to undertake.
Even if a state did have a viable parole system, a
sentence could be structured to make parole virtually unattainable. Florida,
for instance, could reinstitute parole for juveniles, but declare that it would
only be available after the first hundred years of a life sentence. By
reinstituting parole, Florida would be technically in line with Graham,
but by only allowing parole after such a long period of time, it would again go
against the spirit of the decision. If the Court wanted to prevent this, it would
again be forced to engage in some sort of line-drawing, determining how many
years of a sentence can be served before a meaningful opportunity for parole is
presented to the juvenile offender.
This practice of the Court engaging in such low-level
policy determinations could result in peculiar and inconsistent applications of
the law. For example, if the Court decided that the maximum sentence for
juveniles where there is no possibility of parole was forty years, then an odd
result would arise. States with no possibility of parole, which presumably
intended the lack of parole to make sentences harsher, would actually have less
severe maximum sentences for juveniles convicted of nonhomicide crimes than
states with parole systems, if parole is unlikely to ever be granted.
Ultimately, it will be up to the states and their judges
to decide how hard the practical issues raised by Graham will be pressed. They could decide to comply with the spirit
of Graham across the board. But it
will take only one rogue judge to force the Court’s hand and require it to
render a difficult decision that will seem unsatisfying no matter what the
outcome.
Conclusion
The Graham decision may have created as many problems as it solved. The Court now faces an
ideological battle as well as complex practical issues going forward. Ideologically,
the Court must decide whether it intends to create a bifurcated jurisprudence
for juvenile and adult offenders. It also must determine whether its
traditional bifurcated approach to death and nondeath sentences remains viable.
Practically, the Court may have opened the door to a whole host of problems. Should
the states choose to try to circumvent Graham,
for example by assessing term of years sentences so long as to be practically
life sentences without the possibility of parole, the Court will either have to
begin to assign a number to the otherwise generic term “life sentence” or
develop a creative new approach that will allow it to avoid engaging in such difficult,
low-level determinations.
Unfortunately, there is no simple answer to any of these problems,
at least from the Court’s perspective. Based on the language used in the majority
opinion in Graham, the Court is at
least willing to have separate approaches to adult and juvenile sentencing. Whether
or not “death is different” still applies remains to be seen. It seems safe to
assume, though, that the Court now recognizes that kids are different. Given
the mounting evidence pointing to the psychological differences between adult
and juvenile offenders, this is a welcome addition to the Court’s sentencing
approach, in spite of the practical difficulties it may have raised.
Stephen St. Vincent is a member of the University of Michigan Law School class of 2011 and Executive Technology Editor of the Michigan Law Review.
Suggested citation: Stephen St.Vincent, Commentary, Kids Are Different, 109 Mich. L. Rev. First Impressions 9 (2010), http://www.michiganlawreview.org/assets/fi/109/stvincent.pdf.
[1]. 130 S. Ct. 2011 (2010).
[2]. 543 U.S. 551 (2005).
[3]. See Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring)
(noting that the Eighth Amendment requires a “narrow proportionality”
principle).
[4]. 463 U.S. 277 (1983), abrogated in part by Harmelin, 501 U.S. 957.
[5]. 536 U.S. 304 (2002) (holding categorically
that the execution of mentally retarded persons is cruel and unusual under the
Eighth Amendment).