Introduction
In Graham v. Florida,[1] the Supreme Court held that the Eighth Amendment prohibits a sentence of life
without parole (“LWOP”) for a juvenile under eighteen who commits a
non-homicide offense. For Terrance Graham, who committed home-invasion robbery
at seventeen, the decision does not mean necessarily that he someday will leave
the brick walls of Florida’s Taylor Annex Correctional Institution. Unlike
previous Eighth Amendment decisions, such as Roper v. Simmons,[2] where the Court barred the death penalty for juveniles, this new categorical
rule does not translate into automatic relief for members of the exempted
class: “A State need not guarantee the offender eventual release,” Justice
Kennedy wrote for the majority, “but if it imposes a sentence of life it must
provide him or her with some realistic opportunity to obtain release before the
end of that term.” Graham offers the
possibility of redemption but not its guarantee.
Pragmatists are understandably skeptical.[3] Yet beyond the narrow application of this rule to the small class of
child-offenders, Graham contains the
ingredients to be of transformative significance to the Supreme Court’s Eighth
Amendment jurisprudence. First, the opinion-employing a method of comparative
analysis typically reserved for its capital cases-cements a proportionality
requirement in the Court’s non-capital Eighth Amendment jurisprudence. Second,
the Court uses for the first time a method of constitutional elucidation that
draws two separate and seemingly parallel lines of jurisprudence together to
articulate an independent constitutional principle. Third, the Court
articulates the “possibility of redemption” as an essential consideration
arising from evolving standards of decency. These three components-proportionality,
constitutional triangulation, and the notion that people and their propensities
are not static-suggest that Graham could have far greater significance in the life of the law than in the life of
child defendants toiling, for instance, in the fields of the Florida
Penitentiary.[4]
I. The Eighth Amendment’s Proportionality Principle
The Graham opinion’s most significant doctrinal conclusion is that the Eighth Amendment
proportionality provision applies to non-homicide offenses and allows for
categorical exclusions of certain offenders (here, juveniles) for certain types
of offenses (here, non-homicides) from certain punishments (life without parole).
Whether the Court’s “death is different” jurisprudence limited this broad
conception of proportionality to capital offenses had plagued the Court for
nearly three decades.
A. Non-Capital Eighth Amendment
Jurisprudence
In Weems v. United
States,[5] the Court held that the Eighth Amendment could not condone a fifteen-year
sentence at hard labor in chains and with permanent civil disabilities for the
crime of falsifying a public document. Reversing Mr. Weems’s sentence, the
Court underscored the notion that “punishment for crime should be graduated and
proportioned to the offense.” The Court echoed the importance of the
proportionality mechanism fifty years later in California v. Robinson.[6] The Robinson Court reversed as excessive
a 90 day prison sentence for “addiction to the use of narcotics.” Ninety days’
incarceration is not inherently excessive punishment, the Court noted, but the
proper question is whether the particular sentence is excessive considering the particular crime: “Even one day in prison would be a cruel and unusual punishment for the
‘crime’ of having a common cold.”
Following Robinson, the nine justices traded blows for the
next three decades over the existence and scope of a proportionality principle
in non-capital Eighth Amendment cases. However, before describing those cases,
we briefly highlight the death-is-different jurisprudence that serves as a
counterpoint to the non-capital jurisprudence developed after Robinson. In his concurring opinion in Furman v. Georgia,[7] where the Court struck down the three capital sentencing statutes at issue and
effectively halted the administration of capital punishment in America, Justice
Stewart articulated what has come to be known as the “death is different”
approach:
The penalty of death differs from all other forms of
criminal punishment not in degree, but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of the convict
as a basic purpose of criminal justice. And it is unique, finally, in its
absolute renunciation of all that is embodied in our concept of humanity.
The Court applied the death-is-different approach in Coker v. Georgia,[8] prohibiting the death penalty as a possible punishment for the rape of an adult
woman. More recently, the Court has used the same analysis to bar capital
punishment for homicides committed by juveniles[9] and the mentally retarded,[10] and for all non-homicide offenses.[11]
Non-capital defendants have struggled greatly against the
weight of the death-is-different philosophy. In Rummel v. Estelle,[12] then-Justice Rehnquist wrote for the Court that sentences less than death were
functionally unsusceptible to Eighth Amendment proportionality analysis: “Outside
the context of capital punishment, successful challenges to the proportionality
of particular sentences have been exceedingly rare.” The Court emphasized that
it could “draw a ‘bright line’ between the punishment of death and the various
other permutations and commutations of punishments short of that ultimate
sanction. . . . [T]his line was considerably clearer than would
be any constitutional distinction between one term of years and a shorter or
longer term of years.” The pendulum swung the other way in Solem v. Helm,[13] where the Court reversed as excessive a life sentence without parole for a
minor nonviolent felony committed by a recidivist offender. Emphasizing the
“principle that a punishment should be proportionate to the crime” as one
“deeply rooted and frequently repeated in common-law jurisprudence,” the Court
reaffirmed that proportionality applied to non-homicide offenses. Distinguishing
Solem from Rummel on the grounds that Solem enjoyed the possibility of parole, the Court refused to reverse Rummel outright.
The Court reversed gears again in Harmelin v. Michigan,[14] holding that the Eighth Amendment did not prohibit a life without parole
sentence for a first-time offender convicted of possessing a large quantity of
cocaine. Noting that “[p]roportionality review is one of several respects in
which we have held that ‘death is different,’ and have imposed protections that
the Constitution nowhere else provides,” the Court expressly cabined the concept
of excessiveness under the Eighth Amendment to its capital jurisprudence.
However, in a separate concurring opinion, Justice Kennedy observed that the
Eighth Amendment does contain a “narrow
proportionality principle,” that “does not require strict proportionality
between crime and sentence” but rather “forbids only extreme sentences that are
‘grossly
disproportionate’ to the crime.” He then concluded that “[t]he Eighth
Amendment proportionality principle also applies to noncapital sentences.”
In Ewing v.
California,[15] the Court explicitly validated Justice Kennedy’s Harmelin concurrence, finding that the Eighth Amendment “contains a
narrow proportionality principle that applies to noncapital sentences.”
Nonetheless, Justice O’Connor’s opinion gave the impression that the substance
of Harmelin and Rummel still held sway. For example, O’Connor reiterated the line
from Rummel that successful
challenges in the non-capital context are (and should be) exceedingly rare.
Moreover, the Court rejected Ewing‘s
contention that his recidivist sentence of 25-years-to-life for stealing three
golf clubs constituted cruel and unusual punishment. Concurring in the
judgment, Justice Scalia wrote that in addition to his belief that the Eighth
Amendment simply barred particular modes of punishment, he could not follow the
Court’s proportionality analysis even out of respect for precedent, because he
did not believe that it could be intelligently applied. The ray of light left
shining by Justice Kennedy’s concurring opinion appeared to have been
extinguished.
But the approach articulated by Justice Kennedy’s
concurring opinion in Harmelin appears
to have won the day in Graham.
Borrowing from the Court’s capital jurisprudence, Justice Kennedy wrote, “[T]he
standard of extreme cruelty is not merely descriptive, but necessarily embodies
a moral judgment. The standard itself remains the same, but its applicability
must change as the basic mores of society change.” He then returned to the
basic premise that punishment must not be disproportionate to the crime, emphasizing
that the “concept of proportionality is central to the Eighth Amendment.”
Intertwining citations from the Court’s capital and non-capital Eighth
Amendment jurisprudence, the Graham opinion
drops the death-is-different motif but nonetheless conducts the same type of
proportionality review contained in capital cases like Simmons, Atkins, and Kennedy.
The
best indicator of the Eighth Amendment’s tide shift away from cases like Rummel and Ewing is expressed in the dissent by Justices Thomas and Scalia,[16] which decries the Court’s “departure from the ‘death is different’ distinction”
and laments that the break is “especially mystifying when one considers how
long it has resisted crossing that divide.” Justice Stevens’ answer to Justice
Thomas, joined by Justices Sotomayor and Ginsburg, accepts and welcomes that
change in the law:
In his dissenting opinion, Justice Thomas argues that
today’s holding is not entirely consistent with the controlling opinions in Lockyer v. Andrade, Ewing v. California, Harmelin
v. Michigan, and Rummel v. Estelle.
Given that “evolving standards of decency” have played a central role in our
Eighth Amendment jurisprudence for at least a century, see Weems v. United States, this argument suggests the dissenting
opinions in those cases more accurately describe the law today than does Justice
Thomas’ rigid interpretation of the Amendment. 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.
All nine justices appear to have agreed on one thing in Graham: the Eighth Amendment’s
proportionality principle has risen again in non-capital cases and it appears
poised to stay.
B. Are Categorical Challenges the
New Different?
Justice Kennedy’s opinion attempts to bridge some of the
perceived distance between the previous non-capital Eighth Amendment decisions
and Graham by distinguishing between
categorical challenges to a sentencing practice and challenges to an individual
sentence. The distinction is more semantic than substantive. For example,
Justice Kennedy suggests that the type of analysis conducted in Harmelin and Ewing is appropriate in assessing a “gross proportionality
challenge” instead of a categorical challenge. Kennedy describes the principles
that guide this type of analysis:
A court must begin by comparing the gravity of the
offense and the severity of the sentence. In the rare case in which this
threshold comparison leads to an inference of gross disproportionality the
court should then compare the defendant’s sentence with the sentences received
by other offenders in the same jurisdiction and with the sentences imposed for
the same crime in other jurisdictions. If this comparative analysis validates
an initial judgment that the sentence is grossly disproportionate, the sentence
is cruel and unusual.
By contrast, so-called categorical challenges to
non-capital sentences, Kennedy suggests, should borrow from the approach taken
in the Court’s capital cases:
The Court first considers “objective indicia of
society’s standards, as expressed in legislative enactments and state practice”
to determine whether there is a national consensus against the sentencing
practice at issue. Next, guided by “the standards elaborated by controlling
precedents and by the Court’s own understanding and interpretation of the
Eighth Amendment’s text, history, meaning, and purpose,” the Court must
determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution.
The shortcomings of this distinction are apparent. The
defendants in Ewing and Harmelin challenged the
constitutionality of a type of punishment (life imprisonment), for a class of
offenses (drug and recidivist offenses), committed by any offender. In Graham, the challenge involved the
constitutionality of a type of punishment (life imprisonment), for a class of
offenses (non-homicide felonies), committed by a particular class of offender
(adolescent offenders). If Ewing had
prevailed, a state would be hard pressed to distinguish a sentence of
twenty-five years to life for a nonviolent triggering offense where the prior
offenses were also nonviolent. On the other hand, if the Court had struck down
Graham’s sentence without explicitly delineating the categorical rule, the vast
majority of juvenile LWOP sentences would be void. To label such a result an
“individual challenge” because the petitioner did not label a specific
subcategory for whom this rule should be applicable is conceptually
challenging. The practical difference is marginal, and the mere fact that
Graham was successful and Ewing not, does not warrant the conclusion that two
different modes of analysis are necessary. Furthermore, the fact that the Court
repeatedly refused to require state courts to conduct proportionality review in
capital cases (or to do such review in the first instance),[17] but would conduct review of individual challenges to the proportionality of an
individual offender’s non-capital sentencing, does not accord with the unique
seriousness of capital punishment.
II. The Transformation of Constitutional Exegesis
More significant than the core Eighth Amendment holding
adopted in Graham, is the textured
manner in which Justice Kennedy brought the Court to the opinion. The opinion brings
two separate constitutional holdings together to create a third. The opinion
identifies the first constitutional principle, “With respect to the nature of
the offense, the Court has concluded that capital punishment is impermissible
for nonhomicide crimes against individuals.” The second constitutional
principle the Court identified concerned adolescent development and
culpability: “Roper established that
because juveniles have lessened culpability they are less deserving of the most
severe punishments.” The Court converged these two separate principles to
articulate a third: “It follows that, when compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished
moral culpability.”
The articulation of this method of constitutional
mathematics (Kennedy v. Louisiana + Roper v. Simmons = Graham v. Florida) is not limited solely to this instance. For
example, it would appear that a claim exists that a sentence of LWOP would also
be unconstitutional for a mentally retarded defendant who did not kill or
participate in a homicide; similarly a juvenile offender involved in a felony
that resulted in death and who was not death eligible under Enmund v. Florida[18] would also have a constitutional claim to the possibility of parole.
But even more meaningful than the operation of this
constitutional mathematics to this narrow line of cases is its potential operation
within the wider death penalty framework. As the Court observed in Kennedy, its prior death penalty
jurisprudence has been marked by the “tension between general rules and
case-specific circumstances” that has “produced results not all together satisfactory.”
Indeed this combination of constitutional principles may have been what the
Court found lacking when it acknowledged that the Eighth Amendment “case law []
is still in search of a unifying principle.” In Graham, the Court acknowledged that “restraint,” “decency,” and
moral consistency operate to conjoin constitutional principles rather than
separate them into individual strains, each unknowable but by five (or more) of
the Court’s justices.
III. The Constitutionally Significant Possibility of Redemption
Graham‘s most
significant role may be in its recognition of redemption as an Eighth Amendment
constitutional principle, rejecting a legislative determination that entire
classes of individuals were irredeemable:
Those who commit truly horrifying crimes as juveniles
may turn out to be irredeemable, and thus deserving of incarceration for the
duration of their lives. 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.
Before Graham,
redemption was hardly mentioned as a constitutional principle. Only two cases
even reference it in a constitutional context.[19] Rehabilitation, on the other hand, has always been an essential component of
the calculus in assessing the proper goals of punishment. But rehabilitation
and redemption are separate concerns. The possibility of rehabilitation provides
a response to, or mediates, the goal of incapacitation. However, the
possibility of rehabilitation fails to rebut the concept of retribution. Hence Gregg‘s finding that the death penalty
was justified. Rehabilitation provides no moral salve that defeats the need for
retribution-all rehabilitation does is provide an efficiency basis for
defeating a death (or LWOP) sentence. Redemption, or the possibility of it,
however, offers a moral response to the need for retribution. It responds to
the call for infliction of suffering, to capital punishment’s “expression of
society’s moral outrage at particularly offensive conduct.”
The Court in Graham held
that the Eighth Amendment “forbid[s] States from making the judgment at the
outset that [juvenile] offenders never will be fit to reenter society.” Such a
judgment, the Court explained, is tantamount to a determination that the
juvenile is not redeemable. While some juvenile offenders might be forever
dangerous to society, the “subjective judgment[s] by a judge or jury that the
offender is irredeemably depraved, are insufficient to prevent the possibility
that the offender will receive a life without parole sentence for which he or
she lacks the moral culpability.” Rather, juvenile offenders must be given the opportunity
to “to achieve maturity of judgment and self-recognition of human worth and
potential.” In other words, States must give juvenile offenders at least a shot
at redemption.
We have come a long way. For most of our history we have
treated offenders in a one-size-fits-all fashion that views the individual as a
one-dimensional, interest-maximizing, deliberate being that carefully
calculates the risks and harms associated with his transgressions. The Eighth
Amendment question focused on the offense and the punishment, largely ignoring
the characteristics of the offender. The Court has affirmed sentences as proportionate
to the crime by referring to the individual offender as “one who is simply
unable to bring his conduct within the social norms prescribed by the criminal
law of the State.”[20] The offender’s circumstances-social, cognitive, physiological-mattered little.
In the capital context, the Court has found that the
“respect for human dignity underlying the Eighth Amendment requires
consideration of aspects of the character of the individual offender,” and that
a capital statute cannot “treat[] all persons convicted of a designated offense
not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass . . . .”[21] In Atkins, the Court looked to the
culpability of mentally retarded defendants in general, and concluded that they
possess “diminished capacities to understand and process information, to
communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of
others.” Furthermore, “there is abundant evidence that they often act on
impulse rather than pursuant to a premeditated plan, and that in group settings
they are followers rather than leaders.”
Similarly, in Simmons,
the Court determined that juvenile offenders as a class are less likely to
“engage[] in the kind of cost-benefit analysis that attaches any weight to the
possibility of execution,” more likely to possess “[a] lack of maturity and an
underdeveloped sense of responsibility . . . qualities [that] often result in
impetuous and ill-considered actions and decisions,” and are “more vulnerable
or susceptible to negative influences and outside pressures, including peer
pressure.” Further, the Court explained, “personality traits of juveniles are
more transitory, less fixed.”
The Graham opinion
began with a detailed description of its namesake, Terrance Jamar Graham: His
“parents were addicted to crack cocaine, and their drug use persisted in his
early years. Graham was diagnosed with attention deficit hyperactivity disorder
in elementary school. He began drinking alcohol and using tobacco at age 9 and
smoked marijuana at age 13.” Including this description in at the fore of the
case extends the character of the offender focus beyond capital jurisprudence
and infuses the Eighth Amendment with a sense that external forces help to
shape the life choices of the offender, and, conversely, help to explain why a
person is not intrinsically incapable of redemption.
But the most significant aspect of the Court’s decision is
the recognition that a once-and-for-all determination of an offender’s capacity
to change cannot be made at the onset of the sentence. Once we leave the
limited example of the juvenile who is not fully developed, we find the same
lack of perspective, foresight and impulse control in the drug and alcohol
addicted offender and the offender with a severe mental illness, among others.
And as an offender who committed a crime while under the grips of
insufficiently treated schizophrenia or the chemical dependency of a heroin
addiction is treated or becomes sober, and as their lives change and grow
around them, Graham should be read
more broadly as allowing for the possibility of hope despite cruel sentencing
practices that leave little room for it to shine.
Conclusion
The Graham Court
explicitly embraced the possibility that people can change, and in doing so,
the justifications for continued incarceration weaken. Recognizing that
juveniles are both categorically less culpable than adult offenders due to
their underdeveloped maturity and decision-making capacity, and that at least
some of these children can be redeemed over time, the Court prohibits states
from rejecting the possibility of release at the onset of the conviction in nonhomicide
cases involving juvenile offenders. This awareness that people are not static,
and that they have within them the opportunity for moral development, opens the
door to the possibility of redemption as a counter-consideration to the
penological goal of retribution. And this realization suggests that the Court’s
notion of capital punishment as an expression of society’s moral outrage at
particularly offensive conduct may ultimately be tempered with its recognition
of the possibility for redemption.
Robert Smith is Counsel for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. G. Ben Cohen is Of Counsel for the Capital Appeals Project in New Orleans, Louisiana.
Suggested citation: Robert Smith & G. Ben Cohen, Commentary, Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence, 108 Mich. L. Rev. First Impressions 86 (2010), http://www.michiganlawreview.org/assets/fi/108/smithcohen.pdf.
[1]. 78 U.S.L.W. 4387 (2010).
[2]. 543 U.S. 551 (2005).
[3]. States that have enacted prohibitions on
parole for child offenders could simply convert statutory prohibitions into de
jure limitations, by allowing parole under the law, but denying it indefinitely.
An opportunity for parole that might be realistic in Washington D.C. could be
completely unattainable before parole boards in Florida, California and
Louisiana.
[4]. Graham is one of 72 juveniles sentenced to
LWOP in Florida.
[5]. 217 U.S. 349 (1910).
[6]. 370 U.S. 660 (1962).
[7]. 408 U.S. 238 (1972).
[8]. 433 U.S. 584 (1977).
[9]. Roper v. Simmons, 543 U.S. 551 (2005).
[10]. Atkins v. Virginia, 536 U.S. 304 (2002).
[11]. Kennedy v. Louisiana, 128 S. Ct. 2641
(2008).
[12]. 445 U.S. 263 (1980).
[13]. 463 U.S. 277 (1983).
[14]. 501 U.S. 957 (1991).
[15]. 538 U.S. 11 (2003).
[16]. Justice Alito joined Parts I and III of
Justice Thomas’s dissent, but not the relevant portion in Part II.
[17]. Walker v. Georgia, 129 S. Ct. 453 (2008)
(statement of Stevens, J.); Pulley v. Harris, 465 U.S. 37 (1983).
[18]. 458 U.S. 782 (1982).
[19]. Ayers v. Belmontes, 549 U.S. 7, 44 (2006)
(Stevens, J., dissenting) (“In response to the majority’s suggestion that this
case may be inconsistent with Johnson v.
Texas . . . I note only that Johnson addressed a very different question, namely, whether a jury considering future
dangerousness could give adequate weight to a capital defendant’s youth.
Whatever connection may exist between a defendant’s youth and his future
dangerousness, there is no connection whatsoever between respondent’s evidence
that he was capable of redemption and a ‘circumstance which extenuates the
gravity of the crime’ . . . .”); Doggett v. United States, 505
U.S. 647, 668-69 (1992) (Thomas, J., dissenting) (“However uplifting this tale
of personal redemption, our task is to illuminate the protections of the Speedy
Trial Clause, not to take the measure of one man’s life”).
[20]. Rummel v. Estelle, 445 U.S. 263, 284 (1980).
[21]. Woodson v. North Carolina, 428 U.S. 280, 305
(1976).