Sherry F. Colb

High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes

By SHERRY F. COLB
Wednesday, May 26, 2010

Last week, in Graham v. Florida, the U.S. Supreme Court held that the Eighth Amendment's ban on cruel and unusual punishments bars the sentencing of juvenile offenders to life imprisonment without the possibility of parole ("LWOP") for non-homicide offenses. As I noted in an earlier column, such a decision stands in considerable tension with the Court's existing precedents. Accordingly, though the majority opinion does not explicitly depart from prior rulings, there is nonetheless reason to expect that the Court may now be more willing to entertain Eighth Amendment challenges to lengthy prison sentences than it has been in the past.

The Facts of Graham

The Court in Graham confronted the case of a young man, Terrance Jamar Graham, who was sentenced to LWOP for a crime he committed at the age of 16.

Graham received his sentence for armed burglary with assault or battery, and attempted armed-robbery. These crimes involved a break-in at a restaurant during which Graham's accomplice hit the restaurant manager in the back of the head with a metal bar. Initially, when he pleaded guilty to these offenses, Graham received a light sentence of concurrent three-year terms of probation, accompanied by various probation conditions.

Later, however, Graham, by his own admission, violated the probation conditions. In addition to fleeing from the police, his probation violations allegedly included (among other things) participation in a home-invasion robbery as well as involvement in a second robbery in which his accomplice was shot — both within six months of his release from the county jail at which he had served the in-jail portion of his probation sentence. These probation violations ultimately led a judge to impose on Graham the challenged sentence of life without parole.

The Boldness of Graham's Claim

Graham brought to the Supreme Court the bold claim that sentencing a juvenile offender to LWOP for a non-homicide crime categorically imposes a disproportionate penalty in violation of the Eighth Amendment's ban on cruel and unusual punishments.

A number of factors contribute to the audacity of Graham's claim. First, the Supreme Court had never categorically ruled out a lengthy prison term on the basis of Eighth Amendment proportionality — that is, the constitutional requirement that a sentence not be excessively harsh relative to the crime for which it is imposed. Categorical Eighth Amendment rulings, as the Supreme Court acknowledged in Graham, have extended only to the death penalty.

Under earlier categorical rulings, for example, executing some classes of people, including the population of developmentally-delayed or juvenile offenders, violates the Eighth Amendment. Similarly, executing people for committing certain classes of offenses — non-homicide crimes against individuals (such as rape or child molestation) — also, categorically, violates the Eighth Amendment.

Second, the Court had almost never recognized an Eighth Amendment violation in the length of a prison sentence, even when the challenge was as-applied and the particular offender had been convicted of a non-violent property crime. (An as-applied challenge takes issue with a legal decision only insofar as it affects the party and circumstances narrowly before the court.)

In contrast, Graham had committed an undisputedly serious offense that involved physical violence, yet he came to Court asking for a categorical rule — one that would apply not only to him, but also to offenders whose violence greatly exceeded his own. And he won on this theory.

The Court's Reasoning: Why Graham Prevailed

The Court ruled in Graham's favor because it reasoned that juvenile offenders are categorically less culpable than adult offenders (even if some number might be capable of the maturity that characterizes responsible adults), and non-homicide offenders are categorically less deserving of harsh punishment than homicide offenders. Considering the intersection of the two categories, the Justices determined that to sentence a juvenile, non-homicide offender to LWOP — the most serious constitutionally-permissible sentence available for juvenile offenders — would be grossly disproportionate and would therefore constitute cruel and unusual punishment.

In support of its conclusion, the Court noted that although thirty-seven states, Washington D.C., and federal law all permit the imposition of LWOP on juveniles for non-homicide offenses, the sentence is, in fact, rarely imposed. The majority opinion states that "only 12 jurisdictions nationwide in fact impose life without parole sentences on juvenile non-homicide offenders — and most of those impose the sentence quite rarely — while 26 States as well as the District of Columbia do not impose them despite apparent statutory authorization."

In the Court's view, this state of affairs reflects a national consensus against the practice. Moreover, the majority noted that there is something close to an international consensus on this issue, as well: The U.S. may be the only country in the world (or perhaps one of two) that actually sentences juvenile non-homicide offenders to LWOP.

Where the Court's Decision Logically Leads: Justices Thomas's and Scalia's Perspective

Notably, three members of the majority and two dissenters appeared to agree that Graham represented a departure from prior precedents, though that agreement led them, respectively, to different conclusions.

Justice Thomas — who authored a dissent that was joined by Justice Scalia — took the position, first, that proportionality review in the Eighth Amendment is illegitimate, because neither the text nor the original understanding of the Amendment suggests that proportionality is a feature of determining whether punishments are "cruel and unusual." In Thomas's (and Scalia's) view, only cruel and unusual methods of punishment — not otherwise permissible methods of punishment imposed when their severity outweighs the seriousness of an offense — are subject to Eighth Amendment invalidation. Accordingly, Justice Thomas considered the Supreme Court's death penalty jurisprudence of proportionality (in which it had, for example, ruled out a death sentence for rape and for child-molestation) constitutionally illegitimate.

Nonetheless, Justice Thomas bemoaned the fact that in Graham, the Court extended its misbegotten proportionality analysis beyond the death penalty, and he lamented that "'Death is different' no longer." Previously, the Court in Harmelin v. Michigan had upheld a sentence of LWOP for drug possession in the face of a proportionality challenge. And, in Ewing v. California, the Court had affirmed a sentence of 25 years to life for stealing three golf clubs (under a three-strikes statute), again rejecting a proportionality challenge. Examples like these show that proportionality analysis — though theoretically available for all punishments — had in fact been, as Justice Thomas claimed, largely limited to capital punishment. In the view of Justices Thomas and Scalia, the latter of whom joined the former's dissent, this case thus represented a new flowering of a previously limited and always illegitimate approach to the Eighth Amendment.

Justices Stevens's, Ginsburg's and Sotomayor's Point of View

For Justice Stevens too, joined by Justices Ginsburg and Sotomayor, this case broke new ground, but in a positive way. Responding to what he characterized as Justice Thomas's argument "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]," Justice Stevens did not deny the charge. Without disagreeing, Justice Stevens observed that Justice Thomas's argument "suggests the dissenting opinions in those cases more accurately describe the law today than does Justice Thomas' rigid interpretation of the Amendment. Knowledge accumulates. We learn. Society changes."

From Justice Stevens's perspective, then, Harmelin and other cases might, relative to Graham, have suggested a more grudging approach to proportionality review outside the capital context, but the new — more generous — approach of Graham is the better one. These three concurring Justices — Stevens, Ginsburg, and Sotomayor — therefore appeared to share Justices Thomas's and Scalia's view that Graham departed from existing precedents and did not simply apply those precedents to a comparable circumstance.

Rather than regretting the departure, however, Justice Stevens's opinion overtly mocks the Thomas approach — which would, according to Justice Stevens, "apparently not rule out a death sentence for a $50 theft by a 7-year-old." At least three Justices thus appeared not only to acknowledge, but actually to welcome the revitalization and expansion of proportionality review in the non-capital context.

There are thus currently at least five votes on the Court for the proposition that Harmelin and cases like it are on life support, potentially giving way to the new Graham approach.

Related Eighth Amendment Questions May Now Be Answered in a New Way

In practical terms, one might hope that the following questions could now receive a positive answer: Is it disproportionate to sentence a nonviolent adult offender to LWOP? Is it unconstitutionally excessive to sentence a nonviolent adult offender to life imprisonment, even with the possibility of parole?

Does it violate the Eighth Amendment to sentence a non-homicide juvenile offender to a determinate term of years that will effectively keep him in prison for the rest of his life? Is it unlawful to impose on a non-homicide adult offender a determinate term of years that will effectively keep him in prison for the rest of his life?

And finally, is it unconstitutional to sentence some non-homicide offenders — whose crimes are not demonstrably worse or more culpable than those of other non-homicide offenders — to terms that substantially exceed the average sentence for homicides, or for worse non-homicide offenses?

In other words, the majority opinion in Graham — by the lights of at least five members of the Court — invites future defendants and their attorneys to challenge prison terms as unconstitutionally lengthy relative to the seriousness of the offenses at issue, either categorically or on a case-by-case basis. Put succinctly, the proportionality cases about the death penalty may now become relevant precedent for those seeking to overturn prison terms. And this is true despite the fact that the majority opinion itself treats existing (and stingy) Eighth Amendment precedents as good law.

An Old Death Penalty Argument About Rarity

One of the Court's arguments for concluding that there is a growing consensus against sentencing juvenile non-homicide offenders to LWOP is the rarity, in practice, of such sentences, despite the fact that thirty-seven states, Washington, D.C., and the federal government all, in theory, permit them. Justice Thomas plausibly argued in response that rarity does not represent collective opposition to a given sentence, but simply a consensus that the imposition of that sentence (here, LWOP for juvenile, non-homicide offenders) ought to be rare. Indeed, Thomas saw rarity not as a reason for concern, but instead as a sign of the very judiciousness in sentencing that belied the need for a categorical constitutional ban.

In reply, the Court might have made an argument familiar from the death penalty context: It could have said that given how very many jurisdictions within the country allowed for the imposition of LWOP on juvenile offenders for non-homicide offenses (a point frankly arguing against any consensus that such sentences are unacceptable), the rarity of the sentence raised capriciousness concerns. Considering the number of offenders who are eligible, in theory, for the punishment, then, the per capita frequency with which it is imposed is so low and unpredictable as perhaps to be unconstitutionally arbitrary in its imposition.

In invalidating existing death penalty statutes in Furman v. Georgia, for example, the Court wrote, "Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12." Justice Stewart similarly wrote in his Furman concurrence, "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." (Footnote omitted.)

As several Justices indicated in Graham, there was nothing categorically worse about the particular non-homicide juvenile offenders who received a LWOP sentence than there was about other offenders who received more lenient sentences. Graham, for example, was involved in a crime that was not especially cruel or heinous, and — though the crime did involve violence — he was not directly involved in that violence. Graham himself thus provides a good example of the arbitrariness with which this most severe juvenile sentence is imposed.

And as the Court recognized in Furman with respect to the death penalty, unbounded discretion to impose lengthy prison terms — the sort of discretion that results in unpredictably harsh sentences for those who are not the worst of the worst — provides fertile ground for racial discrimination and other invidious sentencing practices that have nothing at all to do with ensuring that the punishment fits the crime.

Is Death Really Different?

Because of its finality, the death penalty seems distinct from prison sentences. Yet it is not really all that different. Historically, executions involved tremendous torture and suffering, in the form of burning at the stake, stoning to death, drawing and quartering, and crucifixions, to name just a few grisly examples. Currently, most of the condemned in the United States receive a lethal injection. As scholars like Fordham Professor Deborah Denno have amply documented, this punishment can often involve suffering far beyond what many who contemplate "lethal injection" imagine. Yet it is still much more humane and speedy than the historical torments that came before.

Likewise, prison sentences vary greatly as well. In all cases, people experience the deprivation of liberty, a fundamental loss, to be sure. But the deprivation may be relatively brief or it may last for many years or for the entirety of a person's natural life.

And significantly, the loss of liberty, of whatever length, can be accompanied by a peaceful existence oriented toward rehabilitation and renewal, as it is in at least one prison in Norway, or it can be accompanied by routine sexual abuse, other violence, disease, stench, filth, and an adversarial and intimidating relationship with the staff, as it is in many prisons in the United States and elsewhere.

Just as imprisonment is different from death, then, there is much to distinguish different prison sentences from one another. The Supreme Court has now, laudably, recognized that LWOP can represent an excessively harsh sentence for at least one class of offenders and offenses. Its decision in Graham v. Florida thus provides hope that the harshness of prison sentences — and their relation, if any, to the seriousness of people's crimes — can once again become a fit subject of Eighth Amendment scrutiny in the U.S. Supreme Court.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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