The Supreme Court today decided that the Cruel and Unusual Clause of the federal Constitution "does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime." Events might lead this to happen in practice, but "some meaningful opportunity" must be left open at sentencing. Dahlia Lithwick discussed the orals here. For another analysis of the opinion (of which I basically concur; I'm not overly enthused about the "counting noses" approach but it probably has some relevancy particularly as to "unusual") see here.
Five justices, lead by Kennedy, set forth an across the board rule. Danger of mistake, a decreased ability of minors being able to help in their cases and the need to give all a chance of rehabilitation and/or release warrants such an absolute rule. International practice was cited as informative but not determinative -- we interpret our own law, but current analysis of it in this area is aided in some fashion by seeing how others address similar problems.
Chief Justice Roberts agreed that it was unconstitutional as applied to Graham (Sullivan's case was tossed out as improvidently granted) given the totality of the circumstances. But, citing some possibilities by name (a bit curious, that), there very well might be other cases where the heinous nature of the offense or clear culpability of the offender warrants such a punishment.
Thomas dissented, joined in full by Scalia, Alito not joining in a section discussion original understanding and some analysis of precedent. Roberts respected such analysis but noted that it is not at issue here, since the litigants relied on precedent. This underlines that the conservative bloc is not always on the same page.
Stevens (with Ginsburg and Sotomayor) wrote a short statement rejecting Thomas' opinion, particularly underlining the evolving standards of decency rule and the importance of the courts' role in applying it (Thomas et. al. would mostly leave it to democratic processes, but also rejected the analysis of the majority on what they as a whole did decide).* Sotomayor apparently is not only to be honored for empathy, but also for acting emphatically. [See also, the same two, but not Breyer, joining Stevens' dissent in a cross display case.]
[Update: Reading the opinions via the .pdf file provided by Scotusblog, I missed Alito's brief dissent, which the link provided here makes more apparent.
Alito first notes that since only a sentence of LWOP is disallowed, even one of forty years could very well be acceptable. This does show a line drawing problem, but only up to a point -- it is still significantly different if these defendants had a chance of getting out of prison in their fifties as compared to never. Cf. "The Man Without A Country," sentenced in the Jeffersonian Administration, dying while still be punished in the Lincoln Administration.
He also argues that "the question whether petitioner’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sentences is not properly before us in this case," but Roberts disagreed, arguing the broader argument made allows a lesser one as well.]
It is hoped that Sullivan will eventually get relief pursuant to some other action. [See here for some discussion of that case's complications.] The matter of life without parole for minor murderers is left open. The blog just cited suggests the theory of this ruling very well might apply to "lesser homicides" too. Probably so. Anyway, I will end it there.
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* Thomas' footnote three calls the majority to account for not addressing the "threshold" question regarding the original understanding as applied to this practice. He cites an opinion on the point but selectively -- the opinion notes this is "at minimum" what the Eighth Amendment commands and then follows up with the "evolving standards of decency" rule.
Stevens is troubled by Thomas' implications that original meaning jurisprudence would require allowing seven year olds to be detained for life.
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.
But, Thomas' bare citation is only of limited value since it addresses a "common law" (which itself is open to development) rule regarding detention and perhaps execution of minors. Since extended detainment -- particularly given the embryonic nature of the prison system in 1791 -- is quite different, I'm not sure how far that takes you anyways.