THOMAS, J., DISSENTING
GRAHAM V. FLORIDA
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-7412
TERRANCE JAMAR GRAHAM, PETITIONER
v.
FLORIDA
on writ of certiorari to the district court of
appeal of florida, first district
[May 17, 2010]
Justice Thomas, with whom Justice
Scalia joins, and with whom Justice Alito joins as to Parts I and
III, dissenting.
The Court holds today that it is
“grossly disproportionate” and hence unconstitutional for any judge
or jury to impose a sentence of life without parole on an offender
less than 18 years old, unless he has committed a homicide.
Although the text of the Constitution is silent regarding the
permissibility of this sentencing practice, and although it would
not have offended the standards that prevailed at the founding, the
Court insists that the standards of American society have evolved
such that the Constitution now requires its prohibition.
The news of this evolution will, I think, come
as a surprise to the American people. Congress, the District of
Columbia, and 37 States allow judges and juries to consider this
sentencing practice in juvenile nonhomicide cases, and those judges
and juries have decided to use it in the very worst cases they have
encountered.
The Court does not conclude that life without
parole itself is a cruel and unusual punishment. It instead rejects
the judgments of those legislatures, judges, and juries regarding
what the Court describes as the “moral” question of whether this
sentence can ever be “proportionat[e]” when applied to the category
of offenders at issue here.
Ante, at 7 (internal quotation
marks omitted),
ante, at 1 (Stevens, J., concurring).
I am unwilling to assume that we, as members
of this Court, are any more capable of making such moral judgments
than our fellow citizens. Nothing in our training as judges
qualifies us for that task, and nothing in Article III gives us
that authority.
I respectfully dissent.
I
The Court recounts the facts of
Terrance Jamar Graham’s case in detail, so only a summary is
necessary here. At age 16 years and 6 months, Graham and two masked
accomplices committed a burglary at a small Florida restaurant,
during which one of Graham’s accomplices twice struck the
restaurant manager on the head with a steel pipe when he refused to
turn over money to the intruders. Graham was arrested and charged
as an adult. He later pleaded guilty to two offenses, including
armed burglary with assault or battery, an offense punishable by
life imprisonment under Florida law. Fla. Stat. §§810.02(2)(a),
810.02(2)(b) (2007). The trial court withheld adjudication on both
counts, however, and sentenced Graham to probation, the first 12
months of which he spent in a county detention facility.
Graham reoffended just six months
after his release. At a probation revocation hearing, a judge found
by a preponderance of the evidence that, at age 17 years and 11
months, Graham invaded a home with two accomplices and held the
homeowner at gunpoint for approximately 30 minutes while his
accomplices ransacked the residence. As a result, the judge
concluded that Graham had violated his probation and, after
additional hearings, adjudicated Graham guilty on both counts
arising from the restaurant robbery. The judge imposed the maximum
sentence allowed by Florida law on the armed burglary count, life
imprisonment without the possibility of parole.
Graham argues, and the Court holds, that this
sentence violates the Eighth Amendment’s Cruel and Unusual
Punishments Clause because a life-without-parole sentence is always
“grossly disproportionate” when imposed on a person under 18 who
commits any crime short of a homicide. Brief for Petitioner 24;
ante, at 21.
II
A
The Eighth Amendment, which
applies to the States through the Fourteenth, provides that
“[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” It is by now
well established that the Cruel and Unusual Punishments Clause was
originally understood as prohibiting torturous
“ ‘
methods of punishment,’ ”
Harmelin
v.
Michigan,
501 U. S. 957, 979
(1991) (opinion of Scalia, J.) (quoting Granucci, “Nor Cruel
and Unusual Punishments Inflicted”: The Original Meaning, 57 Cal.
L. Rev. 839, 842 (1969))—specifically methods akin to those that
had been considered cruel and unusual at the time the Bill of
Rights was adopted,
Baze v.
Rees,
553 U. S. 35, 99 (2008)
(Thomas, J., concurring in judgment). With one arguable exception,
see
Weems v.
United States,
217 U. S. 349 (1910);
Harmelin, supra, at 990–994 (opinion of
Scalia, J.) (discussing the scope and relevance of
Weems’ holding), this Court applied the Clause with that
understand- ing for nearly 170 years after the Eighth Amendment’s
ratification.
More recently, however, the Court
has held that the Clause authorizes it to proscribe not only
methods of punishment that qualify as “cruel and unusual,” but also
any punishment that the Court deems “grossly disproportionate” to
the crime committed.
Ante, at 8 (internal quotation marks
omitted). This latter interpretation is entirely the Court’s
creation. As has been described elsewhere at length, there is
virtually no indication that the Cruel and Unusual Punishments
Clause originally was understood to require proportionality in
sentencing. See
Harmelin, 501 U. S., at 975–985 (opinion
of Scalia, J.). Here, it suffices to recall just two points.
First, the Clause does not expressly refer to proportionality or
invoke any synonym for that term, even though the Framers were
familiar with the concept, as evidenced by several founding-era
state constitutions that required (albeit without defining)
proportional punishments. See
id., at 977–978. In
addition, the penal statute adopted by the First Congress
demonstrates that proportionality in sentencing was not considered
a constitutional command.[
Footnote
1] See
id., at 980–981 (noting that the statute
prescribed capital punishment for offenses ranging from
“ ‘run[ning] away with … goods or merchandise to the value of
fifty dollars,’ ” to “murder on the high seas” (quoting 1
Stat. 114)); see also Preyer, Penal Measures in the American
Colonies: An Overview, 26 Am. J. Legal Hist. 326, 348–349, 353
(1982) (explaining that crimes in the late 18th-century colonies
generally were punished either by fines, whipping, or public
“shaming,” or by death, as intermediate sentencing options such as
incarceration were not common).
The Court has nonetheless invoked
proportionality to declare that capital punishment—though not
unconstitutional
per se—is categorically too harsh a
penalty to apply to certain types of crimes and certain classes of
offenders. See
Coker v.
Georgia,
433 U. S. 584 (1977) (plurality
opinion) (rape of an adult woman);
Kennedy v.
Louisiana, 554 U. S. ___ (2008) (rape of a child);
Enmund v.
Florida,
458 U. S. 782 (1982) (felony murder in
which the defendant participated in the felony but did not kill or
intend to kill);
Thompson v.
Oklahoma,
487 U. S. 815 (1988) (plurality
opinion) (juveniles under 16);
Roper v.
Simmons,
543 U. S. 551 (2005) (juveniles under
18);
Atkins v.
Virginia,
536 U. S. 304 (2002) (mentally
retarded offenders). In adopting these categorical proportionality
rules, the Court intrudes upon areas that the Constitution reserves
to other (state and federal) organs of government. The Eighth
Amendment prohibits the government from inflicting a cruel and
unusual method of punishment upon a defendant. Other constitutional
provisions ensure the defendant’s right to fair process before any
punishment is imposed. But, as members of today’s majority note,
“[s]ociety changes,”
ante, at 1 (Stevens, J., concurring),
and the Eighth Amendment leaves the unavoidably moral question of
who “deserves” a particular nonprohibited method of punishment to
the judgment of the legislatures that authorize the penalty, the
prosecutors who seek it, and the judges and juries that impose it
under circumstances they deem appropriate.
The Court has nonetheless adopted categorical
rules that shield entire classes of offenses and offenders from the
death penalty on the theory that “evolving standards of decency”
require this result.
Ante, at 7 (internal quotation marks
omitted). The Court has offered assurances that these standards can
be reliably measured by “ ‘objective indicia’ ” of
“national consensus,” such as state and federal legislation, jury
behavior, and (surprisingly, given that we are talking about
“national” consensus) international opinion.
Ante, at 10
(quoting
Roper, supra, at 563); see also
ante, at 8–15, 29–31. Yet even assuming that is true, the
Framers did not provide for the constitutionality of a particular
type of punishment to turn on a “snapshot of American public
opinion” taken at the moment a case is decided.
Roper,
supra, at 629 (Scalia, J., dissenting). By holding
otherwise, the Court pretermits in all but one direction the
evolution of the standards it describes, thus “calling a
constitutional halt to what may well be a pendulum swing in social
attitudes,”
Thompson,
supra, at 869 (Scalia, J.,
dissenting), and “stunt[ing] legislative con- sideration” of new
questions of penal policy as they emerge,
Kennedy,
supra, at ___ (slip op., at 2) (Alito, J.,
dissenting).
But the Court is not content to rely on
snapshots of community consensus in any event.
Ante, at 16
(“Community consensus, while ‘entitled to great weight,’ is not
itself determinative” (quoting
Kennedy,
supra, at
__ (slip op., at 24)). Instead, it reserves the right to reject the
evidence of consensus it finds whenever its own “independent
judgment” points in a different direction.
Ante, at 16.
The Court thus openly claims the power not only to approve or
disapprove of democratic choices in penal policy based on evidence
of how society’s standards
have evolved, but also on the
basis of the Court’s “independent” perception of how those
standards
should evolve, which depends on what the Court
concedes is “ ‘ “necessarily . . . a moral
judgment” ’ ” regarding the propriety of a given
punishment in today’s society.
Ante, at 7 (quoting
Kennedy,
supra, at ___ (slip op., at 8)).
The categorical proportionality review the
Court employs in capital cases thus lacks a principled foundation.
The Court’s decision today is significant because it does not
merely apply this standard—it remarkably expands its reach. For the
first time in its history, the Court declares an entire class of
offenders immune from a noncapital sentence using the categorical
approach it previously reserved for death penalty cases alone.
B
Until today, the Court has based
its categorical proportionality rulings on the notion that the
Constitution gives special protection to capital defendants because
the death penalty is a uniquely severe punishment that must be
reserved for only those who are “most deserving of execution.”
Atkins,
supra, at 319; see
Roper,
supra, at 568;
Eddings v.
Oklahoma,
455 U. S. 104
(1982);
Lockett v.
Ohio,
438 U. S. 586 (1978). Of
course, the Eighth Amendment itself makes no distinction between
capital and noncapital sentencing, but the “ ‘bright
line’ ” the Court drew between the two penalties has for many
years served as the principal justification for the Court’s
willingness to reject democratic choices regarding the death
penalty. See
Rummel v.
Estelle,
445 U. S. 263, 275
(1980).
Today’s decision eviscerates that
distinction. “Death is different” no longer. The Court now claims
not only the power categorically to reserve the “most severe
punishment” for those the Court thinks are “ ‘the most
deserving of execution,’ ”
Roper, 543 U. S., at 568
(quoting
Atkins, 536 U. S., at 319),
but also to
declare that “less culpable” persons are categorically exempt from
the “
second most severe penalty.”
Ante, at 21
(emphasis added). No reliable limiting principle remains to prevent
the Court from immunizing any class of offenders from the law’s
third, fourth, fifth, or fiftieth most severe penalties as
well.
The Court’s departure from the “death is
different” distinction is especially mystifying when one considers
how long it has resisted crossing that divide. Indeed, for a time
the Court declined to apply proportionality principles to
noncapital sentences at all, emphasizing that “a sentence of death
differs in kind from any sentence of imprisonment,
no matter
how long.”
Rummel, 445 U. S., at 272 (emphasis
added). Based on that rationale, the Court found that the
excessiveness of one prison term as compared to another was
“properly within the province of legislatures, not courts,”
id., at 275–276, precisely because it involved an
“
invariably …
subjective determination, there
being no clear way to make ‘any constitutional distinction between
one term of years and a shorter or longer term of years,’ ”
Hutto v.
Davis,
454 U. S. 370, 373
(1982)
(per curiam) (quoting
Rummel,
supra, at 275; emphasis added).
Even when the Court broke from that
understanding in its 5-to-4 decision in
Solem v.
Helm,
463 U. S. 277 (1983) (striking down as
“grossly disproportionate” a life-without-parole sentence imposed
on a defendant for passing a worthless check), the Court did so
only as applied to the facts of that case; it announced no
categorical rule.
Id., at 288, 303. Moreover, the Court
soon cabined
Solem’s rationale. The controlling opinion in
the Court’s very next noncapital proportionality case emphasized
that principles of federalism require substantial deference to
legislative choices regarding the proper length of prison
sentences.
Harmelin, 501 U. S., at 999 (opinion of
Kennedy, J.) (“[M]arked divergences both in underlying theories of
sentencing and in the length of prescribed prison terms are the
inevitable, often beneficial, result of the federal structure”);
id., at 1000 (“[D]iffering attitudes and perceptions of
local conditions may yield different, yet rational, conclusions
regarding the appropriate length of prison terms for particular
crimes”). That opinion thus concluded that “
successful
challenges to the proportionality of [prison] sentences [would be]
exceedingly rare.”
Id., at 1001 (internal quotation marks
omitted).
They have been rare indeed. In the 28 years
since
Solem, the Court has considered just three such
challenges and has rejected them all, see
Ewing v.
California,
538 U. S. 11 (2003);
Lockyer v.
Andrade,
538 U. S. 63 (2003);
Harmelin,
supra, largely on the theory that
criticisms of the “wisdom, cost-efficiency, and effectiveness” of
term-of-years prison sentences are “appropriately directed at the
legislature[s],” not the courts,
Ewing,
supra, at
27, 28 (plurality opinion). The Court correctly notes that those
decisions were “closely divided,”
ante, at 8, but so was
Solem itself, and it is now fair to describe
Solem as an outlier.[
Footnote 2]
Remarkably, the Court today does more than
return to
Solem’s case-by-case proportionality standard
for noncapital sentences; it hurtles past it to impose a
categorical proportionality rule banning
life-without-parole sentences not just in this case, but in
every case involving a juvenile nonhomicide offender, no
matter what the circumstances. Neither the Eighth Amendment nor the
Court’s precedents justify this decision.
III
The Court asserts that
categorical proportionality review is necessary here merely because
Graham asks for a categorical rule, see
ante, at 10, and
because the Court thinks clear lines are a good idea, see
ante, at 24–25. I find those factors wholly insufficient
to justify the Court’s break from past practice. First, the Court
fails to acknowledge that a petitioner seeking to exempt an entire
category of offenders from a sentencing practice carries a much
heavier burden than one seeking case-specific relief under
Solem. Unlike the petitioner in
Solem, Graham
must establish not only that his own life-without-parole sentence
is “grossly disproportionate,” but also that such a sentence is
always grossly disproportionate whenever it is applied to a
juvenile nonhomicide offender, no matter how heinous his crime. Cf.
United States v.
Salerno,
481 U. S. 739 (1987).
Second, even applying the Court’s categorical “evolving standards”
test, neither objective evidence of national consensus nor the
notions of culpability on which the Court’s “independent judgment”
relies can justify the categorical rule it declares here.
A
According to the Court, proper
Eighth Amendment analysis “begins with objective indicia of
national consensus,”[
Footnote
3] and “[t]he clearest and most reliable objective evidence of
contemporary values is the legislation enacted by the country’s
legislatures,”
ante, at 10–11 (internal quotation marks
omitted). As such, the analysis should end quickly, because a
national “consensus” in favor of the Court’s result simply does not
exist. The laws of all 50 States, the Federal Government, and the
District of Columbia provide that juveniles over a certain age may
be tried in adult court if charged with certain crimes.[
Footnote 4] See
ante, at 33–35
(Appendix to opinion of the Court). Forty-five States, the Federal
Government, and the District of Columbia expose juvenile offenders
charged in adult court to the very same range of punishments faced
by adults charged with the same crimes. See
ante, at
33–34, Part I. Eight of those States do not make
life-without-parole sentences available for any nonhomicide
offender, regardless of age.[
Footnote 5] All remaining jurisdictions—the Federal
Government, the other 37 States, and the District—authorize
life-without-parole sentences for certain nonhomicide offenses, and
authorize the imposition of such sentences on persons under 18. See
ibid. Only
five States prohibit juvenile
offenders from receiving a life-without-parole sentence that could
be imposed on an adult convicted of the same crime.[
Footnote 6]
No plausible claim of a consensus
against this sentencing practice can be made in light of this
overwhelming legislative evidence. The sole fact that federal law
authorizes this practice singlehandedly refutes the claim that our
Nation finds it morally repugnant. The additional reality that 37
out of 50 States (a supermajority of 74%) permit the practice makes
the claim utterly implausible. Not only is there no consensus
against this penalty, there is a clear legislative consensus
in
favor of its availability.
Undaunted, however, the Court brushes this
evidence aside as “incomplete and unavailing,” declaring that
“ ‘[t]here are measures of consensus other than
legislation.’ ”
Ante, at 11 (quoting
Kennedy, 554 U. S., at ___ (slip op., at 22)). This is
nothing short of stunning. Most importantly, federal civilian law
approves this sentencing practice.[
Footnote 7] And although the Court has never decided how
many state laws are necessary to show consensus, the Court has
never banished into constitutional exile a sentencing practice that
the laws of a majority, let alone a supermajority, of States
expressly permit.[
Footnote
8]
Moreover, the consistency and direction of
recent leg-islation—a factor the Court previously has relied upon
when crafting categorical proportionality rules, see
Atkins, 536 U. S., at 315–316;
Roper, 543 U. S.,
at 565–566—underscores the consensus
against the rule the
Court announces here. In my view, the Court cannot point to a
national consensus in favor of its rule without assuming a
consensus in favor of the two penological points it later
discusses: (1) Juveniles are always less culpable than
similarly-situated adults, and (2) juveniles who commit nonhomicide
crimes should always receive an opportunity to demonstrate
rehabilitation through parole.
Ante, at 16–17, 22–24. But
legislative trends make that assumption untenable.
First, States over the past 20 years have
consistently
increased the severity of punishments for
juvenile offenders. See 1999 DOJ National Report 89 (referring to
the 1990’s as “a time of unprecedented change as State legislatures
crack[ed] down on juvenile crime”);
ibid. (noting that,
during that period, “legislatures in 47 States and the District of
Columbia enacted laws that made their juvenile justice systems more
punitive,” principally by “ma[king] it easier to transfer juvenile
offenders from the juvenile justice system to the [adult] criminal
justice system”);
id., at 104. This, in my view, reveals
the States’ widespread agreement that juveniles can sometimes act
with the same culpability as adults and that the law should permit
judges and juries to consider adult sentences—including life
without parole—in those rare and unfortunate cases. See Feld,
Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP
Sentences, 10 J. Law & Family Studies 11, 69–70 (2007) (noting
that life-without-parole sentences for juveniles have increased
since the 1980’s); Amnesty International & Human Rights Watch,
The Rest of Their Lives: Life Without Parole for Child Offenders in
the United States 2, 31 (2005) (same).
Second, legislatures have moved away from
parole over the same period. Congress abolished parole for federal
offenders in 1984 amid criticism that it was subject to
“gamesmanship and cynicism,” Breyer, Federal Sentencing Guidelines
Revisited, 11 Fed. Sentencing Rep. 180 (1999) (discussing the
Sentencing Reform Act of 1984, 98 Stat. 1987), and several States
have followed suit, see T. Hughes, D. Wilson, & A. Beck, Dept.
of Justice, Bureau of Justice Statistics, Trends in State Parole,
1990–2000, p. 1 (2001) (noting that, by the end of 2000, 16 States
had abolished parole for all offenses, while another 4 States had
abolished it for certain ones). In light of these developments, the
argument that there is nationwide consensus that parole must be
available to offenders less than 18 years old in
every
nonhomicide case simply fails.
B
The Court nonetheless dismisses
existing legislation, pointing out that life-without-parole
sentences are rarely imposed on juvenile nonhomicide offenders—129
times in recent memory[
Footnote
9] by the Court’s calculation, spread out across 11 States and
the federal courts.
Ante, at 11–13. Based on this rarity
of use, the Court proclaims a consensus against the practice,
implying that laws allowing it either reflect the consensus of a
prior, less civilized time or are the work of legislatures
tone-deaf to moral values of their constituents that this Court
claims to have easily discerned from afar. See
ante, at
11.
This logic strains credulity. It
has been rejected before.
Gregg v.
Georgia,
428 U. S. 153,
182 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)
(“[T]he relative infrequency of jury verdicts imposing the death
sentence does not indicate rejection of capital punishment
per
se. Rather, [it] … may well reflect the humane feeling that
this most irrevocable of sanctions should be reserved for a small
number of extreme cases”). It should also be rejected here. That a
punishment is rarely imposed demonstrates nothing more than a
general consensus that it should be just that—rarely imposed. It is
not proof that the punishment is one the Nation abhors.
The Court nonetheless insists that the 26
States that authorize this penalty, but are not presently
incarcerating a juvenile nonhomicide offender on a
life-without-parole sentence, cannot be counted as approving its
use. The mere fact that the laws of a jurisdiction permit this
penalty, the Court explains, “does not indicate that the penalty
has been endorsed through deliberate, express, and full legislative
consideration.”
Ante, at 16.
As an initial matter, even accepting the
Court’s theory,
federal law authorizes this penalty and
the Federal Government uses it. See
ante, at 13 (citing
Letter and Attachment from Judith Simon Garrett, U. S. Dept. of
Justice, Federal Bureau of Prisons, to Supreme Court Library (Apr.
12, 2010) (available in Clerk of Court’s case file)). That should
be all the evidence necessary to refute the claim of a national
consensus against this penalty.
Yet even when examining the States that
authorize, but have not recently employed, this sentencing
practice, the Court’s theory is unsound. Under the Court’s evolving
standards test, “[i]t is not the burden of [a State] to establish a
national consensus
approving what their citizens have
voted to do; rather, it is the ‘heavy burden’ of petitioners to
establish a national consensus
against it.”
Stanford v.
Kentucky,
492 U. S. 361, 373 (1989) (quoting
Gregg,
supra, at 175 (joint opinion of Stewart,
Powell, and Stevens, JJ.); some emphasis added). In light of this
fact, the Court is wrong to equate a jurisdiction’s disuse of a
legislatively authorized penalty with its moral opposition to it.
The fact that the laws of a jurisdiction permit this sentencing
practice demonstrates, at a minimum, that the citizens of that
jurisdiction find tolerable the possibility that a jury of their
peers could impose a life-without-parole sentence on a juvenile
whose nonhomicide crime is sufficiently depraved.
The recent case of 16-year-old Keighton Budder
illustrates this point. Just weeks before the release of this
opinion, an Oklahoma jury sentenced Budder to life without parole
after hearing evidence that he viciously attacked a 17-year-old
girl who gave him a ride home from a party. See Stogsdill, Teen
Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. 2, 2010,
p. A10; Stogsdill, Delaware County Teen Sentenced in Rape, Assault
Case, Tulsa World, May 4, 2010, p. A12. Budder allegedly put the
girl’s head “ ‘into a headlock and sliced her throat,’ ”
raped her, stabbed her about 20 times, beat her, and pounded her
face into the rocks alongside a dirt road. Teen Gets Life Terms in
Stabbing, Rape Case, at A10. Miraculously, the victim survived.
Ibid.
Budder’s crime was rare in its
brutality. The sentence the jury imposed was also rare. According
to the study relied upon by this Court, Oklahoma had no such
offender in its prison system before Budder’s offense. P. Annino,
D. Rasmussen, & C. Rice, Juvenile Life Without Parole for
Non-Homicide Offenses: Florida Compared to Nation 2, 14 (Sept. 14,
2009) (Table A). Without his conviction, therefore, the Court would
have counted Oklahoma’s citizens as morally opposed to
life-without-parole sentences for juveniles nonhomicide
offenders.
Yet Oklahoma’s experience proves the
inescapable flaw in that reasoning: Oklahoma citizens have enacted
laws that allow Oklahoma juries to consider life-without-parole
sentences in juvenile nonhomicide cases. Oklahoma juries invoke
those laws rarely—in the unusual cases that they find exceptionally
depraved. I cannot agree with the Court that Oklahoma citizens
should be constitutionally disabled from using this sentencing
practice merely because they have not done so more frequently. If
anything, the rarity of this penalty’s use underscores just how
judicious sentencing judges and juries across the country have been
in invoking it.
This fact is entirely consistent with the
Court’s intuition that juveniles
generally are less
culpable and more capable of growth than adults. See
infra, at 21–22. Graham’s own case provides another
example. Graham was statutorily eligible for a life-without-parole
sentence after his first crime. But the record indicates that the
trial court did not give such a sentence serious consideration at
Graham’s initial plea hearing. It was only after Graham
subsequently violated his parole by invading a home at gunpoint
that the maximum sentence was imposed.
In sum, the Court’s calculation that 129
juvenile nonhomicide life-without-parole sentences have been
imposed nationwide in recent memory, even if accepted, hardly
amounts to strong evidence that the sentencing practice offends our
common sense of decency.[
Footnote 10]
Finally, I cannot help but note that the
statistics the Court finds inadequate to justify the penalty in
this case are stronger than those supporting at least one other
penalty this Court has upheld. Not long ago, this Court, joined by
the author of today’s opinion, upheld the application of the death
penalty against a 16-year-old, despite the fact that no such
punishment had been carried out on a person of that age in this
country in nearly 30 years. See
Stanford, 492 U. S., at
374. Whatever the statistical frequency with which
life-without-parole sentences have been imposed on juvenile
nonhomicide offenders in the last 30 years, it is surely greater
than zero.
In the end, however, objective factors such as
legislation and the frequency of a penalty’s use are merely
ornaments in the Court’s analysis, window dressing that accompanies
its judicial fiat.[
Footnote
11] By the Court’s own decree, “[c]ommunity consensus … is not
itself determinative.”
Ante, at 16. Only the independent
moral judgment of this Court is sufficient to decide the question.
See
ibid.
C
Lacking any plausible claim
to consensus, the Court shifts to the heart of its argument: its
“independent judgment” that this sentencing practice does not
“serv[e] legitimate penological goals.” Ante, at 16. The Court
begins that analysis with the obligatory preamble that
“ ‘[t]he Eighth Amendment does not mandate adoption of any one
penological theory,’ ”
ante, at 20 (quoting
Harmelin, 501 U. S., at 999 (opinion of Kennedy, J.)),
then promptly mandates the adoption of the theories the Court deems
best.
First, the Court acknowledges
that, at a minimum, the imposition of life-without-parole sentences
on juvenile nonhomicide offenders serves two “legitimate”
penological goals: incapacitation and deterrence.
Ante, at
20–21. By definition, such sentences serve the goal of
incapacitation by ensuring that juvenile offenders who commit armed
burglaries, or those who commit the types of grievous sex crimes
described by The Chief Justice, no longer threaten their
communities. See
ante, at 9 (opinion concurring in
judgment). That should settle the matter, since the Court
acknowledges that incapacitation is an “important” penological
goal.
Ante, at 21. Yet, the Court finds this goal
“inadequate” to justify the life-without-parole sentences
here.
Ante, at 22 (emphasis added). A similar fate befalls
deterrence. The Court acknowledges that such sentences will deter
future juvenile offenders, at least to some degree, but rejects
that penological goal, not as illegitimate, but as insufficient.
Ante, at 21 (“[A]ny limited deterrent effect provided by
life without parole is
not enough to justify the
sentence.” (emphasis added)).
The Court looks more favorably on
rehabilitation, but laments that life-without-parole sentences do
little to promote this goal because they result in the offender’s
permanent incarceration.
Ante, at 22. Of course, the Court
recognizes that rehabilitation’s “utility and proper
implementation” are subject to debate.
Ante, at 23. But
that does not stop it from declaring that a legislature may not
“forswea[r] … the rehabilitative ideal.”
Ibid. In other
words, the Eighth Amendment does not mandate “any one penological
theory,”
ante, at 20 (internal quotation marks omitted),
just one the Court approves.
Ultimately, however, the Court’s “independent
judgment” and the proportionality rule itself center on
retribution—the notion that a criminal sentence should be
proportioned to “ ‘the personal culpability of the criminal
offender.’ ”
Ante, at 16, 20 (quoting
Tison
v.
Arizona,
481 U. S. 137, 149
(1987)). The Court finds that retributive purposes are not served
here for two reasons.
1
First, quoting
Roper,
543 U. S., at 569–570, the Court concludes that juveniles are less
culpable than adults because, as compared to adults, they “have a
‘ “lack of maturity and an underdeveloped sense of
responsibility,” ’ ” and “their characters are ‘not as
well formed.’ ”
Ante, at 17. As a general matter,
this statement is entirely consistent with the evidence recounted
above that judges and juries impose the sentence at issue quite
infrequently, despite legislative authorization to do so in many
more cases. See Part III–B,
supra. Our society tends to
treat the average juvenile as less culpable than the average adult.
But the question here does not involve the average juvenile. The
question, instead, is whether the Constitution prohibits judges and
juries from
ever concluding that an offender under the age
of 18 has demonstrated sufficient depravity and incorrigibility to
warrant his permanent incarceration.
In holding that the Constitution
imposes such a ban, the Court cites “developments in psychology and
brain science” indicating that juvenile minds “continue to mature
through late adolescence,”
ante, at 17 (citing Brief for
American Medical Association et al. as
Amici Curiae
16–24; Brief for American Psychological Association et al. as
Amici Curiae 22–27 (hereinafter APA Brief)), and
that juveniles are “more likely [than adults] to engage in risky
behaviors,”
id., at 7. But even if such generalizations
from social science were relevant to constitutional rulemaking, the
Court misstates the data on which it relies.
The Court equates the propensity of a fairly
substantial number of youths to engage in “risky” or antisocial
behaviors with the propensity of a much smaller group to commit
violent crimes.
Ante, at 26. But research relied upon by
the
amici cited in the Court’s opinion differentiates
between adolescents for whom antisocial behavior is a fleeting
symptom and those for whom it is a lifelong pattern. See Moffitt,
Adolescence-Limited and Life-Course-Persistent Antisocial Behavior:
A Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993)
(cited in APA Brief 8, 17, 20) (distinguishing between adolescents
who are “antisocial only during adolescence” and a smaller group
who engage in antisocial behavior “at every life stage” despite
“drift[ing] through successive systems aimed at curbing their
deviance”). That research further suggests that the pattern of
behavior in the latter group often sets in before 18. See
Moffitt
, supra, at 684 (“The well-documented resistance of
antisocial personality disorder to treatments of all kinds seems to
suggest that the life-course-persistent style is fixed sometime
before age 18”). And, notably, it suggests that violence itself is
evidence that an adolescent offender’s antisocial behavior is
not transient. See Moffitt, A Review of Research on the
Taxonomy of Life-Course Persistent Versus Adolescence-Limited
Antisocial Behavior, in Taking Stock: the Status of Criminological
Theory 277, 292–293 (F. Cullen, J. Wright, & K. Blevins eds.
2006) (observing that “life-course persistent” males “tended to
specialize in serious offenses (carrying a hidden weapon, assault,
robbery, violating court orders), whereas adolescence-limited” ones
“specialized in non-serious offenses (theft less than $5, public
drunkenness, giving false information on application forms,
pirating computer software, etc.)”).
In sum, even if it were relevant, none of this
psychological or sociological data is sufficient to support the
Court’s “ ‘moral’ ” conclusion that youth defeats
culpability in
every case.
Ante, at 17 (quoting
Roper, 543 U. S., at 570); see
id., at 618
(Scalia, J., dissenting); R. Epstein, The Case Against Adolescence
171 (2007) (reporting on a study of juvenile reasoning skills and
concluding that “most teens are capable of conventional, adult-like
moral reasoning”).
The Court responds that a categorical rule is
nonetheless necessary to prevent the “ ‘unacceptable
likelihood’ ” that a judge or jury, unduly swayed by
“ ‘the brutality or cold-blooded nature’ ” of a
juvenile’s nonhomicide crime, will sentence him to a
life-without-parole sentence for which he possesses
“ ‘insufficient culpability,’ ”
ante, at 27
(quoting
Roper,
supra, at 572–573). I find that
justification entirely insufficient. The integrity of our criminal
justice system depends on the ability of citizens to stand between
the defendant and an outraged public and dispassionately determine
his guilt and the proper amount of punishment based on the evidence
presented. That process necessarily admits of human error. But so
does the process of judging in which we engage. As between the two,
I find far more “unacceptable” that this Court, swayed by studies
reflecting the general tendencies of youth, decree that the people
of this country are not fit to decide for themselves when the rare
case requires different treatment.
2
That is especially so because, in
the end, the Court does not even believe its pronouncements about
the juvenile mind. If it did, the categorical rule it announces
today would be most peculiar because it leaves intact state and
federal laws that permit life-without-parole sentences for
juveniles who commit homicides. See
ante, at 23. The Court
thus acknowledges that there is nothing inherent in the psyche of a
person less than 18 that prevents him from acquiring the moral
agency necessary to warrant a life-without-parole sentence.
Instead, the Court rejects overwhelming legislative consensus only
on the question of which
acts are sufficient to
demonstrate that moral agency.
The Court is quite willing to
accept that a 17-year-old who pulls the trigger on a firearm can
demonstrate sufficient depravity and irredeemability to be denied
reentry into society, but insists that a 17-year-old who rapes an
8-year-old and leaves her for dead does not. See
ante, at
17–19; cf.
ante, at 9 (Roberts, C. J., concurring in
judgment) (describing the crime of life-without-parole offender
Milagro Cunningham). Thus, the Court’s conclusion that
life-without-parole sentences are “grossly disproportionate” for
juvenile nonhomicide offenders in fact has very little to do with
its view of juveniles, and much more to do with its perception that
“defendants who do not kill, intend to kill, or foresee that life
will be taken are categorically less deserving of the most serious
forms of punishment than are murderers.”
Ante, at 18.
That the Court is willing to impose such an
exacting constraint on democratic sentencing choices based on such
an untestable philosophical conclusion is remarkable. The question
of what acts are “deserving” of what punishments is bound so
tightly with questions of morality and social conditions as to make
it, almost by definition, a question for legislative resolution. It
is true that the Court previously has relied on the notion of
proportionality in holding certain classes of offenses
categorically exempt from capital punishment. See
supra,
at 4. But never before today has the Court relied on its own view
of just deserts to impose a categorical limit on the imposition of
a lesser punishment. Its willingness to cross that well-established
boundary raises the question whether any democratic choice
regarding appropriate punishment is safe from the Court’s
ever-expanding constitutional veto.
IV
Although the concurrence avoids
the problems associated with expanding categorical proportionality
review to noncapital cases, it employs noncapital proportionality
analysis in a way that raises the same fundamental concern.
Although I do not believe
Solem merits
stare
decisis treatment, Graham’s claim cannot prevail even under
that test (as it has been limited by the Court’s subsequent
precedents).
Solem instructs a court first to compare the
“gravity” of an offender’s conduct to the “harshness of the
penalty” to determine whether an “inference” of gross
disproportionality exists. 463 U. S., at 290–291. Only in “the rare
case” in which such an inference is present should the court
proceed to the “objective” part of the inquiry—an intra- and
interjurisdictional compari- son of the defendant’s sentence with
others similarly situated.
Harmelin, 501 U. S., at 1000,
1005 (opinion of Kennedy, J.).
Under the Court’s precedents, I
fail to see how an “inference” of gross disproportionality arises
here. The concurrence notes several arguably mitigating
facts—Graham’s “lack of prior criminal convictions, his youth and
immaturity, and the difficult circumstances of his upbringing.”
Ante, at 7 (Roberts, C. J., concurring in judgment).
But the Court previously has upheld a life-without-parole sentence
imposed on a first-time offender who committed a
nonviolent drug crime. See
Harmelin,
supra, at 1002–1004. Graham’s conviction for an actual
violent felony is surely more severe than that offense. As for
Graham’s age, it is true that
Roper held juveniles
categorically ineligible for capital punishment, but as the
concurrence explains,
Roper was based on the
“explicit conclusion that [juveniles] ‘cannot with
reliability be classified among the
worst
offenders’ ”; it did “not establish that juveniles can never
be eligible for life without parole.”
Ante, at 5 (Roberts,
C. J., concurring in judgment) (quoting
Roper, 543 U.
S., at 569 (emphasis added in opinion of Roberts, C. J.)). In
my view,
Roper’s principles are thus not generally
applicable outside the capital sentencing context.
By holding otherwise, the concurrence relies
on the same type of subjective judgment as the Court, only it
restrains itself to a case-by-case rather than a categorical
ruling. The concurrence is quite ready to hand Graham “the general
presumption of diminished culpability” for juveniles,
ante, at 7, apparently because it believes that Graham’s
armed burglary and home invasion crimes were “certainly less
serious” than murder or rape,
ibid. It recoils only from
the prospect that the Court would extend the same presumption to a
juvenile who commits a sex crime. See
ante, at 10. I
simply cannot accept that these subjective judgments of
proportionality are ones the Eighth Amendment authorizes us to
make.
The “objective” elements of the
Solem
test provide no additional support for the concurrence’s
conclusion. The concurrence compares Graham’s sentence to “similar”
sentences in Florida and concludes that Graham’s sentence was “far
more severe.”
Ante, at 8 (Roberts, C. J, concurring
in judgment). But strangely, the concurrence uses average sentences
for burglary or robbery offenses as examples of “similar” offenses,
even though it seems that a run-of-the-mill burglary or robbery is
not at all similar to Graham’s criminal history, which includes a
charge for armed burglary
with assault,
and a
probation violation for invading a home at gunpoint.
And even if Graham’s sentence is higher than
ones he might have received for an armed burglary with assault in
other jurisdictions, see
ante, at 8–9, this hardly seems
relevant if one takes seriously the principle that “ ‘[a]bsent
a constitutionally imposed uniformity inimical to traditional
notions of federalism, some State will
always bear the
distinction of treating particular offenders more severely than any
other State.’ ”
Harmelin,
supra, at 1000
(opinion of Kennedy, J.) (quoting
Rummel, 445 U. S., at
282; emphasis added). Applying
Solem, the Court has upheld
a 25-years-to-life sentence for theft under California’s recidivist
statute, despite the fact that the State and its
amici
could cite only “a single instance of a similar sentence imposed
outside the context of California’s three strikes law, out of a
prison population [then] approaching two million individuals.”
Ewing, 538 U. S., at 47 (Breyer, J., dissenting). It has
also upheld a life-without-parole sentence for a first-time drug
offender in Michigan charged with possessing 672 grams of cocaine
despite the fact that only one other State would have authorized
such a stiff penalty for a first-time drug offense, and even that
State required a far greater quantity of cocaine (10 kilograms) to
trigger the penalty. See
Harmelin,
supra, at 1026
(White, J., dissenting). Graham’s sentence is certainly less rare
than the sentences upheld in these cases, so his claim fails even
under
Solem.
* * *
Both the Court and the
concurrence claim their decisions to be narrow ones, but both
invite a host of line-drawing problems to which courts must seek
answers beyond the strictures of the Constitution. The Court holds
that “[a] State is not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime,” but must
provide the offender with “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.”
Ante, at 24. But what, exactly, does such a “meaningful”
opportunity entail? When must it occur? And what Eighth Amendment
principles will govern review by the parole boards the Court now
demands that States empanel? The Court provides no answers to these
questions, which will no doubt embroil the courts for
years.[
Footnote 12]
V
The ultimate question in this
case is not whether a life-without-parole sentence ‘fits’ the crime
at issue here or the crimes of juvenile nonhomicide offenders more
generally, but to whom the Constitution assigns that decision. The
Florida Legislature has concluded that such sentences should be
available for persons under 18 who commit certain crimes, and the
trial judge in this case decided to impose that legislatively
authorized sentence here. Because a life-without-parole prison
sentence is not a “cruel and unusual” method of punishment under
any standard, the Eighth Amendment gives this Court no authority to
reject those judgments.
It would be unjustifiable for the
Court to declare otherwise even if it could claim that a bare
majority of state laws supported its independent moral view. The
fact that the Court categorically prohibits life-without-parole
sentences for juvenile nonhomicide offenders in the face of an
overwhelming legislative majority
in favor of leaving that
sentencing option available under certain cases simply il-lustrates
how far beyond any cognizable constitutional principle the Court
has reached to ensure that its own sense of morality and
retributive justice pre-empts that of the people and their
representatives.
I agree with Justice Stevens that “[w]e learn,
sometimes, from our mistakes.”
Ante, at 1 (concurring
opinion). Perhaps one day the Court will learn from this one.
I respectfully dissent.
Footnote 1
The Chief Justice’s concurrence suggests that
it is unnecessary to remark on the underlying question whether the
Eighth Amendment requires proportionality in sentencing because
“[n]either party here asks us to reexamine our precedents”
requiring “proportionality between noncapital offenses and their
corresponding punishments.”
Ante, at 2 (opinion concurring
in judgment). I disagree. Both the Court and the concurrence do
more than apply existing noncapital proportionality precedents to
the particulars of Graham’s claim. The Court radically departs from
the framework those precedents establish by applying to a
noncapital sentence the categorical proportionality review its
prior decisions have reserved for death penalty cases alone. See
Part III,
infra. The concurrence, meanwhile, breathes new
life into the case-by-case proportionality approach that previously
governed noncapital cases, from which the Court has steadily, and
wisely, retreated since
Solem v.
Helm,
463 U. S. 277 (1983). See Part IV,
infra. In dissenting from both choices to expand
proportionality review, I find it essential to reexamine the
foundations on which that doctrine is built.
Footnote 2
Courts and commentators interpreting this
Court’s decisions have reached this conclusion. See,
e.g.,
United States v.
Polk, 546 F. 3d 74, 76 (CA1
2008) (“[I]nstances of gross disproportionality [in noncapital
cases] will be hen’s-teeth rare”); Barkow, The Court of Life and
Death: The Two Tracks of Constitutional Sentencing Law and the Case
for Uniformity, 107 Mich. L. Rev. 1145, 1160 (2009)
(“
Solem now stands as an outlier”); Note, The Capital
Punishment Exception: A Case for Constitutionalizing the
Substantive Criminal Law, 104 Colum. L. Rev. 426, 445 (2004)
(observing that outside of the capital context, “proportionality
review has been virtually dormant”); Steiker & Steiker, Opening
a Window or Building a Wall? The Effect of Eighth Amendment Death
Penalty Law and Advocacy on Criminal Justice More Broadly, 11 U.
Pa. J. Const. L. 155, 184 (2009) (“Eighth Amendment challenges to
excessive incarceration [are] essentially non-starters”).
Footnote 3
The Court ignores entirely the threshold
inquiry of whether subjecting juvenile offenders to adult penalties
was one of the “modes or acts of punishment that had been
considered cruel and unusual at the time that the Bill of Rights
was adopted.”
Ford v.
Wainwright,
477 U. S. 399, 405
(1986). As the Court has noted in the past, however, the evidence
is clear that, at the time of the Founding, “the common law set a
rebuttable presumption of incapacity to commit any felony at the
age of 14, and theoretically permitted [even] capital punishment to
be imposed on a person as young as age 7.”
Stanford v.
Kentucky,
492 U. S. 361, 368 (1989) (citing 4 W.
Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown
24–29 (1800)). It thus seems exceedingly unlikely that the
imposition of a life-without-parole sentence on a person of
Graham’s age would run afoul of those standards.
Footnote 4
Although the details of state laws vary
extensively, they generally permit the transfer of a juvenile
offender to adult court through one or more of the following
mechanisms: (1) judicial waiver, in which the juvenile court has
the authority to waive jurisdiction over the offender and transfer
the case to adult court; (2) concurrent jurisdiction, in which
adult and juvenile courts share jurisdiction over certain cases and
the prosecutor has discretion to file in either court; or (3)
statutory provisions that exclude juveniles who commit certain
crimes from juvenile-court jurisdiction. See Dept. of Justice,
Juvenile Offenders and Victims: 1999 National Report 89, 104 (1999)
(hereinafter 1999 DOJ National Report); Feld, Unmitigated
Punishment: Adolescent Criminal Responsibility and LWOP Sentences,
10 J. Law & Family Studies 11, 38–39 (2007).
Footnote 5
Alaska entitles all offenders to parole,
regardless of their crime. Alaska Stat. §12.55.015(g) (2008). The
other seven States provide parole eligibility to all offenders,
except those who commit certain homicide crimes. Conn. Gen. Stat.
§53a–35a (2009); Haw. Rev. Stat. §§706–656(1)–(2) (1993 and 2008
Supp. Pamphlet); Me. Rev. Stat. Ann., Tit. 17–a, §1251 (2006);
Mass. Gen. Laws Ann., ch. 265, §2 (West 2008); N. J. Stat.
Ann. §§2C:11–3(b)(2)–(3) (West 2005); N. M. Stat. Ann.
§31–18–14 (Supp. 2009); Vt. Stat. Ann., Tit. 13, §2303 (2009).
Footnote 6
Colo. Rev. Stat. Ann. §18–1.3–401(4)(b)
(2009) (authorizing mandatory life sentence with possibility for
parole after 40 years for juveniles convicted of class 1 felonies);
Kan. Stat. Ann. §§21–4622, 4643 (2007); Ky. Rev. Stat. Ann.
§640.040 (West 2006);
Shepherd v.
Commonwealth,
251 S. W. 3d 309, 320–321 (Ky. 2008); Mont. Code Ann.
§46–18–222(1) (2009); Tex. Penal Code Ann. §12.31 (West Supp.
2009).
Footnote 7
Although the Court previously has dismissed
the relevance of the Uniform Code of Military Justice to its
discernment of consensus, see
Kennedy v.
Louisiana, 554 U. S. ___, ___ (2008) (statement of
Kennedy, J., respecting denial of rehearing), juveniles who enlist
in the military are nonetheless eligible for life-without-parole
sentences if they commit certain nonhomicide crimes. See 10 U. S.
C. §§505(a) (permitting enlistment at age 17), 856a, 920 (2006 ed.,
Supp. II).
Footnote 8
Kennedy, 554 U. S., at ___ (slip
op., at 12, 23) (prohibiting capital punishment for the rape of a
child where only six States had enacted statutes authorizing the
punishment since
Furman v.
Georgia,
408 U. S. 238 (1972)
(per curiam));
Roper v.
Simmons,
543 U. S. 551, 564, 568 (2005)
(prohibiting capital punishment for offenders younger than 18 where
18 of 38 death-penalty States precluded imposition of the penalty
on persons under 18 and the remaining 12 States did not permit
capital punishment at all);
Atkins v.
Virginia,
536 U. S. 304, 314–315 (2002)
(prohibiting capital punishment of mentally retarded persons where
18 of 38 death-penalty States precluded imposition of the penalty
on such persons and the remaining States did not authorize capital
punishment at all);
Thompson v.
Oklahoma,
487 U. S. 815, 826, 829 (1988)
(plurality opinion) (prohibiting capital punishment of offenders
under 16 where 18 of 36 death-penalty States precluded imposition
of the penalty on such persons and the remaining States did not
permit capital punishment at all);
Enmund v.
Florida, 458 U. S. 782, 789 (1982) (prohibiting
capital punishment for felony murder without proof of intent to
kill where eight States allowed the punishment without proof of
that element);
Coker v.
Georgia,
433 U. S. 584, 593 (1977) (holding
capital punishment for the rape of a woman unconstitutional where
“[a]t no time in the last 50 years have a majority of the States
authorized death as a punishment for rape”).
Footnote 9
I say “recent memory” because the research
relied upon by the Court provides a headcount of juvenile
nonhomicide offenders presently incarcerated in this country, but
does not provide more specific information about all of the
offenders, such as the dates on which they were convicted.
Footnote 10
Because existing legislation plainly suffices
to refute any consensus against this sentencing practice, I assume
the accuracy of the Court’s evidence regarding the frequency with
which this sentence has been imposed. But I would be remiss if I
did not mention two points about the Court’s figures. First, it
seems odd that the Court counts only those juveniles sentenced to
life without parole and excludes from its analysis all juveniles
sentenced to lengthy term-of-years sentences (
e.g., 70 or
80 years’ imprisonment). It is difficult to argue that a judge or
jury imposing such a long sentence—which effectively denies the
offender any material opportunity for parole—would express moral
outrage at a life-without-parole sentence.
Second, if objective indicia of consensus were
truly important to the Court’s analysis, the statistical
information presently available would be woefully inadequate to
form the basis of an Eighth Amendment rule that can be revoked only
by constitutional amendment. The only evidence submitted to this
Court regarding the frequency of this sentence’s imposition was a
single study completed after this Court granted certiorari in this
case. See P. Annino, D. Rasmussen, & C. Rice, Juvenile Life
Without Parole for Non-Homicide Offenses: Florida Compared to
Nation 2 (Sept. 14, 2009). Although I have no reason to question
the professionalism with which this study was conducted, the study
itself acknowledges that it was incomplete and the first of its
kind. See
id., at 1. The Court’s questionable decision to
“complete” the study on its own does not materially increase its
reliability. For one thing, by finishing the study itself, the
Court prohibits the parties from ever disputing its findings.
Complicating matters further, the original study sometimes relied
on third-party data rather than data from the States themselves,
see
ibid.; the study has never been peer reviewed; and
specific data on all 129 offenders (age, date of conviction, crime
of conviction, etc.), have not been collected, making verification
of the Court’s headcount impossible. The Court inexplicably blames
Florida for all of this. See
ante, at 12. But as already
noted, it is not Florida’s burden to collect data to prove a
national consensus in favor of this sentencing practice, but
Graham’s “heavy burden” to prove a consensus
against it.
See
supra, at 16.
Footnote 11
I confine to a footnote the Court’s
discussion of foreign laws and sentencing practices because past
opinions explain at length why such factors are irrelevant to the
meaning of our Constitution or the Court’s discernment of any
longstanding tradition in
this Nation. See
Atkins, 536 U. S., at 324–325 (Rehnquist, C. J.,
dissenting). Here, two points suffice. First, despite the Court’s
attempt to count the actual number of juvenile nonhomicide
offenders serving life-without-parole sentences in other nations (a
task even more challenging than counting them within our borders),
the
laws of other countries permit juvenile
life-without-parole sentences, see Child Rights Information,
Network, C. de la Vega, M. Montesano, & A. Solter, Human Rights
Advocates, Statement on Juvenile Sentencing to Human Rights
Council, 10th Sess. (Nov. 3, 2009) (“Eleven countries have laws
with the potential to permit the sentencing of child offenders to
life without the possibility of release”), online at
http://www.crin.org/resources/infoDetail.asp?ID=19806) (as visited
May 14, 2010, and available in Clerk of Court’s case file)).
Second, present legislation notwithstanding, democracies around the
world remain free to adopt life-without-parole sentences for
juvenile offenders tomorrow if they see fit. Starting today, ours
can count itself among the few in which judicial decree prevents
voters from making that choice.
Footnote 12
It bears noting that Colorado, one of the
five States that prohibit life-without-parole sentences for
juvenile nonhomicide offenders, permits such offenders to be
sentenced to mandatory terms of imprisonment for up to 40 years.
Colo. Rev. Stat. §18–1.3–401(4)(b) (2009). In light of the volume
of state and federal legislation that presently
permits
life-without-parole sentences for juvenile nonhomicide offenders,
it would be impossible to argue that there is any objective
evidence of agreement that a juvenile is constitutionally entitled
to a parole hearing any sooner than 40 years after conviction. See
Tr. of Oral Arg. 6–7 (counsel for Graham, stating that, “[o]ur
position is that it should be left up to the States to decide. We
think that the … Colorado provision would probably be
constitutional”).
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