“Cruel and Unusual” to Sentence Juveniles to Life without Parole


The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)


This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional scrutiny for capital-punishment cases, limiting when and how and to whom the death penalty can be applied. The Court has created a number of specific rules that can be applied in general, to every capital case.

But it hasn’t really done that with other severe punishments of lengthy or lifetime incarceration. All it’s said is that sentences shouldn’t be “grossly disproportionate” to the crime, without setting any general standards of what counts. Without any rules to follow, courts had to make this determination on a case-by-case basis.

This new rule is the first one of general applicability in a non-capital case. It is significant in and of itself, and also as a precedent for future similar rulings.


Terrance Graham was in his mid-teens when he and a group of friends went to rob a barbecue restaurant in Jacksonville. One of the kids hit the manager with a steel bar, and Graham ran away. Arrested and charged as an adult, he got 9 months in jail with 3 years of probation.

After he got out, Graham was arrested again for home-invasion robbery, and violating probation. Now 17, he pled guilty. The sentencing judge lectured him on his incorrigibility, said there’s nothing more that can be done to rehabilitate the boy, and sentenced him to life in prison without parole. “We can’t help you any further,” the judge said. He’d had a good family and community support, but he’d thrown away his second chance, so now “I have to start focusing on the community and trying to protect the community from your actions.”


Kennedy reminded us that the definition of “cruel and unusual” evolves as society matures. He pointed out the dichotomy between death penalty and other cases, and explored the meaning and history of proportionality jurisprudence.

So then he looked to see whether there was a national consensus here, as expressed by the people’s elected state legislatures. Six states forbid life without parole for juveniles. Thirty-seven more states as well as D.C. impose restrictions on it. Furthermore, out of all the juveniles nationwide doing non-homicide time, only 129 are doing life without parole, 77 of whom are in Florida. The others are in a handful of other states. So it’s rarely permitted in the first place, and rarely done in the second place. That sure sounded like a consensus to the majority, no matter what Florida might have argued to the contrary.

That consensus isn’t the be-all and end-all, however, of whether a punishment is cruel and unusual. It’s not up to the community, but up to the judiciary.

Kennedy next looked at the policy consideration of whether life imprisonment here serves any legitimate penological goals. This is where the whole “juveniles are less culpable than grownups” argument comes into play — a policy that a lot of people thought would be the biggest part of this case. Was the Court going to mess with our system of treating kids more leniently? Was there any reason to change the presumption that,

because juveniles have lessened culpability, they are less deserving of the most severe punishments.

As compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.”

These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.”

A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

Kennedy readily found that there was no reason to reconsider these presumptions. So juvenile advocates can breathe a sigh of relief — Roper isn’t going to be overruled any time soon.

He then explained once again that murder really is different. Even the worst of the worst crimes that do not involve killing are not in the same category of bad as murder. Someone who doesn’t intend to kill just doesn’t have the same culpability.

So a juvenile already has diminished culpability. And if he didn’t try to kill, then he has “twice diminished moral culpability.”

Life without parole, Kennedy said, is the most severe punishment we have, short of death. And it’s not much less severe, as the lifer’s freedom is taken away forever. There is no hope. No chance of redemption, rehabilitation, reward for good behavior. It’s irrevocable.

That’s harsh enough for an adult, but it’s doubly harsh for a kid who’s got more decades of life ahead of him. It’s twice the punishment, if you think about it.


Kennedy then goes into a nice discussion of the purposes of punishment. There are plenty of purposes out there, including retaliation and vengeance and removal from the community. But the four that he recognizes as being legitimate in this day and age are Retribution, Deterrence, Incapacitation, and Rehabilitation.

Rehabilitation is off the table, of course, because there’s no hope of redemption in life without parole.

Retribution is an expression of the community’s moral outrage, or an attempt to balance the wrong that was done. In the case of a minor, that moral outrage is less, and the wrong doesn’t need as much punishment to balance things out. And it’s even less when the crime doesn’t involve homicide. So this isn’t served by life without parole, either.

You’d think that Deterrence would still be on the table, but no. The same characteristics that make kids less culpable make them less susceptible to deterrence. They don’t have the maturity to consider consequences as adults do.

Well, at least Incapacitation is served here. Not much could be more incapacitating than locking ‘em up and throwing away the key. But again Kennedy says no. You can’t say a kid is never going to change, that he’s going to be a repeat offender if you let him out. Kids are too malleable. “Incorrigibility is inconsistent with youth.”

[We’ve defended juveniles and adults for some time now, and with all due respect to Justice Kennedy, we’d have to disagree with him here. Sure, he’s right for the most part, but there really are kids who are truly incorrible. There really are some teens who never got socialized, and now it’s too late. They do not see you as a human being, and never will. They’ll hurt you or kill you, and never give you another thought as long as they live. They’re rare, but it’s foolish to pretend that incorrigibility is inconsistent with youth. It’s merely less likely. (/rant)]


So the Court decided to impose a categorical rule here, that life in prison without parole is unconstitutional for juveniles who didn’t kill someone.

Kennedy admits that “categorical rules tend to be imperfect,” but nevertheless concludes that “one is necessary here.” Can’t leave it up to the states, because we already did that and look at the dog’s breakfast Florida came up with. Can’t let the courts decide this case-by-case, because brutal cases will override the sentencing court’s ability to mitigate for youth, and juveniles are notorious for not being mistrustful of adults and not being able to work effectively with counsel, so there’s a high risk of the court getting it wrong.

And finally, this rule would give every juvenile offender the second chance that juvenile justice is designed for in the first place. Life without parole offers no second chances, defeating the whole point of treating kids differently in court.


Well hell, son, that’s all you had to say.

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5 Responses

  1. Comment from a Facebook friend says:

    Some people don’t deserve a second chance, no matter how young they are. In addition, I don’t believe that our correctional system is designed to “reform” criminals. It punishes them only. Unless you can figure out how to improve the odds of reform, lock them up.

  2. Nathan says:

    For about 83% of all people, young or old, who have any contact with the criminal justice system, their first contact is their last contact. They will never reoffend, and go on to lead productive and valued lives. Most first offenders get a second chance of one kind or another. Our juvenile justice systems try to ensure that kids keep getting … See Moresecond chances until they’re truly old enough to “know better.”

    Still, there are those 17% of offenders who, young or old, keep coming back. Many of them truly are, as the judge who got reversed here put it, “incorrigible.” Some are criminals by choice, some because they don’t know any other way, some because they’re true psychopaths.

    Psychopaths do exist. And giving them second chances only gives them more opportunities to hurt. All that can be done with them, really, is removal from the community so they can’t hurt again. Others, however, can be rehabilitated through treatment or programs that provide the socialization they didn’t get from family or community.

    The big problem in this case is that juveniles who aren’t old enough to know better yet, were having their lives almost entirely taken away by being locked up till they die with no hope of ever earning a release. We’re not talking about killers — kids who kill are a whole nother story — we’re talking about kids who didn’t take a life but whose lives are taken in return. Their lack of years is one mitigating factor, and the disparity between a non-homicide crime and life without parole is another mitigating factor, doubly denying the justice of such a sentence.

  1. May 17, 2010

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