While it received relatively little attention in the popular
press, the Supreme Court’s recent decision in
Graham v.
Florida barring States from imposing life sentences on
juvenile offenders without the possibility of parole illustrates
many of the problems with the modern Court’s approach to such
constitutional questions. In doing so, it raises a number of
questions that should be at the forefront of the upcoming
confirmation proceedings for President Obama’s nominee to the
high court, Elena Kagan.
In Graham, the Supreme Court overturned a life
sentence issued to a criminal defendant who violated his parole
and committed armed burglary when he was approximately one month
shy of his 18th birthday. The Court held that where there is no
possibility of parole, such sentences constitute “cruel and
unusual” punishment that is prohibited under the Eighth
Amendment. In so ruling, it imposed for the first time an
absolute bar on a noncapital sentence applied to a particular
class of offenders. The Court’s decision is questionable on
several grounds — all of which raise fundamental issues
regarding the proper role of the courts in deciding such
constitutional questions.
As a threshold matter, the Court’s decision departs
significantly from the constitutional text. While the Eighth
Amendment prohibits “cruel and unusual punishment,” there is
nothing in the text that says that punishment must somehow be
“proportionate” to the crime, much less imposes a categorical bar
on life sentences without the possibility of parole for juvenile
offenders. Nonetheless, the Court imposed such a prohibition
based on its determination that such sentences did not have “any
legitimate penological justification” and were inconsistent with
“basic principles of decency.” As Justice Thomas observed in
his dissent:
“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 Court’s deviation from the text undermines the guarantees
found in the Constitution, and indeed the rule of law.
The Court’s decision also illustrates its recent proclivity
for relying upon foreign law in deciding constitutional
questions. In finding that life sentences for juvenile defendants
constituted “cruel and unusual” punishment, the majority relied
upon what it concluded was “the overwhelming weight of
international opinion against” such punishments. Aside from the
fact that such constitutional issues raise questions of
U.S. — not foreign — law, reliance on foreign law
inevitably leads to subjective determinations. For example, in
deciding whether a life sentence for a juvenile is “cruel and
unusual” punishment, the Court could rely just as easily upon the
laws of Saudi Arabia and other jurisdictions, which sanction much
harsher punishments, as the laws of modern European countries.
Once one starts down this road, there is no principled basis for
preferring one body of law to another.
The Court’s decision also illustrates a tendency to
encroach upon the powers of the other branches of government. As
Justice Thomas noted in his dissent, the Court’s decision
supplanted the determinations of state legislatures across the
country with its own moral judgments. These elected bodies
concluded that life sentences without the possibility of parole
could be appropriate for juvenile offenders. The Supreme Court
rejected these determinations in a single decision that imposes a
categorical prohibition on such legislation.
Finally, the Court’s decision manifests a surprising
disregard for the abilities of courts to make sentencing
determinations that properly reflect the particular facts and
circumstances of a given case. In announcing a bright-line rule
prohibiting life sentences without parole, the Court in essence
usurped the authority that lower courts traditionally exercised
in making sentencing determinations. While the majority
acknowledged that such “[c]ategorical rules tend to be
imperfect,” it found that a clear line was “necessary to prevent
the possibility that life without parole sentences will be
imposed on juvenile nonhomicide offenders who are not
sufficiently culpable to merit that punishment.” In other words,
the Court simply does not trust judges to impose sentences that
are consistent with its view of “basic principles of
decency.”
Will these trends continue? Will the Court continue to
eschew the constitutional text and instead rely upon foreign law
and its own moral judgments? Given recent decisions like
Graham, these are questions that should be front and
center at the Kagan confirmation
hearings.
