Constitutional Opinions

How Cruel and Unusual?

Elena Kagan will need to be asked about the Supreme Court's recent ruling in Graham v. Florida.

By 6.7.10

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. 

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About the Author
Douglas Smith is a Senior Lecturer in Residence at Loyola University Chicago School of Law and adjunct scholar at the American Enterprise Institute.