Legal Commentary

The Cruel and Unusual Punishment Clause and Life Without Parole for Under-18 (Nonhomicide) Offenders

By Eugene Volokh

Justice Thomas?s dissent in yesterday?s Graham v. Florida ? which argues against the Court?s conclusion that such punishments are unconstitutional ? strikes me as quite correct. 

As it happens, I think the sentence in this particular case was too high. The defendant?s criminal conduct, while serious (participating in attempted robbery in which a victim was injured, participating in a home invasion in which the victims were held at gunpoint for 30 minutes, attempting another robbery, fleeing the police, and committing ?two to three? more robberies), didn?t strike me as meriting a life-without-parole sentence, when that might mean 60 or more years in prison. Nor do I think that it?s cost-effective to incapacitate someone for such burglaries and robberies, committed when he was young, past age 50 or 60 or some such. And I doubt that a life-without-parole sentence would indeed deter people much more than a long term of years (say, 30 years) would. A sentence this long is not in society?s interests (which has to pay to warehouse the defendant for many years when he?s not likely to be dangerous), and imposes more of a loss of liberty than can be justified.

But I don?t think that this should suffice to make even this particular sentence unconstitutional (which is what Chief Justice Roberts, in his concurrence in the judgment, would have held) ? and it certainly doesn?t suffice to justify the majority?s categorical rule, which would apply to people who have committed much more heinous crimes (short of homicide) as well. Moreover, the majority?s rationale strikes me as deeply unsound, for reasons Justice Thomas articulated extremely well. This is clearest as to the majority?s unsound assertions about the ?objective indicia of national consensus,? and the constitutional significance of those indicia; but I think the rest of Justice Thomas?s opinion is extremely persuasive as well. Read it ? it?s long, but quite readable.

Full post as published by The Volokh Conspiracy on May 18, 2010 (boomark / email).