On a quick read of Justice Kennedy’s 5-justice majority opinion in Graham v. Florida and of the Chief Justice’s opinion concurring in the judgment, I offer these additional observations:
1. The 5-justice majority rules that it is constitutionally impermissible, as a categorical matter, to sentence a juvenile offender to life in prison without parole for a nonhomicide crime. The Court divides 5-4 on this question, as the Chief’s opinion concurring in the judgment calls this categorical conclusion “as unnecessary as it is unwise.”
2. Justice Kennedy’s methodology won’t surprise readers familiar with his previous majority opinions in Roper v. Simmons (see This Day entry for March 1, 2005) and Kennedy v. Louisiana (see This Day entry for June 25, 2008):
a. Although 37 states, the District of Columbia, and the federal government permit sentences of life without parole for juvenile non-homicide offenders in some circumstances, “an examination of actual sentencing practices … discloses a consensus against its use.” Specifically, “only 12 jurisdictions nationwide in fact impose” such sentences, “and most of them impose the sentence quite rarely.” Therefore, “‘it is fair to say that a national consensus has developed against it.’” Slip op. at 10-16.
b. “The judicial exercise of independent judgment” (whatever that means) likewise leads to the conclusion that life without parole is too harsh a punishment for nonhomicide offenses by juveniles. Slip op. at 16-24.
c. And, yes, the “global consensus against the sentencing practice in question” provides “support for our conclusion.” Not, of course, that the “judgments of other nations and the international community” would “control” or be “dispositive” on the issue. But they do “demonstrate[] that the Court’s rationale [i.e., that the “sentencing practice is inconsistent with basic principles of decency”] has respected reasoning to support it. Specifically, “‘the overwhelming weight of international opinion against’ life without parole for nonhomicide offenses committed by juveniles ‘provide[s] respected and significant confirmation for our own conclusions.’” Slip op. at 29-31.
3. So, surprise, surprise: Justice Sotomayor, after all her shameless dissembling at her confirmation hearing, is ready to use contemporary foreign and international legal materials in interpreting the Constitution. (I still find it odd that she didn’t hide behind Justice Kennedy at her hearing and instead resorted to her inept falsehoods and evasions.)
4. In his opinion concurring in the judgment, the Chief would apply the Court’s existing precedents on proportionality review (which, he notes, no party has asked the Court to examine) to conclude only that the particular juvenile offender’s sentence “presents the exceptional case” in which life without parole violates the Eighth Amendment.
5. I look forward to reading Justice Thomas’s dissent.