'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense. There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument. Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance. Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically. The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision. Death was different no longer, but the Court did nothing to explain why that was the case.
The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests. The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case. The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence. The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead. In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.