The Graham case presents the constitutional question in its clearest terms. Unlike Sullivan, there is no procedural obstacle to reaching the merits. The facts also present the problem of a bright-line rule most clearly. Graham was just 35 days short of his 18th birthday when he committed the last offense. To believe in a constitutional bright line at the 18th birthday, you have to believe that Graham's sentence violates our most fundamental law even though the same sentence would have been perfectly proper had the same person with the same record committed the same crime 35 days later.
That's pretty hard to swallow, and in today's argument no Justice gave a clear indication of having swallowed it. Unlike a death sentence, which is cleanly distinguishable from all other sentences, a life-without-parole sentence may not be significantly different in reality from other sentences. How about a sentence of life with the possibility of parole after 50 years? How about consecutive sentences for each offense that add up to something far beyond defendant's life expectancy? The Justices asked about these possibilities, and defense counsel did not have a clear answer.
But is age irrelevant? Of course not. Well, why not take the proportionality rule from Solem v. Helm and Harmelin v. Michigan and say that age is a key factor under that rule? Chief Justice Roberts pushes hard for this rule throughout the argument. None of the others objects to it as a matter of principle. On pp. 21-23, Justice Ginsburg asks if there is an express proportionality review in Florida procedure. No, but at least since Solem in 1983 a proportionality objection has always been available as a matter of federal law, and a defendant can make it as part of the argument on sentencing.
The Chief knows where he wants to go with this case, and no one else seems to have a strong difference of opinion. Justice Breyer was uncharacteristically quiet. I think the Chief will get a majority, maybe even unanimity, for a resolution that does not differ much from the existing noncapital proportionality rule.
That's pretty hard to swallow, and in today's argument no Justice gave a clear indication of having swallowed it. Unlike a death sentence, which is cleanly distinguishable from all other sentences, a life-without-parole sentence may not be significantly different in reality from other sentences. How about a sentence of life with the possibility of parole after 50 years? How about consecutive sentences for each offense that add up to something far beyond defendant's life expectancy? The Justices asked about these possibilities, and defense counsel did not have a clear answer.
But is age irrelevant? Of course not. Well, why not take the proportionality rule from Solem v. Helm and Harmelin v. Michigan and say that age is a key factor under that rule? Chief Justice Roberts pushes hard for this rule throughout the argument. None of the others objects to it as a matter of principle. On pp. 21-23, Justice Ginsburg asks if there is an express proportionality review in Florida procedure. No, but at least since Solem in 1983 a proportionality objection has always been available as a matter of federal law, and a defendant can make it as part of the argument on sentencing.
The Chief knows where he wants to go with this case, and no one else seems to have a strong difference of opinion. Justice Breyer was uncharacteristically quiet. I think the Chief will get a majority, maybe even unanimity, for a resolution that does not differ much from the existing noncapital proportionality rule.
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