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Graham: The Bad News and the Really Bad News

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The Supreme Court decided Graham v. Florida today, categorically abolishing LWOP for non-homicide offenders under 18.  The opinion was authored by Justice Kennedy.  For those familiar with Kennedy's work in Roper v. Simmons and Kennedy v. Louisiana, neither the result nor the Court's mode of analysis will come as a surprise.  There will be a temptation to view it as just the latest in Kennedy's high-minded meandering.  Resist that temptation, and be alarmed  --  very alarmed.

The bad news is that the opinion is another exercise in one-size fits-all jurisprudence:  According to the Court, there is not one single person under 18 whose non-homicidal (for the moment) behavior, no matter how violent and sadistic, nor how often repeated, who can be reliably found by a judge or jury to merit LWOP.  And even if some random court might for good reason reach that outcome, there is too much possibility that a different court in a different case might go astray ("astray" being defined by Justice Kennedy's view of the world).  So LWOP must be taken off the table in toto to protect us from ourselves.

That's the bad news.  Here's the really bad news, aptly summarized by Todd Gaziano of the Heritage Foundation: 

Justice Kennedy wrote that the appropriate analysis is that used in Atkins, Roper and Kennedy.  Although acknowledging that there was arguably a national consensus on the availability of the sentence for juvenile non-homicide (44 states, the District of Columbia and the federal government authorize the sentence) the Court found that argument "incomplete and unavailing."    Rather, actual sentencing practices "discloses a consensus against its use," finding that there are 129 juvenile non-homicide offenders serving LWOP, and 77 of those are in Florida.

You don't need to be a rocket scientist to see where this is headed in some future death penalty case:  "Although there is arguably a national consensus in favor of capital punishment, a review of 'actual sentencing practices' discloses 'a consensus against its use,' since a majority of all executions after Gregg have occurred in only three states (Texas, Virginia and Oklahoma), and a majority of states have had a mere handful of executions, if any.  Therefore..."

I think readers will be able to write the conclusion for themselves.

In other words, precisely because we are a humane people reluctant to use the death penalty except in the cases that most cry out for it, we are on the road, paved by Justice Kennedy's one-way-ratchet analysis, to not being able to use it at all.  And that is the real news from this morning's opinion.

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States with juvie LWOP should pass a law that says that any constitutional requirement for parole only occurs after 40 years' incarceration.

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