Tuesday, May 25, 2010

Graham v. Florida and "Inside Baseball"

Mark Tushnet

I finally got around to reading Graham v. Florida, the juvenile life-without-parole case, and had these "inside baseball" thoughts. (1) At one point in Chief Justice Roberts's opinion concurring in the result, the "royal we" appears: "Justice Thomas disagrees with even our limited reliance on Roper...." I wonder whether this indicates that the Chief Justice tried to float his opinion as an opinion for the Court, and wasn't able to persuade the majority to go along. Parts I and II of his opinion do have some structural similarities to what Justice Kennedy wrote for the majority, and Part III is clearly a free-standing one. On the other hand, Justice Kennedy's opinion is pretty long, and reads as if it was written from the get-go.

(2) The majority opinion refers to non-U.S. law as "support[ing] ... its independent conclusion" (a slightly stronger formulation, in my view, than earlier references to non-U.S. law as "confirming" an independent conclusion). The fuss ginned up over such references appears not to have scared the majority away from "continu[ing a] longstanding practice," and Justice Sotomayor, given her first opportunity to participate in a decision referring to non-U.S. law, went along without comment. I look forward to hearing how nominee Kagan deals with the inevitable questions on this that she'll get.

(3) More substantively, the Court holds that life-without-parole for juvenile nonhomicide offenders is unconstitutional, and says that if a state wants to impose life sentences, it must give the offenders a chance to show at some later point that they deserve release. What, though, of very long determinate sentences (50 years without opportunity for parole)? Put another way, is there some threshold length-of-sentence above which states must operate parole systems for juvenile offenders? Here I look forward to the inevitable litigation. (If I were structuring it, I'd look for a juvenile offender who received a determinate sentence that extends beyond his expected lifetime.)

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