Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida. The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes. His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.
Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.
Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]‘ when applied to the category of offenders at issue here.”
In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion. Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”
Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.
In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910. Stevens wrote:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.
While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.