Life Sentences Blog

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN.  Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

At the conclusion of a semester spent discussing a mountain of Supreme Court opinions in my Constitutional Law class, one of my students asked a few days ago which Justice I identify with most closely.  The question caught me off guard; I’m not sure I’ve ever really thought about that before.  After a moment’s hesitation, and to my surprise, I found myself answering “Justice Kennedy.”

I’m no less exasperated by Kennedy’s Delphic pronouncements than the next guy, and I disagree strongly with many of his specific votes.  (For instance, his approval of life without parole for a first-time drug offender in Harmelin v. Michigan comes to mind.)

But here’s why I identify with Kennedy anyway: I think that he brings to the task of judging a particular moral vision that resonates a great deal with me.  To be sure, this moral vision often seems at war in Kennedy’s heart with the values of judicial modesty and restraint (competing values that also tend to resonate with me).  The tension contributes to the frustrating character of many of his opinions, in which high-minded rhetoric is combined with holdings that seem to get narrower and increasingly equivocal the more closely you examine them.

Consider, for instance, Kennedy’s opinion for the Court in Graham v. Florida (the subject of an article on which I have been working for the past few months).   (more…)

My Constitutional Law class this semester has been focusing on Hollingsworth v. Perry, the California same-sex marriage case.  We’ve been following the case through the Supreme Court litigation process, and I’ve also assigned some of the key precedent, including Romer v. Evans, the 1996 decision in which the Supreme Court overturned a Colorado law prohibiting local governments from treating sexual orientation as a protected status.

At the same time, I’ve been hard at work on an article about the Court’s recent decisions limiting the sentence of life without the possibility of parole, Graham v. Florida (2010) and Miller v. Alabama (2012).  In doing so, I’ve been struck by the similarities between the Court’s opinions in Romer and Graham, both of which were authored by Justice Kennedy.  And, although it is certainly not obvious or conventional to do so, I am starting to see Romer as a case that is about punishment.

In order to appreciate the connections between Romer and Graham, it is important to realize that Romer was decided before Lawrence v. Texas (2003), which recognized for the first time a constitutional right for same-sex partners to engage in what the Court described as “certain intimate sexual conduct.”   (more…)