Graham v. Florida – Collapse of Capital-Noncapital Distinction?

With Dan’s kind permission, overstaying my welcome here, so I can say a few things about this case.  Quickly reading through it now.  Potentially the most consequential paragraph is on page 10:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence.  The approach in cases such as Harmelin and Ewing is suited for considering a gross disproportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question.  This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. . . . Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Translation: Everyone knows that Ewing is a non-starter for excessiveness challenges.  You may now start using Atkins, Roper, and Kennedy framework (all death penalty cases) not only in capital but also in noncapital cases; just be sure to craft your challenge as a categorical one.  Potentially revolutionary if (and it’s a big if) the Court sticks to these words in the future.

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