Graham v. Florida: What Justice Thomas Gets Right, Part II
Part I is here.
Another correct observation by Justice Thomas is the following:
“Ultimately, . . . the Court’s ‘independent judgment’ and the proportionality rule itself center on retribution– the notion that a criminal sentence should be proportioned to the personal culpability of the criminal offender.”
Justice Kennedy’s opinion states that “[t]he penological justifications for the sentencing practice are also relevant to the analysis.” As I have noted previously, sentences like this contain a crucial ambiguity. It could reflect the idea that the punishment in question is not permitted unless it advances some objective, or it could reflect the idea that as long as a punishment advances some objective, it is constitutionally permitted. The former states only a necessary condition for constitutionality, the latter a sufficient condition. It has not always been clear whether the Court understands the difference between these two, given that in cases like Roper and Atkins, it has consistently and magically found that neither deterrence nor retribution goal is advanced by the punishment in question — thereby avoiding the need to confront the ambiguity. (The Court’s determination of the deterrence question is pure armchair empiricism, but that is another issue.) However, earlier, when the purposes of punishment talk first showed up, the Court had a very clear understanding of the difference between the first and the second statements. (See Coker v. Georgia, fn. 4 “Because the death sentence is a disproportionate punishment for rape, it is cruel and unusual punishment . . . even though it may measurably serve the legitimate ends of punishment . . . .”)
Under Ewing v. California, it appeared as if the Court was endorsing the second statement, but in Graham, the Court is starting to take small steps away from it. On page 21 of the slip opinion, after its discussion of the deterrence issue, the Court says, surprisingly: “Even if the punishment has some connection to a valid penological goal, it must be shown that the justification is not grossly disproportionate in light of the justification offered. Here, in light of juvenile nonhomicide offenders’ diminished moral responsibility, any limited deterrent effect provided by life without parole is not enough to justify the sentence.” The Court then discusses incapacitation and concludes, “Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.”
Perhaps Justice Thomas’s reading of these sentences as endorsing retribution as the core theory of the case is not quite yet warranted; Justice Kennedy’s writing is muddled enough to invite different interpretations. But there are some indications here that the Court is taking some awkward, wobbly, uncertain steps towards retribution as its theory of excessiveness.