Author: Youngjae Lee


Graham, Kennedy, and Offenses Against the State

One simple way to understand Graham is that it is a corollary to Kennedy v. Louisiana (no death penalty for nonhomicide crimes) and Roper v. Simmons (no death penalty for juveniles) combined.  There is a curious disclaimer in the Kennedy case, however, that does not make an appearance in Graham, and that is this language:

Our concern here is limited to crimes against individual persons.  We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

In other words, even if no life is taken, the death penalty may be appropriate for this category of offenses.  So where does that leave children who commit these crimes?  The point here is not to advocate harsh sentences for young terrorists, but only to highlight an interesting, rarely discussed portion of the Kennedy opinion.


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.


Graham v. Florida: What Justice Thomas Gets Right, Part I

Justice Stevens points out that Justice Thomas “would apparently not rule out a death sentence for a $50 theft by a 7-year-old.”  That may be a valid criticism, but I want to focus on two correct and important observations by Justice Thomas about the majority opinion.  In this post, I write about the first observation; in the next, about the second observation.  Here is the first:

“For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone.”

As I noted earlier today, this may be the most consequential aspect of the case.  The Court has treated excessiveness challenges against sentences differently in capital and noncapital contexts, something that I have complained about in the past, and this divide had been quite difficult to bridge until today.

I happen to think that, as I have argued before, a categorical approach (that is, draw a few well-placed bright lines instead of trying to correct every constitutionally problematic punishment) is one way of mitigating the vagueness problem of the proportionality standard, but whether Justice Kennedy has explained the Court’s abrupt change satisfactorily is another question.  His statement, “This present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence” (slip. op. 10), is a strange argument for the change.  As J. Thomas again correctly points out, “a petitioner seeking to exempt an entire category of offenders from a sentencing practice carries a much heavier burden than one seeking case-specific relief under Solem,” and it is not immediately clear why a more defendant-friendly doctrine (which is what these death penalty cases using the categorical approach are, compared to cases like Ewing and Harmelin) is called for when a broader ruling is being requested.

It should also be pointed out that the categorical v. case-by-case debate is not some new thing that just occurred to people in 2009.  In Coker v. Georgia, for instance, Justice Powell did not join Justice White’s opinion (a categorical ruling about the crime of rape and the death penalty) and criticized it for “rang[ing] well beyond what is necessary” and argued that the death penalty may be appropriate in certain instances of aggravated rape.  And Roper v. Simmons, written by Justice Kennedy himself just a few years ago, considered and rejected the argument that a case-by-case approach was desirable in the juvenile death penalty context.  In other words, the Court always has had the choice of implementing the principle of proportionality either categorically or on a case-by-case basis, and the capital-noncapital distinction for excessiveness challenges never was about case-by-case v. categorical approaches; it was about the idea that “death is different.”  “Death is different” is an argument that has encouraged much sloppy thinking, so it is good to see the Court no longer mindlessly reaching for it, but I remain dissatisfied by Justice Kennedy’s own non-explanation of the Court’s new position.


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.


Punishment as Interface

Via swissmiss’s post called “Honest Interfaces,” I recently came across the following quote from Edward Murrow:

To be persuasive, we must be believable; to be believable we must be credible; to be credible we must be truthful.

It turns out this statement can be embraced not only as a design principle, but also as a pretty decent summary of the position of a particular school of thought within retributivism.  Let me start by noting that there is something odd about a common understanding of retributivism that holds that retributivism calls for the state to give individuals what they deserve, as if the state, as opposed to, say, God or Santa, is properly in the business of giving people what they deserve.  Here is an alternative account.  We may see the state punishment having an expressive dimension, and if the condemnation expressed by punishment is to be persuasive, its condemnations must be credible, and in order to be credible the state’s statements about wrongness of criminal acts must be truthful (that is, the statements must reflect correct positions on questions of moral rights and wrongs).  This way, the state punishment is “retributivist” not in the sense of keeping track of everyone’s naughty deeds through some kind of moral accounting and making sure that naughty people suffer, but in the sense of operating the institution of punishment and calibrating its scale of punishment so that the punishments it impose express the appropriate level of condemnation, given the seriousness of the offenses in question.  This means that the state would be retributivist in the sense that it speaks the language of blame in operating the criminal justice system, but it is not retributivist in the sense of ensuring that everyone receives what he or she deserves.

I am not interested in defending this particular view but merely identifying it as a school of thought and attempting a succinct formulation of its core position.  It is a fairly commonplace theory and there is a big literature on it.  This version of retributivism is typically labeled “expressivist,” but I hesitate to call it that because the term is often used rather sloppily.  For instance, the term “expressive” is frequently paired with the phrase “sending a message” (say to corporate boardrooms across America), but that phrase is usually used as a deterrence notion, which is very different from what we are talking about, and the term is also lumped with a related but very different idea of every government action having an expressive dimension (say in the voting rights context).

Why would anyone care about this particular version of retributivism?  Here’s one suggestion, which I am not going to try to defend in full in this blog post.  There has been quite a bit of discussion lately about “the subjective experience of punishment,” and it seems to me that this version of retributivism, which is not at all an exotic version of retributivism, is less susceptible to the insistence that a true retributivist would have to take subjective experiences of punishment seriously to the point where he or she would be committed to a radical reorganization of our criminal justice system.  On the contrary, under the “expressivist” view, punishment need only express the correct level of condemnation through punishing, which is not at all the same as giving people the right amount of suffering; they are no doubt related on some level, but the connection is tenuous.   (In fact, there is nothing in this theory — at least as stated here — that requires hard treatment or imprisonment; some would consider this a defect of the theory, but that is a separate topic.)


Responsibility, not Blame

This feels like ancient history now, but just a few months ago the mood in the White House was not exactly upbeat.  The New York Times website looked like this at one point in January:

The phrase that struck me when I saw this was “responsibility, though not necessarily blame.”  In the article itself, the full sentence reads: “When Mr. Obama presents his first State of the Union address on Wednesday evening, aides said he would accept responsibility, though not necessarily blame, for failing to deliver swiftly on some of the changes he promised a year ago.”  What is the distinction being drawn here?  It seems that there is substantial overlap between accepting responsibility and accepting blame.  Here is one hypothesis, rather crudely stated for now: the word “responsibility” can be used to describe a situation where one is merely one actor among many whose collective efforts produce a certain outcome; whereas the word “blame” tends to bring attention to that one actor whose actions or inactions so overwhelm the moral picture that they either deflect attention from others or even absolve them even if they, as a matter of fact, contributed to the bringing about of the negative outcome in question.