Supreme Court Bars Juvenile LWOP In Non-Homicides; Thomas Gives Tentative OK To Executing First Graders

In another razor-thin 5-4 decision (with Roberts concurring in the outcome) about kids who commit serious crimes, the Supreme Court struck down a sentence of life without parole (LWOP) in the case of a Florida boy - Terrance Graham - who'd had his probation revoked and had been resentenced to LWOP for a crime he'd committed at 16.  The decision is here.  As in the death penalty context, the fifth vote came from Justice Kennedy.   It strikes me that these decisions are absolutely right given the real capacities of kids and their limited moral culpability: research clearly shows that most people under 18 are different from adults in the ways they process information and make decisions.  And perhaps more importantly, we're not particularly good at figuring out which individuals 18 year olds are more advanced in these things, and thus more similar to adults. 

Perhaps most intriguing about the case was Justice Thomas's implication - flagged and flogged by Justice Stevens in concurrence - that the Consitution would allow executions of young children. Wrote Stevens:

While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

Comments

[Jason Mazzone]

In what sense do you mean that Justice Thomas would "OK executing first graders" and that the Constitution "allows the execution of young children"? I would have thought that if there were executions of first graders it would be because (a) the people of a state through their elected representatives had passed a statute providing for that punishment and (b) a jury of the state had convicted a defendant and found eligibility for the capital sentence. If the Constitution does not prohibit the punishment from being carried out (an issue I set aside for now) it can hardly be said that the Constitution is what allows the punishment; a Court adhering to the Constitution's limits isn't giving the OK either but is simply acknowledging that the Constitution has no bearing on the issue.

[Dan Filler]

Jason, in my view, the Constitution explicitly regulates the punishment that may be imposed by elected representatives and juries. Those punishments found to be cruel and unusual are prohibited; those that are not are OK. Justices are asked to review particular punishments to see if they're "OK" and "allowed" under the Constitution. If he were brought a case where a state chose to execute a 7 year old boy for theft, I take it that Justice Thomas would say that this was OK, as a constitutional matter, because it he believes it is permitted under the regulation of punishment embodied by the 8th Amendment.

[Jason Mazzone]

Thank you for the clarification. Your initial post, particularly in the title, suggested (to me at least) that if Justice Thomas were to find a certain punishment not prohibited by the Eighth Amendment, he (and the Constitution) would somehow be endorsing the punishment. Because the Eighth Amendment operates only in a negative sense, instead of describing a punishment as "OK" and "allowed" I think I would simply say "not prohibited by the Eighth Amendment." So, too, I wouldn't describe the Eighth Amendment as "regulating" punishments because that term also suggests something more akin to the broad powers of a legislature.