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.