Even though 37 States + Feds Allow Life Without Parole, Justice Kennedy Finds No National Consensus Exists in Graham v. Florida. Huh?

I often joke that I became a lawyer because I couldn’t do math. I guess I’m not the only one.

Somehow, even though 37 States and the District of Columbia permit sentences of life without parole, Justice Kennedy in Graham v. Floria found that a national consensus does not exist. Huh?

Six jurisdictions do not allow life without parole sentences forany juvenile offenders. Seven jurisdictions permit life without parolefor juvenile offenders, but only for homicide crimes. Thirty-seven States, the District of Columbia, and the Federal Government permit sentences of life without parole for a juvenile nonhomicide offender insome circumstances. The State relies on these data to argue that nonational consensus against the sentencing practice in question exists.An examination of actual sentencing practices in those jurisdictionsthat permit life without parole for juvenile nonhomicide offenders, however, discloses a consensus against the sentence. Nationwide,there are only 129 juvenile offenders serving life without parole sen-tences for nonhomicide crimes. Because 77 of those offenders are serving sentences imposed in Florida and the other 52 are imprisonedin just 10 States and in the federal system, it appears that only 12 ju-risdictions nationwide in fact impose life without parole sentences on juvenile nonhomicide offenders, while 26 States and the District of Columbia do not impose them despite apparent statutory authoriza-tion. Given that the statistics reflect nearly all juvenile nonhomicide offenders who have received a life without parole sentence stretchingback many years, moreover, it is clear how rare these sentences are, even within the States that do sometimes impose them. While more common in terms of absolute numbers than the sentencing practicesin, e.g., Atkins and Enmund v. Florida, 458 U. S. 782, the type of sen-tence at issue is actually as rare as those other sentencing practiceswhen viewed in proportion to the opportunities for its imposition.The fact that many jurisdictions do not expressly prohibit the sen-tencing practice at issue is not dispositive because it does not neces-sarily follow that the legislatures in those jurisdictions have deliber-ately concluded that such sentences would be appropriate. See Thompson v. Oklahoma, 487 U. S. 815, 826, n. 24, 850. Pp. 10–16

In the words of Governor Bush, this is fuzzy math.

The “national consensus” model is troubling. It is so flexible that even when there is an overwhelming agreement among the states, the Court can just look to something else.

“There are measures of consensus other than legislation.” Kennedy, supra, at ___ (slip op., at 22). Actual sentencing practices are an important part of the Court’s inquiry into consen-sus.

So even if there is a kinda consensus, there might not be a consensus. But even if a community consensus is found…

Community consensus, while “entitled to great weight,”is not itself determinative of whether a punishment iscruel and unusual.

Justice Thomas highlights this odd claim in his dissent.

The news of this evolution will, I think, come as a sur-prise to the American people. Congress, the District ofColumbia, and 37 States allow judges and juries to con-sider this sentencing practice in juvenile nonhomicidecases, and those judges and juries have decided to use it in the very worst cases they have encountered.

The Court does not conclude that life without paroleitself is a cruel and unusual punishment. It instead re-jects the judgments of those legislatures, judges, and juries regarding what the Court describes as the “moral”question of whether this sentence can ever be “propor-tionat[e]” when applied to the category of offenders at

The news of this evolution will, I think, come as a sur-prise to the American people. Congress, the District ofColumbia, and 37 States allow judges and juries to con-sider this sentencing practice in juvenile nonhomicidecases, and those judges and juries have decided to use it in the very worst cases they have encountered.The Court does not conclude that life without paroleitself is a cruel and unusual punishment. It instead re-jects the judgments of those legislatures, judges, and juries regarding what the Court describes as the “moral”question of whether this sentence can ever be “propor-tionat[e]” when applied to the category of offenders at issue here. Ante, at 7 (internal quotation marks omitted), ante, at 1 (STEVENS, J., concurring).

…

But the Court is not content to rely on snapshots ofcommunity consensus in any event. Ante, at 16 (“Commu-nity consensus, while ‘entitled to great weight,’ is not itselfdeterminative” (quoting Kennedy, supra, at __ (slip op., at 24)). Instead, it reserves the right to reject the evidence ofconsensus it finds whenever its own “independent judg-ment” points in a different direction. Ante, at 16. The Court thus openly claims the power not only to approve or disapprove of democratic choices in penal policy based onevidence of how society’s standards have evolved, but also on the basis of the Court’s “independent” perception of how those standards should evolve, which depends on what the Court concedes is “‘“necessarily . . . a moral judgment”’” regarding the propriety of a given punish-ment in today’s society.

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The sole fact that federal law author-izes this practice singlehandedly refutes the claim that our Nation finds it morally repugnant. The additional realitythat 37 out of 50 States (a supermajority of 74%) permit the practice makes the claim utterly implausible. Not onlyis there no consensus against this penalty, there is a clearlegislative consensus in favor of its availability.

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Undaunted, however, the Court brushes this evidence aside as “incomplete and unavailing,” declaring that “‘[t]here are measures of consensus other than legisla-tion.’” Ante, at 11 (quoting Kennedy, 554 U. S., at ___ (slip op., at 22)). This is nothing short of stunning. Most im-portantly, federal civilian law approves this sentencing practice.7 And although the Court has never decided how many state laws are necessary to show consensus, the Court has never banished into constitutional exile a sen-tencing practice that the laws of a majority, let alone asupermajority, of States expressly permit.8

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In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat.11 By the Court’s own decree, “[c]ommunityconsensus . . . is not itself determinative.” Ante, at 16. Only the independent moral judgment of this Court issufficient to decide the question. See ibid.

Along with Ilya Shapiro, I have written about the fallacy of national consensus in Pandora’s Box in the context of Kennedy v. Louisana, another opinion written by Justice Kennedy.

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care,164 the right to education, or reproductive rights?

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?168 Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.