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Before today, the Court had based categorical proportionality rulings on the notion that the death penalty is just different, and it should be treated differently. Is that still true after Graham v. Florida? Justice Thomas says no.

Until today, the Court has based its categorical propor-tionality rulings on the notion that the Constitution gives special protection to capital defendants because the deathpenalty is a uniquely severe punishment that must be reserved for only those who are “most deserving of execu-tion.” Atkins, supra, at 319; see Roper, supra, at 568; Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978). Of course, the EighthAmendment itself makes no distinction between capitaland noncapital sentencing, but the “‘bright line’” theCourt drew between the two penalties has for many years served as the principal justification for the Court’s will-ingness to reject democratic choices regarding the deathpenalty. See Rummel v. Estelle, 445 U. S. 263, 275 (1980).

Today’s decision eviscerates that distinction. “Death is different” no longer. The Court now claims not only the power categorically to reserve the “most severe punish-ment” for those the Court thinks are “‘the most deserving of execution,’” Roper, 543 U. S., at 568 (quoting Atkins, 536 U. S., at 319), but also to declare that “less culpable”persons are categorically exempt from the “second most severe penalty.” Ante, at 21 (emphasis added). No reli-able limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third,fourth, fifth, or fiftieth most severe penalties as well.

The Court’s departure from the “death is different” distinction is especially mystifying when one considershow long it has resisted crossing that divide.

This is likely Justice Stevens’s last pronouncement on the Death Penalty as a Supreme Court Justice. And he packs a punch, to help cement his legacy.

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at alater time; unless we are to abandon the moral commit-ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete, post, at 8–9, and n. 2.

While JUSTICE THOMAS would apparently not rule out adeath 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.

In other words, standards of decency will keep evolving long after I’m gone, and soon the death penatly will be categorically cruel and unusual. KTHXBAI.

Justice Thomas in dissent snaps back.

I agree with JUSTICE STEVENS that “[w]e learn, some-times, from our mistakes.” Ante, at 1 (concurring opinion). Perhaps one day the Court will learn from this one.

In Graham v. Florida, Justice Kennedy continues the trend of looking to international law to support the decision, and to define the contours of cruel and unusual punishment.

There is support for our conclusion in the fact that, incontinuing to impose life without parole sentences on juveniles who did not commit homicide, the United Statesadheres to a sentencing practice rejected the world over.This observation does not control our decision. The judg-ments of other nations and the international community are not dispositive as to the meaning of the EighthAmendment. But “‘[t]he climate of international opinion concerning the acceptability of a particular punishment’” is also “‘not irrelevant.’” Enmund, 458 U. S., at 796, n. 22. The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual. See, e.g., Roper, 543 U. S., at 575–578; Atkins, supra, at 317–318, n. 21; Thompson, 487 U. S., at 830 (plurality opinion); Enmund, supra, at 796–797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102–103 (plurality opinion). Today we continue that longstanding practice in notingthe global consensus against the sentencing practice inquestion.

A recent study concluded that only 11 nations authorize life without parole for juvenile offenders under any circumstances; and only 2 of them, the United States and Israel, ever impose the punishment in practice. An up-dated version of the study concluded that Israel’s “lawsallow for parole review of juvenile offenders serving life terms,” but expressed reservations about how that parole review is implemented. De la Vega & Leighton, Sentenc-ing Our Children to Die in Prison: Global Law and Prac-tice, 42 U. S. F. L. Rev. 983, 1002–1003 (2008). But even if Israel is counted as allowing life without parole for juve-nile offenders, that nation does not appear to impose that sentence for nonhomicide crimes; all of the seven Israeli prisoners whom commentators have identified as serving life sentences for juvenile crimes were convicted of homi-cide or attempted homicide.

Kennedy also notes that the United States, along with Somalia, are the only countries not to join the UN Convention on the Rights of the Child.

Thus, as petitioner contends and respondent does notcontest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici em-phasize, that Article 37(a) of the United Nations Conven-tion on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified byevery nation except the United States and Somalia, pro-hibits the imposition of “life imprisonment without possi-bility of release . . . for offences committed by personsbelow eighteen years of age.”

Kennedy sums it up here:

The State’s amici stress that no international legalagreement that is binding on the United States prohibits life without parole for juvenile offenders and thus urge usto ignore the international consensus. See Brief for Soli-darity Center for Law and Justice et al. as Amici Curiae 14–16; Brief for Sixteen Members of United States House of Representatives as Amici Curiae 40–43. These argu-ments miss the mark. The question before us is not whether international law prohibits the United Statesfrom imposing the sentence at issue in this case. The question is whether that punishment is cruel and unusual. In that inquiry, “the overwhelming weight of international opinion against” life without parole for nonhomicide of-fenses committed by juveniles “provide[s] respected and significant confirmation for our own conclusions.” Roper, supra, at 578.

The debate between petitioner’s and respondent’s amici over whether there is a binding jus cogens norm against this sentencing practice is likewise of no import. See Brief for Amnesty International 10–23; Brief for Sixteen Mem-bers of United States House of Representatives 4–40. The Court has treated the laws and practices of other nationsand international agreements as relevant to the Eighth Amendment not because those norms are binding or con-trolling but because the judgment of the world’s nationsthat a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

Thomas addresses this line of reasoning in a single footnote in dissent.

11I confine to a footnote the Court’s discussion of foreign laws andsentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation. See Atkins, 536 U. S., at 324–325 (Rehnquist, C. J., dissenting). Here, two points suffice. First, despite the Court’s attempt to count the actual number ofjuvenile nonhomicide offenders serving life-without-parole sentences inother nations (a task even more challenging than counting them withinour borders), the laws of other countries permit juvenile life-without-parole sentences, see Child Rights Information, Network, C. de la Vega, M. Montesano, & A. Solter, Human Rights Advocates, Statement on Juvenile Sentencing to Human Rights Council, 10th Sess. (Nov. 3,2009) (“Eleven countries have laws with the potential to permit thesentencing of child offenders to life without the possibility of release”), online at http://www.crin.org/resources/infoDetail.asp?ID=19806) (asvisited May 14, 2010, and available in Clerk of Court’s case file)). Second, present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenileoffenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice.

In a nutshell.

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.

…

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.

…

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

…

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.