Graham Opinion Reflects Justice Kennedy's Moral Foundation

This spring, the U.S. Supreme Court determined in Graham v. Florida that sentencing a juvenile whose offense does not result in homicide to life without parole violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  Justice Anthony M. Kennedy’s opinion for the Court in Graham exhibits several characteristics of his larger jurisprudence.

Graham is the latest Kennedy opinion for the Court enforcing the limits of the Eighth Amendment.  In Roper v. Simmons (2005), Kennedy found that imposing the death penalty for juveniles who commit capital crimes constitutes cruel and unusual punishment.  And in Kennedy v. Louisiana (2008), a case involving child rape, Kennedy ruled that imposing the death penalty for any civilian crime not resulting in death violates the Eighth Amendment.  The Graham opinion repeatedly cites both Roper and Kennedy.

Kennedy finds confirmation for the result in Graham within evolving national consensus and international practice.  He cites recent American jurisprudence and legislative developments, the laws and court rulings of other nations, as well as international treaties—including agreements the United States refused to ratify or to which it attached reservations.  Kennedy cited similar political domestic and foreign changes as confirmation for his ruling in Roper and in Lawrence v. Texas (2003) to strike state laws criminalizing sodomy as a violation of liberty.  In Graham, Kennedy concludes “the United States is the only nation that imposes life without parole sentences on juvenile non-homicide offenders.”

The defining characteristic of Kennedy’s opinion in Graham lies in his exercise of “independent moral judgment.”  Kennedy assesses whether a life sentence without possibility for parole for a juvenile is disproportionate when the crime does not result in death.  “When compared to an adult murderer,” he argues, “a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

As in Roper, Kennedy’s opinion in Graham relied on psychological and sociological research about the mental and social immaturity of adolescents, their susceptibility to peer pressure, and their capacity for change, growth and remorse.  Kennedy relied on similar assessments of juvenile maturity to strike clergy-led prayer at a public school graduation as a violation of the First Amendment’s religious establishment clause (Lee v. Weisman, 1992) and to uphold state laws requiring parental notification and consent for minors seeking abortions (Hodgson v. Minnesota, 1990; Planned Parenthood v. Casey, 1992).

Graham differs from previous Kennedy opinions, as he seems to go out of his way to avoid using the term “human dignity.”  Yet the substance of its analysis relies on a core conception of human dignity and the value of human life.  Without minimizing the severity of offenses like armed robbery or rape, Kennedy concludes “those crimes differ from homicide crimes in a moral sense.”

Kennedy focuses also on the dignity of the offender.  “The State,” he writes, “must respect the human attributes even of those who have committed serious crimes.”  Sentencing judges “take account of the human existence of the offender and the just demands of a wronged society,” he writes.  Yet in this case the judge made an “irrevocable” decision to sentence a juvenile—someone whose “character” is “not as well formed” as an adult’s physically or psychologically—to a lifetime in prison without even a parole hearing.  This sentence leaves Graham “deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential.”

Some “who commit truly horrifying crimes as juveniles may turn out to be irredeemable and thus deserving of incarceration for the duration of their lives,” Kennedy concedes.  Nevertheless, he rejects Florida’s determination “at the outset” that Graham is “incorrigible” and “never will be fit to reenter society.”  For Kennedy and the Court, this is too high a price to exact from Graham for a crime that did not take a life “committed while he was a child in the eyes of the law.”

Opinions from other justices echo broader objections to Kennedy’s moral reading.  In dissent, Justice Clarence Thomas—joined by Justices Antonin Scalia and, in part, by Samuel Alito—argues that Kennedy and the majority are imposing their own “subjective” views about proper sentencing policy.  “I am unwilling to assume,” Thomas writes, “that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens.”

Chief Justice John Roberts agrees that Graham’s life without parole sentence is cruel and unusual punishment, but he refuses to join Kennedy’s majority opinion.  Roberts demonstrates that an adult in Florida found guilty of burglary and armed robbery, as Graham was, would likely get a sentence of five to fifteen years for each count.  Sentencing a juvenile to life without parole is a disproportionate punishment, thus cruel and unusual under the Eighth Amendment.

Roberts, however, did not join Kennedy in holding that the Eighth Amendment bans all life without parole sentences for juveniles who do not commit homicide.  “What about Milagro Cunningham,” he asks, “a 17-year-old who beat and raped an 8-year-old girl before leaving her for dead under 197 pounds of rock in a recycling bin in a remote landfill?”  As Roberts concludes, “some crimes are so heinous, and some juvenile offenders so highly culpable, that a sentence of life without parole may be entirely justified under our Constitution.”

Often considered a swing vote on the Court, Kennedy is in fact the justice most likely to strike a state or federal law as unconstitutional.  This expansive judicial role follows from Kennedy’s larger moral commitment, expressed during his 1987 confirmation hearings, that “the enforcement power of the judiciary is to insure that the word ‘liberty’ in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it.”  The decision in Graham v. Florida provides a recent example of the foundations, application and criticisms of Justice Kennedy’s larger approach to interpreting the Constitution.