Shortly after my recent Article, Can Congress Overturn Kennedy v. Louisiana?, (1) went to press, the Supreme Court released its decision in Graham v. Florida. (2) This Coda accordingly updates the Article in two ways: first, by evaluating Graham's novel "national consensus" analysis; and, second, by arguing that both Kennedy v. Louisiana (3) and Graham should be understood as contingent decisions potentially reversible through federal legislation. In other words, this Coda renews the Article's argument that Kennedy and related cases both do and should leave room for interbranch dialogue regarding the Eighth Amendment's contemporary practical meaning.
I. "NATIONAL CONSENSUS" IN GRAHAM V. FLORIDA
Graham held that sentences of life imprisonment without the possibility of parole may not constitutionally be imposed on juveniles convicted of nonhomicide offenses. (4) The Court found that a national consensus supported its holding, (5) even though the federal government, the District of Columbia, and "37 out of 50 States (a supermajority of 74%)" (6) permitted the punishment in question. How did the Court arrive at this counterintuitive conclusion?
First, the Court dismissed available legislative evidence by reasoning that many legislatures permitted the relevant punishment only by inadvertence and not by design. The relevant federal and state laws simply contained "no statutory differentiation between adults and juveniles with respect to authorized penalties." (7) The Court therefore concluded that "the statutory eligibility of a juvenile offender for life without parole does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration." (8) The Court's leading example came from Florida, which "theoretically" permitted life without parole for five-year-olds. (9) In a similar vein, the Court noted that federal law merely "allows for the possibility of life without parole" for nonhomicide juvenile offenders. (10)
Graham's new focus on the deliberateness of legislation calls to mind the Court's statement respecting denial of rehearing in Kennedy. (11) There, the Court reasoned that a newly discovered capital rape provision in the Uniform Code of Military Justice (UCMJ) pertained only to military crimes and so did not shed significant light on civilian law norms. (12) Much like the sentencing regimes at issue in Graham, the "relatively obscure, low-visibility UCMJ amendment" (13) that was overlooked before the original Kennedy decision arguably did not reflect a deliberate or considered legislative decision. Graham's analysis may thus supply an alternative basis for the Court's decision to deny rehearing in Kennedy.
Second, for affirmative evidence of national consensus Graham relied entirely on actually imposed sentences. (14) This approach broke from the Court's past practice. In earlier cases, the Court used actually imposed sentences to show that state laws permitting certain punishments had fallen into disuse and no longer reliably reflected popular views. (15) The national consensus findings in Atkins v. Virginia, (16) Roper v. Simmons, (17) and Kennedy, (18) thus primarily relied on federal and state legislation that disallowed the punishment in question. In Graham, however, only a minority of states prohibited the relevant punitive practice. (19) Actual sentences were therefore the only affirmative evidence of national consensus capable of supporting the Court's holding.
Moreover, the actual sentencing evidence in Graham was qualitatively different from analogous evidence in earlier cases. In recent decades, capital sentences have generally been imposed by or in consultation with sentencing juries. (20) And the Court has recognized that jury-based capital sentencing decisions offer a unique window into popular views. (21) In contrast, life sentences without parole are not typically imposed by juries (.22) The unusualness of particular noncapital sentences is therefore primarily the product of sentencing guidelines, prosecutorial discretion, and judicial sentencing decisions. …