Yesterday's opinion in Graham v. Florida is just one more step down the disastrous path that the Court began to pave in Roper v. Simmons, when it ruled that sentencing juveniles to death violates the Eighth Amendment. In Roper, the Court relied upon psychological studies to argue that juveniles--including those less than 1 month from their 18th birthday--are less culpable for their crimes than their 18 year-old and 1 day contemporaries, and therefore sentencing anyone under 18 to death is cruel and unusual punishment. Yesterday, the Court extended that argument to determine that it is also unconstitutional for states to sentence juveniles to life without parole for non-homicidal crimes.
By creating a categorical rule based on the Justices' own "independent judgment," the Court essentially removed all discretion from lower court judges and juries, who determine these sentences on a case by case basis. Ironically, the Court opined that state laws that permit juvenile LWOP allow too much subjective judgment on the part of judges and juries:
"As these examples make clear, existing state laws, allowing the imposition of these sentences based only on a discretionary, subjective judgment by a judge or jury that the offender is irredeemably depraved, are insufficient to prevent the possibility that the offender will receive a life without parole sentence for which he or she lacks the moral culpability."
In other words, judges on lower courts cannot make subjective judgments about individual juvenile criminals precisely because they may be inconsistent with the subjective judgment of these five judges that juveniles have less "moral culpability" for their crimes. A lower court judge who has thoroughly studied an individual's criminal and psychological record cannot determine that releasing him would pose too great a threat to society simply because these five judges, based on their own opinions about youth, have concluded that juveniles cannot deserve such a sentence. This is hubris at its best: the only "independent" judgment they value is their own.
Of course, these five judges would contend that their conclusion concerning moral culpability is not "subjective," but based on hard psychological data. Psychological analysis, however, is simply not in a judge's job description. By delving into such data, these judges attempt to play psychologist and insert their own views of this extrinsic evidence into the law under the guise of constitutional interpretation. Elected officials, whose job it is to make state policy, should be the ones to evaluate the psychological data, along with the crime statistics in their respective states, to determine whether this sentence is appropriate and needed as an option. And, if there really is a growing consensus against the sentence, as the Court's opinion attempts to claim, the citizens of the individual states can abolish it through the political process.
But, alas, that decision is out of our hands, thanks to the radical expansion of the Eighth Amendment over the last several decades. What was once a simple prohibition against "cruel and unusual" penalties is now being wielded to relieve criminals of the justice they rightly deserve.