The (quiet) radical shift in sentencing over the last thirty years: no death penalty for juveniles, but a life sentence for stealing golf clubs is okay

The media is a fickle thing. We talk about Amanda Knox, Casey Anthony, Michael Jackson’s doctor, and just about anything other trial that is sensational. Anyone heard of Graham v. Florida? Atkins v. Virginia? Didn’t think so. On the first day of the 2011-2 term for the Supreme Court I thought I would discuss the revolutionary changes in criminal punishment from the last thirty years that have been swept under the rug.

This radical shift took place in both the death penalty arena and also regarding prison terms for certain types of crimes (AKA “term of years” sentencing). The outline below is a simplification, but shows the radical shift in both of these arenas. Note that these decisions were made on Constitutional grounds, so the Supreme Court in 1988 found that it was constitutional to give the death penalty to someone 16-18 years old, but 20 years later in 2008 the Court said that giving the death penalty to anyone under 18 was unconstitutional (which Justice Scalia poked fun at).

Death Penalty Holdings

Thompson v. Oklahoma (1988)

The death penalty is disproportionate for offenders under 16 years of age at the time of the crime.

Atkins v. Virginia (2002)

The Constitution prohibits the death penalty for an mentally retarded defendant.

Roper v. Simmons (2005)

The death penalty is a disproportionate penalty for offenders who were under 18 at the time of the crime.

Kennedy v. Louisiana (2008)

The death penalty is a disproportionate penalty for the rape of a child, where the crime was not intended and did not result in the death of the child.

Graham v. Florida (2010)

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.

Term-of-Years Holdings

Rummel v. Estelle (1980)

It does not violate the Constitution to sentence a three time offender to life in prison with the possibility of parole. (Parole possible)

Solem v. Helm (1983)

Life without the possibility of parole for a 7th non-violent felony is not Constitutional. (Parole not possible)

Harmelin v. Michigan (1991)

Life in prison without the possibility of parole is proportional for a first time offender convicted of trafficking 672 grams of cocaine. (Parole not possible)

Ewing v. California (2003)

A sentence of 25 years to life in prison (California three strikes) with the possibility of parole for stealing three golf clubs is proportional, considering the recidivism in the subject and public policy. (Parole possible)

Lockyer v. Andrade (2003)

A third strike (California three strikes) conviction resulting from the prosecution of petty theft as a felony wobbler does not violate the proportionality principle. (Parole possible)


The Court during this period showed an increasing discomfort with the death penalty, yet during the same period the Court would allow harsher and harsher term-of-year sentences. The Court seems to be okay with a really harsh term-of-years sentence, just as long as you are eligible for parole (cf. Solem). The discomfort with the death penalty may be due to the Catholic majority on the court (written about here and here) or it may be due to changed American and International views about capital punishment. In Roper, the majority noted, “only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.” Not exactly great company to be a part of.

Justice Breyer appears to be softening on the death penalty, just this week writing a dissent in which he said that waiting for 33 years to be put to death is cruel and unusual. I understand where Breyer is coming from, but his logic would lead to some interesting results. Following his dissent, it would lead to a scheme in which the death penalty is constitutional, unless we wait too long to kill the convicted, then we lose the right to kill them because now it would be cruel—since we waited too long. As long as the media covers sensational cases instead of the really important stuff, America will continue to ignore even radical shifts in our penological system.

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