Clarence Thomas

“ This, in my view, reveals the States' widespread agreement that juveniles can sometimes act with the same culpability as adults and that the law should permit judges and juries to consider adult sentences—including life without parole—in those rare and unfortunate cases. ”

“ As the Court has noted in the past, however, the evidence is clear that, at the time of the founding, "the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted [even] capital punishment to be imposed on anyone over the age of 7." Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800) ) . It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham's age would run afoul of those standards. ”

“ The Court now claims not only the power categorically to reserve the "most severe punishment" for those the Court thinks are "'the most deserving of execution,'" Roper, supra, at 568 (quoting Atkins, supra, at 319) , but also to declare that "less culpable" persons are categorically exempt from the "second most severe penalty." Ante, at 72 (emphasis added) . No reliable 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. ”

“ In my view, the Court cannot point to a national consensus in favor of its rule without assuming a consensus in favor of the two penological points it later discusses: (1) Juveniles are always less culpable than similarly-situated adults, and (2) juveniles who commit nonhomicide crimes should always receive an opportunity to demonstrate rehabilitation through parole. ”

“ At a probation revocation hearing, a judge found by a preponderance of the evidence that, at age 17 years and 11 months, Graham invaded a home with two accomplices and held the homeowner at gunpoint for approximately 30 minutes while his accomplices ransacked the residence. As a result, the judge concluded that Graham had violated his probation and, after additional hearings, adjudicated Graham guilty on both counts arising from the restaurant robbery. The judge imposed the maximum sentence allowed by Florida law on the armed burglary count, life imprisonment without the possibility of parole. ”

“ As such, the analysis should end quickly, because a national "consensus" in favor of the Court's result simply does not exist. The laws of all 50 States, the Federal Government, and the District of Columbia provide that juveniles over a certain age may be tried in adult court if charged with certain crimes. [4] See ante, at 82–85 (appendix to opinion of the Court) . Forty-five States, the Federal Government, and the District of Columbia expose juvenile offenders charged [p107] in adult court to the very same range of punishments faced by adults charged with the same crimes. ”

“ Graham argues, and the Court holds, that this sentence violates the Eighth Amendment's Cruel and Unusual Punishments Clause because a life-without-parole sentence is always "grossly disproportionate" when imposed on a person under 18 who commits any crime short of a homicide. ”

“ But the Court previously has upheld a life-without-parole sentence imposed on a first-time offender who committed a nonviolent drug crime. See Harmelin, supra, at 1002–1004. Graham's conviction for an actual violent felony is surely more severe than that offense. As for Graham's age, it is true that Roper held juveniles categorically ineligible for capital punishment, but as the concurrence explains, Roper was based on the "explicit conclusion that [ juveniles] 'cannot with reliability be classified among the worst offenders' " ”

“ I disagree. Both the Court and the concurrence do more than apply existing noncapital proportionality precedents to the particulars of Graham's claim. The Court radically departs from the framework those precedents establish by applying to a noncapital sentence the categorical proportionality review its prior decisions have reserved for death penalty cases alone. See Part III, infra. The concurrence, meanwhile, breathes new life into the case-by-case proportionality approach that previously governed noncapital cases, from which the Court has steadily, and wisely, retreated since Solem v. ”

“ The concurrence compares Graham's sentence to "similar" sentences [p122] in Florida and concludes that Graham's sentence was "far more severe." Ante, at 93 (ROBERTS, C.J., concurring in judgment) . But strangely, the concurrence uses average sentences for burglary or robbery offenses as examples of "similar" offenses, even though it seems that a run-of-themill burglary or robbery is not at all similar to Graham's criminal history, which includes a charge for armed burglary with assault, and a probation violation for invading a home at gunpoint. ”

“ See Moffitt, supra, at 684 ("The well-documented resistance of antisocial personality disorder to treatments of all kinds seems to suggest that the life-course-persistent style is fixed sometime before age 18") . And, notably, it suggests that violence itself is evidence that an adolescent offender's antisocial behavior is not transient. ”

“ Just weeks before the release of this opinion, an Oklahoma jury sentenced Budder to life without parole after hearing evidence that he viciously attacked a 17-year-old girl who gave him a ride home from a party. See Stogsdill, Teen Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. ”

“ Oklahoma, 487 U.S. 815 (1988) (plurality opinion) (juveniles [p101] under 16) ; Roper v. Simmons, 543 U.S. 551 (2005) (juveniles under 18) ; Atkins v. Virginia, 536 U.S. 304 (2002) (mentally retarded offenders) . In adopting these categorical proportionality rules, the Court intrudes upon areas that the Constitution reserves to other (state and federal) organs of government. The Eighth Amendment prohibits the government from inflicting a cruel and unusual method of punishment upon a defendant. ”

“ 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 Eighth Amendment itself makes no [p103] distinction between capital and noncapital sentencing, but the "'bright line'" the Court drew between the two penalties has for many years served as the principal justification for the Court's willingness to reject democratic choices regarding the death penalty. See Rummel v. Estelle, 445 U.S. 263, 275 (1980) .
Today's decision eviscerates that distinction. "Death is different" no longer. ”