Professor Douglas A. Berman of Ohio State University in his Sentencing Law and Policy blog suggested, as I did in yesterdays posts, that Chief Justice Roberts concurring opinion in Graham v. Florida, 560 U.S. ___ (2010) may be a harbinger of coming scrutiny of the Eighth Amendment jurisprudence.
Professor Berman wrote:
Third and perhaps most consequential, Chief Justice Roberts' Graham concurrence could readily be seen as an invitation to a more robust consideration by lower courts of the Eighth Amendment as a real limit on all sorts of non-capital sentences. Footnote 1 of the Graham dissent of Justice Thomas makes this point clear:
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. 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. Helm, 463 U.S. 277 (1983).
I do not see anything in the Chief's concurrence that suggests he is troubled with his concurrence being read to "breath new life into the case-by-case proportionality approach." In fact, I see the Chief's failure to take issue with Justice Thomas' characterization as evidence that he would like to breath new life into Eighth Amendment review of non-capital sentences. And if this is true, perhaps we may see the Justices taking up more and more Eighth Amendment challenges to non-capital sentences during the Roberts era.
My Cancer Journey Update: April 22, 2023
1 month ago
Post a Comment