Scott Lemieux has a good writeup of the Supreme Court's ruling that juvenile life without parole (JLWOP) for non-homicide crimes violates Eighth Amendment protections against cruel and unusual punishment. I just want to point out that the most compelling reasons Justice Anthony Kennedy gives for imposing a categorical ban on JLWOP for nonviolent crimes, that none of the interests generally served by criminal justice "retribution, deterrence, incapacitation, and rehabilitation" apply equally to homicides committed by juveniles.
Questions of culpability are not resolved by the severity of the crime. In fact, as Chief Justice John Roberts notes in his opinion concurring with the majority judgment but not the ruling, and Clarence Thomas notes in his dissent, there are non-homicides that seem to be as heinous, if not more so, in some cases than murder. Kennedy argues that judges' subjective judgment is insufficient to determine whether an individual youth is "incorrigible" would also apply to homicide cases -- especially since sometimes, juveniles receive LWOP for murdering their abusers. Unlike Thomas and Roberts, however, that observation leads me to believe that a categorical ban on JLWOP in both kinds of cases would be more appropriate.
Kennedy simply writes that "the Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers," without really grappling with the larger moral implications of his arguments with regards to juvenile homicide cases.
Lemieux writes that he feared "a 'minimalist' opinion that would create a balancing test that state courts would always resolve in favor of the state." There are other reasons for opposing that kind of subjective balancing test, namely that black youth receive LWOP sentences at a rate of 10 times that of white youth. History casts a long shadow over the implementation of criminal justice in America, particularly when it comes to the subjective judgments of who is a monster and who isn't.
-- A. Serwer
