11th Circuit: Death Really Is Different

Following up on Rob's death penalty post, readers here may know that in Graham v. Florida, decided last year, the Court held that the Eighth Amendent prohibits the imposition of a sentence of life without the possibility of parole on a juvenile convicted of a non-homicide crime.  This was a moment when Justice White's famous decision in Coker v. Georgia (as glossed in Kennedy v. LA) that the death penalty is a different sort of crime, requiring a categorical rule against its imposition in all cases but homicide, was seemingly rejected.  The DP was no longer different; now LWOP, the second most serious punishment, was categorically different too for certain entire classes of criminal. The decision followed from the Court's seemingly expanding Eighth Amendment jurisprudence in, e.g., Roper v. Simmons, which held that it is cruel and unusual punishment to impose the death penalty on juveniles.

The obvious next move was to challenge LWOP for juveniles convicted of homicide offenses.  But the 11th Circuit, in Loggins v. Thomas, released yesterday, rejected that argument.  The procedural posture of this case is quite complex, but suffice it to say that on the facts, this looks like an exquisitely inauspicious case to make an argument for the extension of Graham.  The defendant's conduct was barbaric -- atrocious in the extreme.  You can find Judge Carnes's description of the events leading up to the victim's murder (and thereafter as well) at pp. 2-5.

The legal heart of the decision occurs at pp. 36 and following, and I want to note a couple of interesting features of the opinion.

First, the court says that neither Roper nor Graham stated or even implied that their holdings applied to sentences of LWOP for homicides.  Roper stated that whatever deterrent effect the death penalty had on juveniles could be achieved by LWOP, the implication being that LWOP for juveniles should be retained.

In Graham, of course, Justice Kennedy's majority opinion explicitly limited its holding many times over to non-homicide offenses, and Judge Carnes notes this (he does not mention Chief Justice Roberts's excellent concurrence).

The defendant argued that Graham should be extended to cover homicides by juveniles because of an emerging "national consensus" against the imposition of LWOP in such cases, but the court rightly noted that there just is no such consensus.  2,465 inmates, incarcerated in 42 different jurisdictions, are now serving LWOP for homicides that they committed as juveniles.  (45-46)  And at least 40 jurisdictions explicitly permit the practice.  Moreover, the court noted, over the last 50 years, the number of LWOP sentences for homicides commited by juveniles has steadily increased overall (with dips here and there).  "The long-term national trend is not away from life without parole sentences for homicides committed by juveniles but toward them."  (48)

The defendant then made the claim that an "international consensus" existed against the sentence, inasmuch as the "opinion of the world community" opposed it.  One can see that Judge Carnes has some fun with this argument.  Clearly, when the defendant thought through which arguments he wanted to make, he made this one not for this panel, but perhaps for the en banc court or the Supreme Court.

Here is Judge Carnes responding to the argument that a consensus of the "international community" ("to risk an oxymoron," as Judge Carnes puts it) exists against this sentence:

That may well betrue, but we have not yet turned constitutional interpretation over to other countries or their people. More to the point, no decision of the Supreme Court clearly establishes that if other countries do not impose a type of non-capital sentence for a given crime and category of criminal, it is unconstitutional to do so in this country. An international consensus against a given sentence for a type of crime and category of criminal may provide fodder to feed law review articles, symposia, and social science research, and it may serve as a make-weight argument for a result arrived at through other reasoning. But it cannot be decisive in constitutional analysis.  (49-50)

There was also an unavailing appeal to international treaties thereafter.  An interesting decision overall, which seems to reaffirm that at least in the 11th Circuit, the taking of a life is categorically different insofar as the imposition of LWOP on juveniles is concerned.  [Disclosure: I clerked for Judge Jerome Farris, one of the judges on the panel.]