Legal Commentary

Kagan and Graham

By Jonathan H. Adler

The Supreme Court?s 5?4 decision to hold unconstitutional sentences of life-without-parole for juvenile offenders convicted of non-homicide crimes did more than invalidate a few outlying state sentencing provisions.  According to Justice Kennedy?s majority opinion, ?Thirty-seven States as well as the District of Columbia permit sentences of life without parole for a juvenile nonhomicide offender in some circumstances.?  In addition, ?Federal law also allows for the possibility of life without parole for offenders as young as 13.?

Given that federal law was at stake, one might have thought the Solicitor General would have intervened or at least filed an amicus brief detailing the federal interest in the outcome of the case.  Yet no such brief was filed.  Why is that?  Barring the occasional lapse, it was my understanding that the SG?s office typically files a brief whenever the outcome of a case is likely to have a direct bearing on federal law, as was clearly the case in Graham. This is because one obligation of the office is to defend properly enacted federal laws from constitutional challenge.  Yet in Graham, federal law was invalidated with so much of a peep from the SG?s office.

Did SG Kagan decide not to file a brief because she believed the federal interest was inconsequential? Did she decide not to defend a federal law with which she disagreed?  Or was there some other reason for the SG?s failure to participate in this case.  Perhaps she was prepared to file a brief but was overruled from above, or perhaps the failure to file a brief was an oversight.  I expect Senators will ask SG Kagan about this at her confirmation hearings.

Full post as published by The Volokh Conspiracy on May 22, 2010 (boomark / email).