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Below, Dan gives a little statement of the Graham case and some links.  And he also expresses hope that Graham augurs the end of Justice White's view in Coker that "death is different."  I've always thought that there were two sides to this coin.  First, there is the proposition that the death penalty ought only to apply where the defendant has killed.  Second (and I think this is what Dan believes is "silly") the proposition that the 8th Amendment's protections against 'cruel and unusual punishment' are by and large limited to judicial review of death penalty sentences.  The first proposition was reinforced by Kennedy v. Louisiana.  Since Ewing, the second proposition has generally been left alone.  I count Atkins and Roper as exceptions to proposition #1: those cases were really about whether it was constitutional to impose the DP on a particular class of defendant (the mentally impaired and juveniles) that had killed.  Graham is the first case that really challenges proposition #2.  

My own view is that the death is different propositions are mutually reinforcing -- they are limiting principles in two senses: they limit the situations in which the state can impose the DP; and they limit the situations in which judges can intervene to mess around with state sentences.  They represent a regime of self-imposed restraint.

The problem is that they are difficult to defend as entirely logically coherent.  Heidi Hurd wrote a very persuasive piece criticizing proposition #1 after Kennedy came out -- there are in fact many situations that we can imagine (and we don't have to think all that hard) in which killing is not categorically worse than various other horrors and brutalities.  Even if it may be true that death is sometimes, or even often, different, can it be true that it is really categorically different?  And as a matter of logic and coherence, the Solem, Harmelin, Rummel, Ewing line is difficult to accept.  What exactly is the difference betwen Solem and Harmelin again?  More importantly, why should it be the case that there is only a "narrow" proportionality analysis in non-DP cases?  What about Justice Stevens's 7 year old lad who steals $50?  This is the sort of thing that really tends to irritate legal scholars -- why can't we have perfectly logical coherence in this jurisprudence?

I don't think we can have it.  Or at least, I don't think we can have it without sacrificing other extremely important values.  There are two problems I see.

First, let's assume that the Court dismantles both of the death is different propositions.  It is now permissible to execute people who have not killed and courts can now strike down any sort of sentence as disproportionate to the offense (or, in Graham's new phraseology, that it now can uphold "categorical challenge[s] to a term-of-years sentence").  It goes through its national consensus, evolving standards of decency, progressive nation analysis and pretty much decides what it likes (Justice Stevens's concurrence is refreshingly honest about what's going on here -- thank God for the year 1980, when decency was born).  This is an internally consistent approach -- though one that is completely inconsistent with any notion of limited review, restraint, or circumspection about judicial intervention.  The word "consensus" is taken to have a very special, arcane judicial meaning, a term of art that doesn't really ever reflect what's really going on in this country (39 American jurisdictions permit the sentencing practice invalidated by Graham).  It is an approach that, for the sake of coherence, "consensus," and "independent judgment," has given away judicial duty.

Second, suppose (as is perhaps more likely) that death is different proposition #1 is retained (with its exceptions) but proposition #2 is rejected.  My guess is that many people in the legal academy favor this possibility.  One difficulty with this possibility is that as more and more categorical challenges to term of years sentences are upheld, we get into the same sort of situation as the one that Professor Hurd criticized in her Kennedy v. Louisiana piece.  Is it really true that we cannot imagine any crimes committed by a 17 year old which ought not be punished by life in prison with no possibility of parole?  I can imagine such crimes fairly easily, and I don't think I'm very imaginative (a point that I think CJ Roberts makes in his, at least to me, persuasive concurrence).  A second, related problem is that the notion of proportionality as a response to a particular offense, rather than to a particular class of people, begins to erode.  Once one adopts a categorical standard that compares the term of incarceration against the nature of the offender, rather than the offense, then it seems to me that we have lost an important feature of what makes retributivism an attractive theory of punishment.  And I don't think there's any question that Justice Kennedy's majority opinion goes to great lengths to emphasize the importance of creating categorical rules of retribution for "classes of individuals," rather than for classes of crimes.  Justice Kennedy specifically rejects the option of taking a defendant's age into consideration as a factor in proportionality inquiry: he wants to impose the blanket, offender-related restriction.  He wants a perfectly coherent, consistent rule.  He also rejects CJ Roberts' view that one could invalidate the sentence as a kind of exception to proposition #2, akin to Solem.  No -- Justice Kennedy wants to make his own, brand-new, mark. The cost is that the nature of the offense itself is moved far into the background.  Granted, under this possibility, we retain a nature of the offense analysis when we are dealing with the possible imposition of the DP.  But not so much -- and eventually perhaps not at all -- when we are dealing with prison terms.

The death is different rule (both propositions) has its problems and defects.  It is vulnerable to charges of incoherence and illogic.  But it has strengths too -- strengths of restraint and reticence -- ones that make it able to juggle multiple conflicting values at the same time (though of course, and always, imperfectly).  I am not in love with it, but neither am I so eager to see its death. 

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