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In a pair of major criminal law decisions on Monday, the U.S. Supreme Court ruled that the Eighth Amendment does not allow sentences of life in prison without parole for juveniles who committed nonhomicide crimes and upheld a federal law permitting sexually dangerous inmates to be confined beyond their prison terms. In the juvenile case, Graham v. Florida, the Court said, “A state need not guarantee the offender eventual release, but if it imposes the sentence of life, it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Justice Anthony Kennedy, writing for the 6-3 majority, applied the logic of the categorical exceptions to the death penalty for juveniles and the mentally retarded, already created by the Court, to juveniles who commit lesser crimes than homicide. Their age and level of mental development make them less culpable, Kennedy wrote, adding that life without parole “deprives the convict of the most basic liberties without giving hope of restoration.” Kennedy also wrote, “Life without parole is an especially harsh punishment for a juvenile….A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Law enforcement advocates warned that the ruling will open the door to more and more leniency for a wider range of defendants and crimes. The next challenge may be raised against life without parole for juveniles convicted of homicide or against lengthy sentences such as 70 years, said Winston & Strawn partner Gene Schaerr, who wrote a brief in the case for the National District Attorneys Association. “This sets up a slippery slope situation, and there will be a good deal of litigation,” said Schaerr. The ruling came in the case of Terrance Graham, who was 16 when he was accused of armed robbery of a restaurant. He was given a life sentence after he was accused of further crimes. Because Florida has abolished parole, the sentence meant no possibility of release. Concluding that Graham was incapable of rehabilitation, a state appeals court and the Florida Supreme Court let the sentence stand. Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Kennedy’s ruling. Chief Justice John Roberts Jr. agreed with the bottom-line judgment but rejected the notion of a categorical rule forbidding life without parole for all juveniles. The ruling included a sharp exchange between retiring Justice Stevens and Justice Clarence Thomas. Writing separately, Stevens criticized Thomas for a “rigid” interpretation of the Eighth Amendment. “Society changes,” wrote Stevens. “Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel at one time may, in the light of reason and experience, be found cruel and unusual at a later time.” In a curt response, Thomas in his dissent wrote that he agreed with Stevens about learning from mistakes. “Perhaps one day the Court will learn from this one.” Justice Antonin Scalia joined Thomas’ dissent, and Justice Samuel Alito Jr. wrote a separate dissent. Another subtext of the dueling opinions was the debate over the importance of foreign law in Supreme Court decision-making. Kennedy wrote that life without parole for juveniles was “a sentencing practice rejected the world over.” He added, “This observation does not control our decisions.” But in dissent Thomas wrote that “such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any long-standing determination in this nation.” In the case involving sexually dangerous prisoners, U.S. v. Comstock, the Court interpreted the necessary and proper clause in Article I of the Constitution to rule that Congress had the authority to enact a law allowing the civil commitment of mentally ill, sexually dangerous federal prisoners beyond their prison release dates. The 7-2 decision is a victory for Congress and for Solicitor General and Supreme Court nominee Elena Kagan, who argued on behalf of the government. The case arose in 2006 when the U.S. Department of Justice moved to confine five prisoners — three of whom had pleaded guilty to possession of child pornography; a fourth who had pleaded guilty to sexual abuse of a minor; and a fifth who was charged with aggravated sexual abuse of a minor but was mentally incompetent to stand trial. Each of the five challenged the civil commitment proceedings on several constitutional grounds. The justices, however, focused their examination on whether Congress had authority under the necessary and proper clause to enact the civil commitment proceeding as part of the Adam Walsh Child Protection and Safety Act of 2006. The necessary and proper clause authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Writing for the majority, Breyer said the clause gives Congress “broad authority” to enact federal laws. He called the civil commitment statute a “reasonable” and “modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.” For example, Breyer wrote, if a federal prisoner had a dangerous communicable disease, “surely” it would be necessary and proper for the government to refuse to release the prisoner among the general public until the threat diminished. “And if confinement of such an individual is a ‘necessary and proper’ thing to do, then how could it not be similarly ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree?” asked Breyer. Thomas, joined by Scalia, disagreed, writing, “No enumerated power in Article I, Sec. 8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.” Sexual abuse, Thomas added, is a “despicable” act, but “the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” He warned that the majority’s opinion “comes perilously close” to transforming the necessary and proper clause into a basis for a federal police power. Justices Kennedy and Alito wrote opinions concurring in the judgment. Tony Mauro can be contacted at [email protected]. Marcia Coyle can be contacted at [email protected].

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