1 (SlipOpin i o n) OCTOBER T ERM, 20 09 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s G RAH AM v . FLORI DA CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , 1 ST D I STRICT No. 08–7 41 2. Ar gu ed November9, 2009—Dec ided M ay17, 2010 Petition erGr ah am wa s 1 6 wh enh ec o mmit t ed ar m e d bu r glar yan d

a n ot her crim e . Under apleaa greem ent, the Flor ida tr i a l c o ur t sen

ten c ed Gr ah a mto pr obatio nan d with h e l dadju dic a tionof gu ilt. Sub

sequently , the tr ial c o ur t found th at Gr ah am h a d v i ola t ed th e ter m s of his pr ob atio n byc o mmit t i n gadditional c r i mes. The t r ial c o ur t ad

ju dic a ted Gr ah am gu iltyof th e ear lierch ar g e s, r e v o ked h i s pr oba

tion, and sentenc e d him to life in prison for the burgla ry. Because Flor ida h a s ab o lish e d i t s par o le sy st e m , th e life sentence left Graham no possibil i ty of release exce pt exec utivecl emency. Hechallenged his s e ntence unde rthe Eighth Amendment’s Cruel a n d Unus ua l Pun

ishments Cla u se, but the Sta t e Fir s t D i str i c t Cour t of Appea laf

firmed. Held: The Clause does not p e rmit a juvenile offender to be sentenced to

life inpr ison with ou t par o le fora n o n h o mi c i de c r i me. Pp. 7–31.

(a) Emb o died in the cr uel a n d unus ua l punis h ments b a nis th e “pr e c e pt .

. . that punishme nt forc r i me s h ould be gr aduated and pr o portioned to [the] offens e.” Weem sv. United Stat es , 2 17 U. S. 3 49, 367. Th e Cou r t’ s c a ses im plemen tin gth e pr opor tion alitystan dar d fall wi thin two general clas sification s. Inc a ses of the f i r s t ty pe, the Courtha s con s idered a ll t h e circ um s t a n ces t odet e rm ine whet he r t h e length of aterm-of-yea rs s e ntence is uncon s t itutiona lly exces s ive for a par t ic u l ard e fen d an t’ s c r i me. Th e s e cond cla s s i ficat i on com p ris e s ca s e s in which the Court ha s a pplied cert a i n ca t e gorica l rules a g a i nst the death penalty. In a sub s et of s u ch ca s e s cons ideringt h e na t u reof the offens e, th e Court ha s c o ncluded tha tca pita l punishment is im

per m issible fo rn o nh omic ide c r i mes ag ain s t in div i du al s. E.g

. , Ken

nedyv. Louisi ana , 554 U. S. ___, ___. In a second subset, cases turn

ing on the off e nder’s characteristic s, the Court has prohibited de ath2 GRAHAM v. F L ORIDA Sy llabu s for defenda n t s who com m i tt ed t h eir crim e s b e fore a g e 1 8 , Roperv. Simmons , 543 U. S. 551, orwh ose in tellec t u a l fu n c tion in gis ina low range, Atk i nsv. Virginia , 53 6 U. S. 30 4. I nc a ses inv o lv in gc a teg o r i

ca l rules , t h e Courtfirs tco ns iders “ o bj ective indiciaof s o ciet y’s s t a n dar d s, as ex pr essed inlegi sl ativ e en ac tmen t s an d state pr ac tic e ” to determine whether there is a nation a lc o n s en su s ag ain s t th e sen t en c in gpr ac tic ea ti ssu e. Ro per , supra, at 5 63. Next, loo k ing to “the standard s elab orated by controllin g precedents and b ythe Court’s own u n ders t a nding a n d int e rpret a t i on of the Eighth Amendment’ s t e xt , his t ory, m e a n ing, a n d purpos e,” Ke nne dy , supra, at ___, th e Court determines in the exercise of its own independe n t judgment whether the p unis h ment in q u es ti on violates the Consti tution, Roper, supra , at 564. Bec a u s e th is c a se implic a t es a par t ic u l a rty pe of sen

tenc e as it app lies to an enti r ec l ass of offe nder s who have c o mmitted ara nge of crim e s , t h e a p propria t e a n a l ys is is t h e cat e gorica l a p proach used in Atk i ns, Rope r, an d Kennedy

. Pp. 7–10.

(b) Applicat ion of the foregoing appr oac hconv inc e s the Cour t tha t th e sen t en c i n gpr ac tic eat iss u e is u n c o n s titu tion al. Pp. 1 0–3 1. (1) Sixjur i sdi c tions do not a llow life witho u t par o le sent enc e s for a n y j u venile offenders

. S e ven j u ri sdictions permit life wi thout parole for juve nile of fenders, but o n ly fo r homicide c r i mes. Thir ty -sev en States, the District of Columbia, and the Federal Government permit sentences of life without parole for a juve nile nonhomicide offender i n s o m ecircum s t a nces . TheS t a t e relies on these data to a r gu e that no na tiona lcons ens u s a g a i nst the s e ntenci n gpr ac tic einqu estion exists. Anex amin at i o nof ac tu als e n t en c i n gpr a c tic e s in those jur i sdic tion s that per m i tl i f e without pa r o le forjuv e nile nonhomic i de offender s, h o w e v e r , disc loses a c o n s en su s ag ain s t th e sen t en c e . Nation w i de , th er e ar e on ly 129 ju v e n ile offen d er s servin glife with ou t par o le sen

tences for no nhomicide cri mes. Because 77 of those offenders are serv in gsen t enc e s imposed inFlor id a and the other 52 are imprisoned i nj u s t10S t a t e s a n di nt h ef e d e r a l sy ste m , it appe ar s th a ton ly12 ju

risdictions nat i onwide in fact imposel i fe without parole sentences on juvenile nonhomicide offenders, wh ile 26 States and the District of Columbi ado not impose them despite ap parent statuto r y autho r iza

tion. Giv e n that the st ati s tic s r e flec t near lyall juv e nile nonhomic i de offenders who have received a life wi thout parole sentence stretching bac k man yy e ar s, mor eov er , it is c l ear how rare these s e ntences are, even within the States thatdo sometime s impose them. While mor e c o mmon in ter m s of ab solute number s tha nthe sentenc i ngpr ac tic e s in, e. g . , Atk i ns an dEnmundv. Flo r ida , 458U. S. 782, th e ty pe of sen

ten c e at is su e is ac tu al lyas r a r eas th ose oth e rsen t en cin gpr ac tic e s when viewed in proportion to the opportunities for its imposition. The fac tthat manyjur i sdic tions do not e x pressly prohibit the sen

-3 Cite as: 56 0 U

. S. ____ (2010) Sy llabu s tencing practi ce at is sue is not di spos itive because it do es not neces

sarily follow t h at the legisl a t ures in those jurisdictions have deliber

atelyc o n c lu ded th at su c hsen t en c e s wou l d be appr opr i ate. See Thompsonv. Oklahoma , 487 U. S. 815, 82 6, n

. 24, 850. Pp. 10–1 6. (2) The inadequacy of pe no logi c a l theor y to justifylife without parole sentences for juvenile nonhomicide offenders, the limite dcul

pabil i ty of suc hoffenders, and the severity of these sentences all le ad the Cour t to conc lude that the sent encin gpra c t i ce a tis s u e is cruel a n d unus ua l. No recent dataprovide reas on to recons ider Roper’s holding that b e cause juveniles havelessen e d culpabili ty they are less deserv in gof th e most ser i ou s for m s of pu nish men t

. 543 U. S., at 551. Moreove r , defendants who do not kill, in tend to kill, o rforesee that life will be t a k e n are categorically le s s dese rving of such punishments than are murderers. E.g., Kenne dy, su pra. S e rious nonhomicide c r i mes “mayb edev a sta t ingin theirhar m . . . but ‘ i n terms of mor a l depr av ityandof the injur y to the pe rs on and to the pu blic,’ .

. . the y cannot be com p ared to murder in th eir ‘se v erity and irrevocability.’ ” Id., at ___. Thus, whe n compared to an adult murderer, a juvenile of

fender who di d not kill or intend to kill ha s a twice dim i nished moral culpability. A g e and the nature of the cri me each bear on the analy

sis. As forthe pu n i sh men t , life w i thout par o le is “the sec o nd most severe penalt y permitted by law,” Harmelinv. Mi chi gan , 501 U. S. 957, 10 01, and is especia llyharsh fo r a ju v e nile offender, who will on av er ag e serv e mor ey e ar s an d a gr eaterper c e n t ag e of h i s life in prison than an adult offender, see, e.g. , Roper, supra , at 57 2. An d none of the legi tima te g o als of penal sanctions—retribution, deter

rence , inca pa c i t a tion, and rehabili tation, see Ewing v. California , 538 U. S. 11, 25—is ade q u a te t oju stif y life without parole for juvenile nonhomicide offenders , s ee, e.g., Roper, 543 U. S., at57 1, 57 3. Be

cause age “18 is the point w h ere so ciety draws the line for many pur

poses betweenchildhood an d adulthood ,” it is the age below which a defendant ma ynot be sente n c e d to life wi thout par o le f o ra nonhomi

cide crim e . Id ., at 574. A St ate is n o t r e qu ir ed to gu ar antee ev en tu al fr eedom to su c hanoffen d er , bu t mu st impose a sen t e n c eth at pr o v i des so me meaningf ul oppor t unityforr e lease bas ed on demon

str a tedma tur i tyand r e habi lita t ion. It is for the State, in the first instance, to explore the means an d m e cha n is m s for com p lia nce . Pp. 16–2 4. (3 ) A ca t e gorica l rule is nec e s s a ry, given t h e ina d eq ua c yof t w o alter n ativ e ap pr oac h es to a ddr ess the r e lev a nt c o nstit u tional c o n cerns . Firs t , a l t h ough Floridaa n d ot her S t at es have ma de s ub s t a n tial effor t s to enac t c o mpr e hensiv e r u les g o v e rningthe tr eatment of youthful offen d ers , s u ch la ws a l low the im position of the ty pe of sen

ten c e at issu e based on lyona disc r e tion ar y , subjec tiv eju dg men tbya4 GRAHAM v. F L ORIDA Sy llabu s judge or jury that the juvenil eo ffender is irredeemably de praved, and are thereforei n sufficient to pr ev ent the possibili tythat the offender will receive such a sentence despite a lack of moral culp abil i ty. Sec

ond, aca s e -b y-ca s ea pproa ch req u irin g t h a tt h e pa rt icula roffender’s ag e be weigh e d ag ain s t th e ser i ou sn e ss of the crime as p a rt of a gross disproportiona lity inquiry would not al low courts to d i st inguish with s u fficienta ccura cy t h e few j u venileoffend ers having s u fficient ps y c h ologic al mat u r i tyand depr av ityto mer i t a l i fe without par o le sen

tenc e fr om the manythat hav ethe c a pa c i tyforc h ange. Cf. Roper, supra , at 57 2 –57 3. Nordo es su c hanap pr oac htake a c c o un t of spe

cia ldifficult ies encount eredb yco unsel in juvenile re presentation , given juvenile s’ impul s iveness, diff iculty t h inking in terms of long

t e rmb e nefit s , a n d reluct a n ce t ot r us ta d ult s . A ca tegorica l rule av oids th e r i s kth at, as ar e su lt of these difficulties, a court or jury will erroneo u sly concludethat a pa rticular juvenile i s sufficiently culpab l e t o des e rve life wit h outpa role for anonhom i cide. Ita l s o gives t h e j uve nile offenderacha n ceto demonstr ate m a tur i tyand r e for m . Pp. 24– 29. (4) Additional support for th e Co urt’s conclusion lie s in the fact that the sente n c i ngp r ac tic e at is su e has be en rejected the world over: The United States i s the only Nati on thatimposes thi s ty pe of sen

tence. While the judgments of ot hernations and the inter n ational c o mmunityar e not dispos i t iv e as to the meaningof the Eigh th Amendment, the Court has looked abroad to support its independent conclus i on tha tapa rticula r punis h ment is cruel a n d un us ua l. S ee, e.g. , Rope r, su pra , at 575– 57 8. Pp. 29–31. 982 So. 2d 4 3 , r e v e r s ed an d reman d ed.

K ENNEDY , J., delivered the opinion of theCourt, in which S TEVENS , G IN SB U R G , B RE Y E R , and S O T OMAYOR , JJ., joined. S TEVENS , J., filed a conc urri ng op inion, in whic h G IN SB U R Gan d S OTOMAYOR , JJ., joined. R OBERTS , C. J., filed an opinion concurring in thejudgm e nt. T HOMA S , J., filed a d i ss enting opinion, in which S CAL IA , J., joined , and in which ALITO , J., joined as to Parts I and III. ALI TO , J., filed a dissenting opi n ion._________________

_________________ 1 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rmalrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–7 41 2 TERRAN C E JAMAR GRA H AM , PETITION ER v. FLORIDA ON WRIT OF CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , FIRST DIST RICT [M ay17, 2010 ] J USTICE K E NNEDY delivered the opinion of the Court. The issue before the C o urt is whether the Constitution permits a juvenile offender to be sentenced to life in prison without par o le for a nonhomicide c r ime. Thes e ntence was imposed by the State of Florida. Petitioner challenges th e sentence under the Eighth Ame n dment’s Cruel and Un

usual Punishments Clause, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Robinsonv. California , 370 U. S. 660 (1962). I Petitioner is Terrance Jamar Gra ham. He was born on January 6, 1987. Graham’s parents were addicted to crac kcocai n e, and their drug us e persisted in his earl y years. Gra ham was diagnose d with attention deficit hy

peractivity disorder in element a ry school. H ebegan drinking al cohol and using tobacco at age 9 and smoked marijuana at age 13. In July 200 3, when Graham was age 16, he and three other school-age youths attempted to rob a barbeque restaurant in Jacksonville, Florida. One youth, who worked a tthe restaurant, left the backdoor unlock ed just2 GRAHAM v. F L ORIDA Opinion of theCourt before closing time. Graham and another yo uth, wearin g masks, entered through the unlocked door. Graham ’s masked accomplice twice stru ck the restaurant manager in the back of the head with a metal bar. Wh en the man

ager started yelling at the assailant and Graham, the two youths ranout and es caped in a car d r iven by the thi r d accomplice. The resta u rant mana ger require d stitches f o r his head inj u ry. No money was taken. Graham was arrested for the ro bbery atte mpt. Under Florida law, it is within a prosecu t or’s discretion whethe r to charge 1 6 - and 17-year-olds as adults or juveniles for most felonycrimes. Fla. Stat. §985.227(1)(b) (2003) (sub

sequently renumbered at §985.557(1)(b) (2007)). Gra

ham’s prosecutor elected to charge Graham as an adult

. The charge s against Graham were armed burglary wi th assault or battery, a first-degree felony carrying a maxi

mum penalty of life imprisonment without the possibil i ty of parole, §§810.02(1) (b), (2)(a) (2003); and attempted armed-robbery, a second-degree felony carrying a maxi

mum penalty of 15 ye ars’ impris onment, §§812.13(2)(b), 777.04(1), (4)(a), 775.082(3)(c). On December 18, 2003 , Graham pleaded guilty to both charges un der a plea a greement. Graham wrote a letter to the trial court. After reciting“th is is my first and last time gettin gin t r ouble,” he co ntin ued “I’ve decided to tur n my life around.” App. 379–380. Graham said “I made a promise to God and m y self that if I get a second chance, I’m going to do whate v er it takes to get to the [National Football League].” Id. , at 380. The trial court ac cepted the plea agreement. The cou r t withheld adjudicationof guilt a s to both charges and sentenced Graham to concurrent 3-year terms of proba

tion. Graham was required to spend the first 12 months of his probation in the county jail, but he received credit for the time he had served awaiting tri a l, and was released on June 25, 20 04.3 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt Less than 6 months later, on th e night of December 2 , 2004, Grah am again was arrested. The Sta t e’s case was as follows: Earlier that even ing, Graham participated in a home invasion robbery. His two accomplices were Meigo Bailey and Kirkland Lawrence, both 20-year-old men. Accordin g to the State, at 7 p. m. that night, Graha m, Bailey, and Lawrence k n ock e d on the door o f the home where Carl os Rodriguez lived. Graham, followed by Bail ey and Lawre n ce, forcibly entered the home an d held a pistol to Rodrigue z’s chest. For the nex t30 minut es, the three held Rodriguez and an other man, a friend of Rodriguez, a t gunpoint while they ransacked the home searching fo r money. Before leaving, Graham a n d his accomplices barricaded Rodriguez and his friend inside a clos et. The State further alleged that Graham, Bailey, and Lawrence, later the same evening, attemp ted a second robbery, during which Bailey was shot. Graham, who had borrowed his father’s car, drove Bailey and Lawrence to the hospital and left th em there. As Graham drove awa y , a police sergeant signa l ed him to stop. Graha m continued at a high speed but crashed into a telephon e pole. He tried to flee on foot b u t was apprehended. Three hand

guns were found in his car. When detectives interviewed Graham, he denied in

volvement in the crimes. Hesaid he encountered Bailey and Lawrence only after Bailey had been sho t

. One of the detectives told Graham that the victims of the home inva

sion had id entified him. He asked Graham , “Aside from the two robberies tonight how many more were you in

volved in?” Graham responded, “Two to three before tonight.” Id. , at 160. The night that Grah am allegedly committed the robbery, he was 34 days short of his 18th birthday. On Decemb er 13, 2004, Graham’s probation officer filed with the tr ial court an affidavit asserting that Graha m had violated the condi t ions of his probation by possessing4 GRAHAM v. F L ORIDA Opinion of theCourt a firearm, committingcrimes, and associating with pe r sons engaged in criminal acti vity

. The trial court held hearings on Graham ’s violations about a year later, in December 2005 and J anuary 200 6. The judge who pre

sided was n o t the same judge who had accepted Graham’s guilty plea to the earlie r offenses. Graham m a intained that he had no involvement in the home invasion robbery; but, even after the court unde r scored that the admiss ion could expose him to a life sen

tence on the earlier charges, he admitted vio l ating prob a tion conditi o ns by fle e i n g. The State presented evidence related to t h e home invasion, including testi m ony from the victims. The trial cou rt note d th at Graham, in admitting his attempt to avoid a rrest, had acknowledged violating his probation. The court further found that Graham had violated his probation by committing ahome invasion robbery, by possess ing a firearm, and by associating with persons engaged in criminal activity. The trial co urt held a sentencing hearing. Under Flor

ida law the minimu m sentence Graham could receive absent a downward d e parture bythe judge was 5 year s’ imprisonment. The maximum was life i m prisonment. Graham’s a ttorney req u ested the minimum n o ndeparture sentence of 5 years. A presentence report prepared by the Florida De partment of Correcti ons recommended that Graham receive an even lower sentence—at most 4 years’ imprisonment. The State reco mmended that Graha m receive 30 years on the armed burglary count a n d 15 years on the attempted arm e d robbery count. After hearing Graham ’s testimony, the trial court ex

plained the sentence it was about to pronounce: “Mr. Graha m, as I look back on your case, yours is really candidly a sad situation. You had, as far as I can tell, you have quite a family s tructu re. You had a lot of people who wanted to try and help you get you r5 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt life turned around including the court syst em, and you had a judge who took the step to try and give you direction through his probation order to gi ve you a chance to get back onto track. And at the time you seemed through yourletters that that is exa c tly what you wanted to do. And I don’t kno w why it is that you threw your life away. I don’t know why. “But you did, and that is what is so sad abou tthi s today is that you have actually been given a c hance to get throughthis, the original charg e , which we re ver y serious charges to begin with

. . . . The attempted rob

bery with a weapon wa s a very serious charge.

. . . . . “[I]n a veryshort period of time you were back be

fore the Court on a violation of this probation, and then here you are two years later standing before me, literally the—facing a life sentence as to—up to life a s to count 1 and up to 15 years as to count 2. “And I don’t understa n d why yo u would be given such a gre a t opportu nity to do something with your life and wh y you would throw it away. The only thing that I can rationalize is that you decided tha tthis is how you we re going to lead your life and that there is nothing that we can do for you. And as the state pointed out, that thi s is an escalating pa ttern of criminal conduct on yo ur part and that we ca n’t help you any further. We can’t do any thing to deter you. This is the way you ar e goin g to lead your lif e, and I don’t kno wwhy you are goin g to. You’ve m a de that decision. I have no idea. But, evidently, that is what you decided to do. “So then it becomes a focus, if I can’t do anyt h ing to help you, if I can’t do anything to get you back on the right path, then I have to start focusing on the com

munity andtryingto pr otect the co mmunity fr om your6 GRAHAM v. F L ORIDA Opinion of theCourt actions. And, unfortu nately, that is where we are to

day is I don’t see where I can do a n ything to help you any further

. You’ve evidently decided this is the di

rection you’re going to take in lif e, and it’s unfortu

nate that you made that choice. “I have reviewed the statute. I do n’t see where any further juvenile sanctions would be appropriate. I don’t see where any youthful offender sanctio n s would be appropriate. Given your escalating pattern of criminal conduct, it is apparent to the Court that yo u have decided that this is the way you are goin g to live your life and that the o n ly thing I can do now is to try and protectthe community from y o ur actions.” Id., at 392–394. The trial court found Graham guilty of the earlier armed burglary a n d attempted armed robbery charges. It s e n tenced him to the maximum sentence authorized by law on each charge: life imprisonment for the armed burglary and 15 years for the attempte d armed robbery. Because Florida has abolishedits paro lesystem, s ee Fla. Stat. § 9 2 1 .0 02 (1 )(e) (200 3), a li fe sen t en ce gi ves a de fen d an t no pos s ibility o f re leas e unle ss he i s grante d e x ecuti v e clemency. Graham filed a motionin the trial court challenging his sentence under the Eighth Amen dment. The motion w a s deemed denied after the trial court failed t orule on it within 60 days. The First Dist rict Cour t of Appeal of Florida affirmed, concluding that Graham’s s e ntence was not grossly disproporti onate to his crimes. 9 82 So. 2d 4 3 (2008). The court took note of the seriousness of Graham ’s offenses an d their viol ent nature, as well a s the fact that they “were not committed by a pre-teen, but a seventeen

year-old wh o was ultimately sentenced at the age of nine

teen.” Id., at 52. The court concl u ded furthe rthat Gra

ham was i n capable of rehabilitation. Although Graham7 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt “was given an unheard of probationary sentence for a life felony,

. . . wrote a letter expre ssing his remorse an d promising to refrain from the commission of further crim e , and .

. . hada stron gfa mily struc t ure to supp ort him,” th e court noted, he “rejected his second chance and chose to continue committing crimes at an escalating pace.” Ibid. The Florida Supreme Court denied review. 990 So. 2 d 1058 (2008) (table).

We granted certiorari. 556 U. S. ___ (2009). II The Eighth Amendment states: “Excessive bail shall n o t be required, nor excessive fi nes imposed, nor cruel and unusual punishments inflicted.” To determine whether a punishment is cruel an d unusual, courts must look beyond historical conceptions to “ ‘the evolving standards of de

cency thatmark the progress of a maturi ng society.’ ” Estellev. Gamble , 429 U. S. 97, 10 2 (1976) (quoting Trop v. Dulles , 356 U. S. 86, 101 (1958) (plurality opinion)). “This is because ‘[t]he standar d of extreme cr uelty is not merely descriptive, b u t necessarily embodies a mor a l judgment. The standa r d itself re mains the same, but its applicability must change as the basic mores of s o ciety change.’ ” Kennedyv. Louisiana , 554 U. S. _ __, ___ (200 8) (slip op., at 8) (quoting Furman v. Geor gia , 4 08 U. S. 238, 382 (1972) (Burger, C. J., dissenting)). The Cruel and Unusual Punishm e nts Clause prohibits the imposit i on of inherently barb a ric punishments under all circumst ances. See, e.g., Ho pev. Pelz er , 5 36 U. S. 73 0 (2002). “[P]unishments of torture,” for e x ample, “a re forbidden.” Wilkersonv. Ut a h , 99 U. S. 130, 136 (1879). These cases underscore the essential principle that, unde r the EighthAmendment, the S t ate must re spect the h u man attrib u tes even of those who have committed serious crimes. For the most part, h o wever, th e Court’s precedents8 GRAHAM v. F L ORIDA Opinion of theCourt consider punishments challenged not as inh e rently bar

baric but as disproportionate to the crime. The concept of proportionality is central to th e Eighth Amendment

. Embodied in the Constitution’s ban on cruel and unusual punishments is the “pre cept of justi c e that punishment for crime shoul dbe graduated and proportioned to [the] of

fense.” Wee m sv. Uni t ed Sta t es , 21 7 U. S. 349, 367 (1910). The Court’s cases addressing the proportionality of sentences fall within t w o general classifications. The fir s t involves challenges to the lengt hof term- o f-years sen

tences given all the circumstanc es in a particular cas e . The second comprises cases in which the Court imple

ments the proportionality standard by certain categorical restrictions on the death penalty. In the firstclassification the Court considers all of the circumstan ces of the c a se to determine whet her the sen

tence is unconstitutionally excessive. Under this ap

proach, the Court has held uncon stitutional a life withou t parole sent ence for the defe ndan t’s seventhnonviolent felony, the crime of passing a worthless chec k. Solem v. Helm , 463 U. S. 277 (1983). In other cases, however, it has been difficult for the challenger to establish a lack o f proportionality. A lea d ing case is Harmelinv. Michigan , 501 U. S. 957 (1991), in which the offender was sentenced under state law to life without parole for possessing a large quantity of cocai n e. A closely divided Court uphe ld the sentence. The controlling opinion conclu ded that the Eighth Am endment contains a “narrow proportionality principle,” that “does not re quire strict p r oportionalit y between cr ime and sentence” but rather “forbids only extreme sentences that are ‘gro ssly disproportionate’ to the crime.” Id., at 997 , 1000–1001 (K ENN E DY , J., concur

ring in part and concurring in judgment). Again closely divided, the Court rejected a c hallenge to a sentence of 25 years to life for the theft of a few golf clubs under Califor

nia’s so-call e d three-strikes recidivist sentenci ng scheme.9 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt Ewing v. California , 538 U. S. 11 (2003); see also Lockyer v. Andrade , 538 U. S. 63 (2003). The Court has also up

held a sentence of life with the possibility of parole for a defendant’s third nonvi o lent felony , the crime of obtaining money by false pretense s, Rummel v. Es t e lle , 4 45 U. S. 26 3 (1980), and a sentence of 40 year s for posses s ion of mari

juana with intent to distribute and distribution of mari

juana, H u ttov. Davis , 454 U. S. 370 (1982) (per curi am)

. The controlling opinion in Harm elinexplained its ap

proach for determining whethe r a sentence for a term of years is grossly disproportio nate for a particular defen

dant’s crim e . A court must begin by compari n g the gravity of the off e n s e and the severity of the sentenc e . 501 U. S., at 1005 (op i nion of K ENNEDY , J.). “[I]n the rare case in which [this ] threshold comparison .

. . leads to an infer

ence of gross disproportionality” the court should then compare t h e defendant’s sentence with th e sentences received byother offenders in th e same jurisdiction and with the se ntences imposed for t h e same cr ime in other jurisdictions. Ibid. If this comparative analysis “vali

date[s] an initial judgment that [the] senten ce is grossly disproporti onate,” the sentence is cruel and unusual. Ibi d

. The second classification of cases has used c a tegorical rules to define Eighth Amendment standards

. The previ

ous cases in this class i fication involved the d e ath penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other consider

ing the characteristics of the offender. With r e spect to the nature of th e offense, th e Court ha s concluded that capita l punishment is imper m issible for nonhomicide crimes against individuals. Kennedy , supra, at __ (slip op., at 28) ; see als o Enmundv. Florida , 458 U. S. 782 (1 982); Coker v. Georg i a , 43 3 U. S. 584 (1977). I ncases turning on th e characterist ics of the offender, the Court has adopted categorical rules prohibiting the death penalty for defe n dants who committed their crime s before th e age of 18 ,10 GRAHAM v. F L ORIDA Opinion of theCourt Roper v. Si mmons , 543 U. S. 551 (2005), or whose intellec

tual functioning is in a low range, Atkinsv. Virginia , 53 6 U. S. 304 (2002). See also Thom psonv. Okla homa , 487 U. S. 815 (1988). In the cases adopting categorical rules the Court has taken the f o llowing approach. T h e Court fi rst consider s “objective indicia of s o ciety’s standards, as expressed in legislative enactments and state practice” to determine whether th ere is a national consen sus against the sentenc

ing prac tice at issue. Roper , sup r a, at 563. Next, guided by “the standards elaborated by controlling precedents and by the Court’s own understanding and interpretati on of the Eigh th Amendment’s text, history, meaning, a n d purpose,” Kennedy , 554 U. S., at ___ (s lip op ., at 10), the Court must determine in the exercise of its own inde

pendent ju dgment wh ether the punishment in question violates the Constitution. Roper, s u pra , at 56 4. The present case involves an iss u e the Cou rt has not considered previously: a categorica l challenge to a term-of

years sentence. The approach in cases such as Harm eli n and Ewin g is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice its e lf is in qu estion. Thi s case impl i

cates a pa rticular ty pe of sentence as it a pplies to an entire class of offender s who have committed a range of crimes. As a result, a thre shold comparison between th e severity of the penaltyand the gr avity of the crime does not advance the analysis. Here, in addressing the ques

tion presen ted, the appropriate analysis is the one usedin cases that involved the catego rical approach, specifically Atkins, Roper, and Kennedy

. III A The analysis begins with objective indicia of national consensus. “[T]he ‘clearest and most reliable objective11 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt evidence of contemporary values is the legislation enacted by the country’s legislatures.’ ” Atkins , sup ra, at 312 (quoting Penryv. Lynaugh , 492 U. S. 302, 331 (1989)). Si x jurisdictions do not allow life without parole sentences for any juvenil eoffenders. See Appendix, inf ra , Part II I. Seven jurisdictions permit life without parole for juvenile offenders, but only for homicide crimes. Id., Part II. Thirty-seve nStates a s well as t h e Districtof Columbia permit sentences of life withou t pa role for a j u venile non

homicide offender in some circumstances. Id., Part I. Federal la w also al lows for the possibility of life without parole for offenders as young as 13. See, e.g., 18 U. S. C. §§2241 (20 06 ed. and Supp. II), 5032 (2006 ed.). Relying on this met r ic, the State and its am i c iargue that there is no national consensus against the sentencing practice at issue. This argum e nt is incomplete and unavailing. “There are measures of consensus other than legislation. ” Kennedy , supra, at ___ (slip op., at 22). Actual sentenc i ng practice s are an important pa rt of the Cou rt’s inquiry into consen

sus. See En mund , supra, at 794–796; Thompson , sup ra, at 831–832 (plurality opinion); Atkins , su pra, at 316; Roper , su pra, at 564–5 65; Kenned y , supra, at ___ (slip op., at 22–23). Here, an examination of actual sentencing practices in jurisdictions where the sentence in question is permitted by statute discloses aconsensus ag ainst its us e. Although these statutory schem e s contain no explicit prohibition on sentences of life without parole for juvenile nonhomicid eoffenders , those sen t ences are most infre

quent. According to a recent study, nationwide there ar e only 109 juvenile off e n d ers serving sentences of lif e with

out parole for nonhomicide offens es. See P. Annino, D. Rasmussen, & C. Rice, Juvenile Life without Parole fo r Non-Homicide Offenses: Florida Compared to Nation 2 (Sept. 14, 2009) (hereinafter Annino). The State contends that this study’s tally is inaccurat e12 GRAHAM v. F L ORIDA Opinion of theCourt because it does not c o unt juvenile offender s who were convicted o f both a ho micide and a nonhomicide offense, even when the offen d er received a life wi thout parole sentence for the nonhomicide. See Brief for Respondent 34; Tr. of Oral Arg. i n Sullivanv. Florida , O. T. 200 9, No. 08–7621, pp. 28–31. This dis t inction is unpersuasive. Juvenile of fenders wh o committed both ho micide and nonhomicid ecrimes present a different situation for a sentencing judge thanjuvenile of fenders who committed no homicide. It is difficult to sa y that a de fendant wh o receives a l i fe sente n ce on anonh omicide off e nse but wh o was at the same time convicted of homicide is not insome sense being punished in part for the homicide when the judge make s the sentencing determination. The instant case concerns only those juvenile offende r s sentenced to life without parole solelyfor a nonhomicide offense. Florida furt her criticizes this study because the authors were unable to obtain complete information on some States and because the study was not peer reviewed. See Brief for Respondent 40. The S t ate does n o t, however, provide any data of its own. Although in the f i rst instance it is for the litigants to provide da ta to aidth e Court, we have been able to supplement the study’s findings. The study’s au thors were not able to obtain a definitive tally for Nevada, Utah, or Virginia. See Annino 11–13. Ou r research shows that Nevada has five juvenile nonhomicide offenders s e rving life without parole s e ntences, Utah has none, and Virginia ha s eight. See Letter from Alejandra Livingston, Offender M anagement Division, Nevada Dept. of Corrections, to Supreme Court Library (M ar. 26, 2010 ) (available i nClerkof Court’s case file); Letter from Steve Gehrke, Utah Dept. of Corre ctions, to Supreme Court Library (M ar. 29, 2010) (same); Letter from Dr. Tama S. Celi, Virginia Dept. of Correcti ons, to Supreme Court Library (M ar. 30, 2010) (same). The study also did no t note that there are six convicts i nthe federal prison sy s -13 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt tem serving life without paroleoffenses for nonhomicid e crimes. See Letter and Atta chment from Judith Simon Garret t , U. S. Dept. of Justice, Federal Bureau of Prisons, to Supreme Court Lib r ary (Apr. 12, 2010) (available in Clerk of Court’s case file). Finally, since the study was completed, a defendant i n Oklahoma has apparently been s e ntenced to life without parole for arape and stabbing he committed at the age of 16. See S t ogsdill, Delaware County Teen Sentenced in Rape, Assault Case, Tulsa World, May 4, 2010, p. A12

. Thus, adding the individuals counted by the study to those we have be en able to locate independently, there are 129 juvenile nonhomicide offenders serving life without parole sentences. A significant majorityof those, 77 in total, are serving sentences imposed in Florida. Anni no 2. The other 52 are imprisoned in just 10 State s —California, Delaware, Iowa, Louisiana, Mis s issippi, Nebraska, Ne

vada, Okla homa, South Carolina, and Virginia—and in the federal system. Id. , at 14; supra , at 12–13; Letter from Thomas P. H oey, Dept. of Corrections, Government of the District of Columbia, t oSupreme Court Libra ry (Mar. 31, 2010) (available inClerk of Cou rt’s case file); Letter fro m Judith Sim o n Garrett, U. S. Dept. of Justice, Federal Bureau of Prisons, to Supreme Court Library (Apr. 9, 2010) (available in Clerk of Court’s case file). Thus, only 12 jurisdictions nation w ide in fact impose life without parole sentences on juvenile nonh omicide offenders—and most of those impose the sentence quite rarely—while 26 States as well as the District of Columbia do not impose them despite apparent statutory a u thorization. The numbers cited abo ve reflect al l currentco nvicts in a jurisdiction’s penal system, regard less of when they wer e convicted. It becomes all the mor eclear how rare these sentences a r e, even with in the juri sdictions that do som e times impo se them, when one co nsiders that a juvenile sentenced to life without parole is likely to li ve in priso n14GRAHAM v. F L ORIDA Opinion of theCourt for decades. Thus, these statistics likely reflect nearly all juvenile nonhomicide offenders who have re ceived a life without par o le sentence stretch ing back many years. It is not certain that this op inion has identified every juvenile nonhomicid eoffender nationwide serving a life without parole sentence, for the statistics are not precise. The available d a ta, noneth eless, are sufficient to demonstrate how rarely these sente n ces are imposed even if there are isolated cas e s that have not be en i n cluded in the presenta

tions of the parties or the analysis of the Court. It must be acknowledged t hat in terms of absolute num

bers juvenile lif e without pa role sentences f o r nonhomi

cides are more common than the sentencing practices at issue in so me of this Court’s other Eighth Amendment cases. See, e.g., Enmu nd , 458 U. S., at 794 (only six exe

cutions of nontriggerm an felony murderers between 1954 and 1982) Atkins , 536 U. S., at 31 6 (only five executions of mentally retarded defendants in 13-year period). This contrast ca n be instructive, ho wever, if attention is first given to the base number of certai ntypes of o ffenses. For example, inthe year 2 007 (the most recent year for which statistics a r e available), a total of 13,480 persons, adult and juvenile, were arrested for homicide crimes. That same year, 57,600 juveniles were arrested for aggra v ated assault; 3,580 for forci ble rape; 34,500 for robbery; 81,900 for burglary; 195,700 for dru g offenses; a n d 7,200 for arson. See Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Statis tical Briefing Book, onlin e at http://ojjdp.ncjrs.org/ojsta tbb/ (as visited M a y 14, 2010, and available in Clerk of Court’s case file). Although it i s not certain how many of these numerous juvenile off e nd

ers were eligible for life without parole sentences, the comparison suggests that in proportion to the opportuni

ties for its imposition , life without parole sentences for juveniles convicted of nonhomi cide crimes is as rare a s other sentencing practi ces found to be cruel an d unusual.15 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt The evidence of consens u s is not un dermined by the fact that man yj u risdictions do not pro h ibit life without parol e for juvenile nonhomicide offend er s. The Court confronte d a similar s i tuation in Thompson , where a plurality con

cluded that the death penalty for offenders younger than 16 was unconstitutional. A numb e r of Sta t es then allowed the juvenile death penalty if one considered the statutory scheme. A s is the case here, those States authorized the transfer of some juven ile off e nders to adult court; and at that point there was no statutory differentiation between adults and juveniles with respect to authorized penalties. The plurality conclude d that the transfer laws show “tha t the States consider 15-year-olds to be old enough to be tried in criminal court for seri ous crimes (or too old to be dealt with effectively in juvenile c o urt), but tells u snoth

ing about the judgmen tthe se S t a t es have m a de regardin g the a p

prop r i ate punish ment for s u ch youthful offenders .” 487 U. S., at 826, n. 24. Justice O’Connor, concurring i n the judgme nt, tooka similar view. Id., at 850 (“When a legislature provides for some 15-year-olds to be processed through th e adult criminal justice system, and capital punishment is availab l e for adults in that jurisdiction, the death penalty becomes at leas t theoretically applicable to such defendants. . . . [H]owe ver, it does notnecessarily follow that the legis l atures in those jurisdictions have deliberately concluded that itwould be appropriate”). The same reasoning obtains here. Many States have chosen to move awayfrom juven ile court systems and to allow juveniles to be transferre d t o , or charge d directl y i n , adult court under certain circumstances. Once in adult court, a juv e nile offender may rec e ive the same sentence as would b egiven to an adult of fender, including a life without pa role sentence. But th e fact that transfer an d direct char ging laws make lif e w i thout parole possible for some juvenile nonhom i cide offenders does not justify a judgment that many States intended to subject such of

-16 GRAHAM v. F L ORIDA Opinion of theCourt fenders to life without parole sentences. For example, under Florida law a child of any age can be prosecuted as an adultfor certain crimes and can be s e n tenced to li fe without parole. The State acknowledged at oral argum e nt that even a 5- year-old, theoretically, could receive such a sentence under the letter of the law. See Tr. of Oral Arg. 36–37. All would concede this to be unre

alistic, but the exam ple under scores that the statuto r y eligibility of a juvenile offender for life withou t parole does not indicate that the penalty has been endorsed through deliberate, express, and fu ll legislative consideration



### . Similarly, the many States that allow life with out parole for juvenile nonhomicide offe nders but do not impose the punishment should not be treated as if they have ex

pressed the view that the sentence is appropriate. The sentencing practice no w under consideration is exceed

ingly rare. And “it is fair to say that a national consens u s has develop e d against it.” Atkins , supra, at 31 6. B Communityconsensus, while “enti t led to gr eat weigh t ,” is not itself determinative of whether a punishment is cruel and u nusual. Kennedy , 554 U. S., at ___ (slip op., at 24). In ac cordance with the con s titutional design, “th e task of inte rpreting th e Eighth A m endment remains our responsibili ty.” Roper , 543 U. S. , at 575. The judicial exercise of independen t judgment requires c o nsideration of the culpability of the offenders a tissue in l i ght of thei r crimes andcharac teristics, along with the se verity of th e punishment in question. Id., at 568; Kennedy , supra, at ___ (sl i p op. , at 27–28); cf. Solem , 463 U. S., at 292. In this inquiry the Court also considers whether th e challenged sentencing practice serves le gitimate penological goals. Kennedy , su pra, at ___ (slip op., at 30–36); Roper , su pra, at 571–572; Atkin s, supra, at 318–320. Roper estab lished that because juveniles have lessened17 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compa r ed to adults, juveniles have a “ ‘lack of maturity and an underdeveloped sense of responsibility’ ”; they “ar emore vulnerable or susceptible to negative influences and outside pressures , including peer pressure”; and their character s are “ not a s well formed.” Id., at 569–570. These salien t characteris

tics mean that “[i]t is difficult even for expert psycholo

gists to differentiate between the juvenile off e nder whose crime reflects unfortunate ye t transient imm a turity, an d the rare ju v e nile offender wh ose cr ime reflects irreparable corruption.” Id. , at 57 3. Accordingly, “juve n ile offenders cannot with reliability be classified among the worst o f

fenders.” Id. , at 569. A juvenile is not absolv e d of respon

sibility for his actions, but his transgression“is not as morally reprehensible as that of an adult.” Thompson , supra, at 835 (plurality opinion). No recent data provide reason to r e consider the Court’s observations in Roper about the nature of juveniles. As petitioner’s amici point out, deve lopments in psychology and brain science con t inue to sh ow fundamental differ

ences between juvenile and adult minds. For exampl e, parts of the brain involved in behavior control continue to mature th r o ugh late a d olescence. See B r ief f o r America n Medical Association et al. as Amici Curiae16– 24; Brief for American Psychological Association et al. as Amici Curi ae 22–27. Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievab ly depraved character” than are th e actions of adults. Roper , 543 U. S., at 570. It remai n s true tha t “[f]rom a moral standpoint it would be misguided to equate the failings of aminor with those of anadult, for a greater possibility exis ts that a minor’s character deficien

cies will be reformed.” Ibid. These matters relate to th e status of the offenders in quest ion; and it is relevant to consider next the na t u re of the offenses to which th is18GRAHAM v. F L ORIDA Opinion of theCourt harsh penalty might apply. The Court has recognized that de fendants who do not kill, intend to kill, or fore see that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. Kennedy, supra; En

mund , 458U. S. 782; Tisonv. Arizona , 481 U. S. 137 (1987); Coker , 433 U. S. 584. There is a line “between homicide a n d other s e rious violent offenses against the individual.” Kennedy , 554 U. S., at ___ (sl i p op., at 27). Serious nonhomicide crimes “ma ybe devast ating in th eir harm .

. . but ‘in terms of moral depravity and of the injury to the person and to the public,’ .

. . they ca nnot be com

pared to murder in their ‘severity and irrevocability.’ ” Id., at ___ (slip op., at 28) (quoting Coker, 433 U. S., at 598 (plurality o p inion)). This is because “[l]ife is over for the victim of the murderer,” but fo r th e victim of even a very serious non h omicide crime, “life

. . . is not over and nor

mally is not beyond repair.” Ib i d

. (plurality opinion). Although a noffense like robberyor ra pe is “a serious crime deserving serious punishment,” Enmun d , supra, at 797, those crimes differ from hom i cide crimes in amoral sense. It follows that, when compared to an adult murderer, a juvenile off e nder who did not kill or intend to kill has a twice diminished mor a l culpabili ty. The age of the o f

fend er an d th e na tur e of t h e cr im e eac h bear on t h e an aly s is

. As for the p unishment, life without parole is “t he second most sever epenalty permitted by law.” Harm elin , 501 U. S., at 10 01 (opinionof K EN NED Y , J.). It is true that a death sentence is “unique in its severity andirrevocabil

ity,” Gr eg g

v. Geor gia , 428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell, and S TEVE NS , J J .); yet life without pa role sentenc e s share some characteristics with death sentences that are sharedby no oth e r sentences. The State does not ex ecute the offender sen t enced to life19 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt without par o le, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convic t of the mostbasic liberties without giving ho pe of restora

tion, exceptperhaps b yexecutive clemency—the remote possibility of which does not mitigate the harshness of the sentence. Solem, 463 U. S., at 300–301. As one court observed in overturnin g a life wit h out parole sentence for a juvenile d e fendant, this sentenc e“means d e nial of hop e ; it means that good b e havio r an d character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.” Na ova rath v. Sta t e , 10 5 Nev. 525, 526, 779 P. 2d 944 (1989). The Court has recognized the sev e rity of sentences tha t deny convicts the possibility of parole. In Rummel , 44 5 U. S. 263, the Court rejected an Eighth Amen dment chal

lenge to alife sentence for a defen d ant’s third nonviolent felony but stressed th at the sentence gave the defendant the possibility of parole. Noting that “parole is an estab

lished variation on im prisonment of convicted criminals,” it was evide n t that an analysis of the petitioner’s sentence “could hardly ignore the possibi l i ty that he will not actu

ally be imprisoned for the rest of his life.” Id ., at 280–281 (internal qu otation m a rks omitted). And in Solem , the only previous case striking do wn a sentence for a term of years as grossly disproportionate, the defenda n t’s sentence was deemed “far more severe than the life sentence we considered in Rummel , ” because itdid not giv ethe def e n dant the possibility of parole. 463 U. S., at 297. Life without parole is an especially harsh punishment for a juvenile. Under this sentenc ea juvenile offender will on average serve more years and a greater percentage o f his life in prison than an adult o ffender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same puni shment in name only. See Roper , supra, at57 2 ; c f

. Harmelin , sup r a, at 996 (“In some cases20 GRAHAM v. F L ORIDA Opinion of theCourt

. . . there will be negligible difference between life without parole and other sentences of imprisonment—for example,

. . . a lengthy term sentence with out eligibility for parol e , giv e n to a65 -y ear - old m an” ). This realit y cannot be ign o r e d

. The penological justifications for the sentencing practice are also relevant to th e analysis. Kennedy , supra, at ___ (slip op., at 30–36); Roper , 543 U. S., at 571– 572; Atkin s, supra, a t3 18–320. Criminal punishment can have differ

ent goals, and choosing among them is within a legisla

ture’s discr e tion. See Harm elin, supra, at 99 9 (opinion of K ENN E DY , J.) (“[T]he Eighth Amendment does not ma n date adoption of any one penologi cal theory”). It does not follow, how e ver, that the purposes and effects of penal sanctions are irrelevant to the determination of Eighth Amendment restrictio n s. A se ntence lacking any legiti

mate penol o gical justification is b yits nature dispropor

tionate to t h e offense. With respect to life wi thout parol e for juvenile nonhomicide offend ers, none of the goals o f penal sanctions that have been recognized as legitimate— retribution, deterrence, incapa citation, and rehabilitation , see Ewing , 538 U. S., at 25 (plurality opinion)—provide s an adequate justification. Retribution is a legitimate reason to punish, but it cannot support the se ntence at i ssue here. Society is entitled to impose severe s anctions on a juvenile nonh omi

cide offender to express its condemnation of the crime and to seekrestoration of the moral imbalance caused by the offense. B u t “[t]he h e art of the retribution rationale is that a crim i nal senten ce mustbe directly re lated to the personal culpability of the criminal offender.” Tison , 481 U. S., at 14 9. An d as Roper observed, “[w]he ther viewed as an attempt to express the community’s moral outrage or as an at t e mpt to righ t the bala n ce for the wrong to th e victim, the case for r e tributio n is not as strong with a minor as with an adult.” 543 U. S., at 5 71. The case21 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt becomes ev en weaker with respec t to a juvenile who did not commit homicide. Roper found that “[r] etribution is not proportional if the law’s most severe penalty is im

posed” on the juvenile murderer. Ibid. The considerations underlying that holding support as well the conclusi on that retribu tion does not just ify imposing the second m o st severe penalty on the less culpable juvenile nonhomicide offender. Deterrence does not suffice to justify the sentence ei

ther. Roper noted that “the same characteristics that render juve niles less c u lpable than adults suggest .

. . th at juveniles will b el e ss susceptible to deterrence.” Ibid

. Because ju veniles’ “lack of matu rity an d un derdeveloped sense of responsibility

. . . often result in impetuous and ill-consider ed actions and decisions,” Johnsonv. Texas , 509 U. S. 3 50, 367 (1993), they are less likely to take a possible p unishment into consideration when making decisions. This is particularly so when that punishment is rarely imposed. That t h e sentence deters in a few cases i s perhaps plausible, but “[t]his argu ment does not overcome other objections.” Kennedy , 554 U. S., at ___ (slip op., at 31). Even if the pun i shment ha s some con n ection to a valid penological goal, it must be shown tha tthe punish

ment is not grossly disproporti onate in l i ght of the justifi

cation offer e d. Here, in li ght of juvenile nonhomicid e offenders’ diminishedmoral res p onsibility, any limit ed deterrent effect provid ed by life without parole is not enough to justify the sentence. Incapacitati on, a thirdlegitimate reason for imprison

ment, does not justify the life without parole sentence in question h e re. Recidivism is a serious risk to public safety, and so incapacitation is an important goal. See Ewing , sup ra, at 26 (plurality opinion) (statistics show 67 percent of former inmates releasedfrom state prisons are charged wit hat least one serious new crime within thre e years). But while incapacita ti on may be a legitimate22 GRAHAM v. F L ORIDA Opinion of theCourt penological goal sufficient to justify life without parole i n other contexts, it is in adequate to justify tha tpunishment for juveniles who did n o t commit homicide. To justify li fe without pa role on the assumption that the juvenile of

fender forever will be a danger to society requires the sentencer t omake a ju dgment tha tthe ju venile is incorri

gible. The characteristics of juveni les make th at judgment questionable. “It is dif f icult even for expert psychologists to differentiate between the juvenile off e nder whose crime reflects unfortunate yet transient immaturity, and th e rare juvenile offenderwhos e cri me reflects irreparabl e corruption.” Roper , su p ra, at 573. As one court concluded in a challenge to a lif e without parole sentence for a 14

- year-old, “incorrigibility is inconsistent with youth.” Workmanv. Commonweal th , 429 S. W. 2d 3 74, 378 (Ky. App. 1968). Here one c annot dispute that this defendan t posed an immediate risk, for he had committed, we can assume, serious crimes early in his term of supervised release and despite his own assura nces of reform. Graha m deserved to be separated from society for some time in order to prevent wh at the trialcourt desc ribed as an “escalating pattern of criminal conduct,” App. 394, but it does not follow that he would be a risk to society for t h e rest of his life. Even if the State’s judgment that Graha m was incor

rigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgmen twas made at the outset. A life without parole senten ce improperly denies the juvenil e offender a chance to demonstrate growthand maturity. Incapacitati on cannot override all other con s iderations, lest the Eighth Amen dment’s rul eagainst d i sproportion

ate sentences be a nullity. Finally there is rehab ilitation, a penologicalgoal that forms the basis of parole systems. See Solem, 463 U. S., at 300; Mistre ttav. Uni t e dStates, 488 U. S. 361, 363 (1989).23 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt The concept of rehabilitation is imprecise; and its utility and proper implementation are the subject of a substan

tial, dynam ic field of inquiry and dialogue. See, e.g., Cul

len & Gendreau, Ass e ssing Correctional Rehabilitation: Policy, Pra ctice, and Prospects, 3 Criminal Justice 2000, pp. 119–13 3 (2000) (de s cribing sch o larly debates regardin g the effectiveness of rehabilitationover the l a st several decades). It is for legislatures to determine what rehabili

tative techn i ques are appropriate and effective. A sentence of life im prisonment without parole, how

ever, canno t be justifie d by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that per

son’s value and place in society. This judgment is not appropriate in light of a ju venile nonhomicide offender’s capacity for change a n d limited moral culpability. A State’s rejection of rehabilitatio n, moreover, goes beyond a mere expressive judgment. As one amicusnotes, def e n dants serving life without parole sentences are often de

nied access to vocational training and other rehabilitative services that are available to otherinmates. See Brief fo r Sentencing Project as Amicus Curiae11–13. For juvenile offenders, who are mo st in need of and rece ptive to reha

bilitation, s ee Brief for J. Lawrence Aber et al. as Amici Curiae28– 31 (hereinafter Aber Brief), th e absence of rehabilitative opportunities or treatment makes the dis

proportionality of the sentence all the more evident. In sum, penological theory is not adequate to justify life without pa role for juvenile no nhomicide offenders. This determination; the li mited culpability of juvenile non

homicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice un der consideration is cruel and un usual. This Court now holds that for a juvenile offender who did not commit homicide the EighthA m endment forbids t h e24GRAHAM v. F L ORIDA Opinion of theCourt sentence of life without parole. Th is clear line is necessary to prevent the possib ility that life without parole sen

tences will be imposed on juvenile nonhomic i de offenders who are not sufficiently culpabl e to merit that punis h

ment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committedmay not b esentenced to life with

out parole f o r a nonhomicide crim e . Roper , 5 43 U. S., a t 574. A State is n o t required to guarantee eventual freedom to a juvenile offender convicte d o f a nonhomicide cri me. What the State must do, however, is give def e ndants like Graham some meanin gful opportunity to ob tain releas e based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mecha n isms for compliance. It bears e m phasis, how

ever, that while the Eighth Amendment forbids a State from imposi ng a life wi thout parole sentence on a juvenil e nonhomicid eoffender, it does n o t require the Sta t e to release tha toffender during his natural life. Those who commit trul yhorrifyingcrimes as juveniles may turn out to be irrede emable, an d thus deserving of inc a rceration f o r the duration of their lives. The Eighth Amendment does not foreclose the pos s ibility that persons convicted of nonhomicide crimes committed before a d ulthood will remain beh i nd bars for life. It does forbid States from mak i ng the judgment at the outset that those offenders never will be fit to reen ter society. C Categoricalrules tend to be imperf ect, but one is neces

sary here. Two alternative approaches are not adequate to address the relevant constitu tional concerns. First, the State argu es that the laws of Fl orida and other State s governing criminal pr ocedure ta ke sufficient accountof25 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt the age of a juvenile offender. Here, Florida notes th at under its law prosecu t ors are required to charge 16- and 17-year-old offenders as adults only for certain serious feloni es; th at prosecutors have discretion to charge those offenders as adults for other felonies; and that prosecutors may not ch arge nonrecidivist 16- and 17-year-old offender s as adults for misdemeanors. Brief for Respondent 54 (citing Fla. Stat. §985.227 (2003)). The State a l so stresses that “in only the narro west of circ umstances” does Florida law impose no age limit what soever for prosecuting juve

niles in adult court. Br ief for Respondent 54. Florida is c o rrect to sa y thatstat e laws requiring con

sideration of a defendant’s age in charging decisions are salutary. An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfuln e ss into account at a ll would be flawed. Florida, lik e other State s , has made substantial efforts to enact comp r e hensiv e rules governing the t r eat

ment of youthful offenders byits criminal justice system

. See generally Fla. Stat. §958 et seq. (2007). The provisions the S t ate notes are, nonetheless, by themselves insufficient to ad d r ess the constitutional con

cerns at issue. Nothing in Florida’s laws prevents its courts from sentencing a juvenile nonhomicid eoffender t o life without parole based on a subjective judgm e nt that the defendant’s crimes demonstra te an “irret r ievably d e praved char acter.” Roper , supra, a t570. This is inconsis

tent with the EighthAmendment. Spe c ific cases ar e illustrative. In Graha m’s case the sentencin gjudge de

cided to impose life withou t parole—a sentence greater than that requested by th e prosecutor—for Graham’s armed burglary conviction. The j u dge did so because h e concluded that Graha m was incorrigible: “[Y]ou decided that this is how you were going to lead your life and tha t there is n o thing that we can do for you.

. . . We can’t do anything to deter you.” App. 394.26 GRAHAM v. F L ORIDA Opinion of theCourt Another example comes from Sullivanv. Florid a , No. 08–7621. Sullivanwas argued the sam eday as this case, but t h e Court h a s now dis m issed the writ of cert io

rari in Sull ivanas improvidently granted. Post, p. ___. The facts, however, d e monstrate the flaws of Florida’s system. The petition er, Joe Sull ivan, was prosecuted as an adult for a sexual assault committed when he was 13 years old. Noting Sull ivan’s past encounters with the la w, the sentencing judge concluded that, although Sullivan had been “given opportunity after opportunity to uprigh t himself an d take advantage of the secon dand third chances he’s been given,” he had demonstrated himself to be unwillin g to follow the law and needed to be kept away from society for the duration of hi s life. Brief for Respon

dent in Sullivanv. Flo r ida , O. T. 2009, No. 0 8–7621, p. 6. The judge sentenced Sullivan to life without parole. As these exam ples mak e clear, existi ng state la ws, allowing the imposition of thes esentences based only on a discre

tionary, su bjective jud g ment by ajudge or j u ry tha tth e offender is irredeemably depraved, are insufficient to prevent the possibility that th e offender will receive a life without pa role sentence for which he or she lacks the moral culpability. Another po ssible approach would be to hold that the Eighth Am endment requires cou rts to take t h e offender’s age into consideration as part of a case-specific gross disproporti onality inqu iry, weighing it against the seri

ousness of th e crime. This approach would allow courts to account for factual differences between cases and to im

pose life without parol esenten ces for particularly heinous crimes. Few, perhaps no, judicial responsibilities are mor e difficult than sentencin g . The tas kis usuallyundertake n by trial judges who se ek wi th diligence and professional

ism to tak e account of the human existence of the offender and the just demands of a wronged society. The case-by-case approach to sentencing must, however ,27 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt be confinedby some boundaries. The dilem m a of juvenile sentencing demonstrates this. For even if we were t o assume that some juvenile nonhomicide offenders migh t have “sufficient psychological maturity, and at the same time demonstrat[e] suff icient depra vity,” Roper , 543 U. S., at 572, to merit a lif e without parole s e nten ce, it does not follow thatcourts ta king a case- b y-case pro p ortionality approach c o uld with sufficient accurac ydis t inguish th e few incorri gible juvenile offender s from the many tha t have the ca pacity for change. Roper rejected t h e argument that the Eighth Amendment required only that juries be told they m u st consider the defen d ant’s a g e as a mitiga t

ing factori nsentencing. The C o urt conclu ded thata n “unacceptable likelih ood exists th at the brutality or cold

blooded nat ure of any particular crime would overpower mitigating arguments based onyouth as a matter of course, even where the juvenile o ffender’s objective imma

turity, vul n erability, and lack of true depravity shoul d require a s e ntence les s severe th an death.” Id., at 57 3. Here, as with the death penalty , “[t]he differences between juvenile an d adult offenders are too marked and well understood to risk allowing a yo ut hful person to receive” a sentence of life without paro le for a nonhomicide crime “despite insufficient culpability.” Id., at 572–573. Another pr oblem with a case-by-case approach is that it does not tak eaccount of special difficulties en countered by counsel in juvenile representation. As some amicinote, the features that distinguish juveniles fromadults als o put them at a signific ant disadvantage in criminal pro

ceedings. Juveniles mistrust a d ults and have limited understandings of the criminal justice system and th e roles of the institutional actors within it. They are less likely than adults to work effe ctively with their lawyers to aid in their defense. Brief for NAACP Lega l Defense & Education Fund et al. as Amici Curiae7–1 2; Henning, Loyalty, Paternalism, and Rights: Client Counseling28GRAHAM v. F L ORIDA Opinion of theCourt Theory and the Role of Child’s Counsel inDelinquen c y Cases, 81 Notre Dam eL. Rev. 245, 272–273 (2005). Diffi

culty in weighing long-term consequences; a corresponding impulsiven ess; and reluctanc e to trust defense counsel seen as part of the ad ult wo rld a rebellious youth rejects, all can lead to poor decisions by one charged with a ju ve nile off e nse . Aber Brief 35. The s e factors are lik ely to impair the quality of a juvenile defendant’s representa

tion. Cf. Atkins , 536 U. S., at 320 (“Mentally retarded defendants may be less able to give meaningful assistance to their cou n sel”). A c a tegorical r u le avoids the risk that , as a result of these difficultie s, a court or jury will errone

ously conclude that aparticula rjuvenile is sufficiently culpable to deserve life without par o le for a nonhomicide. Finally, a categorical rule gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. Th e juv e n i l e sh ou ld n o t b e d e pr iv ed of th e op port un ity t o ach i ev e m a tur i tyof judg ment ands e lf-r ecog nit i on of h u m an worth and potential. In Roper , t h at d e p r iv at ion resulted from an execution thatbrought life to its en d. Here, thou gh bya dif f erent dyna mic, the sa me concerns apply. Life in prison without the p o ssibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with s o ciety, no hope. Maturity can lead to that con s idered reflection whic h is the foundation for remorse, renewal, and rehabilitation. A youn g person who knows that he or she h a s no chance to leave prison before life’s end has little incentive to become a responsible indi

vidual. In some prisons, moreover, the system itself b e comes complicit in the lack of development

. As noted above, see supra, at 23, it is the policy in som eprisons to withhold counseling, education, and rehabilitation pro

grams for those who are inel igible for parole consideration. A categoric a l rule against life with out parole for juvenile nonhomicid eoffenders avoids the perverse consequence in which the lack of mat u rity tha tled to an offender’s cri me29 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt is reinforced by the pri s on term. Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obta in release, no matter wha the mi ght do to demonstrate tha t the bad acts he committed as a teenager are not represen

tative of his true chara cter, even if he spends t h e next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicid ecrime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit. D There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United State s adheres to a sentencin gpracti ce r ejected the world over. This observation does not control our decision. The judg

ments of other nations and the in ternational community are not dispositive as to the meaning of the Eighth Amendment. But “ ‘[t]he climate of international opinion concerning the acceptability of a particular punishment’ ” is also “ ‘not irrelevant.’ ” Enmund , 458 U. S., at 796, n. 22. The Court has looked beyond o u r Nation’s borders fo r support forits independent conclusion that a particula r punishment is cruel a n d unusual. See, e.g., Roper , 54 3 U. S., at 575–578; Atkins , su pra, at 31 7–318, n. 21; Thompson , 487 U. S., a t830 (plurality opinion); Enmun d , supra, at 7 96–797, n. 22; Coker , 433 U. S., at 596, n. 1 0 (plurality opinion); Trop , 356 U. S., at 102–103 (plurality opinion). Today we continue that long stand ing pra ctice in notin g the global consensus against the sentencing practice i n question. A recent study conclu ded that on ly 11 nations authorize life without parole for juvenile offenders under30 GRAHAM v. F L ORIDA Opinion of theCourt any circumstances; and only 2 of them, the United States and Israel, ever impose the punis h ment in practice. Se e M. Leighton & C. de l aVega, Se ntencing Our Childrento Die in Prison: Global Law and Practice 4 (2 007). An u p dated versi o n of the study concluded that Is rael’s “laws allow for parole review of ju venile offenders serving life terms,” butexpressed reservat ions about how that pa role review is implemente d. De la Vega & Leighton, Sentenc

ing Our Children to Di e in Pr ison: Global La w and Pra c tice, 42 U. S. F. L. Rev. 983, 1002–1003 (2008). But even i f Israel is counted as allowing life without parole for juve

nile offenders, that na tion d oes not appear to impose that sentence for nonhomic i de crime s; allof the seven Israeli prisoners whom comm entators have identifie das servin g life sentences for juvenile cri mes were convicted of homi

cide or attempted homicide. See Amnesty International, Human Ri gh ts Watch, The Rest of Their Live s: Life with

out Parole for Child Offenders in the United States 106, n. 322 (200 5); Memora ndum and Attachment from Ruth Levush, La w Library of Congress, to Supre m e Court Li

brary (Feb. 16, 2010) (available in Clerk of Court’s cas e file). Thus, as petitioner contends and respondent does not contest, the United States is the o n ly Nation that imposes life without parole s e ntences on juvenile nonhomicide offenders. We also note, as petiti oner and hi s amiciem phasize, that Article 37(a) of the United Nations Conven

tion on th e Rights of the Child, Nov. 20, 1989, 15 77 U. N. T. S. 3 (entered into force Sept. 2, 1990 ), ratified b y every nation except the United States and Somalia, pro

hibits the imposition of “life imprisonment without possi

bility of release .

. . f o r offences committed by persons below eighteen years of age.” Brief for Petition er 66; Brief for Amnesty Internati o nal et al. as Amici Curiae15–1 7. As we concluded in Roper withrespect to the juvenile death penalty, “the United States now stan ds alone ina31 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt world that has turned its face aga i nst” life without parole for juvenile nonhomicid eoffenders. 543 U. S., at 577. The State’s amicis t ress that n ointernational legal agreement that is binding on the United States prohibits life without parole for j u venile off e nders and thus urge us to ignore th e international co ns ensus. See Brief for Soli

darity Center for Law and Justice et al. as Amici Curi ae 14–16; Brief for Sixtee n Members of United States Hou s e of Representatives as Amici Curiae40–43. These argu

ments miss the mark

. The question bef o re us is not whether international law prohi b its the United State s from impos i ng the se ntence at i ssue inthi s case. The question is whether th at punishment is cruel and unusual. In that inquiry, “the overwhelmi ng weight of international opinion ag ainst” life without pa role for nonhomicide of

fenses committed by j u venile s “provide[s] respected and significant confirmation for our own conclusions.” Roper , supra, at 57 8. The debate between petitioner’s and respondent’s amici over whether there is a binding j u s coge nsn o rm against this sentencing p r actic eis lik ewise of no import. See Brief for Amnesty Internati o nal 10–23; Brief for Sixteen Mem

bers of United States House of Representatives 4–40. Th e Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those no rms are binding or con

trolling but because th e judgment of the worl d’s nations that a pa rticular sentencing pra c tice is inconsistent with basic princi ples of decency demons trates tha t the Court ’ s rationale has respected reasoning to support it. * * * The Constitution prohib its the im position of a lifewith

out parole sentence o na juvenile offender who did no t commit homicide. A State need not guarante ethe offend er eventual release, but if it impo ses asentence of life it must32 GRAHAM v. F L ORIDA Opinion of theCourt provide hi m or her with some realistic opportunity to obtain rele ase before th e end of that term. The judgment of the First DistrictCo urt of Ap peal of Florida is reversed, and the ca se is remanded for f u rther p r oceedings not inconsisten twith this opinion. It is so orde red.Opinion of theCourt 33 Cite as: 56 0 U

. S. ____ (2010) Appendix to opinion of the C o urt APPENDIX I. JURISDICTIONS T H AT PERM IT LIFE WITHOUT PAROLE F O R JUVENILE NONHOMICI D E OFF E N D E R S Alab am a Ala. Code §12 –15 –2 03 (Su p p. 2009); §§13 A –3 –3, 13A –5– 9(c) , 13A– 6–6 1 (20 0 5 ); §13A– 7

– 5 (Su pp. 200 9) Ar izon a Ar iz. Rev

. Stat. An n . §§13–5 01, §13– 14 23 (W est 201 0) Ar kan s as Ar k. Code §9–27– 31 8(b) (20 09); §5–4–5 01( c) (Su pp. 200 9) Califor n i a Cal. Pen a l Co de An n . §667.7(a)(2) (1 999); §117 0.17 (200 4) Delawar e Del. Code An n., Tit., 10, §1010 (Su pp. 200 8); id., Tit., 11, §773(c ) (2003) Dis t rictof D. C. Code §16–23 07 (2 009 S u pp. Pamph l et); §22– Columbi a 302 0 (Su pp. 2007) Flor ida Fla. Sta t . §§81 0 .02, 92 1.002( 1)(e), 985.55 7 (200 7) Geor gi a Geor gi a Code An n . §15–11– 30.2 (20 08); §1 6–6–1(b) (200 7) Idah o Idah o Code §18– 65 03 (Lex is 200 5); §§19– 251 3, 20– 509 (Lex is Su pp. 2009) Illinois Ill. Comp. Sta t ., ch . 705, §§405/5–8 05, 40 5/5 –13 0 (West 20 08); id. , c h . 720, §5/12– 13(b)( 3 ) (West 200 8); id., c h

. 730, §5/3-3- 3 (d) (West 200 8) In dian a In d. Code §31–30 –3 –6(1); §3 5–5 0– 2–8.5( a) (West 200 4) Iowa Iowa Code §§232.45( 6), 709.2 , 902.1 (20 09) Lou i sian a La. Ch ild. Code An n . , Ar ts. 305, 857(A), (B) (West Su pp. 2010); L a . Stat. An n . §14:44 (We s t 2 007) M a r y lan d M d . Cts. & Jud. Pr oc. Code An n . §§3–8A– 03(d)(1), 3–8A–0 6 (a)( 2) (Lex is 200 6); M d . Cr im. La w Code An n . §§3–303( d)(2),(3) (Lex is Su pp. 2009) M i c h ig an M i c h . Comp. Laws An n . §712A.4 (West 20 0 2 ); §750.5 2 0 b (2)(c) (West Su pp. 200 9); §769.1 (W est 200 0) M i n n e sota M i n n . Stat. §§260 B.12 5(1), 6 09.34 55( 2) (20 08) M i ssis s ipp i M i ss. Code An n . §43–21– 15 7 (2009); §§97

– 3–5 3,Opinion of theCourt 34GRAHAM v. F L ORIDA Appendix to opinion of the C o urt 99– 19–81 (2 00 7); §99–1 9– 83 (200 6) M i ssou r i M o . Rev. Stat. §§211.07 1, 55 8.018 (2 00 0) Nebr aska Neb. Rev

. Stat . §§28–10 5, 28–41 6(8)(a), 29–22 04(1), (3), 43–2 47, 43 –27 6 (20 08) Nev a da Nev

. Rev

. Stat . §§62B.330, 2 00.36 6 (20 09) New Hampsh i r e N. H. Rev. Stat . An n . §169–B:24; §628: 1 (200 7); §§632 –A:2, 65 1:6 (Su pp. 200 9) New Yo r k N. Y

. Pen a l Law An n . §§30.00, §60.06 (Wes t 200 9); §490.5 5 (West 200 8) Nor t hCar o lin a N. C. Gen. Stat . An n . §§7B–220 0, 15A –13 40.16 B(a) (Lex is 200 9) Nor t hDakota N. D. Cen t . Code An n . §12.1–04–0 1 (Lex is 199 7); §12.1– 20 –03 ( L ex is Su pp. 2009); §12.1– 32

– 01 (Lex is 199 7) Oh io Oh io Rev

. Code An n . §2152.10 (Lex is 20 07 ); §290 7.02 (Lex i s 200 6); §297 1

. 03(A)(2) (2 01 0 Lex i s Supp. Pamphl et) Oklah o ma Okla. Stat., Ti t. 10A, §§2–5

– 204, 2– 5– 20 5, 2–5 –2 06 (200 9 West Su pp.); id. , Tit. 2 1 , §1115 (2 00 7 West Supp.) Or eg on Or e. Rev

. Stat. §§137.70 7, 137.71 9(1) (2 00 9) Pen n s y lv a n i a 42 Pa. Con s . S t at. §63 55( a) (200 0); 18 id., §312 1(e)(2) (2 008); 61 id., §6137( a) (200 9) Rhode Is land R. I. Ge n. Law s§§14– 1– 7, 14–1– 7.1, 11– 47–3.2 (Lex is 200 2) Sou t hCar o lin a S. C. Code An n . §63–19– 12 1 0(200 8 Su pp. Pam

ph let); §16–1 1 –31 1(B) (West l aw 200 9) S o uth Dakota S

. D. Codified Laws§26– 11

– 3 .1 (Su pp. 200 9); §26– 11– 4 (20 04); §§22– 3– 1, 22– 6–1(2),(3) (2 006 ); §24– 15– 4 (20 04); §§22– 19–1, 22

– 22– 1 (20 06) Ten n e ssee Ten n . Code An n . §§37–1–1 3 4 , 40–3 5– 12 0(g) (West

law 201 0) Utah UtahCode An n . §§78A–6– 60 2, 78A– 6

– 703, 76–5

– 302 (Lex is 2 0 0 8) Vir gin ia Va. Code An n . §§16.1–2 69.1, §18.2–6 1, §53

. 1– 151( B1) (20 09) Wash in gt on Wash . Rev

. Code §13.40.1 10 (200 9 Su pp.); §§9A.04.0 50, 9

. 94A.03 0 (3 4), 9.94A.5 70 (2 0 08) West Vir gin ia W. Va. Code An n . §49–5–1 0 (Lex is 200 9); §61– 2– 14a( a) (Lex is 2 005)Opinion of theCourt 35 Cite as: 56 0 U

. S. ____ (2010) Appendix to opinion of the C o urt Wisc on sin Wis. Sta t . §§9 38.18, 9 38.18 3 (2007–2 008); §939.6 2 (2 m)(c) (Westlaw 20 0 5 ) Wy omin g Wy o. Stat. An n . §§6–2–30 6( d),(e), 14–6– 20 3 (200 9) Feder a l 18 U. S. C. §2241 (2 00 6 ed. an d Su pp. II); §503 2 (200 6 ed.)
II. JURISDICTIONS T H AT PERM IT LIFE WITHOUT PAR O LE F O R JUVEN ILE OFF E NDE R S CONVICT E D OF HOMIC I DE CRIM E S O N LY Con n e c t ic u t Con n . Gen

. St at. §53a–3 5a ( 200 9) Hawaii Haw. Rev

. Stat. §571– 22(d) ( 200 6); §706–6 56(1) (200 8 Su pp. Pamph l et) M a in e M e . Rev. Stat. An n . , Tit. 15, §310 1(4) (Su p p. 2009); id. , Tit. 17–a, §125 1 (20 06) M a ssac h u s ett s M a ss Gen

. Laws c h . 119, §74; id. , c h . 265, §2 (200 8) New Jer s ey N. J. Stat. An n . §2A:4A–26 (W est Su pp. 20 09); §2C:11 –3(b)( 2 ) (West Su pp. 2009) New M e x i c o N. M

. Stat. Ann

. §31–18– 14 ( S u pp. 2009); § 31– 18

– 15.2(A) (Wes tl aw 2010) Ver m on t Vt. Sta t . An n . , Tit. 33, §520 4(2009 Cu m. S u pp.); id. , Tit. 13, §2 303 (2 00 9)
III. JURISDICTIONS THAT FORBID LIFE WITHOUT PAR O LE F O R JUVEN ILE OFF E NDE R S Alask a Alask aSt at. §12.55.0 15(g) (2 008) Color a do Colo. Rev

. Stat. An n . §18–1.3–4 01(4)(b ) (2 009) M o n t an a M o n t . Code An n . §46–18– 22 2(1) (20 09) Kan s as Kan

. Stat. An n . §21–462 2 (W est 20 07) Ken t u c ky Ky . Rev

. Stat. An n . §640.040 (West 200 8); Shep

her dv. Commonwe a lth , 251 S. W. 3d 309, 320 –3 21 (Ky

. 2008) Tex a s Tex

. Pen a l Code An n . §12.31 (West Su pp. 200 9)_________________

_________________ 1 Cite as: 56 0 U

. S. ____ (2010) S TEVENS , J ., co ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–7 41 2 TERRAN C E JAMAR GRA H AM , PETITION ER v. FLORIDA ON WRIT OF CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , FIRST DIST RICT [M ay17, 2010 ] J USTICE S T EVEN S , wit hwhom J USTICE G INS B U R Gan d J USTICE S OTOMAYORjoin, concurring. In his dissenting opinion, J USTICE T HOMASargues that today’s hold ing is not entirelyconsistent with the control

ling opinions in Lockyer v. Andrade , 538 U. S. 63 (2003 ), Ewing v. California , 538 U. S. 11 (2003), Harm elinv. Michigan , 501 U. S. 957 (1991), and Rummel v. Es tell e , 445 U. S. 2 63 (1980). Post , at 7– 9. Given that “evolving standards of decency” have played a central role in our Eighth Am endment jurisprudence for at least a century , see Weemsv. Uni t edStates , 217 U. S. 349, 373 –378 (1910), this argument suggests the dissenting opinions in thos e cases more accurately describe the law today than does J USTICE T HOMA S ’ rigidinterpretat i on of the Amendment. Society cha n ges. Knowledge accumulates. We lear n, sometimes, from our mistakes. Punishments that did no t seem cruel and unusual at one ti me may, inthe light of reason and experience, be found cruel and unusual at a later time; unless we are to aban don the moral commit

ment embo died in the Eighth Amendment, proportionali t y review mu st never b e comeeffectively obsolete, post , a t 8–9, and n. 2. While J USTICE T HOMASwould a p parently no t rule out a death sentence for a $50 theft by a7-year-old, see post , at 4, 10, n. 3, the Court wisely rejects his static approach to2 GRAHAM v. F L ORIDA S TEVENS , J ., co ncu rrin g the law. Standards of decency have evolved since 1980

. They will never stop doing so._________________

_________________ 1 Cite as: 56 0 U

. S. ____ (2010)
R OBERTS , C. J

. , con c u rrin ginj u dgm e nt 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–7 41 2 TERRAN C E JAMAR GRA H AM , PETITION ER v. FLORIDA ON WRIT OF CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , FIRST DIST RICT [M ay17, 2010 ] C HIEF J UST I CE R OBERT S , concurrin gin the judgment. I agree with the Court that Terra nce Graha m’s sentence of life without parole violates the Eighth Amendment’s prohibition on “cruel a n d unusual punishments.” Unli ke the majority, however, I see non e ed to invent a new con

stitutional rule of dubious provenance in r e aching that conclusion. Instead, my analysis is based on an applica

tion of this Court’s pre c edents, in particular ( 1 ) our cases requiring “narrow pro p ortiona lity” review of noncapital sentences and (2) our conclusion in Roper v. Simmons , 543 U. S. 551 (2 005), that juvenile offenders are generally les s culpable than adults who commit the same crimes. These cases expressly allow courts addressing allega

tions that a noncapital senten ce violates the Eighth Amendment to consi d er the pa rticular de fendant and particular c r ime at issue. The standards for relief under these prece d ents are rigorous, an d should b e . But her e Graham’s juvenile status—together with the nature of his criminal conduct an d the extraor dinarily severe punish

ment impos e d—lead me to conc lu de that his sentence of life without parole is unconstitutional. I Our Court has struggl ed withwhether and h o w to apply the Cruel and Unusual Punishments Clause to sentences2 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt for noncapital crimes. Some of m ycolleagues have rais ed serious an d thoughtful question s about whether, as an original matter, the C o nstitution was understood to r e quire any degree of proportionality between noncapita l offenses an d their corresponding punishments. See, e.g. , Harm elinv. Michigan , 501 U. S. 957, 962–994 (199 1) (principal o p inion of S CALIA , J.); post , a t3– 5, and n. 1 (T HOMAS , J., dissenting). Neithe r party here asks us to reexamine our precedents requiring such proportionality, however, a n d so I approach this case by t r ying to ap p l y our past decisions to th e facts at hand. A Graham’s case arises at the inter s ection of two lines of Eighth Am endment precedent. The first consists of deci

sions holding that th e Cruel and Unusual Punishmen t s Clause embraces a “na rrow prop ortionality principle” that we apply, o na case-by-case basis, when aske d to review noncapital sentences. Lockyer v. Andrade , 5 38 U. S. 63, 72 (2003) (internal quotation marks o m itted); Sol e m v. Helm , 463 U. S. 277, 290 (19 83); Ewing v. Californi a , 538 U. S. 11, 20 (2003) (plurality opinion); Harm elin , supra , at 99 6– 997 (K E NNE DY , J., concurring in part and concurring in judgment). This “narrow prop ortionality principle” does not grant judges blanket authori ty to second-guess deci

sions madeby legislat ures or sen t encing courts. On the contrary, a reviewing court w ill only “rare l y” need “to engage in extended an alysis to determine that a sentence is notconst i tutionally disproporti onate,” Solem , supra , at 290, n. 16 (emphasis added), and “successful challenges” to noncapital sentences will be allthe more “exceedingly rare,” Rummel v. Es tel le , 445 U. S. 263, 272 (1 980). We have “not established a clear or consistent path for courts to follow” in applying the high ly deferential “narrow proportionality” analysis. Lockyer , supra , at 72. We have, however, emphasized the primacy of the le gislature in3 Cite as: 56 0 U

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. , con c u rrin ginj u dgm e nt setting sentences, the variet y of legitimate penological schemes, the state-by-state diversity prote cted by ou r federal system, and the requireme nt that revi ew be guided by objective , rather tha nsubjective, factors. Ew ing , su pra , at 23 (plurality opinion); Harmel in , supra , at 998–1001 (opinion of K ENN E DY , J.). Most importantly, however, we have explained that the Eighth Amendment “ ‘does not require strict proport i onality between crime and sen

tence’ ”; rat h er, “ ‘it forb ids only extreme sentences that ar e “grossly disproportionate” to the crime.’ ” Ewi n g , supra , a t 23 (plurality opinion) ( quoting Ha rmelin , sup ra , at 1001 (opinion of K ENN E DY , J.)). Our cases indicate tha tco urts co nducting “n arrow p r o portionality” review should be gin with a thre shold inquiry that compa r es “the gravity of the offense an d the harsh

ness of the penalty.” Sole m , 463 U. S., at 29 0–291. This analysis can consider a particula r offender’s mental sta t e and motive in commit ting the crime, the actual harm caused to h i s victim orto society by his cond uct, and an y prior criminal history. Id. , at 292 –294, 296–2 97, and n. 22 (considering motive, past cri minal conduct, alcoholis m, and propen sity for violence of the particula r defendant); see also Ewing , sup ra , at 28–30 (plurality opinion) (exam

ining defen d ant’s crim i nal history) ; Harmelin , 501 U. S., at 1001–1004 (opinionof K ENN E DY , J.) (noting specific details of the particularcrime of conviction). Only in “th e rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an infer e nce of gross disproportionality,” id ., at 1005, should courts proceed to an “intrajurisdictional” compari

son of the sentence at issue withthose impo sed on othe r criminals in the same jurisdiction, and an “ i nterjurisdic

tional” comparison with sent ences imposed for the same crime in other jurisdictions. Sole m , supra , at 291–292. If these subs equent comparisons confirm the inference of gross disproportionality, co urts should i nvalidate the4 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt sentence as a violation of the Eighth Amendment. B The second line of precedent relevant to assessing Gra

ham’s sentence consists of our cases acknowledging t h a t juvenile off e nders are generally—though not necessarily in every case —less morally culpable than adults who com m it the same crimes. This insight animated our decision in Thompsonv. Oklahom a , 487 U. S. 815 (1988), in which we invalidated a capi tal s e ntence imposed on a juvenile who had committed his crime under th e age of 16. More re

cently, in R o per, 543 U. S. 551, we extended the prohibi

tion on executions to those who committed their crime s before the a g e of 18. Both Thompsonand Rop e r arose in the unique context of the death penalty, a punishment that ou r Court ha s recognized “must be limited to those offenders who commit ‘a narro w c a tegory of t h e most serious crimes’ and whose extreme culpability makes them‘the most deserving of execution.’ ” 543 U. S., at 568 (qu o ting Atkinsv. Virginia , 536 U. S. 304, 319 (2002)). Roper’s prohibition on th e juvenile death penalty followed from our conclusion that “[t]hree ge neral differences between juveniles under 1 8 and adults demonstrate that juvenile offen d ers canno t with reliability be clas sified among the worst offenders. ” 543 U. S., a t569. These differences are a lack of maturity and an underdeveloped sense of responsibility, a heigh t

ened susceptibility to negative influences and outside pressures, and the fac tthatth e character of a juvenile is “more transitory” and “less fixe d” than that of an adult. Id. , at 569–570. Together, these factors establish the “diminished culpability of juvenil e s,” id ., at 5 71, and “ren

der suspect any conclusion” that juveniles ar e among “the worst offenders” for whom the death penaltyis reserved, id. , at 570. Today, the Court views Roper as providing the basis fo r5 Cite as: 56 0 U

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. , con c u rrin ginj u dgm e nt a new cate gorical rule that ju veniles may never receive a sentence of life without parolefor nonhomici de crimes. I disagree. In Roper , the Court tailored its analysis of juvenile characteristics to the specific question whether juvenile off e nders could cons titutionally be subject to capital punishment. Our answe r that they could not be sentenced to death was based on the explicit conclusion that they “cannot with reliability be class i fied among the wors toffenders.” Id. , at 569 (emphasis added). This conclusion does not establish that ju veniles can never be eligible for life withou t parole. A life sentence is of course far less severe than a death sentence, and we have never required that it beimposed onl yon the ve ry worst offen d ers, as we have with capital punishment. Treating ju venile life sentences as analogous to capital punishment is at odds withour l o ngstanding view tha t “the death penalty is different from other punishments in kind rather than degree.” Solem , supra , at 2 94. It is a l so at odds with Roper itself, which drew the li ne at capital punishment by blessing juvenile sentences that are “less severe thandeath” des p ite involving “forfeiture of s o me o f the most b a sic liberties.” 543 U. S., at 573–574. Ind e ed, Roper explicitly relied on the possible imposition of lif e without parole on somejuvenile off e nders. Id ., at 572. But the fac tthat Roper does not support a c a tegorica l rule barring life sentences for all juveniles does not mean that a cri minal defendant’s age is irrelevant to th ose sentences. On the co ntrary, ou rcases establish that the “narrow proportionality” review applicable to noncapital cases itself takes the personal “cul p ability of the offender” into account in examin ing whether a given punishment is proportionate to the crime. Sole m , supra , a t292. There is no reason why an o ffender’s ju venile status should be excluded from the analysis. Indeed, given Roper’s concl u sion that juveniles ar e typically less blam eworthy tha n adults, 543 U. S., at 571, an offend er’s juvenile status can6 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt play a central role in th e inquiry. J USTICE T HOMA Sdisagr ees with e v en our li mited reli

ance on Roper on the ground that the present case does not involve capital punishment. Post , at 26 (dissentin g opinion). That distinction is important—inde e d, it under

lies our rejection of the categoric a l rule declared by th e Court. But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capita l cases, and rightly info rms th e ca se-specific inquiry I be

lieve to be a ppropriate here. In short, our existing precedent already provides a sufficient frameworkfor assessingthe concerns outlined by the majority. Not every juvenile receivin g a life sen

tence will prevail under this approach. Not every juvenile should. Bu t all will receive the protection that the Eighth Amendment requires. II Applyingth e “narrow p r oportionality” framework to th e particular facts of this case, I conclude that Graham’s sentence of life without parole violates the Eighth Amendment. *

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* J US TI CE ALIT O su g g e sts th at G r ah am h a s fai l ed to p r eserv ean y challenge to hi s sentence based on the “narrow, as-applie d proportional

ity principle.” Post , at 1 (dissenting opinion). I disagree. It is truethat Gr ah am asks u s to dec l ar e, c a teg o r i c a lly , th at n oju v e n ile c o nv i c ted of a nonhomicide o ffense may ever be subject to a sentence of life without pa role. Buthe cla i m s t h att h is rule is wa rra nt ed un der t h e na r r o w proportionality principle we set forth in Solem v. Helm, 46 3 U. S. 2 7 7 (198 3), Harmelinv. Mic h i gan, 501 U. S. 957 (1 991) , an d Ewing v. California , 538 U. S. 11 (2 003). Br ief f o rPetition er30, 3 1 , 54–6 4

. In sofaras h e r e lies onth a t fr amewor k, I believ ewe m a ydo so as wel l , even if our a n a l ys is res u lts in ana rrower holding t h a nt h e ca t e gorical rule Graham seek s. See also ReplyBrief for Pet i tioner 15, n. 8 (“ [T]he Courtcould rule na rrowly inthis ca se and hold only tha t petitioner’s sentence of life with out pa role was unconstitutiona lly disproportionate”).7 Cite as: 56 0 U

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. , con c u rrin ginj u dgm e nt A I begin with the threshold inquiry comparing the gravity of Graham’s conduct to the harshness of his penalty. There is no question that the crime for which Graha m received his life sentence—armed burglary of a nondomicil with an ass ault or battery—is “a serious crime deserving serious pun i shment.” Enmundv. Florida , 4 58 U. S. 78 2, 797 (1982). So too is the home invasion robbery that wa s the basis of Graham’s probation violation. But these crimes are certainly less serious than other crimes, such as murder or rape. As for Graham’s degree of personal culpability, he com

mitted the relevant offenses whenhe was a juvenile—a stage at which, Roperemphasized, one’s “culpability or blameworthiness is dim i nished, to a substantial degree, by reason of y o uth and immaturity. ” 543 U. S., at 571. G r a ham’s age places him in a significantly different cate gory from the de fendants in Rummel , Harmelin , an d Ew ing , a ll of whom committed their crimes as adults. Graham’s youth made him relatively more likely to engage in rec k

less and da ngerous criminal activity than an adult; it als o likely enhanced his susceptibility to peer pressure. See, e.g. , Roper , supra , at 5 69; Johnsonv. Texas , 509 U. S. 350, 367 (1993); Eddingsv. Oklahoma , 455 U. S. 104, 115–11 7 (1982). Th ere is no reason tobelieve that Graham should be denied th e general presumption of diminis h ed culpabil

ity that Roper indicate s should ap ply to juvenile off e nders. If anything, Graham’s in-court statements—including his request for a second chance so that he could “do whateve r it takes to get to the NFL” —und erscore his immaturity. App. 380. The fact th at Graham committed the crimes that he did proves that he was dangerous and deserved to be pu n ished. But it does not establish that he was particula r l y dangerous—at least relative to th e murderers and rapists for whom the sentenc eof life without parole is typicall y8 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt reserved. On the cont rary, his la ck of p r ior criminal con

victions, his youth and immaturity, and the difficult cir

cumstances of his upbringing noted by the m a jority, an te , at 1, all sug g est that he was marke d ly less culpable than a typical adul t who commits the same offenses. Despite these considerations, the trial court sentenced Graham to life inprison without the possib ility of parole. This is the second-harshest sentence available under our precedents for anycrime, and the most severe sanction available for a nonhom i cide offens e. See Ken n edyv. Lou

isiana , 554 U. S. ___ (2008). Indeed, as the majority notes, Graham’s sentence far exceeded th e punishment proposed by the Florida Depar t ment of Corrections (which sug

gested a se ntence of f o ur years, Brief for Petitioner 20 ), and the state prosecutors (who asked that he be sentenc e d to 30 years in prisonf o r the arm e d burglary, App. 388). No one in Graham’s case other than the sentencing ju dge appears to have believ e d that Graham deserved to go to prison for li fe. Based on the foregoing circums tances, I conclude tha t there is a strong inference that Graham’s sentence of life imprisonment without parole was grossly disproportionate in violation of the Eighth Amendment. I there f ore proceed to the next steps of the proportionality analysis. B Both intraj u risdictional andinterj urisdictional compari

sons of Graham’s sentence confirm the threshold inference of disproportionality. Graham’s s e ntence was far more severe than that im

posed for similar viola t ions of Flo r ida law, even without taking juve nile status into accou n t. For e x ample, indi

viduals who commit burglary or robbery offenses in Flor

ida receive average sentences of less than 5 years and less than 10 years, respectively. Florida Dept. of Corrections, Annual Report FY 2007–2008: T h e Guidebook to Correc

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. , con c u rrin ginj u dgm e nt tions in Florida 35. Unsurprisi ngly, Flori d a’s juveni le criminals receive similarly lo w sentences—typically less than five years for burglary an d l e ss than seven years for robbery. Id

. , at 36. Graham’s life without parole s e ntence was far more severe than the avera g e sentence imposed on those convi cted of murder or man s laughter, who typically receive under 25 years in prison. Id ., at 35. As the Court explained in Solem , 463 U. S., at 291, “[i]f more serious crimes are subject to t h e same penalty, or to less serious penalties, that is some indication that the pu nishment at issue may b eexcessive. ” Finally, the inference that Graha m’s sentence is dispro

portionate is furtherv a lidated bycomparison to the se n tences imposed in other domestic jurisdictions. As the majority opinion explai ns, Florida is an outlier in its will

ingness to impose sent ences of life without pa role on juve

niles convicted of nonh omicide crimes. See an te , at 11–1 3. III So much for Graham. But what about Milagro Cun

ningham, a 17-year-old who beat and raped a n8-year-old girl before leaving her to di e under 197 pounds of rock in a recycling bin in a remote landfill? See Musgrave, Cruel o r Necessary? Life Terms for Yout hs Spur Nati onal Debate, Palm Beach Post, Oct. 15, 2009, p. 1A. Or Nathan Walker and Jakari s Taylor, the Florida juveniles who togeth er with their friends gang-raped a woman and forced her to perform ora lsex on her 12-year-old son? See 3 Sentenced to Life for Gang Ra pe of Mother, Associated Press, Oct. 14, 2009. The fact that Graham can n ot be sentenced to life without pa role for his conduct says nothing whatev er about these offenders, or others lik e them who commit nonhomicid ecrimes f a r more reprehensible than the conduct a ti ssue here. The Court uses Graha m’s case as a vehicle to proclaim a new constitu tional rule—applicable well beyondthe particular facts of Graham’s case—that a10 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt sentence of life without parole imposed on anyjuvenile for anynonhomicide offense is unconstitutional. This cate

gorical conclusion is as unnecessary as it is unwise. A holding this broad is unnecessary because the particu

lar conduct and ci rcu mstances at issue in the case before us are not serious enough to justify Graham ’s sentence. In reaching this conclusion, there is no need for the Court to decide whether that same sent ence wouldbe constit u tional if imposed for othe r more heinous nonhomicid e crimes. A more restrained approach is especially appropriate in light of the Court’s ap p a rent recog n ition that it is perfectl y legitimate for a juveni le to receive a sent enceof l i fe with

out parole for committing murder. This means that there is nothing inherentlyunconstitutional about imposing sentences of life without parole on juvenile offende r s; rather, the constitutionality of such sentences depends on the particul a r crimes f o r which th ey are imposed. But if the constit u tionality of the sentence turns o nthe partic u lar crime being punish ed, then the Court should limit it s holding to the particular offenses that Graha m committed here, and should decline to cons ider other hypothetica l crimes not presented by this case. In any event, the Court’s categor i cal conclusion is also unwise. Most importantly, it ign o res the fact tha tsome nonhomicide crimes—like the ones committed by Milagro Cunningham, NathanWalker, a n d Jaka r is Taylor—a re especially h e inous or grotesque, a n d thus may be deserv

ing of more severe punishment. Those under 18 years o l d may as ageneral ma tter ha ve “diminished” culpability relative to adults who commit the same crimes, Roper , 543 U. S., at 571, but that does not mean that their culpability is always insufficient to justify a life sentence. See generally Thompson , 487 U. S., at 853 (O’Connor, J., concurring in judgment). It d oes n o t take a moral sense that is fully developed in eve ry respect to11 Cite as: 56 0 U

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. , con c u rrin ginj u dgm e nt know tha t beating and raping an 8-year-old girl and leav

ing her to die under 197 pounds of rocks is ho rribly wron g. The single fact of being 17 years old would not afford Cunningham protection against life without parole if th e young girl had died—as Cunningham surely expected s h e would—so why should it do so when she miraculously survived his barbaric brutality? The Courtdefends its categori cal approa ch on the grounds th at a “clearline is necessary to prevent th e possibility that life without parole sentences will be im

posed on j u venile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” An te , a t 24. It argues that a case-by-case approach to proportional

ity review is constitut i onallyinsufficient because court s might not b eable “withsufficient accurac y[ t o] distinguish the few incorrigible juvenile offen d ers from the many that have the capacity for change.” Ante, at 27. The Court is of cours eco rrect that judges will never have perfect foresight—or perfect wisdom—in making sentencing decisions. But this is true when t h ey sentence adults no less than when they sentence juveniles. It is also true when they sentence juve niles who commit mur

der no less than when they sentence juveniles who commi t other crimes. Our sys t em depends upon sentencing judges applying their reasoned judgment to ea ch case that comes before them. As we explaine d in Solem , the whole enterprise of proportionality review is premise don the “justified” as

sumption that “courts are competent to judge the grav ity of an offense, at least on a relati ve scale.” 463 U. S., a t 292. Indeed, “courts traditionally have made these judg

ments” by a p plying “generally accepted criteri a” to analyze “the harm caused or threatened to the victim or society, and the culpability of the offender. ” Id ., at 292, 294.12 GRAHAM v. F L ORIDA
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. , con c u rrin ginj u dgm e nt * * * Terrance Graham committed se rious offens es, for which he deserves serious pu nishment. But he was only 16 years old, and under our Court’s precedents, his youth is one factor, among others, that should be consider ed in decid

ing whethe r his punis h ment was unconstitutionally exces

sive. In my view, Grah am’s age—together with the nature of his criminal activity and the unusual severity of his sentence—tips the constitutional balance. I th us concur i n the Court’s judgment that Graha m’s sentence of life with

out parole violated the Eighth Ame n dment. I would not, however, reach the same con c lusion in every case involving a juvenile off e nder. Some crimes are so hein ous, and some juvenile off e n d ers so high ly culpable, that a sen t ence of lif ewith out parole may be entirely justified under the Constitution. As we have said, “suc

cessful challenges” to noncapital sentences under the Eighth Amendment have been—and, in my view, should continue to be—“exceedingly rare.” Rummel , 445 U. S., a t 272. But Graham’s sentence pres ents the exceptional case that our precedents have recognized will come along. We should grant Graham the relief to which he is entitled under the Eighth Amendment. The Court errs, however, in using this case as a vehicle for unsettling our estab

lished jurisprudence and fashioning a categorical rule applicable to far different cases._________________

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T HOMAS , J. , dissen t in g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–7 41 2 TERRAN C E JAMAR GRA H AM , PETITION ER v. FLORIDA ON WRIT OF CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , FIRST DIST RICT [M ay17, 2010 ] J USTICE T HOMA S , with whom J UST I CE S CAL IA joins, and with whom J USTICE ALITO joins as to Parts I and II I, dissenting. The Court holds today that it is “ grossly disp roportion

ate” and h e nce unconstitutionalfor any judge or jury to impose a se ntence of lif e without parole onan offender les s than 18 years old, un less h ehas committed a homicid e . Although t h e text of t h e Constitution is silent regardin g the permissibility of this sentencing practi ce, and al

though it would not have offen d ed the standards th at prevailed a tthe foundi n g, the Court insists th at the stan

dards of American so ciety have evolved s u ch that the Constitution now requires its prohibition. The news of this evolu t ion will, I think, come as a sur

prise to th e American people. Congress, the Districto f Columbia, and 37 States allow j u dges and juries to con

sider this sentencing practi ce i njuvenile nonhomicide cases, and those judges and juries have decided to use it in the very wo rst cases they have encountered. The Court does not conclude that life without parol e itself is a c r uel and unusual punishment. It instead re

jects the judgments of those le gislatures, judges, and juries regar d ing what the Court d e scribes as the “moral” question of whether this sentence can ever be “propo r tionat[e]” when applied to the category of offenders at2 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g issue here. Ante , at 7 (internal quotation marks omitted), ante , at 1 (S TEVEN S , J., concurring). I am unwil ling to assume that we, as members of this Court, are any more capable of making such moral judg

ments than our fellow citizens. Nothing in our training as judges qualifies us for that task , and nothing in Article III gives us that authority. I respectfully dissent. I The Court recounts th e facts of Terrance J a mar Gra

ham’s case in detail, so only a sum m ary is necessary here. At age 16 years and 6 months, Graham and two maske d accomplices committed a burgla ry at a s m all Florida restaurant, during which one of Graham’s accomplices twice st ruc kthe resta u rant man a ger on the head witha steel pipe when he refused to t u rn over money to the intruders. Graham wa s arrested and charged as an adult. He later pleaded guilty to tw o offenses, including armed burglary with assault or battery, an offens e punishab le by life imprisonment under Fl orida law. Fla. Stat. §§810.02(2) (a), 810.02(2)(b) (2007). The trial court with

held adjudication on b o th counts, however, and sentenced Graham to probation, the first 12 months of which he spent in a county detention facility. Graham reo ffended just six months after his re lease. At a probation revocation hearing, a judge foun d by a pre

ponderance of the evidence t hat, at age 17 years and 11 months, Graham invaded a hom ewith two accomplices and held the homeown e r at gunpo i nt for approximately 30 minutes while his ac complices ransacked the residenc e. As a result, the judge concluded that Graham had violated his probation and, after additional hearings, adjudicate d Graham gu ilty on bothcounts aris ing from th e restauran t robbery. The judge imposed the maximum sentence al

lowed by Florida law on the armed burglary count, life3 Cite as: 56 0 U

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T HOMAS , J. , dissen t in g imprisonme nt without the possibi li ty of parole. Graham argues, and the Court holds, that this sentence violates the Eighth Amendment’s Cruel and Unusual Punishmen t s Clause because a life-without-parole sen

tence is always “grossly disp roportionate” when imposed on a person under 18 who comm its any cri me short of a homicide. Brief for Petitioner 24; ante , at 21. II A The Eighth Amendment, which applies to the States through th e Fourteenth, pro vides that “[e] xcessive bail shall not be required, nor ex ces s ive fines i m posed, nor cruel and unusual punishments inflicted.” It is by no w well established that the Cruel and Unusual Punishmen t s Clause was originally understood as prohibiti n g torturous
“ ‘ methods of punishment,’ ” Harmelinv. Michigan , 501 U. S. 957, 979 (199 1) (opinionof S CALIA , J.) (quotin g Granucci, “Nor Crueland Unusual Punis h ments In

flicted”: The Original Meaning, 5 7 Cal. L. Rev. 839, 84 2 (1969))—specifically methods akin to those th at had bee n considered cruel and unusual at the time the Bill of Rights was adopt e d, Baze v. Rees , 5 53 U. S. 3 5 , 99 (2008) (T HOMAS , J., concurrin gin judgme nt). With one arguable exception, see Weemsv. UnitedStates , 217 U. S. 349 (1910); Harmelin, sup r a , at 990–9 94 (opinion of S CALI A , J.) (discussing the scope and relevance of W eems ’ holding),this Court applied the Clause with that understanding for nearly 170 years after th e Eighth Amendment’s ratification. More recently, however, th e Court has heldthat the Clause authorizes it to proscribe not on ly methods of punishment that qualify as “cruel and unusual,” but also any punishment that the Court deems “grossly dispropor

tionate” to the crime committed

. Ante , at 8 (interna l quotation marks omitted). This latter interpretation is4 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g entirely the Court’s c r eation. As has been described else

where at length, there is virtually no indication that t h e Cruel and Unusual Punishments Clause originally was understood to require proportionality in sentencing. Se e Harm elin , 501 U. S., at 975–985 (opinion of S CALI A , J.). Here, it suf f ices to reca ll just t w o p o ints. First , the Clause does not expressly refer to pr oportionality or invok eany synonym for that term, even though the Framers were familiar with the concept, as evidenced by several found

ing-era sta t e constitut i ons that r e quired (albeit without defining) proportional punishments. See id ., at 977–978. In addition, the penal statute ado p ted by the First Con

gress demonstrates th at proportio nality in sentencing was not considered a constitutional command. 1 See id. , at 980–981 (noting that the statute prescribed capital pun

ishment for offenses ra nging from “ ‘run[ning] away with

. . . goods or merchandise to the value of fifty dollars,’ ” to “murder onthe high seas” (quoting 1 Stat. 114)); see a l so Preyer, Pe nal Measu r es in the American Colonies: An Overview, 2 6Am. J. Legal Hist. 32 6, 348–349, 353 (1982) (explaining that crime s in the late 18th-century colonies

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1 T HE C HI EF J UST I C E ’s conc ur rence s u g g es ts tha tit is unneces s a ry to remark on the underly ing questionwhether the Eighth Amendment requires proportionality in sentenci ng b e ca us e “[n]either pa rty he r e asks us to reexamine our preceden ts” requiring “pro portionality b e tween nonca p ita loffens es a n d their corres p onding punis h ments

. ” Ante , a t2 ( o p i n i o nc o n c u r r i n gi nj u d g m e n t)

. Idi s a gr e e . B o t ht h eC o u r ta n d t h e con c ur ren c e do m o re t h a na pply exis ting no nca p ita lproportionality precedents to the particulars of Gr ah am’ s c l aim. Th e Cou r t r a dic a ll y departs from the framewor k those precedents estab lis h by a pplying to a nonca p it a l s e nt ence t h e ca t e gorica l proportionality re view its prior decis i ons hav eres e rved for dea t h pena lty ca s e s a l one. S e e Pa rt III, infra

. The co ncurrence, me anwhile, brea thes new life into the c a se-b y case proportionality appro a ch thatpreviously gove rned noncapit al c a ses, fr om wh ic hth e Cou r t h a s stead ily , an d w i sely , retr eated sin c e Solem v. Helm , 463 U. S. 2 7 7(1 983). See Par tIV, infra

. Indi ssen t in g from both choi ces to expand proportion alit y re view, Ifind it essenti a l t o reexa m ine thefounda t ions on whi c h tha td o ctrine is b u ilt.5 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g generally were punished either by fines, whipping, or public “shaming,” or b ydeath, as intermediate sentencin g options such as incarceration were not common). The Co urt has none th eless invo ked propo rti onality to decl are tha tca pi tal punish men t—thou gh n o t un cons ti tu

tional per se—i s ca te go ric all y too hars h a pe nalty to a p ply to ce rtain type s of cri m es and ce rtain classe s of offen d e r s. See Cok e r v. Geo r gi a , 4 33 U. S. 58 4 (1 977 ) (pl u rali ty o p in

ion) (ra p e o f an a dul t wom an); Kennedyv. Lo uisia n a , 5 54 U. S. ___ (2008) (rape of a chil d); Enm u nd v. Flo r i da , 45 8 U. S. 78 2 (1982 ) (felo ny mu rder in which the defe ndant parti c i p ated in thefelo ny but di d not kill o r i ntend tokil l); Tho m p s onv. Oklahom a , 487 U. S. 815 (19 88) (plu rali ty opinion) (juveniles under 16); Ro per v. Simmons , 54 3 U. S. 551 (2 005 ) (juv enile s unde r18); Atkin sv. Vi rg inia , 5 36 U. S. 304 (2 002) (men ta lly retarde d offen d ers). In ado p tin g these c a te goric al p r opo rtio nali ty r u les, the C o urt i nt ru d es upon a r eas tha tthe C o nsti tu tion rese rve stoother ( s t a t e and fe de ral) or gan sof gove rn men t

. T h e Ei gh th Ame n d

ment prohib its the go vernme nt fro m infli c tin g a cruel an d unusu al me tho dof pun i shmen tu p on a defe ndant. Othe r cons ti tu tion al p r ovi s io ns ensu re the de fen d ant ’s ri gh t to fair proce s s before a n y punis h m e nti si m p o s e d

. B u t , a s membe r s of toda y’s ma jority not e , “[s]oc iety c h ange s,” an te , at 1 (S TEVEN S , J. , con c urrin g ), and th e Eighth Amendment leaves the unavoidabl y moral ques tion of who “dese rves ” a pa rti c ul ar nonprohibited metho dof punish ment to the jud g men tof the le gisla t ures tha ta u tho ri z e thepenal ty , th e p r o s ec ut or s wh os e ek i t , a n d th e j u dge sandj u ri e s th a t impose it u n de r cir c u m stan ces th e y deem ap p r op ria t e. The Court has noneth eless adopted catego rical rules that shield entire classes of offen s es and off e nders from the death penalty o n th e theory that “evolving standards of decency” require this result. An te , at 7 (internal quota

tion marks omitted). The Courthas offered assuranc es that these standards can be reliably measured by “ ‘obje c -6 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g tive indicia’ ” of “national consens u s,” such as state and federal legislation, jurybehavior, and (surprisingly, give n that we are talking about “national” consensus) interna

tional opinion. Ante , a t10 (quotin g Roper, su pra , a t563); see als o ante , at 8–15, 29–31. Yet even assuming that is true, the Fr amers did not provide for the constitutionality of a particu lar type of punishment to turnon a “snapshot of American public opinion” taken at the moment a case is decided. Rop e r , su pra , at 629 (S CALIA , J., dissenting). By holding otherwise, the Court pretermits in all but one direction the evolution of the standards it describes, thus “calling a constitutional halt to what may well be a p e ndu

lum swing in social at titudes,” Thompson , supra , at 86 9 (S CALI A , J., dissenting), and “stu nt[ing] legi slative consideration” of new questions of penal policy as the y emerge, Kennedy , supr a , at ___ (slip op., at 2) (ALITO , J., dissenting). But the Court is not content to rely on snapshots of community consensus in any event. Ante , at 1 6(“Commu

nity consensus, while ‘entitled to great weight,’ is not itself determinative” (quoting Kennedy , supra , at __ (slip op., a t 24)). Instead, it reserves the righ t t oreject the evidence of consensus i tfinds whenever its own “indepe n dent judg

ment” points in a diff erent direc t ion. Ante, at 16. Th e Court thus openly claims the po w e r not on ly to approve or disapprove of democratic choices in penal policy based on evidence of how society’s standards have evolved, but also on the basis of the C o urt’s “inde p endent” p e rception of how those standards should evolve, which depends on what the Court conc edes is “ ‘ “necessarily . . . a moral judgment” ’ ” regardingthe propriety of a given punish

ment in today’s society. Ante , at 7 (quotin g Kennedy , supra , at __ _ (slip op., a t8)). The categorical proportionality review the Court em

ploys in capital cases thus lacks a principled foundation. The Court’s decision today is significant because it does7 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g not merely apply this s t andard—i tremarkabl y expan d s i t s reach. For the first time in its history, the C o urt declar es an entire c l ass of offenders imm une from a noncapital sentence using the categorical approach it previousl y reserved for death penalty cases alone. B Until today , the Court has based its categoric a l propor

tionality ru lings on the notion tha tthe Constitution give s special protection to capital defendants because the deat h penalty is a uniquelysevere pu nishment that must be reserved for only those who are “most deserving of execu

tion.” Atkins , supra , at 319; see Roper , supra , at 568 ; Eddingsv. Oklahoma , 455 U. S. 104 (1982); Lockettv. Ohio , 438 U. S. 586 (1978). Of course, the Eighth Amendment itself mak e s no distinction between capital and noncapital sentencing, but the “ ‘brigh t line’ ” the Court dre wbetween the two penalties has formany years served as the principal justification for the Court’s will

ingness to reject democratic choices regarding the deat h penalty. See Rummelv. Estelle , 44 5 U. S. 263, 275 (1980). Today’s dec i sion eviscerates that distinction. “Death is different” n olonger. The Court now claims not only t h e power cate gorically to reserv e th e “most severe punish

ment” for those the Court thinks are “ ‘the most deservi n g of executio n,’ ” Roper, 543 U. S., at 568 (quoting Atkins, 536 U. S., at 319), but also to declare that “less culpable” persons are categorically exempt from the “second mos t severe penalty.” An te , at 21 (emphasis added). No reli

able limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third, fourth, fifth, or fiftieth mo st severe penalties a s well. The Court’s departur efrom the “death is differen t” distinction is especial l ymystifying when one considers how long it has resisted crossing th at divide. Indeed, for a time the Court declined to a pply p r oportionality principle s8 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g to noncapital sentences at all, emphasizing that “a sen

tence of death differs inkind from any sentence of impris

onment, no matter how long .” Ru m m e l , 445 U. S., at 2 7 2 (emphasis added). Based on that rationale, the Court found that the excessiveness of o n e prison t e rm as co m pared to a n other was “properl y within the province of legislatures , not courts, ” id. , at 275 –276, precisely because it involved an “ invariably

. . . s ubjectiv e d e te rmination , there being no clear way to ma ke ‘any constitutional dis

tinction between one term of years and a shorter or longer term of yea r s,’ ” Hu ttov. Davis , 4 54 U. S. 37 0, 373 (1982) (per cu ria m )(quoting Rummel , supra , at 275; emph asis added). Even when the Court brok e from that understanding i n its 5-to-4 decision in So le m v. Hel m , 463 U. S. 277 (1983) (strikingdo wn as “gros s ly di spropo rtionate” a l i fe-without

parole sent ence impos e d on a d e fendant for passing a worthless check), the Court did s oonly as applied to the facts of that case; it announced no categorical rule. Id ., at 288, 303. Moreover, the Court soon cabined Solem ’s r a tionale. The controllin g opinion i nthe Court’s very next noncapital proportionality case em phasized that principles of federalis m require substantial deference to legislative choices regarding the proper length of prison sentences

. Harm elin , 501 U. S., at 999 (opinion of K ENNEDY , J.) (“[M]ark ed divergences both inunderlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often benefici al, result of the federal structu re”); id. , at 100 0 (“[D]ifferi ng attitu des and perce p tions of local conditions may yielddifferent, yet rational , conclusions regardin gthe appro p riate length of prison terms for p a rticular c r i m es”). That opinion thus concluded that “ su cc essful challenges tothe proportionality of [prison] se ntences [would be] exceedingly rare.” Id. , at 1001 (internal quotation marks omitted). They have been rare indeed. I nthe 28 years since9 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g Solem , the Court has considered just three such chal

lenges and has rejected them all, see Ewing v. Californi a , 538 U. S. 11 (2003); Lockyer v. Andrade , 53 8U

. S

. 63 (2003); Harmelin , sup r a , largely o nthe theory thatcriti

cisms of th e “wisdom, cost-efficiency, and effectiveness” of term-of-years prison sentences are “appropria tely directed at the legislature[s],” n o t the court s , Ewin g , supra, at 27, 28 (pluralit y opinion). The Court correctl ynotes tha t those decisions were “c losely divided,” ante , a t8, but so was Solem i t self, and it is now fair to describe Solem as an outlier. 2 Remarkabl y, the Court today does more than return t o Solem ’s cas e -by-case proportionality standard for noncapi

tal sentences; it hurtles past it to impose a categori c a l proportionality rule banning life- without-parole sentenc e s not just in this case, but in every case involvi n g a juvenile nonhomicid eoffender, no matter what the ci rcumstance s . Neither th e Eighth A m endment nor the Co urt’s prece dents justify this decision. III The Court asserts tha tcate goric a l proporti onality re

view is necessary here merely because Graham asks for a categorical rule, see ante , at 10, and because the Court

——————

2 Cour ts and commenta t or s inter p r e tingth is Cour t’ s dec i sions hav e reached this conclusion. See, e.g. , Unit ed States v. Polk , 54 6 F. 3d 7 4 , 76 ( CA1 2 008 ) (“[I ]n st an c e s of gr oss d i sp r o por t ion a lity[inn o n c apita l cases] will be hen’s-teeth ra re”); Barkow, The Court of Life and Death: The Two Tracks of Constitutional S e ntencing La w a n d the Ca s e for Un ifor mity , 1 07 M i c h . L. Re v . 1145, 11 60 ( 200 9) (“ Solem n o w stan ds as an outlier”); Note, The Capital P unis h ment Exception: A Ca s efor Con s titu t i on al izin gth e Substan t iv e Cr imi n al Law, 104 Colu m. L. Rev. 426, 4 45 (2 00 4) (observ i n g th at ou tside o f th e c a pital c o n t ex t, “pr o por t i ona l it y review ha s b eenvirt ua lly dorm a n t” ) ; S t eiker & S t eiker, Opening a Wi ndow or Building a Wall? The Effect of Eighth Amend

men tDeath Pen a ltyLaw an d Adv o c a c yonCr imin alJu stic e M o r e Br oadly , 11 U. Pa. J. Con s t. L. 155, 184 (200 9) (“Eigh t hAmen dmen t challenges to e x cessive incarceratio n [a re] es s e ntia lly non-s t a r ters ”).10

I GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g think s clear lines are a good idea, see ante , at 24–25. find those factors whol ly insufficient to justifythe Court’s break from past prac t i ce. First, the Courtfails to ac

k n owledge that a petitioner s eek ing to exem pt an entire category of offenders from a sentencing prac t i ce carries a much heavier burden than one seeking case-s pecific relief under Solem

. Unlik e the petitioner in Solem , Graham must establish not only that his own life-without-parole sentence is “grossly dis p roporti onate,” but also that such a sentence is always gros sly di sproportionate whenever it i s applied to a juvenile nonhomi cide offender, no matter how heinous his crime. Cf. United S t a t esv. Salern o , 481 U. S. 739 (1987). Second, even applyi ng the Court’s categorical “evolving standards” t e st, neither objective evidence of national consensus nor the notions of culpability on which the Court’s “independent judgmen t” relies can justify th e categorical rule it declares here. A Accordin g to the Co urt, p r operEighthA m endment analysis “begins with objective indicia of national consen

sus,” 3and “[t]he clearest and mostreliable objective evi

dence of contemporary values is the legislation enacted by the country ’s legislatures,” ante , at 10–11 (internal quota

-

——————

3 The Cour t ig nor e s entir e lythe thr e shold i n quiry of whether subject

ing j u ve nile offenders to a d ult pena lt ies was one of the “modes or acts of punis h ment tha tha d b een cons idered cr uel a n d unus ua l a tthe time that the Bill of Rights was adopted.” Fordv. Wainw r i ght , 477 U. S. 399, 40 5 (19 8 6). As th e Cou r t h a s n o ted inth e past, h o wev e r , th e evidence is clear that, at the timeof the Founding, “the c o mmon law se t a r e buttable p r esumption of inc a pac i tyto c o mmitanyfel o nyat the ag e of 14, and theor etic allyper m itted [ev e n] c a pital punishment to be imposed ona per s onas y o u n gas ag e 7.” Stanfordv. Kent uck y , 492 U. S. 361, 368 (198 9) (c itin g 4 W. Blac ksto n e , Commen t ar ies *23–*2 4 ; 1 M. Hale, Pleas of the Crown 24–29 ( 1 80 0)). It thus see m s exceedingly unlikely that the impo siti on of a life- without-parole sentence on a per s onof Gr ah am’ s ag e would run afoulof those standar d s.11 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g tion marks omitted). As such, the analysis should end quickly, be cause a national “consensus” in favor of th e Court’s res u lt simply does not exist. The la ws of all 50 States, the Federal Government, and the District of C o lumbia provide that juveniles ov er a certain age may be tried in ad ult court if charged with certain crimes. 4 See ante , at 33 –35 (Appendix to opinion of the Court). Forty

five States, the Feder a l Govern ment, and the Distric tof Columbia expose juvenile off e nders charged in adult court to the very same range of punishments faced by a d ults charged with the same crimes. See ante , at 3 3–34, Part I. Eight of those States do not mak elife-without-parole sentences av ailable forany nonhomicide offender, regard

less of age. 5 All remaining jurisdictions—the Federal Government, the other 37 Stat es, and the District— authorize life-without-parolesentences for certain non

homicide of fenses, andauthorize the imposit i on of such sentences o npersons u n der 18. See ibid

. Only five St at es

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4 Although the detail s of state laws vary extensively, they gene rally permit the transfer of a juve nile o ffenderto adult c o ur t thr o ugh one or mor eof the f o llowingmec h anisms: (1) judicial waiver, in which th e juv e nile c o ur t has the author ityto wa ive jurisdiction over the offende r and tr ansfer the c a se to adult c o ur t; (2) c o nc ur r e nt j u r i sdic tion, in which a d ultand j u venile court s s h a r e j u ris d ict i on over cert a i n ca s e s and the prosecutor has discretion to f ile ineither court; or (3) statutor y provis ions t h a texclude j u veniles who com m i tcert a i n crim e s from juvenile-court jurisdiction. See Dept . of Justice, Juvenile Offenders and Vic t im s: 1999 Nation al Rep o r t89, 104 (1 999) (h er ein a fter1999 DOJ Nationa lRepo r t); Feld, Unmitig a ted Punishment: Adoles c e nt Cr imina l Respon sibili tyan d LWOP S e n t en c e s, 10 J. Law & FamilyStu d ies 11, 38– 39 (2 007).

5 Alaska enti tl es all offenders to parole, regardless of their crime. Alask aSta t . §12.55.0 15(g) (200 8). Th e oth e r sev e n Sta t es pr ov ide parole eligibil ity to all offe nder s, except those who commit certai n h o mic i de c r i mes. Con n . Gen

. Stat. §53a

– 35a (2 00 9); Haw. Rev. S t at. §§706–6 56(1)

– ( 2) (19 93 an d 200 8 Su pp. Pa mph l et); M e . Rev

. Stat. An n ., Tit. 17– a, §12 51 (20 06); M a ss. Gen

. Laws An n . , c h . 265, §2 (West 20 08 ); N. J. Stat. An n . §§2C:11–3(b)(2)–(3) (W es t 20 05); N. M

. Sta t . An n . §31

– 18– 14 (Su pp. 200 9); Vt. Sta t . An n . , Tit. 13, §2303 (2 00 9).12 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g prohibit juvenile off e n d ers from receiving a life-without

parole sent ence that could be im posed on a nadult con

victed of th e same crime. 6 No plausible claim of aconsensus against this sentenc

ing practice can be made in light of this overwhelming legislative evidence. The sol efact that federal law author

izes this practice singl e handedly refutes the claim that o u r Nation finds it morally repugnant. The additional reality that 37 out of 50 States (a supermajority of 74%) perm it the practice makes the claim u tterly implausible. Not only is there no consensus against this penalty, th ere is a clear legislative consensus in favor of its availability. Undaunted, however, the Court b r ushes this evidence aside as “incomplete and unavailing,” declaring that
“ ‘[t]here are measures of cons ens u s other than legisla

tion.’ ” Ante , at 11 (quoting Kennedy , 554 U. S., at ___ (slip op., at 22)). This is nothing short of stunnin g . Most im

portantly, federal civilian law approves this sentencing practice. 7And although the Court has never decided ho w many state laws are necessary to show con s ensus, the Court has never banis h ed into constitutional exile asen tencing pra ctice thatt h e laws of a majority, let alone a supermajority, of State s expressly permit. 8

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6 Colo. Rev

. Sta t . An n . §18– 1.3–4 01(4)(b ) (2 009) (au t h o r i zin gman d a t o ry life s e nt ence wit hpos s ib ilit yfor pa role a f t e r 4 0years for j u veniles c o nv ic ted of c l ass 1 felon i es) ; Kan

. Stat. An n . §§21–462 2 , 4643 ( 2 0 07); Ky . Rev. Stat. An n . §640.04 0 (West 2 0 0 6); Sheph erd v. Commonwe a lth , 251 S. W. 3d 309, 3 2 0 –32 1 (Ky

. 2008) ; M o n t . Code An n . §46–1 8– 222( 1) (200 9); Tex

. Pen a l Code An n . §12.31 (West Su pp. 2009).

7 Althoughthe Cour t pr ev iouslyha s di smissedthe rele vance of the Uniform Code of Military Justice to its d i scernm ent of consensus, see Kenne dy v. Lo uisiana , 554 U. S. ___, ___ (200 8) (s tate m e nt of K ENNEDY , J., respecting denial of rehearing), juve niles who enlist in the milit ary are nonetheles s eligible for life-with out-par o le sentenc e s if they c o mmit cert a i n nonho m i cide crim e s. S ee 10U. S

. C. §§50 5 ( a) (perm i tt ing en listmen ta tag e 17), 856a, 920 (2 00 6 ed., Su pp. II).

8 Kennedy , 554 U. S., at ___ (slip op., at 1 2 , 23) (prohibiting capital13 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g Moreover, t h e consistency anddi rection of r e cent leg

islation—a factor the Court pre viously has relied upon when crafti n g categoric a l pr oportionality rules, see Atkins , 536 U. S., at 315–316; Roper , 543 U. S., at 565–566— underscores the consensus again s tthe rule the Court announces here. In my view, the Court cann ot point to a national consensus in favor of its rule without assuming a consensus in favor of the two penological points it late r discusses: ( 1 ) Juveniles are always less culpable than similarly-situated adu l ts, and (2) juveniles who commit nonhomicid ecrimes should always receive an opportunity to demonstrate rehabilitation thro ugh parole. Ante , a t16– 17, 22–24. But legisl ative trends make that assumption untenable. First, Sta t es over the past 20 years have consistently increa sed the severity of punishments for juvenile off e nd

ers. See 1999 DOJ National Report 89 (referring to th e 1990’s as “a time of u n precedented change as State le gis

-

—————— punis h m e ntfor t h e ra pe of achild whe r eonly six States had enacted s t atutes a u th orizing the p unis h ment s i nce Furmanv. Georgia , 4 08 U. S. 238 (197 2) (per cu riam )); Roper v. Simmons , 543 U. S. 551, 564 , 568(20 05) (pr o hib i ting ca pita l punis h men tfor offenders younge rtha n 18 wh er e 18 of 38dea t h

- pen a ltySt ate s precluded im position of th e penalty on pe rsons under 18 and th e remaining 12 Sta t es did no t permit capit a lpunishment at all); Atk i nsv. Virginia , 536 U. S. 30 4 , 3 1 4

– 3 1 5 (2 002 ) (prohib i ting ca pita l punis h ment of menta lly reta rded persons where 18 of 38 de ath-penalt y State s precluded impo sition of the penalty onsuch persons and the r e ma i n ingState s di d not author iz e ca pita l punis h ment a ta l l); Thompsonv. Oklah o ma, 487 U. S. 815, 826, 829 ( 1 9 88) ( p lu r a lityopi n ion) (prohib i ting ca pita l punis h ment of offenders und er 16 where 18 of 36 de ath-penalty St ates precluded imposi tion of the penalty on such persons and the remai n ing States di d not permit ca pita l punis h ment a ta ll); Enmundv. Flo r ida, 458 U. S. 782, 7 89 ( 1 9 82) (pr o h ibit i n gc a pital pu n i sh men tforfelon ymu r d er without proof of intent to kill wher e ei ghtState s allowe d the punish

ment without proof of that element); Cok e rv. Geo r gia , 433 U. S. 58 4, 593 ( 197 7) (holding ca pita l punis h ment forthe ra pe of awoma n unco n stitut ional wher e “[a]t no ti me in the last50 y e ar s hav ea major i tyof th e State s au t h or ized deathas a pu n i sh me n tfor r a pe”).14GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g latures cra ck[ed] do wn on juvenile crime”); ibid. (noting that, during that period, “legislatures in 47States and the District of Columbia enacted la ws that made their juvenile justice systems more punitive,” principally by “ma[king] it easier totransfer juvenileoffen d ers from the juvenil e justice system to the [ a dult] criminal justice system”); id. , at 104. Th is, in my view, reveals the States’ widespread agreement that juveniles can sometimes act with the same culpability as adults and that the law should per m i t judges and juries to consider adult sentences—including life without parole—in those rare and unfortunate cases. See Feld, Unmitigate d Punishment: Adolescent Crimi nal Responsibility and LW OP Sentences, 10 J. La w & Family Studies 11, 69–70 (20 07) (noting that life-w i thout-parole sentences for juveniles have incre ased since the 1980’s); Amnesty International & Human Rights Watch, The Res t of Their Lives: Life Without Parole for ChildOffenders in the United States 2, 31 (2005) (same). Second, legislatures have moved a w ay from parole ove r the same period. Congress abolished parole for federal offenders in 1984 amid criticism that it was subject to “gamesmanship and cynicism,” Breyer, Federal Sentenc

ing Guidelines Revisited, 11 Fed. Sentencing Rep. 180 (1999) (discussing the Sentencing Reform Act of 1984, 9 8 Stat. 1987), and several States have followed suit, see T

. Hughes, D. Wilson, & A. Beck, De pt. of Justice, Bureau of Justice Statistics, Trends in Sta t e Parole, 1990–2000, p. 1 (2001) (noting that, by the end o f 2000, 16 States ha d abolished p a role for all offenses, while another 4 State s had abolish e d it for cert ain ones). In light of these devel

opments, the argument that there i s nationwide consensu s that parole must be available to offenders less than 1 8 years old in everynonhomicide case simply fai l s. B The Court nonetheless dismisses existing legislation,15 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g pointing out that life-without-par o le sentences are rarely imposed on juvenile nonhomicide offenders—129 times in recent memory 9by the Court’s calculation, spread out across 11 States and the federal courts. An te , a t11–1 3. Based on th is rarity of use, the Court proclaims a consen

sus against the practice, implyi n gthat laws allowing it either reflect the consensus of a prior, less civilized time or are the workof legislatures tone-deaf to mo ral values of their constituents thatthis Court claims to have easily discerned from afar. See ante , at 1 1

. This logic strains cred u lity. It ha s been rejected before

. Gre g

g

v. Georg i a , 428 U. S. 153, 182 (1976) (j oint opinion of Stewart, Powell, a n d S TEVE N S , JJ.) (“[T]he relative infrequency of jury verdicts imposing the dea t h sentence does not indicate rejec t ion of capital punishment per s e . Rather, [it]

. . . may well reflect the humane feeling that this most irrevocable of sancti ons s h ould be re served for a small num ber of extreme cases”). It shoul dalso be re

jected here. That a pu nishment is rarely imposed demon

strates nothing more than a general consen sus that it should be j u st that—rarely imposed. It is n o t proof that the punishment is one the Nation abhors. The Court nonetheless insists that the 26 States tha t authorize this penalty, but are not presently i n carceratin g a juvenile nonhomicid eoffender on a life-without-parol e sentence, cannot be counted as approving i t s use. The mere fact t hat the laws of a jurisdiction per m it this pen

alty, the C o urt explains, “does not indicate that the pe n alty has be en endorsed through deliberate, express, and full legislativ e consideration.” Ante , at 16. As an initial matter, even accepti n g the Court’s theory ,

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9 I say“r ec ent memor y” bec a use the r e sear c hr e lied upon bythe Cour t provides a headcount of juvenilenonhomicide offenders presently inca rcera t e d in t h is count ry , b u tdoesnot provide morespecific infor

mation about all of the offenders, su ch as the dates on w h ich they we re convict e d.16 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g federallaw authorizes this penalty and the Federal Gov

ernment uses it. See ante , a t13 (citing Letter and At

tachment from Judith Simon Garrett, U. S. Dept. of Jus

tice, Federa l Bureau of Prisons, to Supreme C o urt Librar y (Apr. 12, 2010) (available inClerk of Court’s case file) )

. That should be all the evidence necessary t orefute the claim of a n a tional cons ensus again s t this penalty. Yet even when examining the States that authorize, but have not re cently empl oyed, this sentencing p r actice, the Court’s theory is unsound. Und e r the Cou rt’s evolvin g standards test, “[i]t is not the burden of [a State] to estab

lish a national consensus appro ving wha t their citizens have voted to do; rath er, it is the ‘heavy burden’ of peti

tioners to establish anational consensus againstit.” Stanfordv. Kentucky , 492 U. S. 361, 373 (19 89) (quoting Gre g

g , supr a , at 175 (joint opinion of Stewart, Powell, and S TEVE NS , J J .); some emphasis added). In light of this fa ct, the Court i s wrong to equate a jurisdiction’s disuse of a legislatively authorize d penalty with its mo ral opposition to it. The f a ct tha t th e laws of a jurisdiction permit this sentencing practice de monstrates, at a minim u m, that the citizens of that jurisdi ction find tolerable the possibility that a jury of their peers could impose a life-without

parole sent ence on a j u venile whose nonh om icide crime is sufficiently depraved. The recent case of 16 -year-old Keighton Budder illus

trates this point. Just weeks be fore the release of this opinion, anOklahoma jury sentenced Budder to life with

out parole after heari n g evid ence that he viciously at

tacked a 17 -year-old girl who gave him a ride home from a party. See Stogsdill, Teen Gets Life Terms in Stabbing, Rape Case, Tulsa World, Apr. 2, 2010, p. A10; Stogsdill, Delaware County Teen Sentenced in Rape, As sault Case, Tulsa World, May 4, 2 010, p. A12. Budder a llegedly put the girl’s h e ad “ ‘into a headlock and sliced her throat,’ ” raped her, stabbed h e r about 20 times, beat her, and17 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g pounded her face int othe rocks alongside a dirt road. Teen Gets Life Terms in Stabbing, Rape Case, at A10. Miraculously, the victi m survived. Ibid. Budder’s crime was rare in its br utality. The sentence the jury imposed was also rare. Accordin g t othe study relied uponby this Court, Oklahoma had no such offender in its prison system before Budder’s offense. P

. Annino, D. Rasmussen, & C. Rice, Juvenile Life WithoutParole for Non-Homicide Offenses: Florida Co mpared to Nation 2, 1 4 (Sept. 14, 2009) (Table A). Without his convi ction, there

fore, the Court would h ave count ed Oklahoma’s citizens a s morally opposed to lif e-withou t-p a role sentences for juve

niles nonh omicide offenders. Yet Ok laho ma’s experience proves the inesca pable flaw in that rea s oning: Okl ahoma citizens have enacted laws that allow Oklahoma j u ries to consider life-without-parole sentences i njuvenile n o nhomicide cases. Okla homa juries invoke those laws rarely—in the unusual cases that th ey find exceptionally depraved. I cannot agree with th e Court that Oklahoma citizens should be constitutionally disabled from using this sentencing practice merely be

cause they have not done so more frequently. If anything, the rarity o f this penalty’s use underscores just how judi

cious sentencing jud g es and juries across the country ha v e been in inv o king it. This fact is entirely consiste nt with the Court’s intuition that juveniles generallyare less culpable and more capable of growth than adults. See infra , at 21–22. Graham’s o w n case provides another exampl e. Graham was statutorily eligible f o r a life-without-paro le sentence after his first crime. But the record i n dicate s th at the trial court did no t give such a sentence serious consideration at Graha m’s initial pleahearing. It was onl yafter Graham subse

quently violated his p a role by invading a home at gu n point that the maximum sentence was imposed. In sum, th e Court’s calculation that 129 ju venile non

-18GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g homicide life-without-p a role sentences have been imposed nationwide in recent memory, even if accepted, hardly amounts to strongevi d ence that the sentencing pra ctic e offends our common se nse of dece ncy. 10 Finally, I cannot help but note that the sta t istics the Court finds inadequate to justify the penalty in this case

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10 Beca us e exis ting legis l a t ion pla i nly s u ffices to refute a n y cons ens u s ag ainst thi s s e ntenc i ng pr ac tic e , I assum ethe ac c u r a cyof the Cour t ’ s evidence rega rding thefrequenc y with w h ich this s e nt ence ha s b e en imposed. But I wo uld be re miss if I did not mention two points about the Cour t’ s figur e s. Fir s t, it seem s odd tha tthe Cour t c o unts onlythos e juveniles sent enced to life without paro le and excludes from its analysis all juveniles s e ntenced to length yter m -of-y e ar s sen t en c e s ( e.g. , 70 or80 years’ imprisonment). It is difficu lt to ar gu e that a judge or jury impos i ng s u ch along s e ntence—w hichef fectively denies the offender a n y m a t e ria l opport unit yfor pa rol e—would express mo ral outrage at a life-without-parole sentence.

S e cond, if obj e ct ive indiciaof cons ens u s w e re t r uly im po rt a n tt ot h e Court’s analysis, the stat is ti cal in formatio n presently available would be woefully inadequate to fo rm the basi s o f anEigh thAmen dmen t r u le th at c a nbe r e v o ked on ly byc o n s titu tio n al amen dme n t. Th e on ly ev idenc esubmittedto thi s Cour t r e g a r dingthe fr equenc yof this sen

tenc e’ s imposition was a single study c o mpleted aft e rthis Cour t gra n ted ce rtiora ri in this c a s e . S ee P. Annino, D. R a s m uss e n, & C. Rice, Juvenile Life Without Parole for No n-Homicide Offenses: Florid a Compar ed to Nation 2 ( S ep t. 14, 20 09). Alth ou ghI h av en or e asont o question the professionali s m with wh ic h th is s t udy wa s conducted, th e study itself a c knowledges th at it was inc o mplete andthe fir s t of i t s kind. See id. , at 1. Th e Cou r t’ s qu estion ab le decision to “complete ” th e study on its o w n does not materia lly increase it s reliabili ty. For one thing, by finishing thestudy itself, the Cour t pr ohibits the parties from ever disputing its findings. Complic ating matters further, the original stu dysomet i mes r e lied on th ir d-par t y da ta r a thertha ndata fr om t h e States themse lves, see ibid.; the study has never been peer reviewed ; and specific d a ta on all129 offender s (age, date of con v iction, crime of conviction, etc.), have not been co llect ed, m a king verifica t i on of t h e Court’s hea d count impos s ible. The Cou r t in ex plic ablyblame s Flor id a for all of this. See ante , at 1 2

. Bu ta s alr e adyn o ted, iti s n o t F l or ida’ s b u rden t ocollectda t a t opr ove ana tional consensus in favor of thi s sen t en c i n gprac tic e , bu t Grah am’ s “h eavybu r d en” to pr ov e a c o n s en s u s againstit. S ee supra , at 16.19 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g are stronger than those supporting at least one other penalty thi s Court has upheld. Not long ago, this Court, joined by th e author of today’s opin ion, upheld the applica

tion of the death penalty against a 16-year-old, despite th e fact that no such punishment had been carried out on a person of that age in this country in nearly 3 0 years. See Stanford , 4 92 U. S., at 374. Whatever the statistical frequency with whichlife-without-parole sentences have been impos e d on juvenile nonh omicide offenders in the last 30 years, it is surely greater than zero. In the end, however, objectivefactors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat. 11 By the Court’s owndecree, “[c]ommunity consensus . . . is not itself determinative.” Ante , at 1 6

. Only the independent moral judgment of this Court is sufficient to decide the question. S ee ibid.

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11 I c o nfine to a footnote the Cour t’ s disc u s sionof for e ig nlaw s an d s e nt encing pr a c t i ces b e ca use pa s top inions explain at le ngth why such factors are irrelevant to the meaning of our Constitutionor the Court’s dis c ernment of a n y longs t a n ding tra d ition in thi sNation. See At kin s , 536 U. S., at 324–3 25 (Reh n q u i st, C. J., dissen t in g)

. Her e , two poin t s suffic e . Fir s t, despite the Cour t’ s attemp t t oc o unt the ac t u al numberof juvenile nonhomicide offenders servin g life-without-parole sentences i n other nations (a task even more cha llengingthan c o untingthem within our b o rde r s ) , t h e lawsof other count ries permit juvenile life-without

par o le sen t en c e s, see Ch ild Righ ts Information, Net w ork, C. de la Vega, M. Montesano, & A. Solter, Human Righ ts Adv o c a tes, St ate m ent on J u ve nile S e ntencingto Huma n Rights Council, 1 0 t h S e s s . (Nov. 3 , 200 9) (“Elev e nc o untr ies hav elaws with the p o t e n t i a l t o p e r m i t t h e sentencing of child offe nde r s to life without the possibil i tyof r e lease”), o n l i n e a th t t p : //w w w . c r i n . o r g/r e s ou r c e s /i n f o D etail.asp? ID=1980 6) (a s v i sited M a y14, 201 0, an d av ailable inCler k of Cou r t’ s c a se file)). S e cond, pres ent legis l ationnotwiths ta nding, democra c i es a r ound th e world remain free to adopt life-without-parole sentences for juvenil e offender s tomor r o w if theysee fit. Star tin gtoday , our s can c o unt itself among the few in which judicial de cree prevents voters from maki ng t h a tchoice.20 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g C La ckin g a n y plau sible clai m to conse n sus, the Cou rt shif ts to th e heart o f i t s a r gume n t : i t s “in d ep enden t ju dg

ment” th a tthis sen t en c i ng p r a c ti cedoes not “ s erv[e] le gi ti

mate penolo gi cal goals.” Ante , a t16

. The Co urt begins th at anal ysis wi th the obli gato ry prea mble tha t “ ‘[t] he Ei gh th Amendme n t does no t mandate adoptio nof any one pe

nologi cal theory,’ ” an te , at 20 (quo ting H a rmelin , 501 U. S. , at 999(o pi nion o f K EN NE DY , J.)), the n prom ptl yma nda t es the ado p tio n of the the o ries the Co urt deems best. First, the C o urt ac knowledges th at, at aminimum, the impositionof life-without-parole sentences on juvenile nonhomicid eoffenders serves two “legitimate” penological goals: incapacitation and deterrence. Ante , at 20–21. By definition, such sentences serv e the goal of incapacitatio n by ensuring that juve nile offend ers who commit armed burglaries, or those who commit the types of grievous sex crimes described byT HE C HI EF J USTIC E , no lon g er threaten th eir communities. See ante , at 9 (opinion con

curring in j u dgment). That should settle the matter, since the Court acknowledge s that incapacitation is an “impor

tant” penological goal. Ante , a t 21. Yet, th e Court fin d s this goal “inadequate” to justifythe life-without-parole sentences h e re. Ante, at 22 (emphasis added). A simila r fate befalls deterrence. The Court acknowledges that such sentences will deter future juve nile offender s, at least to some degree, but rejects thatpenological goal, not a s illegitimate, but as ins u fficient. An t e , at 21 (“[A]ny limited deterrent e ffect p r ovid ed by life without pa role is not enoughto j u stify the sentence.” (emphasis added)). The Court looks more favorably on rehabilitation, but laments that life-without-parole sentences do little t o promote this goal because they result in the offender’s permanent incarcerat i on. Ante , at 22. Of course, the Court recognizes that rehabilitation’s “utility and proper implementation” are subject to de bate. Ante, at 23. Bu t21 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g that does not stop it from de claring that a legislature may not “forswe a [r] .

. . the rehabilitative ideal.” Ibid. I no t h e r words, the Eighth Amendment does not mandate “any one penological theory,” an te , at 20 (internal quotation marks omitted), just one the Court approves. Ultimately, however, the Court ’ s “independ e nt judg

ment” and the proportionality rule itself center on retribu

tion—the notion that a criminal sentence should be pro

portioned to “ ‘the personal culpability of the criminal offender.’ ” Ante , a t16, 20 (quoting Ti sonv. Arizona , 481 U. S. 137, 149 (1987)). The Court finds th at retributive purposes are not served here for two reasons. 1 First, quoting Roper , 543 U. S., at 569–570, the Court concludes that juvenil e s are less culpable than adults because, as compared to adults, they “have a ‘ “lack of maturity an d an underdeveloped s e nse of responsibility,” ’ ” and “their characters are ‘not as well formed.’ ” Ante , at 17. As a general matter, this statement is ent i rely consis

tent with the evidence recounted above that judges and juries impose the sentence at issue quite infrequently, despite legislative authorization to do so in many more cases. See Part III–B, supra . Ou r society te nds to trea t the average juvenile as less culpable than the average adult. But the question here does not involve the avera g e juvenile. T h e question , instead, is whether the Constitu

tion prohibits judges and juries from ever con c luding tha t an offender under the age of 18 has demon s trated suffi

cient depravity and incorrigi bility to warrant his perma

nent incarceration. In holding that the Constitution imposes such a ban, the Court cites “developments in ps ychology a n d brain s c i

ence” indicating thatj u venile minds “contin ue to mature through lat eadolescence,” ante , at 17 (citing Brief for American Medical Association et al. as Amici Curi ae16–22 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g 24; Brief for American Psychologi cal Association et al. a s Amici Cu ri ae22–27 (h ereinafter APA Brief)), and tha t juveniles are “more likely [than adults] to engage in risky behaviors,” id. , at 7. But even if such generalizations from social science were relevant to constitutional rulemakin g , the Court misstates the data on which it relies. The Court equates the propensity of a fairly s ubstantial number of youths to engage in “risky” or anti s ocial behav iors with the propensity of a much smaller gr oup to com

mit violent crimes. Ante , at 26. B u t researchrelied upon by the amicicited in the Court’s opinion differentiates between adolescents f o r whom a n tisocial behavior is a fleeting symptom and those for whom it is a lifel ong pat

tern. See Moffitt, Ad olescence-Limited and Life-CoursePersistent Antisocial Behavior: A Developmental Taxon

omy, 100 Psychological Rev. 674, 6 78 (1993) (cited in APA Brief 8, 17, 20) (distinguishing between adolescents who are “antisocial only duringadolescence” and a smaller group who engage in antisocialbehavior “at every life stage” despite “drift[ing] through successive systems aimed at c u rbing thei r deviance” ). Thatres e arch fur t h e r suggests th at the patt ern of behavior in the latter grou p often sets in before 18. See Moffitt, supra , at 684 (“The well-documented resis t ance of an tisocial per s onality dis

order to treatments of all kinds seems to s u ggest that the life-course- p ersistent style is fixed sometim e before age 18”). And, notably, it suggests th at violence itself is evi

dence that an adolescent offe nder’s antisocial behavior is nottransient. See M o ffitt, A Review of Res e arch on th e Taxonomy of Life-Cou rse Persistent Versus AdolescenceLimited An tisocial Behavior, inTaking Stock: the Status of Criminological Theory 277, 2 92–293 (F. Cullen, J. Wright, & K. Blevins eds. 20 0 6 ) (observi ng that “life

course persistent” males “tend ed to specializ e in seri ou s offenses (c arrying a hidden weapon, assa ult, robbery, violating court orders), whereas adolescence-l i mited” one s23 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g “specialized in non-seri ous offen s es (theft less than $5, public drun kenness, giving false i n formation on applica

tion forms, pirating co mputer software, etc.)”)

. In sum, even if it were relevant, none of this p s ychologi

cal or sociological data is sufficientto support the Court’s
“ ‘moral’ ” conclusion th at youth defeats culpability in every case. Ante , at 17 (quoting Roper , 543 U. S., at 570); see id. , at 618 (S CALI A , J., dissenting); R. Epstein, The Cas e Against Adolescence 1 71 (2007) (r eporting on a study of juvenile reasoning skills and concluding that “most teens are capable of conventional, adult-like moral reasoning”). The Court responds that a catego rical rule is nonethe

less necessary to prev ent the “ ‘unacceptable likelihood’ ” that a judge or jury, un d u lysw ayedb y “ ‘the brutality o r cold-blooded nature’ ” of a juvenile’s nonhomicide crime, will senten ce him to a life-without-parole sentence for which he possess es “ ‘i nsufficient culpability,’ ” ante , at 27 (quoting Roper , su pra , at 572–573). I find that justifica

tion entirely insufficient. The integrity of o u r criminal justice system depends on the ability of citizens to stand between the defendant and an outraged public and dispas

sionately determine h i s guilt and the proper amount of punishment based on the evidence presented. That proc

ess necessarily admits of human error. Butso does the process of judging in which we e n gage. As between the two, I find far more “unacceptable” that this Court, swayed bystudies reflecting the general tendencies o f youth, decr ee that the people of this country a r e not fit to decide for themselves when the rare case requires differ

ent treatment. 2 Thatis especi ally s o bec a u s e, in the e n d, theCo urt does not e ven belie ve its pro n ounceme nts about the juvenile min d

. I f i tdi d , theca te go ri c alru le i t a n n o un ce s to day wo ul d be m o st pe cul i a rbeca use i t leaves i nta ct s t a t e an d24GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g f e der al lawsth at p e rm itlif e -with o ut- p arole s e nt ences f o r juve nile s who co mmi t homi cide s. Se e an te , at 2 3

. Th e Co urt th us ackno wl e dges tha t the r e is no thin g inhe re nti n th e psych e of a pers on les s th an18 th at pr eventshim from ac qu irin g th e mo ral a ge nc y ne ce s s a ry to wa rr a nt a life

wi thout-parole sent ence. Inst ea d , th e Cou rt re je c t s o ve r wh e l mi ng le gi s l ativ eco n s en su s only onth e qu e sti o n o f whichacts ar e s u f f icient t od e m o n s tr at e th at mor al agency. The Court is quite willing to acce pt that a 17-year-ol d who pulls the trigger o na firearm can demonstrate suffi

cient depra vity and ir redeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8

- year-old and leaves h e r for dead d oes n o t. See ante , at 17– 19; cf. an te , at 9 (R OBERTS , C. J., concurring i njudgment) (describing the crime of life-without-parole offender Mi

lagro Cunn ingham). Thus, the Court’s con c lusion that life-without-parole sentences are “grossly d i sproportion

ate” for juvenile n o nhomicide offenders in fact has very little to do with its vie wof juveniles, and much more to do with its pe rception that “def endants who do not kill, in

tend to kill, or foresee that life will be taken are categori

cally less deserving of the most s e rious forms of punish

ment than are murderers.” Ante , at 18. That the Court is willing to impose such a nexacting constraint o ndemocrati c senten cing choices ba sed on such an untestable philosoph ical conclusion is remarkable. Th e question of what acts a r e “des erving” of what punishments is bound so tightly with questions of morality and social conditions as to make it, almost by definition, a question for legislative resolution. It is tru e that the Court p r evi

ously has relied on thenotion of proportionali t y in holding certain classes of offenses ca tegorically exempt from capi

tal punishment. See supra , at 4. But never before today has the Court relied on its own view of just deserts to impose a c a tegorical limit on the imposition of a lesser punishment. Its willingness to cro ss that well -established25 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g boundary raises the question whether any democrati c choice regarding app r opriate punishment is safe from th e Court’s eve r -expandin g constituti onal veto. IV Although the concurrence avoids the problems associ

ated with expanding c a tegorica l proportionali t y review to noncapital cases, it employ s noncapital proportionality analysis in a way tha traises the s a me fundamental con

cern. Although I do not believe Solem merits sta re deci si s treatment, Graham’s cl aim cannot prevail even under tha t test (as it has been limited by the Court’s subsequen t precedents). Solem instructs a co urt first to compare the “gra vity” of an offender’s conduct to the “harshness of the penalty” to determine whether an “inference” of gros s disproporti onality exists. 463 U. S., at 290–291. Onl y in “the rare c a se” in which such an inference is present should the court p r oceed to the “objective” par tofthe inquiry—an intra- and interjurisdictional comparison of the defendant’s sentence with others similarly situated. Harm elin , 501 U. S., at 1000, 1005 (opinionof K ENN E DY , J.). Under the Court’s p r ecedents, I fail to see how an “in

ference” of gross disproportionality arises here. The con

currence notes several arguab ly mitiga ting fac t s— Graham’s “l ack of prior criminal convictions, h i s youth an d immaturity , and the difficult circu mstances of his upbrin g ing.” An te , a t7 (R OBERTS , C. J., concurring i njudgment). But the Co urt pre viously has upheld a life-without-parole sentence imposed on a first-time offender who c o mmitted a nonviolent drug crime. See Harmelin , supr a , at 1002– 1004. Gra ham’s convi ction for anactual violent felony is surely more severe th an that offense. As for Graham ’s age, it is true that Roper held juve niles categorically ineli

gible for ca pital punis h ment, but as the con c urrence ex plains, Roper was based on the “ explicit conclusion tha t26 GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g [juveniles] ‘cannot with reliab ility be classified among the wors toffenders’ ”; it di d “not establish that juveniles can never be eligible for life without parole.” Ante , a t 5 (R OBERT S , C. J., concurring in judgment) (q uoting Roper , 543 U. S., a t569 (emphasis added in opinion of R OBERTS , C. J.)). In my view, Rop e r’s principles are thus not gener

ally applicable outside the capital sentencing context. By holding otherwise, th e concurrence relies on the same type of subjective judgment as the Court, only it restrains itself to a case-by-case rather than a categorical ruling. Th e concurren c e is quite ready to ha nd Graham “the general presumption of diminished culpability” fo r juveniles, an te , at 7, apparently b e cause it b e lieves that Graham’s a r med burgl ary and ho me invasion crimes were “certainly l e ss serious ” than mu rder or ra pe, ibid

. It recoils only from the prospect that the Court would extend the same presumption to a ju venile who commits a se x crime. See ante , a t10. I simply cannot accept that these subjective judgments of proportionality are ones the Eighth Ame n dment authorizes us to make. The “objective” elemen ts of the So le m test provide no additional support forthe concur rence’s con c lusion. The concurrence compares Graham’s sentence to “similar” sentences in Florida and concludes that Graham’s sen

tence was “far more severe.” Ante , at 8 (R OBERTS , C. J , concurring in judgmen t). Bu t s t rangely, the concurrence uses average sentences for burglary or robbery offenses a s examples of “similar” offenses, eventhough it seems that a run-of-the-mill burgla ry or robbery is not at all s i milarto Graham’s criminal his t ory, whichincludes a charge for armed burglary with as sault , and a probation violation for invading a home at gunpoint. And even if Graham’s sentence is higher than ones he might have received for an armed burglary wit hassault in other jurisdictions, see ante , at 8–9, this h a rdly seems relevant if one takes seriously the principle that “ ‘[a]bsent27 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g a constitutionally imp o sed uni for m ity inimi c al to tradi

tional notions of feder a lism, som eState will alwaysbe ar the distinction of treating pa rtic u lar offenders more se

verely thanany other State.’ ” Harmelin , su pra , at 100 0 (opinion of K ENN E DY , J.) (quoting Rummel , 445 U. S., at 282; emphasis added). Applying Solem , th e Court ha s upheld a 25-years-to-life sentence for theft under Califor

nia’s recidi vist statu t e, despite th e fact that the State an d its amicicould cite only “a single instance of a sim i lar sentence i m posed outside the context of California’s three strik e s law, out of a prison popula tion [then] approaching two million individuals.” Ewing , 5 38 U. S., at 47 (B REYER , J., dissenting). It ha s also upheld a life-without-parole sentence for a first-time drug offender in Michigan charged with possessin g672 gram s of cocaine despite the fact that on ly one otherState would have authorized such a stiff pena lty for a first-time drug offense, a n d even that State requi red a far greater qua ntity of cocaine (10 kilo

grams) to trigger the penalty. See Harmeli n , supra , at 1026 (White, J., dissenting). Graham’s sentence is ce r tainly less rare than the sentences upheld in these cases, so his claimfails even u n der Solem. * * * Both the C o urt and t h e concurr e nce claim their deci

sions to be narrow ones, but both invite a host of line

drawing problems to which courts must seek answers beyond the strictures o f the Constitution. The Court hold s that “[a] State is not required to guarantee e v entual fre e dom to a juvenile off e nder convicted of a nonhomicid e crime,” but must provide the offender with “some mean

ingful opportunity to obtain release based on demon

strated maturity and rehabilitation.” Ante , at 24. But what, exactly, does su ch a “meaningful” opportunity en

tail? When must it occur? And what Eighth Amendment principles will govern reviewby the parole boards the28GRAHAM v. F L ORIDA
T HOMAS , J. , dissen t in g Court now demands that Sta t es empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years. 12 V The ultimate question in this case is not whether a life

without-parole sentenc e‘fits’ the crime at issu e here or the crimes of juvenile non h omicide offenders more generally, but to who mthe Cons titution assigns thatd e cision. The Florida Legislature has concluded that su ch sentences should be available f o r persons under 18 who commi t certain cri mes, and the trial judge in this case decided to impose that legislatively aut horized sentence here. Be

cause a life-without-pa role prison sentence is not a “c ruel and unusual” method of punishment under a n y standard, the EighthAmendment gives th is Court no authority to reject those judgments. It wo uld beunju s ti fiab le for the Court to decl are other

wise eve nif it could clai m tha ta ba re majo ri ty of sta t e la ws sup p orte d i t s i n de pen d ent mora l view. The fact that the Court categoricall y pro h ibits lif e -without -p ar ole sentences for juve nilenonhomi ci de offen d e r s in the fa ce of an ove r wh elm i ng legi s l ativ e m a j o ri ty in favo r o f leaving that sen

ten c in g option avail ab l e unde rcertain case s simpl y il

lustra tes h o w fa r beyond an y cogni z ableconsti tu tion a l

——————

12 It bear s n o tin gth at Color a do, on e of thefive States that prohibit life-without-parole sentences for juve nile nonhomicide offenders, per m its su c hoffen d er s to be sen t en c e d to man d ator yter m s of impr is

on men tforu p to 40 y e ar s. Colo. Rev

. St at. §18–1.3

– 4 01(4)(b ) (20 0 9 )

. In light of the volume of state an d fede ral legisl ationthat presentl y perm itslife-without-parole s e ntences for juvenile nonho m icide offend

ers, it would be imposs ible t oargue that there is any obj e ctive evidence of agreementthat a juvenile is cons titutionallyentitl ed to a par o le h e ar in gan ysoon erth an40 y e ar s afterc o nv ic tion

. See Tr . of Or al Ar g . 6–7 (c ou n s el f o rGr ah am, statin gth at, “[o ] u rpositionis th at itsh ou ld be left up to the State s to dec i de

. We think that the .

. . Color a do pr ov isionwou l d pr obablybe c o n s titu tion al” )

.29 Cite as: 56 0 U

. S. ____ (2010)
T HOMAS , J. , dissen t in g pri n ci ple th e Cou rt ha s rea c he d to ensure that i t s o w n sense of mo rality and retributive justice pre- em pt sth a tof the people and thei r rep r esen ta tives . I agree withJ USTICE S TEVE NSthat “[w]e learn, some

times, from our mistake s .” Ante , at 1 (concurring opinion). Perhaps one day the Court will learn from this one. I respectfully dissent._________________

_________________ 1 Cite as: 56 0 U

. S. ____ (2010)
ALITO , J., dis s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 08–7 41 2 TERRAN C E JAMAR GRA H AM , PETITION ER v. FLORIDA ON WRIT OF CERTIORARI TO THE DIS T RICT COUR T OF APPEAL OF FLORIDA , FIRST DIST RICT [M ay17, 2010 ] J USTICE ALI T O , dissent ing. I join Parts I and IIIof J USTIC E T HOMAS ’s dissenting opinion. I write separately to make two points. First , the Court holds only that “for a juvenile offender who did n o t commit homicide the Eighth Amendment forbids the sentence of life wi thout parole .” An t e , at 23–2 4 (emphasis added). No thing in the Court’s o p inion affects the imposition of a sent ence to a term of years without the possibility of parole. Indeed, petitioner conceded at oral argument that a sentence of as m u ch as 40 years without the possibility of parole “probably” would be constitu

tional. Tr. of OralArg. 6–7; see also ante , at 28, n. 1 2 (T HOMAS , J., dissentin g). Second , the questionwhether petitioner’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sent ences is not pr operly before us in this case. Although petitioner asserted a nas-applied proportionality challenge to his sentence before the Flor

ida courts, see 982 So. 2d 43, 51– 53 (Fla. App. 2008), h e did not include an as-applied claim in his petition for certiorari or in his merits brie fs before this Court. In

stead, petiti oner argued for only acategorical rule banning the imposit i on of lif e without parole on anyjuvenile con victed of a nonhomicid eoffense. Because petitioner aban

doned his a s -applied claim, I would not reach that issue.2 GRAHAM v. F L ORIDA
ALITO , J., dis s e nting See this Co urt’s Rule 14.1(a); Ye ev. Escondido , 503 U. S. 519, 534–53 8 (1992).