(Slip Opinion) OCTOBER TERM, 2009 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

GRAHAM v. FLORIDA 

CERTIORARI TO THE DISTRICT COURT OF APPEAL OF

FLORIDA, 1ST DISTRICT

No. 08–7412. Argued November 9, 2009—Decided May 17, 2010 

Petitioner Graham was 16 when he committed armed burglary and 

another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms

of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because 

Florida has abolished its parole system, the life sentence left Graham 

no possibility of release except executive clemency. He challenged his 

sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed. 

Held: The Clause does not permit a juvenile offender to be sentenced to 

life in prison without parole for a nonhomicide crime. Pp. 7–31.

(a) Embodied in the cruel and unusual punishments ban is the 

“precept . . . that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 

367. The Court’s cases implementing the proportionality standard

fall within two general classifications. In cases of the first type, the

Court has considered all the circumstances to determine whether the 

length of a term-of-years sentence is unconstitutionally excessive for

a particular defendant’s crime. The second classification comprises

cases in which the Court has applied certain categorical rules against

the death penalty. In a subset of such cases considering the nature of 

the offense, the Court has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. E.g., Kennedy v. Louisiana, 554 U. S. ___, ___. In a second subset, cases turning on the offender’s characteristics, the Court has prohibited death 
2 GRAHAM v. FLORIDA 

Syllabus 

for defendants who committed their crimes before age 18, Roper v. 

Simmons, 543 U. S. 551, or whose intellectual functioning is in a low 

range, Atkins v. Virginia, 536 U. S. 304. In cases involving categorical rules, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice” to 

determine whether there is a national consensus against the sentencing practice at issue. Roper, supra, at 563. Next, looking to “the

standards elaborated by controlling precedents and by the Court’s

own understanding and interpretation of the Eighth Amendment’s 

text, history, meaning, and purpose,” Kennedy, supra, at ___, the 

Court determines in the exercise of its own independent judgment 

whether the punishment in question violates the Constitution, Roper, 

supra, at 564. Because this case implicates a particular type of sentence as it applies to an entire class of offenders who have committed

a range of crimes, the appropriate analysis is the categorical approach used in Atkins, Roper, and Kennedy. Pp. 7–10.

(b) Application of the foregoing approach convinces the Court that

the sentencing practice at issue is unconstitutional. Pp. 10–31. 

(1) Six jurisdictions do not allow life without parole sentences for

any juvenile offenders. Seven jurisdictions permit life without parole

for juvenile offenders, but only for homicide crimes. Thirty-seven 

States, the District of Columbia, and the Federal Government permit 

sentences of life without parole for a juvenile nonhomicide offender in

some circumstances. The State relies on these data to argue that no

national consensus against the sentencing practice in question exists.

An examination of actual sentencing practices in those jurisdictions

that permit life without parole for juvenile nonhomicide offenders, 

however, discloses a consensus against the sentence. Nationwide,

there are only 129 juvenile offenders serving life without parole sentences for nonhomicide crimes. Because 77 of those offenders are 

serving sentences imposed in Florida and the other 52 are imprisoned

in just 10 States and in the federal system, it appears that only 12 jurisdictions nationwide in fact impose life without parole sentences on 

juvenile nonhomicide offenders, while 26 States and the District of 

Columbia do not impose them despite apparent statutory authorization. Given that the statistics reflect nearly all juvenile nonhomicide 

offenders who have received a life without parole sentence stretching

back many years, moreover, it is clear how rare these sentences are, 

even within the States that do sometimes impose them. While more 

common in terms of absolute numbers than the sentencing practices

in, e.g., Atkins and Enmund v. Florida, 458 U. S. 782, the type of sentence at issue is actually as rare as those other sentencing practices

when viewed in proportion to the opportunities for its imposition.

The fact that many jurisdictions do not expressly prohibit the sen-
Cite as: 560 U. S. ____ (2010) 3 

Syllabus 

tencing practice at issue is not dispositive because it does not necessarily follow that the legislatures in those jurisdictions have deliberately concluded that such sentences would be appropriate. See 

Thompson v. Oklahoma, 487 U. S. 815, 826, n. 24, 850. Pp. 10–16. 

(2) The inadequacy of penological theory to justify life without 

parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead

the Court to conclude that the sentencing practice at issue is cruel 

and unusual. No recent data provide reason to reconsider Roper’s 

holding that because juveniles have lessened culpability they are less 

deserving of the most serious forms of punishment. 543 U. S., at 551. 

Moreover, defendants who do not kill, intend to kill, or foresee that 

life will be taken are categorically less deserving of such punishments

than are murderers. E.g., Kennedy, supra. Serious nonhomicide 

crimes “may be devastating in their harm . . . but ‘in terms of moral

depravity and of the injury to the person and to the public,’ . . . they

cannot be compared to murder in their ‘severity and irrevocability.’ ” 

Id., at ___. Thus, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral 

culpability. Age and the nature of the crime each bear on the analysis. As for the punishment, life without parole is “the second most

severe penalty permitted by law,” Harmelin v. Michigan, 501 U. S. 

957, 1001, and is especially harsh for a juvenile offender, who will on 

average serve more years and a greater percentage of his life in

prison than an adult offender, see, e.g., Roper, supra, at 572. And 

none of the legitimate goals of penal sanctions—retribution, deterrence, incapacitation, and rehabilitation, see Ewing v. California, 538 

U. S. 11, 25—is adequate to justify life without parole for juvenile 

nonhomicide offenders, see, e.g., Roper, 543 U. S., at 571, 573. Because age “18 is the point where society draws the line for many purposes between childhood and adulthood,” it is the age below which a

defendant may not be sentenced to life without parole for a nonhomicide crime. Id., at 574. A State is not required to guarantee eventual

freedom to such an offender, but must impose a sentence that provides some meaningful opportunity for release based on demonstrated maturity and rehabilitation. It is for the State, in the first 

instance, to explore the means and mechanisms for compliance. 

Pp. 16–24. 

(3) A categorical rule is necessary, given the inadequacy of two 

alternative approaches to address the relevant constitutional concerns. First, although Florida and other States have made substantial efforts to enact comprehensive rules governing the treatment of

youthful offenders, such laws allow the imposition of the type of sentence at issue based only on a discretionary, subjective judgment by a 
4 GRAHAM v. FLORIDA 

Syllabus 

judge or jury that the juvenile offender is irredeemably depraved, and 

are therefore insufficient to prevent the possibility that the offender

will receive such a sentence despite a lack of moral culpability. Second, a case-by-case approach requiring that the particular offender’s 

age be weighed against the seriousness of the crime as part of a gross 

disproportionality inquiry would not allow courts to distinguish with

sufficient accuracy the few juvenile offenders having sufficient psychological maturity and depravity to merit a life without parole sentence from the many that have the capacity for change. Cf. Roper, 

supra, at 572–573. Nor does such an approach take account of special difficulties encountered by counsel in juvenile representation,

given juveniles’ impulsiveness, difficulty thinking in terms of longterm benefits, and reluctance to trust adults. A categorical rule 

avoids the risk that, as a result of these difficulties, a court or jury 

will erroneously conclude that a particular juvenile is sufficiently

culpable to deserve life without parole for a nonhomicide. It also 

gives the juvenile offender a chance to demonstrate maturity and reform. Pp. 24–29. 

(4) Additional support for the Court’s conclusion lies in the fact

that the sentencing practice at issue has been rejected the world over: 

The United States is the only Nation that imposes this type of sentence. While the judgments of other nations and the international

community are not dispositive as to the meaning of the Eighth 

Amendment, the Court has looked abroad to support its independent

conclusion that a particular punishment is cruel and unusual. See, 

e.g., Roper, supra, at 575–578. Pp. 29–31. 

982 So. 2d 43, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, 

GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a 

concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. 

ROBERTS, C. J., filed an opinion concurring in the judgment. THOMAS, 

J., filed a dissenting opinion, in which SCALIA, J., joined, and in which 

ALITO, J., joined as to Parts I and III. ALITO, J., filed a dissenting opinion. 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–7412 

TERRANCE JAMAR GRAHAM, PETITIONER v.

FLORIDA 

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL 

OF FLORIDA, FIRST DISTRICT 

[May 17, 2010] 

JUSTICE KENNEDY delivered the opinion of the Court. 

The issue before the Court is whether the Constitution 

permits a juvenile offender to be sentenced to life in prison

without parole for a nonhomicide crime. The sentence was 

imposed by the State of Florida. Petitioner challenges the 

sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, made applicable to the States

by the Due Process Clause of the Fourteenth Amendment. 

Robinson v. California, 370 U. S. 660 (1962). 

I 

Petitioner is Terrance Jamar Graham. He was born on 

January 6, 1987. Graham’s parents were addicted to 

crack cocaine, and their drug use persisted in his early 

years. Graham was diagnosed with attention deficit hyperactivity disorder in elementary school. He began

drinking alcohol and using tobacco at age 9 and smoked 

marijuana at age 13.

In July 2003, 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 at the restaurant, left the back door unlocked just 
2 GRAHAM v. FLORIDA 

Opinion of the Court 

before closing time. Graham and another youth, wearing 

masks, entered through the unlocked door. Graham’s 

masked accomplice twice struck the restaurant manager 

in the back of the head with a metal bar. When the manager started yelling at the assailant and Graham, the two 

youths ran out and escaped in a car driven by the third 

accomplice. The restaurant manager required stitches for 

his head injury. No money was taken.

Graham was arrested for the robbery attempt. Under 

Florida law, it is within a prosecutor’s discretion whether 

to charge 16- and 17-year-olds as adults or juveniles for 

most felony crimes. Fla. Stat. §985.227(1)(b) (2003) (subsequently renumbered at §985.557(1)(b) (2007)). Graham’s prosecutor elected to charge Graham as an adult.

The charges against Graham were armed burglary with 

assault or battery, a first-degree felony carrying a maximum penalty of life imprisonment without the possibility 

of parole, §§810.02(1)(b), (2)(a) (2003); and attempted 

armed-robbery, a second-degree felony carrying a maximum penalty of 15 years’ imprisonment, §§812.13(2)(b), 

777.04(1), (4)(a), 775.082(3)(c).

On December 18, 2003, Graham pleaded guilty to both

charges under a plea agreement. Graham wrote a letter to 

the trial court. After reciting “this is my first and last 

time getting in trouble,” he continued “I’ve decided to turn

my life around.” App. 379–380. Graham said “I made a 

promise to God and myself that if I get a second chance,

I’m going to do whatever it takes to get to the [National 

Football League].” Id., at 380. 

The trial court accepted the plea agreement. The court 

withheld adjudication of guilt as to both charges and 

sentenced Graham to concurrent 3-year terms of probation. 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 trial, and was released on 

June 25, 2004. 
Cite as: 560 U. S. ____ (2010) 3 

Opinion of the Court 

Less than 6 months later, on the night of December 2,

2004, Graham again was arrested. The State’s case was 

as follows: Earlier that evening, Graham participated in a

home invasion robbery. His two accomplices were Meigo

Bailey and Kirkland Lawrence, both 20-year-old men.

According to the State, at 7 p.m. that night, Graham, 

Bailey, and Lawrence knocked on the door of the home

where Carlos Rodriguez lived. Graham, followed by Bailey 

and Lawrence, forcibly entered the home and held a pistol 

to Rodriguez’s chest. For the next 30 minutes, the three 

held Rodriguez and another man, a friend of Rodriguez, at

gunpoint while they ransacked the home searching for 

money. Before leaving, Graham and his accomplices barricaded Rodriguez and his friend inside a closet. 

The State further alleged that Graham, Bailey, and

Lawrence, later the same evening, attempted 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 them there. As Graham drove away,

a police sergeant signaled him to stop. Graham continued 

at a high speed but crashed into a telephone pole. He 

tried to flee on foot but was apprehended. Three handguns were found in his car. 

When detectives interviewed Graham, he denied involvement in the crimes. He said he encountered Bailey

and Lawrence only after Bailey had been shot. One of the 

detectives told Graham that the victims of the home invasion had identified him. He asked Graham, “Aside from 

the two robberies tonight how many more were you involved in?” Graham responded, “Two to three before 

tonight.” Id., at 160. The night that Graham allegedly 

committed the robbery, he was 34 days short of his 18th

birthday.

On December 13, 2004, Graham’s probation officer filed 

with the trial court an affidavit asserting that Graham

had violated the conditions of his probation by possessing 
4 GRAHAM v. FLORIDA 

Opinion of the Court 

a firearm, committing crimes, and associating with persons engaged in criminal activity. The trial court held 

hearings on Graham’s violations about a year later, in

December 2005 and January 2006. The judge who presided was not the same judge who had accepted Graham’s

guilty plea to the earlier offenses. 

Graham maintained that he had no involvement in the 

home invasion robbery; but, even after the court underscored that the admission could expose him to a life sentence on the earlier charges, he admitted violating probation conditions by fleeing. The State presented evidence

related to the home invasion, including testimony from the 

victims. The trial court noted that Graham, in admitting 

his attempt to avoid arrest, had acknowledged violating 

his probation. The court further found that Graham had 

violated his probation by committing a home invasion

robbery, by possessing a firearm, and by associating with

persons engaged in criminal activity.

The trial court held a sentencing hearing. Under Florida law the minimum sentence Graham could receive 

absent a downward departure by the judge was 5 years’ 

imprisonment. The maximum was life imprisonment. 

Graham’s attorney requested the minimum nondeparture 

sentence of 5 years. A presentence report prepared by the 

Florida Department of Corrections recommended that 

Graham receive an even lower sentence—at most 4 years’ 

imprisonment. The State recommended that Graham 

receive 30 years on the armed burglary count and 15 years

on the attempted armed robbery count. 

After hearing Graham’s testimony, the trial court explained the sentence it was about to pronounce: 

“Mr. Graham, 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 structure. You had a 

lot of people who wanted to try and help you get your 
Cite as: 560 U. S. ____ (2010) 5 

Opinion of the Court 

life turned around including the court system, and 

you had a judge who took the step to try and give you

direction through his probation order to give you a

chance to get back onto track. And at the time you

seemed through your letters that that is exactly what 

you wanted to do. And I don’t know why it is that you

threw your life away. I don’t know why.

“But you did, and that is what is so sad about this

today is that you have actually been given a chance to 

get through this, the original charge, which were very

serious charges to begin with. . . . The attempted robbery with a weapon was a very serious charge. 

. . . . . 

“[I]n a very short period of time you were back before 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 as

to count 1 and up to 15 years as to count 2.

“And I don’t understand why you would be given

such a great opportunity to do something with your

life and why you would throw it away. The only thing

that I can rationalize is that you decided that this is 

how you were going to lead your life and that there is 

nothing that we can do for you. And as the state 

pointed out, that this is an escalating pattern of 

criminal conduct on your part and that we can’t help 

you any further. We can’t do anything to deter you.

This is the way you are going to lead your life, and I 

don’t know why you are going to. You’ve made 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 anything 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 community and trying to protect the community from your 
6 GRAHAM v. FLORIDA 

Opinion of the Court 

actions. And, unfortunately, that is where we are today is I don’t see where I can do anything to help you 

any further. You’ve evidently decided this is the direction you’re going to take in life, and it’s unfortunate that you made that choice.

“I have reviewed the statute. I don’t see where any 

further juvenile sanctions would be appropriate. I 

don’t see where any youthful offender sanctions would 

be appropriate. Given your escalating pattern of

criminal conduct, it is apparent to the Court that you

have decided that this is the way you are going to live 

your life and that the only thing I can do now is to try 

and protect the community from your actions.” Id., at 

392–394. 

The trial court found Graham guilty of the earlier armed

burglary and attempted armed robbery charges. It sentenced him to the maximum sentence authorized by law

on each charge: life imprisonment for the armed burglary

and 15 years for the attempted armed robbery. Because 

Florida has abolished its parole system, see Fla. Stat. 

§921.002(1)(e) (2003), a life sentence gives a defendant 

no possibility of release unless he is granted executive

clemency.

Graham filed a motion in the trial court challenging his 

sentence under the Eighth Amendment. The motion was 

deemed denied after the trial court failed to rule on it 

within 60 days. The First District Court of Appeal of 

Florida affirmed, concluding that Graham’s sentence was

not grossly disproportionate to his crimes. 982 So. 2d 43 

(2008). The court took note of the seriousness of Graham’s 

offenses and their violent nature, as well as the fact that 

they “were not committed by a pre-teen, but a seventeenyear-old who was ultimately sentenced at the age of nineteen.” Id., at 52. The court concluded further that Graham was incapable of rehabilitation. Although Graham 
Cite as: 560 U. S. ____ (2010) 7 

Opinion of the Court 

“was given an unheard of probationary sentence for a life 

felony, . . . wrote a letter expressing his remorse and 

promising to refrain from the commission of further crime, 

and . . . had a strong family structure to support him,” the 

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. 2d 

1058 (2008) (table).

We granted certiorari. 556 U. S. ___ (2009). 

II 

The Eighth Amendment states: “Excessive bail shall not 

be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” To determine whether a 

punishment is cruel and unusual, courts must look beyond 

historical conceptions to “‘the evolving standards of decency that mark the progress of a maturing society.’” 

Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop 

v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).

“This is because ‘[t]he standard of extreme cruelty is not

merely descriptive, but necessarily embodies a moral 

judgment. The standard itself remains the same, but its 

applicability must change as the basic mores of society 

change.’” Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) 

(slip op., at 8) (quoting Furman v. Georgia, 408 U. S. 238, 

382 (1972) (Burger, C. J., dissenting)). 

The Cruel and Unusual Punishments Clause prohibits

the imposition of inherently barbaric punishments under 

all circumstances. See, e.g., Hope v. Pelzer, 536 U. S. 730 

(2002). “[P]unishments of torture,” for example, “are 

forbidden.” Wilkerson v. Utah, 99 U. S. 130, 136 (1879).

These cases underscore the essential principle that, under

the Eighth Amendment, the State must respect the human attributes even of those who have committed serious 

crimes. 

For the most part, however, the Court’s precedents 
8 GRAHAM v. FLORIDA 

Opinion of the Court 

consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of 

proportionality is central to the Eighth Amendment. 

Embodied in the Constitution’s ban on cruel and unusual 

punishments is the “precept of justice that punishment for 

crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U. S. 349, 367 (1910). 

The Court’s cases addressing the proportionality of

sentences fall within two general classifications. The first 

involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. 

The second comprises cases in which the Court implements the proportionality standard by certain categorical

restrictions on the death penalty.

In the first classification the Court considers all of the 

circumstances of the case to determine whether the sentence is unconstitutionally excessive. Under this approach, the Court has held unconstitutional a life without 

parole sentence for the defendant’s seventh nonviolent 

felony, the crime of passing a worthless check. Solem v. 

Helm, 463 U. S. 277 (1983). In other cases, however, it 

has been difficult for the challenger to establish a lack of

proportionality. A leading case is Harmelin v. 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 cocaine. A closely divided Court upheld 

the sentence. The controlling opinion concluded that the 

Eighth Amendment contains a “narrow proportionality 

principle,” that “does not require strict proportionality

between crime and sentence” but rather “forbids only 

extreme sentences that are ‘grossly disproportionate’ to

the crime.” Id., at 997, 1000–1001 (KENNEDY, J., concurring in part and concurring in judgment). Again closely

divided, the Court rejected a challenge to a sentence of 25

years to life for the theft of a few golf clubs under California’s so-called three-strikes recidivist sentencing scheme. 
Cite as: 560 U. S. ____ (2010) 9 

Opinion of the Court 

Ewing v. California, 538 U. S. 11 (2003); see also Lockyer 

v. Andrade, 538 U. S. 63 (2003). The Court has also upheld a sentence of life with the possibility of parole for a

defendant’s third nonviolent felony, the crime of obtaining 

money by false pretenses, Rummel v. Estelle, 445 U. S. 263 

(1980), and a sentence of 40 years for possession of marijuana with intent to distribute and distribution of marijuana, Hutto v. Davis, 454 U. S. 370 (1982) (per curiam). 

The controlling opinion in Harmelin explained its approach for determining whether a sentence for a term of 

years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity 

of the offense and the severity of the sentence. 501 U. S., 

at 1005 (opinion of KENNEDY, J.). “[I]n the rare case in

which [this] threshold comparison . . . leads to an inference of gross disproportionality” the court should then 

compare the defendant’s sentence with the sentences 

received by other offenders in the same jurisdiction and

with the sentences imposed for the same crime in other 

jurisdictions. Ibid. If this comparative analysis “validate[s] an initial judgment that [the] sentence is grossly 

disproportionate,” the sentence is cruel and unusual. Ibid. 

The second classification of cases has used categorical

rules to define Eighth Amendment standards. The previous cases in this classification involved the death penalty.

The classification in turn consists of two subsets, one 

considering the nature of the offense, the other considering the characteristics of the offender. With respect to the 

nature of the offense, the Court has concluded that capital 

punishment is impermissible for nonhomicide crimes 

against individuals. Kennedy, supra, at __ (slip op., at 28); 

see also Enmund v. Florida, 458 U. S. 782 (1982); Coker v. 

Georgia, 433 U. S. 584 (1977). In cases turning on the 

characteristics of the offender, the Court has adopted

categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18, 
10 GRAHAM v. FLORIDA 

Opinion of the Court 

Roper v. Simmons, 543 U. S. 551 (2005), or whose intellectual functioning is in a low range, Atkins v. Virginia, 536 

U. S. 304 (2002). See also Thompson v. Oklahoma, 487 

U. S. 815 (1988).

In the cases adopting categorical rules the Court has

taken the following approach. The Court first considers 

“objective indicia of society’s standards, as expressed in

legislative enactments and state practice” to determine 

whether there is a national consensus against the sentencing practice at issue. Roper, supra, at 563. Next, guided 

by “the standards elaborated by controlling precedents

and by the Court’s own understanding and interpretation

of the Eighth Amendment’s text, history, meaning, and 

purpose,” Kennedy, 554 U. S., at ___ (slip op., at 10), the 

Court must determine in the exercise of its own independent judgment whether the punishment in question

violates the Constitution. Roper, supra, at 564. 

The present case involves an issue the Court has not 

considered previously: a categorical challenge to a term-ofyears sentence. The approach in cases such as Harmelin 

and Ewing is suited for considering a gross proportionality 

challenge to a particular defendant’s sentence, but here a

sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an 

entire class of offenders who have committed a range of 

crimes. As a result, a threshold comparison between the

severity of the penalty and the gravity of the crime does 

not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in

cases that involved the categorical approach, specifically 

Atkins, Roper, and Kennedy. 

III 

A 

The analysis begins with objective indicia of national 

consensus. “[T]he ‘clearest and most reliable objective 
Cite as: 560 U. S. ____ (2010) 11 

Opinion of the Court 

evidence of contemporary values is the legislation enacted 

by the country’s legislatures.’” Atkins, supra, at 312 

(quoting Penry v. Lynaugh, 492 U. S. 302, 331 (1989)). Six 

jurisdictions do not allow life without parole sentences for

any juvenile offenders. See Appendix, infra, Part III. 

Seven jurisdictions permit life without parole for juvenile 

offenders, but only for homicide crimes. Id., Part II. 

Thirty-seven States as well as the District of Columbia 

permit sentences of life without parole for a juvenile nonhomicide offender in some circumstances. Id., Part I. 

Federal law also allows for the possibility of life without 

parole for offenders as young as 13. See, e.g., 18 U. S. C. 

§§2241 (2006 ed. and Supp. II), 5032 (2006 ed.). Relying

on this metric, the State and its amici argue that there is

no national consensus against the sentencing practice at 

issue. 

This argument is incomplete and unavailing. “There are 

measures of consensus other than legislation.” Kennedy, 

supra, at ___ (slip op., at 22). Actual sentencing practices 

are an important part of the Court’s inquiry into consensus. See Enmund, supra, at 794–796; Thompson, supra, 

at 831–832 (plurality opinion); Atkins, supra, at 316; 

Roper, supra, at 564–565; Kennedy, 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 a consensus against its use.

Although these statutory schemes contain no explicit 

prohibition on sentences of life without parole for juvenile

nonhomicide offenders, those sentences are most infrequent. According to a recent study, nationwide there are

only 109 juvenile offenders serving sentences of life without parole for nonhomicide offenses. See P. Annino, D. 

Rasmussen, & C. Rice, Juvenile Life without Parole for 

Non-Homicide Offenses: Florida Compared to Nation 2

(Sept. 14, 2009) (hereinafter Annino).

The State contends that this study’s tally is inaccurate 
12 GRAHAM v. FLORIDA 

Opinion of the Court 

because it does not count juvenile offenders who were

convicted of both a homicide and a nonhomicide offense, 

even when the offender received a life without parole

sentence for the nonhomicide. See Brief for Respondent

34; Tr. of Oral Arg. in Sullivan v. Florida, O. T. 2009, 

No. 08–7621, pp. 28–31. This distinction is unpersuasive. 

Juvenile offenders who committed both homicide and 

nonhomicide crimes present a different situation for a 

sentencing judge than juvenile offenders who committed 

no homicide. It is difficult to say that a defendant who 

receives a life sentence on a nonhomicide offense but who 

was at the same time convicted of homicide is not in some 

sense being punished in part for the homicide when the

judge makes the sentencing determination. The instant 

case concerns only those juvenile offenders sentenced 

to life without parole solely for a nonhomicide offense. 

Florida further 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 State does not, however, 

provide any data of its own. Although in the first instance 

it is for the litigants to provide data to aid the Court, we

have been able to supplement the study’s findings. The 

study’s authors were not able to obtain a definitive tally

for Nevada, Utah, or Virginia. See Annino 11–13. Our 

research shows that Nevada has five juvenile nonhomicide

offenders serving life without parole sentences, Utah has 

none, and Virginia has eight. See Letter from Alejandra

Livingston, Offender Management Division, Nevada Dept.

of Corrections, to Supreme Court Library (Mar. 26, 2010) 

(available in Clerk of Court’s case file); Letter from Steve 

Gehrke, Utah Dept. of Corrections, to Supreme Court 

Library (Mar. 29, 2010) (same); Letter from Dr. Tama S. 

Celi, Virginia Dept. of Corrections, to Supreme Court

Library (Mar. 30, 2010) (same). The study also did not 

note that there are six convicts in the federal prison sys-
Cite as: 560 U. S. ____ (2010) 13 

Opinion of the Court 

tem serving life without parole offenses for nonhomicide

crimes. See Letter and Attachment from Judith Simon 

Garrett, U. S. Dept. of Justice, Federal Bureau of Prisons,

to Supreme Court Library (Apr. 12, 2010) (available in 

Clerk of Court’s case file).

Finally, since the study was completed, a defendant in

Oklahoma has apparently been sentenced to life without 

parole for a rape and stabbing he committed at the age of 

16. See Stogsdill, 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 been able to locate independently, there are 129

juvenile nonhomicide offenders serving life without parole 

sentences. A significant majority of those, 77 in total, are

serving sentences imposed in Florida. Annino 2. The 

other 52 are imprisoned in just 10 States—California, 

Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia—and in 

the federal system. Id., at 14; supra, at 12–13; Letter from 

Thomas P. Hoey, Dept. of Corrections, Government of the

District of Columbia, to Supreme Court Library (Mar. 31,

2010) (available in Clerk of Court’s case file); Letter from

Judith Simon 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 nationwide in fact impose life without 

parole sentences on juvenile nonhomicide 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 authorization. 

The numbers cited above reflect all current convicts in a 

jurisdiction’s penal system, regardless of when they were

convicted. It becomes all the more clear how rare these 

sentences are, even within the jurisdictions that do sometimes impose them, when one considers that a juvenile

sentenced to life without parole is likely to live in prison 
14 GRAHAM v. FLORIDA 

Opinion of the Court 

for decades. Thus, these statistics likely reflect nearly all

juvenile nonhomicide offenders who have received a life 

without parole sentence stretching back many years. It is 

not certain that this opinion has identified every juvenile 

nonhomicide offender nationwide serving a life without 

parole sentence, for the statistics are not precise. The 

available data, nonetheless, are sufficient to demonstrate 

how rarely these sentences are imposed even if there are

isolated cases that have not been included in the presentations of the parties or the analysis of the Court. 

It must be acknowledged that in terms of absolute numbers juvenile life without parole sentences for nonhomicides are more common than the sentencing practices at 

issue in some of this Court’s other Eighth Amendment 

cases. See, e.g., Enmund, 458 U. S., at 794 (only six executions of nontriggerman felony murderers between 1954 

and 1982) Atkins, 536 U. S., at 316 (only five executions of

mentally retarded defendants in 13-year period). This 

contrast can be instructive, however, if attention is first 

given to the base number of certain types of offenses. For 

example, in the year 2007 (the most recent year for which 

statistics are available), a total of 13,480 persons, adult 

and juvenile, were arrested for homicide crimes. That 

same year, 57,600 juveniles were arrested for aggravated 

assault; 3,580 for forcible rape; 34,500 for robbery; 81,900

for burglary; 195,700 for drug offenses; and 7,200 for 

arson. See Dept. of Justice, Office of Juvenile Justice and 

Delinquency Prevention, Statistical Briefing Book, online 

at http://ojjdp.ncjrs.org/ojstatbb/ (as visited May 14, 2010, 

and available in Clerk of Court’s case file). Although it is

not certain how many of these numerous juvenile offenders were eligible for life without parole sentences, the

comparison suggests that in proportion to the opportunities for its imposition, life without parole sentences for

juveniles convicted of nonhomicide crimes is as rare as

other sentencing practices found to be cruel and unusual. 
Cite as: 560 U. S. ____ (2010) 15 

Opinion of the Court 

The evidence of consensus is not undermined by the fact 

that many jurisdictions do not prohibit life without parole

for juvenile nonhomicide offenders. The Court confronted 

a similar situation in Thompson, where a plurality concluded that the death penalty for offenders younger than 

16 was unconstitutional. A number of States then allowed 

the juvenile death penalty if one considered the statutory 

scheme. As is the case here, those States authorized the 

transfer of some juvenile offenders to adult court; and at 

that point there was no statutory differentiation between

adults and juveniles with respect to authorized penalties. 

The plurality concluded that the transfer laws show “that

the States consider 15-year-olds to be old enough to be 

tried in criminal court for serious crimes (or too old to be 

dealt with effectively in juvenile court), but tells us nothing about the judgment these States have made regarding 

the appropriate punishment for such youthful offenders.” 

487 U. S., at 826, n. 24. Justice O’Connor, concurring in

the judgment, took a similar view. Id., at 850 (“When a

legislature provides for some 15-year-olds to be processed 

through the adult criminal justice system, and capital 

punishment is available for adults in that jurisdiction, the 

death penalty becomes at least theoretically applicable to

such defendants. . . . [H]owever, it does not necessarily

follow that the legislatures in those jurisdictions have 

deliberately concluded that it would be appropriate”). 

The same reasoning obtains here. Many States have

chosen to move away from juvenile court systems and to 

allow juveniles to be transferred to, or charged directly in,

adult court under certain circumstances. Once in adult 

court, a juvenile offender may receive the same sentence 

as would be given to an adult offender, including a life

without parole sentence. But the fact that transfer and 

direct charging laws make life without parole possible for 

some juvenile nonhomicide offenders does not justify a

judgment that many States intended to subject such of-
16 GRAHAM v. FLORIDA 

Opinion of the Court 

fenders to life without parole sentences.

For example, under Florida law a child of any age can be 

prosecuted as an adult for certain crimes and can be sentenced to life without parole. The State acknowledged at

oral argument 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 unrealistic, but the example underscores that the statutory 

eligibility of a juvenile offender for life without parole does 

not indicate that the penalty has been endorsed through 

deliberate, express, and full legislative consideration. 

Similarly, the many States that allow life without parole 

for juvenile nonhomicide offenders but do not impose the 

punishment should not be treated as if they have expressed the view that the sentence is appropriate. The 

sentencing practice now under consideration is exceedingly rare. And “it is fair to say that a national consensus 

has developed against it.” Atkins, supra, at 316. 

B 

Community consensus, while “entitled to great weight,”

is not itself determinative of whether a punishment is

cruel and unusual. Kennedy, 554 U. S., at ___ (slip op., at 

24). In accordance with the constitutional design, “the 

task of interpreting the Eighth Amendment remains our

responsibility.” Roper, 543 U. S., at 575. The judicial

exercise of independent judgment requires consideration

of the culpability of the offenders at issue in light of their 

crimes and characteristics, along with the severity of the 

punishment in question. Id., at 568; Kennedy, supra, at 

___ (slip op., at 27–28); cf. Solem, 463 U. S., at 292. In this 

inquiry the Court also considers whether the challenged 

sentencing practice serves legitimate penological goals. 

Kennedy, supra, at ___ (slip op., at 30–36); Roper, supra, at 

571–572; Atkins, supra, at 318–320. 

Roper established that because juveniles have lessened 
Cite as: 560 U. S. ____ (2010) 17 

Opinion of the Court 

culpability they are less deserving of the most severe

punishments. 543 U. S., at 569. As compared to adults, 

juveniles have a “‘lack of maturity and an underdeveloped 

sense of responsibility’”; they “are more vulnerable or 

susceptible to negative influences and outside pressures,

including peer pressure”; and their characters are “not as 

well formed.” Id., at 569–570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose 

crime reflects unfortunate yet transient immaturity, and 

the rare juvenile offender whose crime reflects irreparable

corruption.” Id., at 573. Accordingly, “juvenile offenders

cannot with reliability be classified among the worst offenders.” Id., at 569. A juvenile is not absolved of responsibility 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 reconsider the Court’s

observations in Roper about the nature of juveniles. As 

petitioner’s amici point out, developments in psychology 

and brain science continue to show fundamental differences between juvenile and adult minds. For example,

parts of the brain involved in behavior control continue to 

mature through late adolescence. See Brief for American 

Medical Association et al. as Amici Curiae 16–24; Brief for 

American Psychological Association et al. as Amici Curiae 

22–27. Juveniles are more capable of change than are

adults, and their actions are less likely to be evidence of

“irretrievably depraved character” than are the actions of

adults. Roper, 543 U. S., at 570. It remains true that 

“[f]rom a moral standpoint it would be misguided to

equate the failings of a minor with those of an adult, for a 

greater possibility exists that a minor’s character deficiencies will be reformed.” Ibid. These matters relate to the 

status of the offenders in question; and it is relevant to 

consider next the nature of the offenses to which this 
18 GRAHAM v. FLORIDA 

Opinion of the Court 

harsh penalty might apply.

The Court has recognized that defendants who do not 

kill, intend to kill, or foresee that life will be taken are 

categorically less deserving of the most serious forms of

punishment than are murderers. Kennedy, supra; Enmund, 458 U. S. 782; Tison v. Arizona, 481 U. S. 137 

(1987); Coker, 433 U. S. 584. There is a line “between 

homicide and other serious violent offenses against the 

individual.” Kennedy, 554 U. S., at ___ (slip op., at 27). 

Serious nonhomicide crimes “may be devastating in their 

harm . . . but ‘in terms of moral depravity and of the injury 

to the person and to the public,’ . . . they cannot be compared to murder in their ‘severity and irrevocability.’” Id., 

at ___ (slip op., at 28) (quoting Coker, 433 U. S., at 598 

(plurality opinion)). This is because “[l]ife is over for the 

victim of the murderer,” but for the victim of even a very

serious nonhomicide crime, “life . . . is not over and normally is not beyond repair.” Ibid. (plurality opinion).

Although an offense like robbery or rape is “a serious

crime deserving serious punishment,” Enmund, supra, at 

797, those crimes differ from homicide crimes in a moral 

sense. 

It follows that, when compared to an adult murderer, a

juvenile offender who did not kill or intend to kill has a 

twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the 

analysis. 

As for the punishment, life without parole is “the second 

most severe penalty permitted by law.” Harmelin, 501 

U. S., at 1001 (opinion of KENNEDY, J.). It is true that a 

death sentence is “unique in its severity and irrevocability,” Gregg v. Georgia, 428 U. S. 153, 187 (1976) (joint 

opinion of Stewart, Powell, and STEVENS, JJ.); yet life 

without parole sentences share some characteristics with 

death sentences that are shared by no other sentences.

The State does not execute the offender sentenced to life 
Cite as: 560 U. S. ____ (2010) 19 

Opinion of the Court 

without parole, but the sentence alters the offender’s life 

by a forfeiture that is irrevocable. It deprives the convict

of the most basic liberties without giving hope of restoration, except perhaps by executive 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 overturning a life without parole sentence for 

a juvenile defendant, this sentence “means denial of hope; 

it means that good behavior and 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.” Naovarath 

v. State, 105 Nev. 525, 526, 779 P. 2d 944 (1989). 

The Court has recognized the severity of sentences that

deny convicts the possibility of parole. In Rummel, 445 

U. S. 263, the Court rejected an Eighth Amendment challenge to a life sentence for a defendant’s third nonviolent

felony but stressed that the sentence gave the defendant 

the possibility of parole. Noting that “parole is an established variation on imprisonment of convicted criminals,” 

it was evident that an analysis of the petitioner’s sentence 

“could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life.” Id., at 280–281 

(internal quotation marks omitted). And in Solem, the 

only previous case striking down a sentence for a term of 

years as grossly disproportionate, the defendant’s sentence 

was deemed “far more severe than the life sentence we 

considered in Rummel,” because it did not give the defendant the possibility of parole. 463 U. S., at 297. 

Life without parole is an especially harsh punishment

for a juvenile. Under this sentence a juvenile offender will

on average serve more years and a greater percentage of

his life in prison than an adult offender. A 16-year-old

and a 75-year-old each sentenced to life without parole

receive the same punishment in name only. See Roper, 

supra, at 572; cf. Harmelin, supra, at 996 (“In some cases 
20 GRAHAM v. FLORIDA 

Opinion of the Court 

. . . there will be negligible difference between life without 

parole and other sentences of imprisonment—for example,

. . . a lengthy term sentence without eligibility for parole, 

given to a 65-year-old man”). This reality cannot be 

ignored.

The penological justifications for the sentencing practice

are also relevant to the analysis. Kennedy, supra, at ___ 

(slip op., at 30–36); Roper, 543 U. S., at 571–572; Atkins, 

supra, at 318–320. Criminal punishment can have different goals, and choosing among them is within a legislature’s discretion. See Harmelin, supra, at 999 (opinion of 

KENNEDY, J.) (“[T]he Eighth Amendment does not mandate adoption of any one penological theory”). It does not 

follow, however, that the purposes and effects of penal 

sanctions are irrelevant to the determination of Eighth

Amendment restrictions. A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense. With respect to life without parole

for juvenile nonhomicide offenders, none of the goals of

penal sanctions that have been recognized as legitimate—

retribution, deterrence, incapacitation, and rehabilitation, 

see Ewing, 538 U. S., at 25 (plurality opinion)—provides 

an adequate justification.

Retribution is a legitimate reason to punish, but it

cannot support the sentence at issue here. Society is

entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and 

to seek restoration of the moral imbalance caused by the 

offense. But “[t]he heart of the retribution rationale is 

that a criminal sentence must be directly related to the

personal culpability of the criminal offender.” Tison, 481 

U. S., at 149. And as Roper observed, “[w]hether viewed 

as an attempt to express the community’s moral outrage

or as an attempt to right the balance for the wrong to the 

victim, the case for retribution is not as strong with a 

minor as with an adult.” 543 U. S., at 571. The case 
Cite as: 560 U. S. ____ (2010) 21 

Opinion of the Court 

becomes even weaker with respect to a juvenile who did

not commit homicide. Roper found that “[r]etribution is 

not proportional if the law’s most severe penalty is imposed” on the juvenile murderer. Ibid. The considerations 

underlying that holding support as well the conclusion 

that retribution does not justify imposing the second most 

severe penalty on the less culpable juvenile nonhomicide 

offender. 

Deterrence does not suffice to justify the sentence either. Roper noted that “the same characteristics that 

render juveniles less culpable than adults suggest . . . that 

juveniles will be less susceptible to deterrence.” Ibid. 

Because juveniles’ “lack of maturity and underdeveloped 

sense of responsibility . . . often result in impetuous and 

ill-considered actions and decisions,” Johnson v. Texas, 

509 U. S. 350, 367 (1993), they are less likely to take a 

possible punishment into consideration when making 

decisions. This is particularly so when that punishment is 

rarely imposed. That the sentence deters in a few cases is 

perhaps plausible, but “[t]his argument does not overcome 

other objections.” Kennedy, 554 U. S., at ___ (slip op., at 

31). Even if the punishment has some connection to a

valid penological goal, it must be shown that the punishment is not grossly disproportionate in light of the justification offered. Here, in light of juvenile nonhomicide

offenders’ diminished moral responsibility, any limited 

deterrent effect provided by life without parole is not 

enough to justify the sentence.

Incapacitation, a third legitimate reason for imprisonment, does not justify the life without parole sentence in 

question here. Recidivism is a serious risk to public 

safety, and so incapacitation is an important goal. See 

Ewing, supra, at 26 (plurality opinion) (statistics show 67 

percent of former inmates released from state prisons are

charged with at least one serious new crime within three

years). But while incapacitation may be a legitimate 
22 GRAHAM v. FLORIDA 

Opinion of the Court 

penological goal sufficient to justify life without parole in

other contexts, it is inadequate to justify that punishment 

for juveniles who did not commit homicide. To justify life

without parole on the assumption that the juvenile offender forever will be a danger to society requires the

sentencer to make a judgment that the juvenile is incorrigible. The characteristics of juveniles make that judgment 

questionable. “It is difficult even for expert psychologists 

to differentiate between the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the 

rare juvenile offender whose crime reflects irreparable 

corruption.” Roper, supra, at 573. As one court concluded 

in a challenge to a life without parole sentence for a 14-

year-old, “incorrigibility is inconsistent with youth.” 

Workman v. Commonwealth, 429 S. W. 2d 374, 378 (Ky. 

App. 1968).

Here one cannot dispute that this defendant posed an

immediate risk, for he had committed, we can assume, 

serious crimes early in his term of supervised release and

despite his own assurances of reform. Graham deserved 

to be separated from society for some time in order to

prevent what the trial court described as an “escalating

pattern of criminal conduct,” App. 394, but it does not 

follow that he would be a risk to society for the rest of his 

life. Even if the State’s judgment that Graham was incorrigible were later corroborated by prison misbehavior or

failure to mature, the sentence was still disproportionate

because that judgment was made at the outset. A life 

without parole sentence improperly denies the juvenile

offender a chance to demonstrate growth and maturity.

Incapacitation cannot override all other considerations, 

lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.

Finally there is rehabilitation, a penological goal that 

forms the basis of parole systems. See Solem, 463 U. S., at 

300; Mistretta v. United States, 488 U. S. 361, 363 (1989). 
Cite as: 560 U. S. ____ (2010) 23 

Opinion of the Court 

The concept of rehabilitation is imprecise; and its utility

and proper implementation are the subject of a substantial, dynamic field of inquiry and dialogue. See, e.g., Cullen & Gendreau, Assessing Correctional Rehabilitation: 

Policy, Practice, and Prospects, 3 Criminal Justice 2000,

pp. 119–133 (2000) (describing scholarly debates regarding 

the effectiveness of rehabilitation over the last several 

decades). It is for legislatures to determine what rehabilitative techniques are appropriate and effective. 

A sentence of life imprisonment without parole, however, cannot be justified 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 person’s value and place in society. This judgment is not

appropriate in light of a juvenile nonhomicide offender’s 

capacity for change and limited moral culpability. A 

State’s rejection of rehabilitation, moreover, goes beyond a 

mere expressive judgment. As one amicus notes, defendants serving life without parole sentences are often denied access to vocational training and other rehabilitative

services that are available to other inmates. See Brief for 

Sentencing Project as Amicus Curiae 11–13. For juvenile

offenders, who are most in need of and receptive to rehabilitation, see Brief for J. Lawrence Aber et al. as Amici 

Curiae 28–31 (hereinafter Aber Brief), the absence of 

rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident. 

In sum, penological theory is not adequate to justify life

without parole for juvenile nonhomicide offenders. This 

determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole

sentences all lead to the conclusion that the sentencing 

practice under consideration is cruel and unusual. This 

Court now holds that for a juvenile offender who did not 

commit homicide the Eighth Amendment forbids the 
24 GRAHAM v. FLORIDA 

Opinion of the Court 

sentence of life without parole. This clear line is necessary

to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders

who are not sufficiently culpable to merit that punishment. 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 committed may not be sentenced to life without parole for a nonhomicide crime. Roper, 543 U. S., at 

574. 

A State is not required to guarantee eventual freedom to

a juvenile offender convicted of a nonhomicide crime. 

What the State must do, however, is give defendants like 

Graham some meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation. It is 

for the State, in the first instance, to explore the means

and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State 

from imposing a life without parole sentence on a juvenile

nonhomicide offender, it does not require the State to 

release that offender during his natural life. Those who 

commit truly horrifying crimes as juveniles may turn out

to be irredeemable, and thus deserving of incarceration for 

the duration of their lives. The Eighth Amendment does

not foreclose the possibility that persons convicted of 

nonhomicide crimes committed before adulthood will 

remain behind bars for life. It does forbid States from 

making the judgment at the outset that those offenders 

never will be fit to reenter society. 

C 

Categorical rules tend to be imperfect, but one is necessary here. Two alternative approaches are not adequate

to address the relevant constitutional concerns. First, the 

State argues that the laws of Florida and other States

governing criminal procedure take sufficient account of 
Cite as: 560 U. S. ____ (2010) 25 

Opinion of the Court 

the age of a juvenile offender. Here, Florida notes that 

under its law prosecutors are required to charge 16- and 

17-year-old offenders as adults only for certain serious

felonies; that prosecutors have discretion to charge those 

offenders as adults for other felonies; and that prosecutors 

may not charge nonrecidivist 16- and 17-year-old offenders 

as adults for misdemeanors. Brief for Respondent 54

(citing Fla. Stat. §985.227 (2003)). The State also stresses 

that “in only the narrowest of circumstances” does Florida

law impose no age limit whatsoever for prosecuting juveniles in adult court. Brief for Respondent 54. 

Florida is correct to say that state laws requiring consideration 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’ youthfulness into account at all would be

flawed. Florida, like other States, has made substantial 

efforts to enact comprehensive rules governing the treatment of youthful offenders by its criminal justice system. 

See generally Fla. Stat. §958 et seq. (2007).

The provisions the State notes are, nonetheless, by 

themselves insufficient to address the constitutional concerns at issue. Nothing in Florida’s laws prevents its

courts from sentencing a juvenile nonhomicide offender to

life without parole based on a subjective judgment that the 

defendant’s crimes demonstrate an “irretrievably depraved character.” Roper, supra, at 570. This is inconsistent with the Eighth Amendment. Specific cases are 

illustrative. In Graham’s case the sentencing judge decided to impose life without parole—a sentence greater

than that requested by the prosecutor—for Graham’s

armed burglary conviction. The judge did so because he

concluded that Graham was incorrigible: “[Y]ou decided 

that this is how you were going to lead your life and that

there is nothing that we can do for you. . . . We can’t do 

anything to deter you.” App. 394. 
26 GRAHAM v. FLORIDA 

Opinion of the Court 

Another example comes from Sullivan v. Florida, 

No.08–7621. Sullivan was argued the same day as this 

case, but the Court has now dismissed the writ of certiorari in Sullivan as improvidently granted. Post, p. ___.

The facts, however, demonstrate the flaws of Florida’s 

system. The petitioner, Joe Sullivan, was prosecuted as 

an adult for a sexual assault committed when he was 13 

years old. Noting Sullivan’s past encounters with the law,

the sentencing judge concluded that, although Sullivan 

had been “given opportunity after opportunity to upright 

himself and take advantage of the second and third 

chances he’s been given,” he had demonstrated himself to

be unwilling to follow the law and needed to be kept away 

from society for the duration of his life. Brief for Respondent in Sullivan v. Florida, O. T. 2009, No. 08–7621, p. 6. 

The judge sentenced Sullivan to life without parole. As 

these examples make clear, existing state laws, allowing 

the imposition of these sentences based only on a discretionary, subjective judgment by a judge or jury that the 

offender is irredeemably depraved, are insufficient to

prevent the possibility that the offender will receive a life 

without parole sentence for which he or she lacks the 

moral culpability.

Another possible approach would be to hold that the

Eighth Amendment requires courts to take the offender’s 

age into consideration as part of a case-specific gross

disproportionality inquiry, weighing it against the seriousness of the crime. This approach would allow courts to 

account for factual differences between cases and to impose life without parole sentences for particularly heinous

crimes. Few, perhaps no, judicial responsibilities are more

difficult than sentencing. The task is usually undertaken

by trial judges who seek with diligence and professionalism to take 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, 
Cite as: 560 U. S. ____ (2010) 27 

Opinion of the Court 

be confined by some boundaries. The dilemma of juvenile 

sentencing demonstrates this. For even if we were to 

assume that some juvenile nonhomicide offenders might 

have “sufficient psychological maturity, and at the same

time demonstrat[e] sufficient depravity,” Roper, 543 U. S., 

at 572, to merit a life without parole sentence, it does not 

follow that courts taking a case-by-case proportionality 

approach could with sufficient accuracy distinguish the 

few incorrigible juvenile offenders from the many that

have the capacity for change. Roper rejected the argument 

that the Eighth Amendment required only that juries be 

told they must consider the defendant’s age as a mitigating factor in sentencing. The Court concluded that an 

“unacceptable likelihood exists that the brutality or coldblooded nature of any particular crime would overpower 

mitigating arguments based on youth as a matter of 

course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should

require a sentence less severe than death.” Id., at 573. 

Here, as with the death penalty, “[t]he differences between

juvenile and adult offenders are too marked and well 

understood to risk allowing a youthful person to receive” a 

sentence of life without parole for a nonhomicide crime 

“despite insufficient culpability.” Id., at 572–573. 

Another problem with a case-by-case approach is that it

does not take account of special difficulties encountered by 

counsel in juvenile representation. As some amici note, 

the features that distinguish juveniles from adults also

put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited 

understandings of the criminal justice system and the 

roles of the institutional actors within it. They are less

likely than adults to work effectively with their lawyers to 

aid in their defense. Brief for NAACP Legal Defense & 

Education Fund et al. as Amici Curiae 7–12; Henning, 

Loyalty, Paternalism, and Rights: Client Counseling 
28 GRAHAM v. FLORIDA 

Opinion of the Court 

Theory and the Role of Child’s Counsel in Delinquency 

Cases, 81 Notre Dame L. Rev. 245, 272–273 (2005). Difficulty in weighing long-term consequences; a corresponding 

impulsiveness; and reluctance to trust defense counsel

seen as part of the adult world a rebellious youth rejects,

all can lead to poor decisions by one charged with a juvenile offense. Aber Brief 35. These factors are likely to 

impair the quality of a juvenile defendant’s representation. Cf. Atkins, 536 U. S., at 320 (“Mentally retarded 

defendants may be less able to give meaningful assistance

to their counsel”). A categorical rule avoids the risk that,

as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently

culpable to deserve life without parole for a nonhomicide. 

Finally, a categorical rule gives all juvenile nonhomicide

offenders a chance to demonstrate maturity and reform.

The juvenile should not be deprived of the opportunity to

achieve maturity of judgment and self-recognition of 

human worth and potential. In Roper, that deprivation

resulted from an execution that brought life to its end. 

Here, though by a different dynamic, the same concerns 

apply. Life in prison without the possibility of parole gives 

no chance for fulfillment outside prison walls, no chance 

for reconciliation with society, no hope. Maturity can lead

to that considered reflection which is the foundation for 

remorse, renewal, and rehabilitation. A young person who 

knows that he or she has no chance to leave prison before 

life’s end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. As noted 

above, see supra, at 23, it is the policy in some prisons to 

withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. 

A categorical rule against life without parole for juvenile

nonhomicide offenders avoids the perverse consequence in

which the lack of maturity that led to an offender’s crime 
Cite as: 560 U. S. ____ (2010) 29 

Opinion of the Court 

is reinforced by the prison term. 

Terrance Graham’s sentence guarantees he will die in

prison without any meaningful opportunity to obtain 

release, no matter what he might do to demonstrate that

the bad acts he committed as a teenager are not representative of his true character, even if he spends the 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 nonhomicide crime 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 States

adheres to a sentencing practice rejected the world over.

This observation does not control our decision. The judgments of other nations and the international 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 our Nation’s borders for 

support for its independent conclusion that a particular 

punishment is cruel and unusual. See, e.g., Roper, 543 

U. S., at 575–578; Atkins, supra, at 317–318, n. 21; 

Thompson, 487 U. S., at 830 (plurality opinion); Enmund, 

supra, at 796–797, n. 22; Coker, 433 U. S., at 596, n. 10 

(plurality opinion); Trop, 356 U. S., at 102–103 (plurality 

opinion).

Today we continue that longstanding practice in noting

the global consensus against the sentencing practice in

question. A recent study concluded that only 11 nations 

authorize life without parole for juvenile offenders under 
30 GRAHAM v. FLORIDA 

Opinion of the Court 

any circumstances; and only 2 of them, the United States 

and Israel, ever impose the punishment in practice. See 

M. Leighton & C. de la Vega, Sentencing Our Children to

Die in Prison: Global Law and Practice 4 (2007). An updated version of the study concluded that Israel’s “laws

allow for parole review of juvenile offenders serving life 

terms,” but expressed reservations about how that parole 

review is implemented. De la Vega & Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S. F. L. Rev. 983, 1002–1003 (2008). But even if 

Israel is counted as allowing life without parole for juvenile offenders, that nation does not appear to impose that 

sentence for nonhomicide crimes; all of the seven Israeli 

prisoners whom commentators have identified as serving 

life sentences for juvenile crimes were convicted of homicide or attempted homicide. See Amnesty International, 

Human Rights Watch, The Rest of Their Lives: Life without Parole for Child Offenders in the United States 106, 

n. 322 (2005); Memorandum and Attachment from Ruth

Levush, Law Library of Congress, to Supreme Court Library (Feb. 16, 2010) (available in Clerk of Court’s case

file).

Thus, as petitioner contends and respondent does not

contest, the United States is the only Nation that imposes 

life without parole sentences on juvenile nonhomicide 

offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577

U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified by

every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons

below eighteen years of age.” Brief for Petitioner 66; Brief 

for Amnesty International et al. as Amici Curiae 15–17. 

As we concluded in Roper with respect to the juvenile 

death penalty, “the United States now stands alone in a 
Cite as: 560 U. S. ____ (2010) 31 

Opinion of the Court 

world that has turned its face against” life without parole 

for juvenile nonhomicide offenders. 543 U. S., at 577. 

 The State’s amici stress that no international legal

agreement that is binding on the United States prohibits 

life without parole for juvenile offenders and thus urge us

to ignore the international consensus. See Brief for Solidarity Center for Law and Justice et al. as Amici Curiae 

14–16; Brief for Sixteen Members of United States House 

of Representatives as Amici Curiae 40–43. These arguments miss the mark. The question before us is not 

whether international law prohibits the United States

from imposing the sentence at issue in this case. The 

question is whether that punishment is cruel and unusual. 

In that inquiry, “the overwhelming weight of international 

opinion against” life without parole for nonhomicide offenses committed by juveniles “provide[s] respected and 

significant confirmation for our own conclusions.” Roper, 

supra, at 578. 

The debate between petitioner’s and respondent’s amici 

over whether there is a binding jus cogens norm against 

this sentencing practice is likewise of no import. See Brief 

for Amnesty International 10–23; Brief for Sixteen Members of United States House of Representatives 4–40. The 

Court has treated the laws and practices of other nations

and international agreements as relevant to the Eighth 

Amendment not because those norms are binding or controlling but because the judgment of the world’s nations

that a particular sentencing practice is inconsistent with 

basic principles of decency demonstrates that the Court’s 

rationale has respected reasoning to support it. 

* * * 

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not 

commit homicide. A State need not guarantee the offender 

eventual release, but if it imposes a sentence of life it must 
32 GRAHAM v. FLORIDA 

Opinion of the Court 

provide him or her with some realistic opportunity to

obtain release before the end of that term. The judgment

of the First District Court of Appeal of Florida is reversed, 

and the case is remanded for further proceedings not

inconsistent with this opinion. 

It is so ordered. 
Opinion of the Court 

Cite as: 560 U. S. ____ (2010) 33 

Appendix to opinion of the Court 

APPENDIX 

I. JURISDICTIONS THAT PERMIT LIFE WITHOUT 

PAROLE FOR JUVENILE NONHOMICIDE 

OFFENDERS 

Alabama Ala. Code §12–15–203 (Supp. 2009); §§13A–3–3, 

13A–5–9(c), 13A–6–61 (2005); §13A–7–5 (Supp. 

2009) 

Arizona Ariz. Rev. Stat. Ann. §§13–501, §13–1423 (West 

2010) 

Arkansas Ark. Code §9–27–318(b) (2009); §5–4–501(c) (Supp. 

2009) 

California Cal. Penal Code Ann. §667.7(a)(2) (1999); §1170.17 

(2004) 

Delaware Del. Code Ann., Tit., 10, §1010 (Supp. 2008); id., 

Tit., 11, §773(c) (2003) 

District of D. C. Code §16–2307 (2009 Supp. Pamphlet); §22–

Columbia 3020 (Supp. 2007) 

Florida Fla. Stat. §§810.02, 921.002(1)(e), 985.557 (2007) 

Georgia Georgia Code Ann. §15–11–30.2 (2008); §16–6–1(b) 

(2007) 

Idaho Idaho Code §18–6503 (Lexis 2005); §§19–2513, 20–

509 (Lexis Supp. 2009) 

Illinois Ill. Comp. Stat., ch. 705, §§405/5–805, 405/5–130 

(West 2008); id., ch. 720, §5/12–13(b)(3) (West 

2008); id., ch. 730, §5/3-3-3(d) (West 2008) 

Indiana Ind. Code §31–30–3–6(1); §35–50–2–8.5(a) (West 

2004) 

Iowa Iowa Code §§232.45(6), 709.2, 902.1 (2009) 

Louisiana La. Child. Code Ann., Arts. 305, 857(A), (B) (West 

Supp. 2010); La. Stat. Ann. §14:44 (West 2007) 

Maryland Md. Cts. & Jud. Proc. Code Ann. §§3–8A–03(d)(1), 

3–8A–06(a)(2) (Lexis 2006); Md. Crim. Law Code 

Ann. §§3–303(d)(2),(3) (Lexis Supp. 2009) 

Michigan Mich. Comp. Laws Ann. §712A.4 (West 2002); 

§750.520b(2)(c) (West Supp. 2009); §769.1 (West 

2000) 

Minnesota Minn. Stat. §§260B.125(1), 609.3455(2) (2008) 

Mississippi Miss. Code Ann. §43–21–157 (2009); §§97–3–53, 
Opinion of the Court 

34 GRAHAM v. FLORIDA 

Appendix to opinion of the Court 

99–19–81 (2007); §99–19–83 (2006) 

Missouri Mo. Rev. Stat. §§211.071, 558.018 (2000) 

Nebraska Neb. Rev. Stat. §§28–105, 28–416(8)(a), 29–2204(1), 

(3), 43–247, 43–276 (2008) 

Nevada Nev. Rev. Stat. §§62B.330, 200.366 (2009) 

New Hampshire N. H. Rev. Stat. Ann. §169–B:24; §628:1 (2007); 

§§632–A:2, 651:6 (Supp. 2009) 

New York N. Y. Penal Law Ann. §§30.00, §60.06 (West 2009); 

§490.55 (West 2008) 

North Carolina N. C. Gen. Stat. Ann. §§7B–2200, 15A–1340.16B(a) 

(Lexis 2009) 

North Dakota N. D. Cent. Code Ann. §12.1–04–01 (Lexis 1997); 

§12.1–20–03 (Lexis Supp. 2009); §12.1–32–01 

(Lexis 1997) 

Ohio Ohio Rev. Code Ann. §2152.10 (Lexis 2007); 

§2907.02 (Lexis 2006); §2971.03(A)(2) (2010 Lexis 

Supp. Pamphlet) 

Oklahoma Okla. Stat., Tit. 10A, §§2–5–204, 2–5–205, 2–5–206 

(2009 West Supp.); id., Tit. 21, §1115 (2007 West 

Supp.) 

Oregon Ore. Rev. Stat. §§137.707, 137.719(1) (2009) 

Pennsylvania 42 Pa. Cons. Stat. §6355(a) (2000); 18 id., 

§3121(e)(2) (2008); 61 id., §6137(a) (2009) 

Rhode Island R. I. Gen. Laws §§14–1–7, 14–1–7.1, 11–47–3.2 

(Lexis 2002) 

South Carolina S. C. Code Ann. §63–19–1210 (2008 Supp. Pamphlet); §16–11–311(B) (Westlaw 2009) 

South Dakota S. D. Codified Laws §26–11–3.1 (Supp. 2009); §26–

11–4 (2004); §§22–3–1, 22–6–1(2),(3) (2006); §24–

15–4 (2004); §§22–19–1, 22–22–1 (2006) 

Tennessee Tenn. Code Ann. §§37–1–134, 40–35–120(g) (Westlaw 2010) 

Utah Utah Code Ann. §§78A–6–602, 78A–6–703, 76–5–

302 (Lexis 2008) 

Virginia Va. Code Ann. §§16.1–269.1, §18.2–61, §53.1–

151(B1) (2009) 

Washington Wash. Rev. Code §13.40.110 (2009 Supp.); 

§§9A.04.050, 9.94A.030(34), 9.94A.570 (2008) 

West Virginia W. Va. Code Ann. §49–5–10 (Lexis 2009); §61–2–

14a(a) (Lexis 2005) 
Opinion of the Court 

Cite as: 560 U. S. ____ (2010) 35 

Appendix to opinion of the Court 

Wisconsin Wis. Stat. §§938.18, 938.183 (2007–2008); 

§939.62(2m)(c) (Westlaw 2005) 

Wyoming Wyo. Stat. Ann. §§6–2–306(d),(e), 14–6–203 (2009) 

Federal 18 U. S. C. §2241 (2006 ed. and Supp. II); §5032 

(2006 ed.) 

II. JURISDICTIONS THAT PERMIT LIFE WITHOUT 

PAROLE FOR JUVENILE OFFENDERS CONVICTED 

OF HOMICIDE CRIMES ONLY 

Connecticut Conn. Gen. Stat. §53a–35a (2009) 

Hawaii Haw. Rev. Stat. §571–22(d) (2006); §706–656(1) 

(2008 Supp. Pamphlet) 

Maine Me. Rev. Stat. Ann., Tit. 15, §3101(4) (Supp. 2009); 

id., Tit. 17–a, §1251 (2006) 

Massachusetts Mass Gen. Laws ch. 119, §74; id., ch. 265, §2 (2008) 

New Jersey N. J. Stat. Ann. §2A:4A–26 (West Supp. 2009); 

§2C:11–3(b)(2) (West Supp. 2009) 

New Mexico N. M. Stat. Ann. §31–18–14 (Supp. 2009); §31–18–

15.2(A) (Westlaw 2010) 

Vermont Vt. Stat. Ann., Tit. 33, §5204 (2009 Cum. Supp.); 

id., Tit. 13, §2303 (2009) 

III. JURISDICTIONS THAT FORBID LIFE WITHOUT 

PAROLE FOR JUVENILE OFFENDERS 

Alaska Alaska Stat. §12.55.015(g) (2008) 

Colorado Colo. Rev. Stat. Ann. §18–1.3–401(4)(b) (2009) 

Montana Mont. Code Ann. §46–18–222(1) (2009) 

Kansas Kan. Stat. Ann. §21–4622 (West 2007) 

Kentucky Ky. Rev. Stat. Ann. §640.040 (West 2008); Shepherd v. Commonwealth, 251 S. W. 3d 309, 320–321 

(Ky. 2008) 

Texas Tex. Penal Code Ann. §12.31 (West Supp. 2009) 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

STEVENS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 08–7412 

TERRANCE JAMAR GRAHAM, PETITIONER v.

FLORIDA 

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL 

OF FLORIDA, FIRST DISTRICT 

[May 17, 2010] 

JUSTICE STEVENS, with whom JUSTICE GINSBURG and 

JUSTICE SOTOMAYOR join, concurring. 

In his dissenting opinion, JUSTICE THOMAS argues that

today’s holding is not entirely consistent with the controlling opinions in Lockyer v. Andrade, 538 U. S. 63 (2003), 

Ewing v. California, 538 U. S. 11 (2003), Harmelin v. 

Michigan, 501 U. S. 957 (1991), and Rummel v. Estelle, 

445 U. S. 263 (1980). Post, at 7–9. Given that “evolving

standards of decency” have played a central role in our 

Eighth Amendment jurisprudence for at least a century, 

see Weems v. United States, 217 U. S. 349, 373–378 (1910),

this argument suggests the dissenting opinions in those 

cases more accurately describe the law today than does

JUSTICE THOMAS’ rigid interpretation of the Amendment. 

Society changes. Knowledge accumulates. We learn, 

sometimes, from our mistakes. Punishments that did not 

seem cruel and unusual at one time may, in the light of 

reason and experience, be found cruel and unusual at a

later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality 

review must never become effectively obsolete, post, at 

8–9, and n. 2. 

 While JUSTICE THOMAS would apparently not rule out a

death sentence for a $50 theft by a 7-year-old, see post, at 

4, 10, n. 3, the Court wisely rejects his static approach to 
2 GRAHAM v. FLORIDA 

STEVENS, J., concurring 

the law. Standards of decency have evolved since 1980. 

They will never stop doing so. 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

ROBERTS, C. J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 08–7412 

TERRANCE JAMAR GRAHAM, PETITIONER v.

FLORIDA 

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL 

OF FLORIDA, FIRST DISTRICT 

[May 17, 2010] 

CHIEF JUSTICE ROBERTS, concurring in the judgment. 

I agree with the Court that Terrance Graham’s sentence

of life without parole violates the Eighth Amendment’s 

prohibition on “cruel and unusual punishments.” Unlike 

the majority, however, I see no need to invent a new constitutional rule of dubious provenance in reaching that 

conclusion. Instead, my analysis is based on an application of this Court’s precedents, in particular (1) our cases 

requiring “narrow proportionality” review of noncapital 

sentences and (2) our conclusion in Roper v. Simmons, 543 

U. S. 551 (2005), that juvenile offenders are generally less

culpable than adults who commit the same crimes.

These cases expressly allow courts addressing allegations that a noncapital sentence violates the Eighth

Amendment to consider the particular defendant and

particular crime at issue. The standards for relief under 

these precedents are rigorous, and should be. But here 

Graham’s juvenile status—together with the nature of his 

criminal conduct and the extraordinarily severe punishment imposed—lead me to conclude that his sentence of 

life without parole is unconstitutional. 

I 

Our Court has struggled with whether and how to apply 

the Cruel and Unusual Punishments Clause to sentences 
2 GRAHAM v. FLORIDA 

ROBERTS, C. J., concurring in judgment 

for noncapital crimes. Some of my colleagues have raised 

serious and thoughtful questions about whether, as an 

original matter, the Constitution was understood to require any degree of proportionality between noncapital

offenses and their corresponding punishments. See, e.g., 

Harmelin v. Michigan, 501 U. S. 957, 962–994 (1991) 

(principal opinion of SCALIA, J.); post, at 3–5, and n. 1 

(THOMAS, J., dissenting). Neither party here asks us to 

reexamine our precedents requiring such proportionality, 

however, and so I approach this case by trying to apply 

our past decisions to the facts at hand. 

A 

Graham’s case arises at the intersection of two lines of 

Eighth Amendment precedent. The first consists of decisions holding that the Cruel and Unusual Punishments

Clause embraces a “narrow proportionality principle” that 

we apply, on a case-by-case basis, when asked to review 

noncapital sentences. Lockyer v. Andrade, 538 U. S. 63, 72 

(2003) (internal quotation marks omitted); Solem v. Helm, 

463 U. S. 277, 290 (1983); Ewing v. California, 538 U. S. 

11, 20 (2003) (plurality opinion); Harmelin, supra, at 996– 

997 (KENNEDY, J., concurring in part and concurring in 

judgment). This “narrow proportionality principle” does 

not grant judges blanket authority to second-guess decisions made by legislatures or sentencing courts. On the 

contrary, a reviewing court will only “rarely” need “to 

engage in extended analysis to determine that a sentence 

is not constitutionally disproportionate,” Solem, supra, at 

290, n. 16 (emphasis added), and “successful challenges” to 

noncapital sentences will be all the more “exceedingly 

rare,” Rummel v. Estelle, 445 U. S. 263, 272 (1980). 

We have “not established a clear or consistent path for 

courts to follow” in applying the highly deferential “narrow

proportionality” analysis. Lockyer, supra, at 72. We have, 

however, emphasized the primacy of the legislature in 
Cite as: 560 U. S. ____ (2010) 3 

ROBERTS, C. J., concurring in judgment 

setting sentences, the variety of legitimate penological

schemes, the state-by-state diversity protected by our

federal system, and the requirement that review be guided 

by objective, rather than subjective, factors. Ewing, supra, 

at 23 (plurality opinion); Harmelin, supra, at 998–1001 

(opinion of KENNEDY, J.). Most importantly, however, we

have explained that the Eighth Amendment “‘does not 

require strict proportionality between crime and sentence’”; rather, “‘it forbids only extreme sentences that are 

“grossly disproportionate” to the crime.’” Ewing, supra, at 

23 (plurality opinion) (quoting Harmelin, supra, at 1001 

(opinion of KENNEDY, J.)).

Our cases indicate that courts conducting “narrow proportionality” review should begin with a threshold inquiry 

that compares “the gravity of the offense and the harshness of the penalty.” Solem, 463 U. S., at 290–291. This 

analysis can consider a particular offender’s mental state 

and motive in committing the crime, the actual harm

caused to his victim or to society by his conduct, and any 

prior criminal history. Id., at 292–294, 296–297, and n. 22 

(considering motive, past criminal conduct, alcoholism, 

and propensity for violence of the particular defendant);

see also Ewing, supra, at 28–30 (plurality opinion) (examining defendant’s criminal history); Harmelin, 501 U. S., 

at 1001–1004 (opinion of KENNEDY, J.) (noting specific

details of the particular crime of conviction). 

Only in “the rare case in which a threshold comparison 

of the crime committed and the sentence imposed leads

to an inference of gross disproportionality,” id., at 1005, 

should courts proceed to an “intrajurisdictional” comparison of the sentence at issue with those imposed on other 

criminals in the same jurisdiction, and an “interjurisdictional” comparison with sentences imposed for the same

crime in other jurisdictions. Solem, supra, at 291–292. If 

these subsequent comparisons confirm the inference of 

gross disproportionality, courts should invalidate the 
4 GRAHAM v. FLORIDA 

ROBERTS, C. J., concurring in judgment 

sentence as a violation of the Eighth Amendment. 

B 

The second line of precedent relevant to assessing Graham’s sentence consists of our cases acknowledging that

juvenile offenders are generally—though not necessarily in

every case—less morally culpable than adults who commit 

the same crimes. This insight animated our decision in 

Thompson v. Oklahoma, 487 U. S. 815 (1988), in which we 

invalidated a capital sentence imposed on a juvenile who 

had committed his crime under the age of 16. More recently, in Roper, 543 U. S. 551, we extended the prohibition on executions to those who committed their crimes 

before the age of 18. 

Both Thompson and Roper arose in the unique context

of the death penalty, a punishment that our Court has 

recognized “must be limited to those offenders who commit

‘a narrow category of the most serious crimes’ and whose 

extreme culpability makes them ‘the most deserving of 

execution.’” 543 U. S., at 568 (quoting Atkins v. Virginia, 

536 U. S. 304, 319 (2002)). Roper’s prohibition on the

juvenile death penalty followed from our conclusion that

“[t]hree general differences between juveniles under 18

and adults demonstrate that juvenile offenders cannot 

with reliability be classified among the worst offenders.” 

543 U. S., at 569. These differences are a lack of maturity

and an underdeveloped sense of responsibility, a heightened susceptibility to negative influences and outside

pressures, and the fact that the character of a juvenile is 

“more transitory” and “less fixed” than that of an adult. 

Id., at 569–570. Together, these factors establish the

“diminished culpability of juveniles,” id., at 571, and “render suspect any conclusion” that juveniles are among “the

worst offenders” for whom the death penalty is reserved, 

id., at 570. 

Today, the Court views Roper as providing the basis for 
Cite as: 560 U. S. ____ (2010) 5 

ROBERTS, C. J., concurring in judgment 

a new categorical rule that juveniles may never receive a

sentence of life without parole for nonhomicide crimes. I 

disagree. In Roper, the Court tailored its analysis of 

juvenile characteristics to the specific question whether

juvenile offenders could constitutionally be subject to 

capital punishment. Our answer that they could not be 

sentenced to death was based on the explicit conclusion

that they “cannot with reliability be classified among the 

worst offenders.” Id., at 569 (emphasis added).

This conclusion does not establish that juveniles can 

never be eligible for life without parole. A life sentence is 

of course far less severe than a death sentence, and we 

have never required that it be imposed only on the very 

worst offenders, as we have with capital punishment.

Treating juvenile life sentences as analogous to capital

punishment is at odds with our longstanding view that

“the death penalty is different from other punishments in

kind rather than degree.” Solem, supra, at 294. It is also 

at odds with Roper itself, which drew the line at capital 

punishment by blessing juvenile sentences that are “less

severe than death” despite involving “forfeiture of some of

the most basic liberties.” 543 U. S., at 573–574. Indeed, 

Roper explicitly relied on the possible imposition of life 

without parole on some juvenile offenders. Id., at 572. 

But the fact that Roper does not support a categorical

rule barring life sentences for all juveniles does not mean

that a criminal defendant’s age is irrelevant to those 

sentences. On the contrary, our cases establish that the 

“narrow proportionality” review applicable to noncapital

cases itself takes the personal “culpability of the offender” 

into account in examining whether a given punishment is 

proportionate to the crime. Solem, supra, at 292. There 

is no reason why an offender’s juvenile status should be 

excluded from the analysis. Indeed, given Roper’s conclusion that juveniles are typically less blameworthy than

adults, 543 U. S., at 571, an offender’s juvenile status can 
6 GRAHAM v. FLORIDA 

ROBERTS, C. J., concurring in judgment 

play a central role in the inquiry. 

JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does 

not involve capital punishment. Post, at 26 (dissenting 

opinion). That distinction is important—indeed, it underlies our rejection of the categorical rule declared by the 

Court. But Roper’s conclusion that juveniles are typically 

less culpable than adults has pertinence beyond capital 

cases, and rightly informs the case-specific inquiry I believe to be appropriate here. 

In short, our existing precedent already provides a

sufficient framework for assessing the concerns outlined

by the majority. Not every juvenile receiving a life sentence will prevail under this approach. Not every juvenile

should. But all will receive the protection that the Eighth 

Amendment requires. 

II 

Applying the “narrow proportionality” framework to the

particular facts of this case, I conclude that Graham’s 

sentence of life without parole violates the Eighth

Amendment.* 

—————— 

* JUSTICE ALITO suggests that Graham has failed to preserve any 

challenge to his sentence based on the “narrow, as-applied proportionality principle.” Post, at 1 (dissenting opinion). I disagree. It is true that 

Graham asks us to declare, categorically, that no juvenile convicted of a 

nonhomicide offense may ever be subject to a sentence of life without 

parole. But he claims that this rule is warranted under the narrow 

proportionality principle we set forth in Solem v. Helm, 463 U. S. 277 

(1983), Harmelin v. Michigan, 501 U. S. 957 (1991), and Ewing v. 

California, 538 U. S. 11 (2003). Brief for Petitioner 30, 31, 54–64. 

Insofar as he relies on that framework, I believe we may do so as well, 

even if our analysis results in a narrower holding than the categorical rule Graham seeks. See also Reply Brief for Petitioner 15, n. 8

(“[T]he Court could rule narrowly in this case and hold only that

petitioner’s sentence of life without parole was unconstitutionally

disproportionate”). 
Cite as: 560 U. S. ____ (2010) 7 

ROBERTS, C. J., concurring in judgment 

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 Graham 

received his life sentence—armed burglary of a nondomicil 

with an assault or battery—is “a serious crime deserving 

serious punishment.” Enmund v. Florida, 458 U. S. 782, 

797 (1982). So too is the home invasion robbery that was 

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 committed the relevant offenses when he was a juvenile—a

stage at which, Roper emphasized, one’s “culpability or

blameworthiness is diminished, to a substantial degree, by 

reason of youth and immaturity.” 543 U. S., at 571. Graham’s age places him in a significantly different category 

from the defendants in Rummel, Harmelin, and Ewing, all 

of whom committed their crimes as adults. Graham’s 

youth made him relatively more likely to engage in reckless and dangerous criminal activity than an adult; it also

likely enhanced his susceptibility to peer pressure. See, 

e.g., Roper, supra, at 569; Johnson v. Texas, 509 U. S. 350, 

367 (1993); Eddings v. Oklahoma, 455 U. S. 104, 115–117 

(1982). There is no reason to believe that Graham should 

be denied the general presumption of diminished culpability that Roper indicates should apply to juvenile offenders. 

If anything, Graham’s in-court statements—including his

request for a second chance so that he could “do whatever

it takes to get to the NFL”—underscore his immaturity.

App. 380.

The fact that Graham committed the crimes that he did 

proves that he was dangerous and deserved to be punished. But it does not establish that he was particularly

dangerous—at least relative to the murderers and rapists 

for whom the sentence of life without parole is typically 
8 GRAHAM v. FLORIDA 

ROBERTS, C. J., concurring in judgment 

reserved. On the contrary, his lack of prior criminal convictions, his youth and immaturity, and the difficult circumstances of his upbringing noted by the majority, ante, 

at 1, all suggest that he was markedly less culpable than a

typical adult who commits the same offenses. 

Despite these considerations, the trial court sentenced 

Graham to life in prison without the possibility of parole.

This is the second-harshest sentence available under our 

precedents for any crime, and the most severe sanction 

available for a nonhomicide offense. See Kennedy v. Louisiana, 554 U. S. ___ (2008). Indeed, as the majority notes,

Graham’s sentence far exceeded the punishment proposed 

by the Florida Department of Corrections (which suggested a sentence of four years, Brief for Petitioner 20), 

and the state prosecutors (who asked that he be sentenced 

to 30 years in prison for the armed burglary, App. 388).

No one in Graham’s case other than the sentencing judge

appears to have believed that Graham deserved to go to 

prison for life. 

Based on the foregoing circumstances, I conclude that

there is a strong inference that Graham’s sentence of life

imprisonment without parole was grossly disproportionate

in violation of the Eighth Amendment. I therefore proceed 

to the next steps of the proportionality analysis. 

B 

Both intrajurisdictional and interjurisdictional comparisons of Graham’s sentence confirm the threshold inference 

of disproportionality.

Graham’s sentence was far more severe than that imposed for similar violations of Florida law, even without 

taking juvenile status into account. For example, individuals who commit burglary or robbery offenses in Florida receive average sentences of less than 5 years and less 

than 10 years, respectively. Florida Dept. of Corrections,

Annual Report FY 2007–2008: The Guidebook to Correc-
Cite as: 560 U. S. ____ (2010) 9 

ROBERTS, C. J., concurring in judgment 

tions in Florida 35. Unsurprisingly, Florida’s juvenile 

criminals receive similarly low sentences—typically less 

than five years for burglary and less than seven years for 

robbery. Id., at 36. Graham’s life without parole sentence 

was far more severe than the average sentence imposed on 

those convicted of murder or manslaughter, 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 the same penalty, or to less serious 

penalties, that is some indication that the punishment at 

issue may be excessive.”

Finally, the inference that Graham’s sentence is disproportionate is further validated by comparison to the sentences imposed in other domestic jurisdictions. As the 

majority opinion explains, Florida is an outlier in its willingness to impose sentences of life without parole on juveniles convicted of nonhomicide crimes. See ante, at 11–13. 

III 

So much for Graham. But what about Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old 

girl before leaving her to die under 197 pounds of rock in a

recycling bin in a remote landfill? See Musgrave, Cruel or

Necessary? Life Terms for Youths Spur National Debate,

Palm Beach Post, Oct. 15, 2009, p. 1A. Or Nathan Walker 

and Jakaris Taylor, the Florida juveniles who together 

with their friends gang-raped a woman and forced her to

perform oral sex on her 12-year-old son? See 3 Sentenced 

to Life for Gang Rape of Mother, Associated Press, Oct. 14,

2009. The fact that Graham cannot be sentenced to life 

without parole for his conduct says nothing whatever

about these offenders, or others like them who commit 

nonhomicide crimes far more reprehensible than the 

conduct at issue here. The Court uses Graham’s case as a 

vehicle to proclaim a new constitutional rule—applicable 

well beyond the particular facts of Graham’s case—that a 
10 GRAHAM v. FLORIDA 

ROBERTS, C. J., concurring in judgment 

sentence of life without parole imposed on any juvenile for 

any nonhomicide offense is unconstitutional. This categorical conclusion is as unnecessary as it is unwise. 

A holding this broad is unnecessary because the particular conduct and circumstances 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 sentence would be constitutional if imposed for other more heinous nonhomicide

crimes. 

A more restrained approach is especially appropriate in 

light of the Court’s apparent recognition that it is perfectly

legitimate for a juvenile to receive a sentence of life without parole for committing murder. This means that there 

is nothing inherently unconstitutional about imposing

sentences of life without parole on juvenile offenders; 

rather, the constitutionality of such sentences depends on 

the particular crimes for which they are imposed. But if 

the constitutionality of the sentence turns on the particular crime being punished, then the Court should limit its

holding to the particular offenses that Graham committed 

here, and should decline to consider other hypothetical

crimes not presented by this case.

In any event, the Court’s categorical conclusion is also 

unwise. Most importantly, it ignores the fact that some

nonhomicide crimes—like the ones committed by Milagro

Cunningham, Nathan Walker, and Jakaris Taylor—are

especially heinous or grotesque, and thus may be deserving of more severe punishment. 

Those under 18 years old may as a general matter have 

“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 does not take a 

moral sense that is fully developed in every respect to 
Cite as: 560 U. S. ____ (2010) 11 

ROBERTS, C. J., concurring in judgment 

know that beating and raping an 8-year-old girl and leaving her to die under 197 pounds of rocks is horribly wrong. 

The single fact of being 17 years old would not afford 

Cunningham protection against life without parole if the

young girl had died—as Cunningham surely expected she 

would—so why should it do so when she miraculously

survived his barbaric brutality?

The Court defends its categorical approach on the 

grounds that a “clear line is necessary to prevent the 

possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not 

sufficiently culpable to merit that punishment.” Ante, at 

24. It argues that a case-by-case approach to proportionality review is constitutionally insufficient because courts

might not be able “with sufficient accuracy [to] distinguish

the few incorrigible juvenile offenders from the many that 

have the capacity for change.” Ante, at 27. 

The Court is of course correct that judges will never 

have perfect foresight—or perfect wisdom—in making

sentencing decisions. But this is true when they sentence

adults no less than when they sentence juveniles. It is 

also true when they sentence juveniles who commit murder no less than when they sentence juveniles who commit 

other crimes. 

Our system depends upon sentencing judges applying

their reasoned judgment to each case that comes before

them. As we explained in Solem, the whole enterprise of 

proportionality review is premised on the “justified” assumption that “courts are competent to judge the gravity

of an offense, at least on a relative scale.” 463 U. S., at 

292. Indeed, “courts traditionally have made these judgments” by applying “generally accepted criteria” 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. FLORIDA 

ROBERTS, C. J., concurring in judgment 

* * * 

Terrance Graham committed serious offenses, for which 

he deserves serious punishment. But he was only 16 years

old, and under our Court’s precedents, his youth is one

factor, among others, that should be considered in deciding whether his punishment was unconstitutionally excessive. In my view, Graham’s age—together with the nature 

of his criminal activity and the unusual severity of his

sentence—tips the constitutional balance. I thus concur in 

the Court’s judgment that Graham’s sentence of life without parole violated the Eighth Amendment. 

I would not, however, reach the same conclusion in 

every case involving a juvenile offender. Some crimes are 

so heinous, and some juvenile offenders so highly culpable, 

that a sentence of life without parole may be entirely

justified under the Constitution. As we have said, “successful challenges” to noncapital sentences under the 

Eighth Amendment have been—and, in my view, should

continue to be—“exceedingly rare.” Rummel, 445 U. S., at 

272. But Graham’s sentence presents 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 established jurisprudence and fashioning a categorical rule

applicable to far different cases. 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–7412 

TERRANCE JAMAR GRAHAM, PETITIONER v.

FLORIDA 

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL 

OF FLORIDA, FIRST DISTRICT 

[May 17, 2010] 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and

with whom JUSTICE ALITO joins as to Parts I and III, 

dissenting. 

The Court holds today that it is “grossly disproportionate” and hence unconstitutional for any judge or jury to 

impose a sentence of life without parole on an offender less

than 18 years old, unless he has committed a homicide. 

Although the text of the Constitution is silent regarding

the permissibility of this sentencing practice, and although it would not have offended the standards that 

prevailed at the founding, the Court insists that the standards of American society have evolved such that the

Constitution now requires its prohibition.

The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of

Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile nonhomicide

cases, and those judges and juries have decided to use it in 

the very worst cases they have encountered. 

The Court does not conclude that life without parole

itself is a cruel and unusual punishment. It instead rejects the judgments of those legislatures, judges, and 

juries regarding what the Court describes as the “moral”

question of whether this sentence can ever be “proportionat[e]” when applied to the category of offenders at 
2 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

issue here. Ante, at 7 (internal quotation marks omitted), 

ante, at 1 (STEVENS, J., concurring).

I am unwilling to assume that we, as members of this

Court, are any more capable of making such moral judgments 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 the facts of Terrance Jamar Graham’s case in detail, so only a summary is necessary here.

At age 16 years and 6 months, Graham and two masked

accomplices committed a burglary at a small Florida

restaurant, during which one of Graham’s accomplices 

twice struck the restaurant manager on the head with a

steel pipe when he refused to turn over money to the 

intruders. Graham was arrested and charged as an adult.

He later pleaded guilty to two offenses, including armed 

burglary with assault or battery, an offense punishable

by life imprisonment under Florida law. Fla. Stat. 

§§810.02(2)(a), 810.02(2)(b) (2007). The trial court withheld adjudication on both counts, however, and sentenced 

Graham to probation, the first 12 months of which he 

spent in a county detention facility.

Graham reoffended just six months after his release. At 

a probation revocation hearing, a judge found by a preponderance of the evidence that, at age 17 years and 11

months, Graham invaded a home with two accomplices 

and held the homeowner at gunpoint for approximately 30 

minutes while his accomplices ransacked the residence. 

As a result, the judge concluded that Graham had violated 

his probation and, after additional hearings, adjudicated

Graham guilty on both counts arising from the restaurant 

robbery. The judge imposed the maximum sentence allowed by Florida law on the armed burglary count, life 
Cite as: 560 U. S. ____ (2010) 3 

THOMAS, J., dissenting 

imprisonment without the possibility of parole. 

Graham argues, and the Court holds, that this sentence

violates the Eighth Amendment’s Cruel and Unusual 

Punishments Clause because a life-without-parole sentence is always “grossly disproportionate” when imposed

on a person under 18 who commits any crime short of a 

homicide. Brief for Petitioner 24; ante, at 21. 

II 

A 

The Eighth Amendment, which applies to the States 

through the Fourteenth, provides that “[e]xcessive bail 

shall not be required, nor excessive fines imposed, nor 

cruel and unusual punishments inflicted.” It is by now 

well established that the Cruel and Unusual Punishments 

Clause was originally understood as prohibiting torturous 

“‘methods of punishment,’” Harmelin v. Michigan, 501 

U. S. 957, 979 (1991) (opinion of SCALIA, J.) (quoting 

Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning, 57 Cal. L. Rev. 839, 842

(1969))—specifically methods akin to those that had been

considered cruel and unusual at the time the Bill of Rights

was adopted, Baze v. Rees, 553 U. S. 35, 99 (2008) 

(THOMAS, J., concurring in judgment). With one arguable

exception, see Weems v. United States, 217 U. S. 349 

(1910); Harmelin, supra, at 990–994 (opinion of SCALIA, J.)

(discussing the scope and relevance of Weems’ holding),

this Court applied the Clause with that understanding for nearly 170 years after the Eighth Amendment’s 

ratification. 

More recently, however, the Court has held that the

Clause authorizes it to proscribe not only methods of 

punishment that qualify as “cruel and unusual,” but also 

any punishment that the Court deems “grossly disproportionate” to the crime committed. Ante, at 8 (internal 

quotation marks omitted). This latter interpretation is 
4 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

entirely the Court’s creation. As has been described elsewhere at length, there is virtually no indication that the 

Cruel and Unusual Punishments Clause originally was

understood to require proportionality in sentencing. See 

Harmelin, 501 U. S., at 975–985 (opinion of SCALIA, J.).

Here, it suffices to recall just two points. First, the Clause 

does not expressly refer to proportionality or invoke any 

synonym for that term, even though the Framers were

familiar with the concept, as evidenced by several founding-era state constitutions that required (albeit without

defining) proportional punishments. See id., at 977–978. 

In addition, the penal statute adopted by the First Congress demonstrates that proportionality in sentencing was 

not considered a constitutional command.1 See id., at 

980–981 (noting that the statute prescribed capital punishment for offenses ranging from “ ‘run[ning] away with 

. . . goods or merchandise to the value of fifty dollars,’ ” to 

“murder on the high seas” (quoting 1 Stat. 114)); see also 

Preyer, Penal Measures in the American Colonies: An 

Overview, 26 Am. J. Legal Hist. 326, 348–349, 353 (1982) 

(explaining that crimes in the late 18th-century colonies 

—————— 

1 THE CHIEF JUSTICE’s concurrence suggests that it is unnecessary to 

remark on the underlying question whether the Eighth Amendment 

requires proportionality in sentencing because “[n]either party here

asks us to reexamine our precedents” requiring “proportionality between noncapital offenses and their corresponding punishments.” Ante, 

at 2 (opinion concurring in judgment). I disagree. Both the Court and 

the concurrence do more than apply existing noncapital proportionality 

precedents to the particulars of Graham’s claim. The Court radically

departs from the framework those precedents establish by applying to a

noncapital sentence the categorical proportionality review its prior 

decisions have reserved for death penalty cases alone. See Part III, 

infra. The concurrence, meanwhile, breathes new life into the case-bycase proportionality approach that previously governed noncapital

cases, from which the Court has steadily, and wisely, retreated since 

Solem v. Helm, 463 U. S. 277 (1983). See Part IV, infra. In dissenting

from both choices to expand proportionality review, I find it essential to

reexamine the foundations on which that doctrine is built. 
Cite as: 560 U. S. ____ (2010) 5 

THOMAS, J., dissenting 

generally were punished either by fines, whipping, or 

public “shaming,” or by death, as intermediate sentencing

options such as incarceration were not common).

The Court has nonetheless invoked proportionality to

declare that capital punishment—though not unconstitutional per se—is categorically too harsh a penalty to apply

to certain types of crimes and certain classes of offenders.

See Coker v. Georgia, 433 U. S. 584 (1977) (plurality opinion) (rape of an adult woman); Kennedy v. Louisiana, 554 

U. S. ___ (2008) (rape of a child); Enmund v. Florida, 458 

U. S. 782 (1982) (felony murder in which the defendant

participated in the felony but did not kill or intend to kill); 

Thompson v. Oklahoma, 487 U. S. 815 (1988) (plurality

opinion) (juveniles under 16); Roper v. Simmons, 543 U. S. 

551 (2005) (juveniles under 18); Atkins v. Virginia, 536 

U. S. 304 (2002) (mentally retarded offenders). In adopting

these categorical proportionality rules, the Court intrudes

upon areas that the Constitution reserves to other (state

and federal) organs of government. The Eighth Amendment prohibits the government from inflicting a cruel and 

unusual method of punishment upon a defendant. Other 

constitutional provisions ensure the defendant’s right to 

fair process before any punishment is imposed. But, as 

members of today’s majority note, “[s]ociety changes,” ante, 

at 1 (STEVENS, J., concurring), and the Eighth Amendment 

leaves the unavoidably moral question of who “deserves” a

particular nonprohibited method of punishment to the 

judgment of the legislatures that authorize the penalty, the

prosecutors who seek it, and the judges and juries that

impose it under circumstances they deem appropriate. 

The Court has nonetheless adopted categorical rules

that shield entire classes of offenses and offenders from 

the death penalty on the theory that “evolving standards

of decency” require this result. Ante, at 7 (internal quotation marks omitted). The Court has offered assurances 

that these standards can be reliably measured by “‘objec-
6 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

tive indicia’” of “national consensus,” such as state and 

federal legislation, jury behavior, and (surprisingly, given

that we are talking about “national” consensus) international opinion. Ante, at 10 (quoting Roper, supra, at 563); 

see also ante, at 8–15, 29–31. Yet even assuming that is

true, the Framers did not provide for the constitutionality

of a particular type of punishment to turn on a “snapshot

of American public opinion” taken at the moment a case is

decided. Roper, supra, at 629 (SCALIA, 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 pendulum swing in social attitudes,” Thompson, supra, at 869 

(SCALIA, J., dissenting), and “stunt[ing] legislative consideration” of new questions of penal policy as they 

emerge, Kennedy, supra, 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 16 (“Community consensus, while ‘entitled to great weight,’ is not itself

determinative” (quoting Kennedy, supra, at __ (slip op., at 

24)). Instead, it reserves the right to reject the evidence of

consensus it finds whenever its own “independent judgment” points in a different direction. Ante, at 16. The 

Court thus openly claims the power not only 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 Court’s “independent” perception of 

how those standards should evolve, which depends on 

what the Court concedes is “‘“necessarily . . . a moral 

judgment”’” regarding the propriety of a given punishment in today’s society. Ante, at 7 (quoting Kennedy, 

supra, at ___ (slip op., at 8)). 

The categorical proportionality review the Court employs in capital cases thus lacks a principled foundation. 

The Court’s decision today is significant because it does 
Cite as: 560 U. S. ____ (2010) 7 

THOMAS, J., dissenting 

not merely apply this standard—it remarkably expands its 

reach. For the first time in its history, the Court declares 

an entire class of offenders immune from a noncapital 

sentence using the categorical approach it previously

reserved for death penalty cases alone. 

B 

Until today, the Court has based its categorical proportionality rulings on the notion that the Constitution gives 

special protection to capital defendants because the death

penalty is a uniquely severe punishment that must be 

reserved for only those who are “most deserving of execution.” Atkins, supra, at 319; see Roper, supra, at 568; 

Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. 

Ohio, 438 U. S. 586 (1978). Of course, the Eighth

Amendment itself makes no distinction between capital

and noncapital sentencing, but the “‘bright line’” the

Court drew between the two penalties has for many years 

served as the principal justification for the Court’s willingness to reject democratic choices regarding the death

penalty. See Rummel v. Estelle, 445 U. S. 263, 275 (1980). 

Today’s decision eviscerates that distinction. “Death is 

different” no longer. The Court now claims not only the 

power categorically to reserve the “most severe punishment” for those the Court thinks are “‘the most deserving 

of execution,’” 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 most 

severe penalty.” Ante, at 21 (emphasis added). No reliable limiting principle remains to prevent the Court from 

immunizing any class of offenders from the law’s third,

fourth, fifth, or fiftieth most severe penalties as well. 

The Court’s departure from the “death is different” 

distinction is especially mystifying when one considers

how long it has resisted crossing that divide. Indeed, for a 

time the Court declined to apply proportionality principles 
8 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

to noncapital sentences at all, emphasizing that “a sentence of death differs in kind from any sentence of imprisonment, no matter how long.” Rummel, 445 U. S., at 272 

(emphasis added). Based on that rationale, the Court 

found that the excessiveness of one prison term as compared to another was “properly within the province of 

legislatures, not courts,” id., at 275–276, precisely because 

it involved an “invariably . . . subjective determination, 

there being no clear way to make ‘any constitutional distinction between one term of years and a shorter or longer

term of years,’” Hutto v. Davis, 454 U. S. 370, 373 (1982) 

(per curiam) (quoting Rummel, supra, at 275; emphasis 

added).

Even when the Court broke from that understanding in

its 5-to-4 decision in Solem v. Helm, 463 U. S. 277 (1983) 

(striking down as “grossly disproportionate” a life-withoutparole sentence imposed on a defendant for passing a 

worthless check), the Court did so only as applied to the 

facts of that case; it announced no categorical rule. Id., at 

288, 303. Moreover, the Court soon cabined Solem’s rationale. The controlling opinion in the Court’s very next 

noncapital proportionality case emphasized that principles

of federalism require substantial deference to legislative

choices regarding the proper length of prison sentences. 

Harmelin, 501 U. S., at 999 (opinion of KENNEDY, J.)

(“[M]arked divergences both in underlying theories of 

sentencing and in the length of prescribed prison terms

are the inevitable, often beneficial, result of the federal 

structure”); id., at 1000 (“[D]iffering attitudes and perceptions of local conditions may yield different, yet rational, 

conclusions regarding the appropriate length of prison

terms for particular crimes”). That opinion thus concluded

that “successful challenges to the proportionality of 

[prison] sentences [would be] exceedingly rare.” Id., at 

1001 (internal quotation marks omitted).

They have been rare indeed. In the 28 years since 
Cite as: 560 U. S. ____ (2010) 9 

THOMAS, J., dissenting 

Solem, the Court has considered just three such challenges and has rejected them all, see Ewing v. California, 

538 U. S. 11 (2003); Lockyer v. Andrade, 538 U. S. 63 

(2003); Harmelin, supra, largely on the theory that criticisms of the “wisdom, cost-efficiency, and effectiveness” of 

term-of-years prison sentences are “appropriately directed

at the legislature[s],” not the courts, Ewing, supra, at 27, 

28 (plurality opinion). The Court correctly notes that

those decisions were “closely divided,” ante, at 8, but so 

was Solem itself, and it is now fair to describe Solem as an 

outlier.2 

Remarkably, the Court today does more than return to 

Solem’s case-by-case proportionality standard for noncapital sentences; it hurtles past it to impose a categorical

proportionality rule banning life-without-parole sentences

not just in this case, but in every case involving a juvenile

nonhomicide offender, no matter what the circumstances. 

Neither the Eighth Amendment nor the Court’s precedents justify this decision. 

III 

The Court asserts that categorical proportionality review is necessary here merely because Graham asks for a

categorical rule, see ante, at 10, and because the Court 

—————— 

2Courts and commentators interpreting this Court’s decisions have

reached this conclusion. See, e.g., United States v. Polk, 546 F. 3d 74, 

76 (CA1 2008) (“[I]nstances of gross disproportionality [in noncapital

cases] will be hen’s-teeth rare”); Barkow, The Court of Life and Death: 

The Two Tracks of Constitutional Sentencing Law and the Case for 

Uniformity, 107 Mich. L. Rev. 1145, 1160 (2009) (“Solem now stands as 

an outlier”); Note, The Capital Punishment Exception: A Case for 

Constitutionalizing the Substantive Criminal Law, 104 Colum. L. Rev.

426, 445 (2004) (observing that outside of the capital context, “proportionality review has been virtually dormant”); Steiker & Steiker,

Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More 

Broadly, 11 U. Pa. J. Const. L. 155, 184 (2009) (“Eighth Amendment 

challenges to excessive incarceration [are] essentially non-starters”). 
10

I 

 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

thinks clear lines are a good idea, see ante, at 24–25. 

find those factors wholly insufficient to justify the Court’s

break from past practice. First, the Court fails to acknowledge that a petitioner seeking to exempt an entire 

category of offenders from a sentencing practice carries a 

much heavier burden than one seeking case-specific relief 

under Solem. Unlike the petitioner in Solem, Graham 

must establish not only that his own life-without-parole 

sentence is “grossly disproportionate,” but also that such a

sentence is always grossly disproportionate whenever it is

applied to a juvenile nonhomicide offender, no matter how

heinous his crime. Cf. United States v. Salerno, 481 U. S. 

739 (1987). Second, even applying the Court’s categorical

“evolving standards” test, neither objective evidence of 

national consensus nor the notions of culpability on which

the Court’s “independent judgment” relies can justify the 

categorical rule it declares here. 

A 

According to the Court, proper Eighth Amendment 

analysis “begins with objective indicia of national consensus,”3 and “[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by 

the country’s legislatures,” ante, at 10–11 (internal quota-

—————— 

3The Court ignores entirely the threshold inquiry of whether subjecting juvenile offenders to adult penalties was one of the “modes or acts of

punishment that had been considered cruel and unusual at the time 

that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 

399, 405 (1986). As the Court has noted in the past, however, the 

evidence is clear that, at the time of the Founding, “the common law set

a rebuttable presumption of incapacity to commit any felony at the age

of 14, and theoretically permitted [even] capital punishment to be

imposed on a person as young as age 7.” Stanford v. Kentucky, 492 

U. S. 361, 368 (1989) (citing 4 W. Blackstone, Commentaries *23–*24; 1

M. Hale, Pleas of the Crown 24–29 (1800)). It thus seems exceedingly 

unlikely that the imposition of a life-without-parole sentence on a 

person of Graham’s age would run afoul of those standards. 
Cite as: 560 U. S. ____ (2010) 11 

THOMAS, J., dissenting 

tion marks omitted). As such, the analysis should end 

quickly, because a national “consensus” in favor of the

Court’s result simply does not exist. The laws of all 50 

States, the Federal Government, and the District of Columbia provide that juveniles over a certain age may be 

tried in adult court if charged with certain crimes.4 See 

ante, at 33–35 (Appendix to opinion of the Court). Fortyfive States, the Federal Government, and the District of 

Columbia expose juvenile offenders charged in adult court 

to the very same range of punishments faced by adults

charged with the same crimes. See ante, at 33–34, Part I. 

Eight of those States do not make life-without-parole

sentences available for any nonhomicide offender, regardless of age.5 All remaining jurisdictions—the Federal

Government, the other 37 States, and the District— 

authorize life-without-parole sentences for certain nonhomicide offenses, and authorize the imposition of such

sentences on persons under 18. See ibid. Only five States 

—————— 

4Although the details of state laws vary extensively, they generally 

permit the transfer of a juvenile offender to adult court through one or

more of the following mechanisms: (1) judicial waiver, in which the 

juvenile court has the authority to waive jurisdiction over the offender

and transfer the case to adult court; (2) concurrent jurisdiction, in 

which adult and juvenile courts share jurisdiction over certain cases

and the prosecutor has discretion to file in either court; or (3) statutory 

provisions that exclude juveniles who commit certain crimes from 

juvenile-court jurisdiction. See Dept. of Justice, Juvenile Offenders and 

Victims: 1999 National Report 89, 104 (1999) (hereinafter 1999 DOJ

National Report); Feld, Unmitigated Punishment: Adolescent Criminal

Responsibility and LWOP Sentences, 10 J. Law & Family Studies 11,

38–39 (2007). 5Alaska entitles all offenders to parole, regardless of their crime. 

Alaska Stat. §12.55.015(g) (2008). The other seven States provide

parole eligibility to all offenders, except those who commit certain 

homicide crimes. Conn. Gen. Stat. §53a–35a (2009); Haw. Rev. Stat. 

§§706–656(1)–(2) (1993 and 2008 Supp. Pamphlet); Me. Rev. Stat. Ann., 

Tit. 17–a, §1251 (2006); Mass. Gen. Laws Ann., ch. 265, §2 (West 2008); 

N. J. Stat. Ann. §§2C:11–3(b)(2)–(3) (West 2005); N. M. Stat. Ann. §31–

18–14 (Supp. 2009); Vt. Stat. Ann., Tit. 13, §2303 (2009). 
12 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

prohibit juvenile offenders from receiving a life-withoutparole sentence that could be imposed on an adult convicted of the same crime.6 

No plausible claim of a consensus against this sentencing practice can be made in light of this overwhelming 

legislative evidence. The sole fact that federal law authorizes this practice singlehandedly refutes the claim that our 

Nation finds it morally repugnant. The additional reality

that 37 out of 50 States (a supermajority of 74%) permit 

the practice makes the claim utterly implausible. Not only

is there no consensus against this penalty, there is a clear

legislative consensus in favor of its availability.

Undaunted, however, the Court brushes this evidence 

aside as “incomplete and unavailing,” declaring that 

“‘[t]here are measures of consensus other than legislation.’” Ante, at 11 (quoting Kennedy, 554 U. S., at ___ (slip 

op., at 22)). This is nothing short of stunning. Most importantly, federal civilian law approves this sentencing 

practice.7 And although the Court has never decided how 

many state laws are necessary to show consensus, the 

Court has never banished into constitutional exile a sentencing practice that the laws of a majority, let alone a

supermajority, of States expressly permit.8 

—————— 

6Colo. Rev. Stat. Ann. §18–1.3–401(4)(b) (2009) (authorizing mandatory life sentence with possibility for parole after 40 years for juveniles 

convicted of class 1 felonies); Kan. Stat. Ann. §§21–4622, 4643 (2007);

Ky. Rev. Stat. Ann. §640.040 (West 2006); Shepherd v. Commonwealth, 

251 S. W. 3d 309, 320–321 (Ky. 2008); Mont. Code Ann. §46–18–222(1)

(2009); Tex. Penal Code Ann. §12.31 (West Supp. 2009). 7Although the Court previously has dismissed the relevance of the 

Uniform Code of Military Justice to its discernment of consensus, see 

Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (statement of KENNEDY, 

J., respecting denial of rehearing), juveniles who enlist in the military 

are nonetheless eligible for life-without-parole sentences if they commit

certain nonhomicide crimes. See 10 U. S. C. §§505(a) (permitting

enlistment at age 17), 856a, 920 (2006 ed., Supp. II). 8 Kennedy, 554 U. S., at ___ (slip op., at 12, 23) (prohibiting capital 
Cite as: 560 U. S. ____ (2010) 13 

THOMAS, J., dissenting 

Moreover, the consistency and direction of recent legislation—a factor the Court previously has relied upon 

when crafting categorical proportionality rules, see Atkins, 

536 U. S., at 315–316; Roper, 543 U. S., at 565–566— 

underscores the consensus against the rule the Court 

announces here. In my view, the Court cannot point to a 

national consensus in favor of its rule without assuming a

consensus in favor of the two penological points it later

discusses: (1) Juveniles are always less culpable than

similarly-situated adults, and (2) juveniles who commit 

nonhomicide crimes should always receive an opportunity

to demonstrate rehabilitation through parole. Ante, at 16– 

17, 22–24. But legislative trends make that assumption 

untenable. 

First, States over the past 20 years have consistently 

increased the severity of punishments for juvenile offenders. See 1999 DOJ National Report 89 (referring to the 

1990’s as “a time of unprecedented change as State legis-

—————— 

punishment for the rape of a child where only six States had enacted

statutes authorizing the punishment since Furman v. Georgia, 408 

U. S. 238 (1972) (per curiam)); Roper v. Simmons, 543 U. S. 551, 564, 

568 (2005) (prohibiting capital punishment for offenders younger than

18 where 18 of 38 death-penalty States precluded imposition of the 

penalty on persons under 18 and the remaining 12 States did not 

permit capital punishment at all); Atkins v. Virginia, 536 U. S. 304, 

314–315 (2002) (prohibiting capital punishment of mentally retarded 

persons where 18 of 38 death-penalty States precluded imposition of

the penalty on such persons and the remaining States did not authorize 

capital punishment at all); Thompson v. Oklahoma, 487 U. S. 815, 826, 

829 (1988) (plurality opinion) (prohibiting capital punishment of 

offenders under 16 where 18 of 36 death-penalty States precluded 

imposition of the penalty on such persons and the remaining States did

not permit capital punishment at all); Enmund v. Florida, 458 U. S. 

782, 789 (1982) (prohibiting capital punishment for felony murder 

without proof of intent to kill where eight States allowed the punishment without proof of that element); Coker v. Georgia, 433 U. S. 584, 

593 (1977) (holding capital punishment for the rape of a woman unconstitutional where “[a]t no time in the last 50 years have a majority of

the States authorized death as a punishment for rape”). 
14 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

latures crack[ed] down on juvenile crime”); ibid. (noting

that, during that period, “legislatures in 47 States and the 

District of Columbia enacted laws that made their juvenile 

justice systems more punitive,” principally by “ma[king] it 

easier to transfer juvenile offenders from the juvenile

justice system to the [adult] criminal justice system”); id., 

at 104. This, in my view, reveals the States’ widespread 

agreement that juveniles can sometimes act with the same

culpability as adults and that the law should permit

judges and juries to consider adult sentences—including

life without parole—in those rare and unfortunate cases.

See Feld, Unmitigated Punishment: Adolescent Criminal 

Responsibility and LWOP Sentences, 10 J. Law & Family 

Studies 11, 69–70 (2007) (noting that life-without-parole 

sentences for juveniles have increased since the 1980’s);

Amnesty International & Human Rights Watch, The Rest

of Their Lives: Life Without Parole for Child Offenders in 

the United States 2, 31 (2005) (same).

Second, legislatures have moved away from parole over

the same period. Congress abolished parole for federal

offenders in 1984 amid criticism that it was subject to 

“gamesmanship and cynicism,” Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sentencing Rep. 180

(1999) (discussing the Sentencing Reform Act of 1984, 98

Stat. 1987), and several States have followed suit, see T.

Hughes, D. Wilson, & A. Beck, Dept. of Justice, Bureau of 

Justice Statistics, Trends in State Parole, 1990–2000, p. 1

(2001) (noting that, by the end of 2000, 16 States had 

abolished parole for all offenses, while another 4 States

had abolished it for certain ones). In light of these developments, the argument that there is nationwide consensus

that parole must be available to offenders less than 18

years old in every nonhomicide case simply fails. 

B 

The Court nonetheless dismisses existing legislation, 
Cite as: 560 U. S. ____ (2010) 15 

THOMAS, J., dissenting 

pointing out that life-without-parole sentences are rarely 

imposed on juvenile nonhomicide offenders—129 times in 

recent memory9 by the Court’s calculation, spread out 

across 11 States and the federal courts. Ante, at 11–13. 

Based on this rarity of use, the Court proclaims a consensus against the practice, implying that laws allowing it 

either reflect the consensus of a prior, less civilized time or 

are the work of legislatures tone-deaf to moral values of 

their constituents that this Court claims to have easily

discerned from afar. See ante, at 11. 

This logic strains credulity. It has been rejected before. 

Gregg v. Georgia, 428 U. S. 153, 182 (1976) (joint opinion 

of Stewart, Powell, and STEVENS, JJ.) (“[T]he relative

infrequency of jury verdicts imposing the death sentence

does not indicate rejection of capital punishment per se. 

Rather, [it] . . . may well reflect the humane feeling that

this most irrevocable of sanctions should be reserved for a 

small number of extreme cases”). It should also be rejected here. That a punishment is rarely imposed demonstrates nothing more than a general consensus that it 

should be just that—rarely imposed. It is not proof that 

the punishment is one the Nation abhors.

The Court nonetheless insists that the 26 States that 

authorize this penalty, but are not presently incarcerating

a juvenile nonhomicide offender on a life-without-parole

sentence, cannot be counted as approving its use. The 

mere fact that the laws of a jurisdiction permit this penalty, the Court explains, “does not indicate that the penalty has been endorsed through deliberate, express, and 

full legislative consideration.” Ante, at 16. 

As an initial matter, even accepting the Court’s theory, 

—————— 

9 I say “recent memory” because the research relied upon by the Court

provides a headcount of juvenile nonhomicide offenders presently

incarcerated in this country, but does not provide more specific information about all of the offenders, such as the dates on which they were

convicted. 
16 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

federal law authorizes this penalty and the Federal Government uses it. See ante, at 13 (citing Letter and Attachment from Judith Simon Garrett, U. S. Dept. of Justice, Federal Bureau of Prisons, to Supreme Court Library

(Apr. 12, 2010) (available in Clerk of Court’s case file)). 

That should be all the evidence necessary to refute the 

claim of a national consensus against this penalty. 

Yet even when examining the States that authorize, but

have not recently employed, this sentencing practice, the

Court’s theory is unsound. Under the Court’s evolving

standards test, “[i]t is not the burden of [a State] to establish a national consensus approving what their citizens 

have voted to do; rather, it is the ‘heavy burden’ of petitioners to establish a national consensus against it.” 

Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (quoting 

Gregg, supra, at 175 (joint opinion of Stewart, Powell, and 

STEVENS, JJ.); some emphasis added). In light of this fact,

the Court is wrong to equate a jurisdiction’s disuse of a 

legislatively authorized penalty with its moral opposition 

to it. The fact that the laws of a jurisdiction permit this

sentencing practice demonstrates, at a minimum, that the 

citizens of that jurisdiction find tolerable the possibility

that a jury of their peers could impose a life-withoutparole sentence on a juvenile whose nonhomicide crime is 

sufficiently depraved.

The recent case of 16-year-old Keighton Budder illustrates this point. Just weeks before the release of this 

opinion, an Oklahoma jury sentenced Budder to life without parole after hearing evidence that he viciously attacked 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, Assault Case,

Tulsa World, May 4, 2010, p. A12. Budder allegedly put 

the girl’s head “‘into a headlock and sliced her throat,’” 

raped her, stabbed her about 20 times, beat her, and 
Cite as: 560 U. S. ____ (2010) 17 

THOMAS, J., dissenting 

pounded her face into the rocks alongside a dirt road.

Teen Gets Life Terms in Stabbing, Rape Case, at A10.

Miraculously, the victim survived. Ibid. 

Budder’s crime was rare in its brutality. The sentence 

the jury imposed was also rare. According to the study

relied upon by this Court, Oklahoma had no such offender 

in its prison system before Budder’s offense. P. Annino, D. 

Rasmussen, & C. Rice, Juvenile Life Without Parole for 

Non-Homicide Offenses: Florida Compared to Nation 2, 14

(Sept. 14, 2009) (Table A). Without his conviction, therefore, the Court would have counted Oklahoma’s citizens as 

morally opposed to life-without-parole sentences for juveniles nonhomicide offenders. 

Yet Oklahoma’s experience proves the inescapable flaw 

in that reasoning: Oklahoma citizens have enacted laws

that allow Oklahoma juries to consider life-without-parole

sentences in juvenile nonhomicide cases. Oklahoma juries 

invoke those laws rarely—in the unusual cases that they 

find exceptionally depraved. I cannot agree with the 

Court that Oklahoma citizens should be constitutionally

disabled from using this sentencing practice merely because they have not done so more frequently. If anything,

the rarity of this penalty’s use underscores just how judicious sentencing judges and juries across the country have

been in invoking it. 

This fact is entirely consistent with the Court’s intuition 

that juveniles generally are less culpable and more capable

of growth than adults. See infra, at 21–22. Graham’s own 

case provides another example. Graham was statutorily 

eligible for a life-without-parole sentence after his first 

crime. But the record indicates that the trial court did not 

give such a sentence serious consideration at Graham’s

initial plea hearing. It was only after Graham subsequently violated his parole by invading a home at gunpoint that the maximum sentence was imposed. 

In sum, the Court’s calculation that 129 juvenile non-
18 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

homicide life-without-parole sentences have been imposed 

nationwide in recent memory, even if accepted, hardly 

amounts to strong evidence that the sentencing practice

offends our common sense of decency.10 

Finally, I cannot help but note that the statistics the

Court finds inadequate to justify the penalty in this case 

—————— 

10Because existing legislation plainly suffices to refute any consensus

against this sentencing practice, I assume the accuracy of the Court’s 

evidence regarding the frequency with which this sentence has been

imposed. But I would be remiss if I did not mention two points about

the Court’s figures. First, it seems odd that the Court counts only those

juveniles sentenced to life without parole and excludes from its analysis 

all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 

years’ imprisonment). It is difficult to argue that a judge or jury 

imposing such a long sentence—which effectively denies the offender 

any material opportunity for parole—would express moral outrage at a 

life-without-parole sentence.

Second, if objective indicia of consensus were truly important to the 

Court’s analysis, the statistical information presently available would 

be woefully inadequate to form the basis of an Eighth Amendment rule 

that can be revoked only by constitutional amendment. The only

evidence submitted to this Court regarding the frequency of this sentence’s imposition was a single study completed after this Court 

granted certiorari in this case. See P. Annino, D. Rasmussen, & C. 

Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida 

Compared to Nation 2 (Sept. 14, 2009). Although I have no reason to

question the professionalism with which this study was conducted, the 

study itself acknowledges that it was incomplete and the first of its

kind. See id., at 1. The Court’s questionable decision to “complete” the

study on its own does not materially increase its reliability. For one 

thing, by finishing the study itself, the Court prohibits the parties from 

ever disputing its findings. Complicating matters further, the original

study sometimes relied on third-party data rather than data from the 

States themselves, see ibid.; the study has never been peer reviewed; 

and specific data on all 129 offenders (age, date of conviction, crime of 

conviction, etc.), have not been collected, making verification of the 

Court’s headcount impossible. The Court inexplicably blames Florida 

for all of this. See ante, at 12. But as already noted, it is not Florida’s

burden to collect data to prove a national consensus in favor of this

sentencing practice, but Graham’s “heavy burden” to prove a consensus 

against it. See supra, at 16. 
Cite as: 560 U. S. ____ (2010) 19 

THOMAS, J., dissenting 

are stronger than those supporting at least one other

penalty this Court has upheld. Not long ago, this Court,

joined by the author of today’s opinion, upheld the application of the death penalty against a 16-year-old, despite the 

fact that no such punishment had been carried out on a

person of that age in this country in nearly 30 years. See 

Stanford, 492 U. S., at 374. Whatever the statistical 

frequency with which life-without-parole sentences have 

been imposed on juvenile nonhomicide offenders in the

last 30 years, it is surely greater than zero. 

In the end, however, objective factors 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 own decree, “[c]ommunity

consensus . . . is not itself determinative.” Ante, at 16. 

Only the independent moral judgment of this Court is

sufficient to decide the question. See ibid. 

—————— 

11 I confine to a footnote the Court’s discussion of foreign laws and

sentencing practices because past opinions explain at length why such 

factors are irrelevant to the meaning of our Constitution or the Court’s 

discernment of any longstanding tradition in this Nation. See Atkins, 

536 U. S., at 324–325 (Rehnquist, C. J., dissenting). Here, two points 

suffice. First, despite the Court’s attempt to count the actual number of

juvenile nonhomicide offenders serving life-without-parole sentences in

other nations (a task even more challenging than counting them within

our borders), the laws of other countries permit juvenile life-withoutparole sentences, see Child Rights Information, Network, C. de la 

Vega, M. Montesano, & A. Solter, Human Rights Advocates, Statement 

on Juvenile Sentencing to Human Rights Council, 10th Sess. (Nov. 3,

2009) (“Eleven countries have laws with the potential to permit the

sentencing of child offenders to life without the possibility of release”), 

online at http://www.crin.org/resources/infoDetail.asp?ID=19806) (as

visited May 14, 2010, and available in Clerk of Court’s case file)). 

Second, present legislation notwithstanding, democracies around the 

world remain free to adopt life-without-parole sentences for juvenile

offenders tomorrow if they see fit. Starting today, ours can count itself 

among the few in which judicial decree prevents voters from making 

that choice. 
20 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

C 

Lacking any plausible claim to consensus, the Court 

shifts to the heart of its argument: its “independent judgment” that this sentencing practice does not “serv[e] legitimate penological goals.” Ante, at 16. The Court begins that

analysis with the obligatory preamble that “‘[t]he Eighth

Amendment does not mandate adoption of any one penological theory,’” ante, at 20 (quoting Harmelin, 501 U. S., 

at 999 (opinion of KENNEDY, J.)), then promptly mandates

the adoption of the theories the Court deems best.

First, the Court acknowledges that, at a minimum, the

imposition of life-without-parole sentences on juvenile 

nonhomicide offenders serves two “legitimate” penological 

goals: incapacitation and deterrence. Ante, at 20–21. By

definition, such sentences serve the goal of incapacitation

by ensuring that juvenile offenders who commit armed 

burglaries, or those who commit the types of grievous sex

crimes described by THE CHIEF JUSTICE, no longer 

threaten their communities. See ante, at 9 (opinion concurring in judgment). That should settle the matter, since 

the Court acknowledges that incapacitation is an “important” penological goal. Ante, at 21. Yet, the Court finds 

this goal “inadequate” to justify the life-without-parole 

sentences here. Ante, at 22 (emphasis added). A similar 

fate befalls deterrence. The Court acknowledges that such

sentences will deter future juvenile offenders, at least to

some degree, but rejects that penological goal, not as

illegitimate, but as insufficient. Ante, at 21 (“[A]ny limited

deterrent effect provided by life without parole is not 

enough to justify the sentence.” (emphasis added)). 

The Court looks more favorably on rehabilitation, but

laments that life-without-parole sentences do little to 

promote this goal because they result in the offender’s 

permanent incarceration. Ante, at 22. Of course, the 

Court recognizes that rehabilitation’s “utility and proper

implementation” are subject to debate. Ante, at 23. But 
Cite as: 560 U. S. ____ (2010) 21 

THOMAS, J., dissenting 

that does not stop it from declaring that a legislature may 

not “forswea[r] . . . the rehabilitative ideal.” Ibid. In other 

words, the Eighth Amendment does not mandate “any one

penological theory,” ante, at 20 (internal quotation marks

omitted), just one the Court approves.

Ultimately, however, the Court’s “independent judgment” and the proportionality rule itself center on retribution—the notion that a criminal sentence should be proportioned to “‘the personal culpability of the criminal 

offender.’” Ante, at 16, 20 (quoting Tison v. Arizona, 481 

U. S. 137, 149 (1987)). The Court finds that retributive 

purposes are not served here for two reasons. 

1 

 First, quoting Roper, 543 U. S., at 569–570, the Court 

concludes that juveniles are less culpable than adults 

because, as compared to adults, they “have a ‘“lack of 

maturity and an underdeveloped sense of responsibility,”’” 

and “their characters are ‘not as well formed.’” Ante, at 

17. As a general matter, this statement is entirely consistent 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. Our society tends to treat

the average juvenile as less culpable than the average 

adult. But the question here does not involve the average 

juvenile. The question, instead, is whether the Constitution prohibits judges and juries from ever concluding that

an offender under the age of 18 has demonstrated sufficient depravity and incorrigibility to warrant his permanent incarceration. 

In holding that the Constitution imposes such a ban, the 

Court cites “developments in psychology and brain science” indicating that juvenile minds “continue to mature

through late adolescence,” ante, at 17 (citing Brief for 

American Medical Association et al. as Amici Curiae 16– 
22 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

24; Brief for American Psychological Association et al. as 

Amici Curiae 22–27 (hereinafter APA Brief)), and that

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 rulemaking,

the Court misstates the data on which it relies. 

The Court equates the propensity of a fairly substantial 

number of youths to engage in “risky” or antisocial behaviors with the propensity of a much smaller group to commit violent crimes. Ante, at 26. But research relied upon 

by the amici cited in the Court’s opinion differentiates 

between adolescents for whom antisocial behavior is a 

fleeting symptom and those for whom it is a lifelong pattern. See Moffitt, Adolescence-Limited and Life-CoursePersistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993) (cited in APA 

Brief 8, 17, 20) (distinguishing between adolescents who

are “antisocial only during adolescence” and a smaller 

group who engage in antisocial behavior “at every life

stage” despite “drift[ing] through successive systems

aimed at curbing their deviance”). That research further 

suggests that the pattern of behavior in the latter group 

often sets in before 18. See Moffitt, supra, at 684 (“The 

well-documented resistance of antisocial personality disorder to treatments of all kinds seems to suggest that the 

life-course-persistent style is fixed sometime before age

18”). And, notably, it suggests that violence itself is evidence that an adolescent offender’s antisocial behavior is 

not transient. See Moffitt, A Review of Research on the 

Taxonomy of Life-Course Persistent Versus AdolescenceLimited Antisocial Behavior, in Taking Stock: the Status 

of Criminological Theory 277, 292–293 (F. Cullen, J.

Wright, & K. Blevins eds. 2006) (observing that “lifecourse persistent” males “tended to specialize in serious 

offenses (carrying a hidden weapon, assault, robbery,

violating court orders), whereas adolescence-limited” ones 
Cite as: 560 U. S. ____ (2010) 23 

THOMAS, J., dissenting 

“specialized in non-serious offenses (theft less than $5,

public drunkenness, giving false information on application forms, pirating computer software, etc.)”).

In sum, even if it were relevant, none of this psychological or sociological data is sufficient to support the Court’s

“‘moral’” conclusion that youth defeats culpability in every 

case. Ante, at 17 (quoting Roper, 543 U. S., at 570); see 

id., at 618 (SCALIA, J., dissenting); R. Epstein, The Case

Against Adolescence 171 (2007) (reporting 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 categorical rule is nonetheless necessary to prevent the “‘unacceptable likelihood’” 

that a judge or jury, unduly swayed by “‘the brutality or

cold-blooded nature’” of a juvenile’s nonhomicide crime,

will sentence him to a life-without-parole sentence for 

which he possesses “ ‘insufficient culpability,’ ” ante, at 27 

(quoting Roper, supra, at 572–573). I find that justification entirely insufficient. The integrity of our criminal

justice system depends on the ability of citizens to stand

between the defendant and an outraged public and dispassionately determine his guilt and the proper amount of

punishment based on the evidence presented. That process necessarily admits of human error. But so does the 

process of judging in which we engage. As between the 

two, I find far more “unacceptable” that this Court,

swayed by studies reflecting the general tendencies of 

youth, decree that the people of this country are not fit to

decide for themselves when the rare case requires different treatment. 

2 

That is especially so because, in the end, the Court does 

not even believe its pronouncements about the juvenile 

mind. If it did, the categorical rule it announces today

would be most peculiar because it leaves intact state and 
24 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

federal laws that permit life-without-parole sentences for 

juveniles who commit homicides. See ante, at 23. The 

Court thus acknowledges that there is nothing inherent in

the psyche of a person less than 18 that prevents him from

acquiring the moral agency necessary to warrant a lifewithout-parole sentence. Instead, the Court rejects overwhelming legislative consensus only on the question of 

which acts are sufficient to demonstrate that moral agency. 

The Court is quite willing to accept that a 17-year-old 

who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry

into society, but insists that a 17-year-old who rapes an 8-

year-old and leaves her for dead does not. See ante, at 17– 

19; cf. ante, at 9 (ROBERTS, C. J., concurring in judgment) 

(describing the crime of life-without-parole offender Milagro Cunningham). Thus, the Court’s conclusion that 

life-without-parole sentences are “grossly disproportionate” for juvenile nonhomicide offenders in fact has very 

little to do with its view of juveniles, and much more to do 

with its perception that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Ante, at 18. 

That the Court is willing to impose such an exacting 

constraint on democratic sentencing choices based on such

an untestable philosophical conclusion is remarkable. The 

question of what acts are “deserving” 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 true that the Court previously has relied on the notion of proportionality in holding 

certain classes of offenses categorically exempt from capital punishment. See supra, at 4. But never before today

has the Court relied on its own view of just deserts to

impose a categorical limit on the imposition of a lesser 

punishment. Its willingness to cross that well-established 
Cite as: 560 U. S. ____ (2010) 25 

THOMAS, J., dissenting 

boundary raises the question whether any democratic 

choice regarding appropriate punishment is safe from the

Court’s ever-expanding constitutional veto. 

IV 

Although the concurrence avoids the problems associated with expanding categorical proportionality review to 

noncapital cases, it employs noncapital proportionality 

analysis in a way that raises the same fundamental concern. Although I do not believe Solem merits stare decisis 

treatment, Graham’s claim cannot prevail even under that

test (as it has been limited by the Court’s subsequent

precedents). Solem instructs a court first to compare the 

“gravity” of an offender’s conduct to the “harshness of the 

penalty” to determine whether an “inference” of gross 

disproportionality exists. 463 U. S., at 290–291. Only in 

“the rare case” in which such an inference is present

should the court proceed to the “objective” part of 

the inquiry—an intra- and interjurisdictional comparison of the defendant’s sentence with others similarly

situated. Harmelin, 501 U. S., at 1000, 1005 (opinion of 

KENNEDY, J.). 

Under the Court’s precedents, I fail to see how an “inference” of gross disproportionality arises here. The concurrence notes several arguably mitigating facts— 

Graham’s “lack of prior criminal convictions, his youth and 

immaturity, and the difficult circumstances of his upbringing.” Ante, at 7 (ROBERTS, C. J., concurring in judgment).

But the Court previously has upheld a life-without-parole

sentence imposed on a first-time offender who committed a 

nonviolent drug crime. See Harmelin, supra, at 1002– 

1004. Graham’s conviction for an actual violent felony is 

surely more severe than that offense. As for Graham’s 

age, it is true that Roper held juveniles categorically ineligible for capital punishment, but as the concurrence explains, Roper was based on the “explicit conclusion that 
26 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

[juveniles] ‘cannot with reliability be classified among the 

worst offenders’ ”; it did “not establish that juveniles can 

never be eligible for life without parole.” Ante, at 5 

(ROBERTS, C. J., concurring in judgment) (quoting Roper, 

543 U. S., at 569 (emphasis added in opinion of ROBERTS, 

C. J.)). In my view, Roper’s principles are thus not generally applicable outside the capital sentencing context. 

By holding otherwise, the 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. The concurrence is quite ready to hand Graham

“the general presumption of diminished culpability” for 

juveniles, ante, at 7, apparently because it believes that 

Graham’s armed burglary and home invasion crimes were

“certainly less serious” than murder or rape, ibid. It 

recoils only from the prospect that the Court would extend 

the same presumption to a juvenile who commits a sex 

crime. See ante, at 10. I simply cannot accept that these

subjective judgments of proportionality are ones the

Eighth Amendment authorizes us to make. 

The “objective” elements of the Solem test provide no

additional support for the concurrence’s conclusion. The 

concurrence compares Graham’s sentence to “similar” 

sentences in Florida and concludes that Graham’s sentence was “far more severe.” Ante, at 8 (ROBERTS, C. J, 

concurring in judgment). But strangely, the concurrence 

uses average sentences for burglary or robbery offenses as

examples of “similar” offenses, even though it seems that a 

run-of-the-mill burglary or robbery is not at all similar to 

Graham’s criminal history, which includes a charge for 

armed burglary with assault, 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 with assault in 

other jurisdictions, see ante, at 8–9, this hardly seems 

relevant if one takes seriously the principle that “‘[a]bsent 
Cite as: 560 U. S. ____ (2010) 27 

THOMAS, J., dissenting 

a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear 

the distinction of treating particular offenders more severely than any other State.’” Harmelin, supra, at 1000 

(opinion of KENNEDY, J.) (quoting Rummel, 445 U. S., at 

282; emphasis added). Applying Solem, the Court has 

upheld a 25-years-to-life sentence for theft under California’s recidivist statute, despite the fact that the State and 

its amici could cite only “a single instance of a similar 

sentence imposed outside the context of California’s three 

strikes law, out of a prison population [then] approaching 

two million individuals.” Ewing, 538 U. S., at 47 (BREYER, 

J., dissenting). It has also upheld a life-without-parole

sentence for a first-time drug offender in Michigan 

charged with possessing 672 grams of cocaine despite the 

fact that only one other State would have authorized such

a stiff penalty for a first-time drug offense, and even that 

State required a far greater quantity of cocaine (10 kilograms) to trigger the penalty. See Harmelin, supra, at 

1026 (White, J., dissenting). Graham’s sentence is certainly less rare than the sentences upheld in these cases,

so his claim fails even under Solem. 

* * * 

Both the Court and the concurrence claim their decisions to be narrow ones, but both invite a host of linedrawing problems to which courts must seek answers 

beyond the strictures of the Constitution. The Court holds 

that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide

crime,” but must provide the offender with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Ante, at 24. But 

what, exactly, does such a “meaningful” opportunity entail? When must it occur? And what Eighth Amendment 

principles will govern review by the parole boards the 
28 GRAHAM v. FLORIDA 

THOMAS, J., dissenting 

Court now demands that States 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 lifewithout-parole sentence ‘fits’ the crime at issue here or the 

crimes of juvenile nonhomicide offenders more generally, 

but to whom the Constitution assigns that decision. The 

Florida Legislature has concluded that such sentences

should be available for persons under 18 who commit

certain crimes, and the trial judge in this case decided to

impose that legislatively authorized sentence here. Because a life-without-parole prison sentence is not a “cruel 

and unusual” method of punishment under any standard, 

the Eighth Amendment gives this Court no authority to 

reject those judgments.

It would be unjustifiable for the Court to declare otherwise even if it could claim that a bare majority of state laws 

supported its independent moral view. The fact that the 

Court categorically prohibits life-without-parole sentences 

for juvenile nonhomicide offenders in the face of an overwhelming legislative majority in favor of leaving that sentencing option available under certain cases simply illustrates how far beyond any cognizable constitutional 

—————— 

12 It bears noting that Colorado, one of the five States that prohibit 

life-without-parole sentences for juvenile nonhomicide offenders, 

permits such offenders to be sentenced to mandatory terms of imprisonment for up to 40 years. Colo. Rev. Stat. §18–1.3–401(4)(b) (2009). 

In light of the volume of state and federal legislation that presently 

permits life-without-parole sentences for juvenile nonhomicide offenders, it would be impossible to argue that there is any objective evidence 

of agreement that a juvenile is constitutionally entitled to a parole

hearing any sooner than 40 years after conviction. See Tr. of Oral Arg.

6–7 (counsel for Graham, stating that, “[o]ur position is that it should

be left up to the States to decide. We think that the . . . Colorado 

provision would probably be constitutional”). 
Cite as: 560 U. S. ____ (2010) 29 

THOMAS, J., dissenting 

principle the Court has reached to ensure that its own

sense of morality and retributive justice pre-empts that of 

the people and their representatives.

I agree with JUSTICE STEVENS that “[w]e learn, sometimes, from our mistakes.” Ante, at 1 (concurring opinion).

Perhaps one day the Court will learn from this one.

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–7412 

TERRANCE JAMAR GRAHAM, PETITIONER v.

FLORIDA 

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL 

OF FLORIDA, FIRST DISTRICT 

[May 17, 2010] 

JUSTICE ALITO, dissenting. 

I join Parts I and III of JUSTICE THOMAS’s dissenting 

opinion. I write separately to make two points. 

First, the Court holds only that “for a juvenile offender 

who did not commit homicide the Eighth Amendment 

forbids the sentence of life without parole.” Ante, at 23–24 

(emphasis added). Nothing in the Court’s opinion affects 

the imposition of a sentence to a term of years without the

possibility of parole. Indeed, petitioner conceded at oral

argument that a sentence of as much as 40 years without 

the possibility of parole “probably” would be constitutional. Tr. of Oral Arg. 6–7; see also ante, at 28, n. 12 

(THOMAS, J., dissenting). 

Second, the question whether petitioner’s sentence

violates the narrow, as-applied proportionality principle

that applies to noncapital sentences is not properly before 

us in this case. Although petitioner asserted an as-applied 

proportionality challenge to his sentence before the Florida courts, see 982 So. 2d 43, 51–53 (Fla. App. 2008), he

did not include an as-applied claim in his petition for 

certiorari or in his merits briefs before this Court. Instead, petitioner argued for only a categorical rule banning 

the imposition of life without parole on any juvenile convicted of a nonhomicide offense. Because petitioner abandoned his as-applied claim, I would not reach that issue. 
2 GRAHAM v. FLORIDA 

ALITO, J., dissenting 

See this Court’s Rule 14.1(a); Yee v. Escondido, 503 U. S. 

519, 534–538 (1992).