OPINION OF THE COURT GRAHAM V. FLORIDA 560 U. S. ____ (2010) 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 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.

															   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 bar- ricaded 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 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 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 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
seventeen-year-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 “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 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. 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, 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-of-years 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 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 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 system 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 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.

															   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
offenders 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; Atkin s, supra, at 318–320. Roper established that
because juveniles have lessened 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 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 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
… 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; Atkin s, 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
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 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). 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 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 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.

															   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, 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 cold-blooded 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 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 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 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 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 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 affirming Graham’s conviction
is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.

															It is so ordered.

															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 Columbia

															D. C. Code §16–2307 (2009 Supp. Pamphlet); §22–3020 (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, 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)

															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) ROBERTS, C. J., CONCURRING IN JUDGMENT GRAHAM V. FLORIDA 560 U. S. ____ (2010) 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 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 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 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 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 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. * 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 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 Corrections 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 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 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. *  *  * 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. * 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 categori- cal 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”). 560 U. S. ____ (2010) GRAHAM V. FLORIDA 560 U. S. ____ (2010) 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 the law. Standards of decency have evolved since
1980. They will never stop doing so. THOMAS, J., DISSENTING GRAHAM V. FLORIDA 560 U. S. ____ (2010) 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 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
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
understand- ing 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 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.[ Footnote
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
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 “ ‘objective 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 con- sideration” 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 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 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-without-parole 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 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.[ Footnote 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 thinks clear lines are a good idea, see ante , at 24–25. I 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,”[ Footnote
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 quotation 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.[ Footnote 4 ] See ante , at 33–35
(Appendix to opinion of the Court). Forty-five 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.[ Footnote 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 prohibit juvenile
offenders from receiving a life-without-parole sentence that could
be imposed on an adult convicted of the same crime.[ Footnote 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.[ Footnote 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.[ Footnote
8 ]

															   Moreover, the consistency and direction of
recent leg-islation—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 legislatures
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, pointing out that life-without-parole
sentences are rarely imposed on juvenile nonhomicide offenders—129
times in recent memory[ Footnote
9 ] 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, 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-without-parole 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 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 nonhomicide 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.[ Footnote 10 ]

															   Finally, I cannot help but note that the
statistics the Court finds inadequate to justify the penalty in
this case 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.[ Footnote
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. 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
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 16–24; 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-Course-Persistent 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 Adolescence-Limited
Antisocial Behavior, in Taking Stock: the Status of Criminological
Theory 277, 292–293 (F. Cullen, J. Wright, & K. Blevins eds.
2006) (observing that “life-course persistent” males “tended to
specialize in serious offenses (carrying a hidden weapon, assault,
robbery, violating court orders), whereas adolescence-limited” ones
“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
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 life-without-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
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 compari- son 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 [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
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 line-drawing 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 Court now
demands that States empanel? The Court provides no answers to these
questions, which will no doubt embroil the courts for
years.[ Footnote 12 ]

															V

															   The ultimate question in this
case is not whether a life-without-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 il-lustrates
how far beyond any cognizable constitutional 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. Footnote 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-by-case 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. Footnote 2 Courts 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”). Footnote 3 The 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. Footnote 4 Although 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). Footnote 5 Alaska 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). Footnote 6 Colo. 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). Footnote 7 Although 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). Footnote 8 Kennedy , 554 U. S., at ___ (slip
op., at 12, 23) (prohibiting capital 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”). Footnote 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. Footnote 10 Because 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. Footnote 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-without-parole 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. Footnote 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”). 560 U. S. ____ (2010) GRAHAM V. FLORIDA 560 U. S. ____ (2010) 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. See this Court’s Rule 14.1(a); Yee v. Escondido , 503 U. S. 519 , 534–538
(1992).