The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment.

Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a 5-4 majority, the Court declared the practice of sentencing juveniles to life without parole for nonhomicide crimes categorically unconstitutional under the Eighth Amendment's Cruel and Unusual Punishment Clause. Chief Justice Roberts was the lone crossover vote; he agreed that the sentence in Graham's particular case violated the Eighth Amendment, but was unwilling to declare such sentences categorically unconstitutional. Otherwise, the case was split along the traditional ideological lines, with Justice Kennedy playing his usual role as the swing vote. What makes the result in this case unusual is that the Court seems to have made a significant break from its past jurisprudence on sentencing. In fact, Graham may have completely altered the landscape of the Court's Eighth Amendment jurisprudence. While the old approach was summed up by the adage "death is different," the new approach may be that "kids are different." In addition, the Court may have exposed itself to a whole host of difficult sentencing issues down the line.

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place.

In 1972, in Furman v. Georgia, the Supreme Court deemed it "incontestable" that a death sentence is cruel and unusual if inflicted "by reason of [the defendant's] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

Over the last decade, the most important events in American death penalty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s.

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes because the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since.