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)).
Next, after an enormous amount of legal gobbledygook,
( See, METROPOLITAN LIFE INS. v. GLENN,
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 characteris- tics mean that “[i]t is difficult even for expert psycholo- gists 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 of- fenders.” Id., at 569. A juvenile is not absolved of respon- sibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).
Next Justice Kennedy makes this startling conclusion: 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.). (Rumpole says: Duh!)
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 disproportion- ate sentences be a nullity.
And finally, just because he can, and because he couldn't get Scalia's vote anyway, Justice Kennedy threw in a paragraph about the sentencing practices of other countries:
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...The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual... 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.
Justice Stevens in his concurrence was biting in his criticism of Justice Thomas's dissent:
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.
NEXT : Thomas: The great and silent dissenter.