State v. Proctor - Kansas Judicial Branch

ecause the punishment of life without parole was unconstitutionally disproportionate as
to Graham alone based on the circumstances of his crime and background. 130 S. Ct. at
2039 (Roberts, C.J., concurring in judgment). Chief Justice Roberts applied a narrow
proportionality test of the sort Justice Kennedy has advanced. 130 S. Ct. at 2039. But he
did not firmly commit himself, acknowledging both the "serious and thoughtful
questions" from some of his colleagues about the propriety of any proportionality review
for prison sentences and the lack of clarity in the Court's jurisprudence addressing the
issue. 130 S. Ct. at 2036-37. Despite his stated reservations, Chief Justice Roberts cited
Solem with favor several times in outlining the applicable legal principles. 130 S. Ct. at
2037-39.
Justice Alito resisted venturing into that issue. Justice Alito viewed the question
before the Court as presenting only a categorical attack on the life sentence and declined
to consider or comment on the as-applied proportionality doctrine. Graham, 130 S. Ct. at
2058 (Alito, J., dissenting). He joined in that portion of Justice Thomas' dissent rejecting
life without parole for juveniles as categorically disproportionate punishment for
noncapital offenses, but he did not subscribe to Justice Thomas' alternative rationale that
proportionality amounts to an illegitimate method of analysis. 130 S. Ct. at 2058.
As noted, Justice Kennedy endeavored to advance his narrow proportionality test
in Graham by citing his own plurality opinion in Harmelin as authoritative and
characterized it as "the controlling opinion" in that case. 130 S. Ct. at 2021-22. But that
appears to overstate the support for narrow proportionality. It has never garnered more
than three votes in any given case. In Harmelin, Justice Souter signed off on that position
only to step back from it in Ewing. And Justice Kennedy's approach "controlled" the
majority judgment only because other justices would not incorporate any form of
proportionality into the Eighth Amendment as applied to sentences of imprisonment.
29