State v. Proctor - Kansas Judicial Branch

Justice Kennedy's concept of proportionality set out in Harmelin reflects the
narrowest ground supporting the judgment there and in Ewing and, thus, may be
considered controlling in that limited sense. See Marks v. United States, 430 U.S. 188,
193-94, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (When no rationale commands five votes,
the holding may be considered "'that position taken by those [justices] who concurred in
the judgment[] on the narrowest ground.'"). Whether Justice Kennedy's position should
be treated as binding authority is a matter of debate. The Marks approach presupposes the
positions of the justices in the majority are compatible insofar as they recognize a
common right or mode of analysis but disagree as to scope. 430 U.S. at 194 (When two
justices would afford broad First Amendment protection to pornographic literature and
would reverse a finding that a given book was legally obscene and three other justices
adopted a more limited protection but would also reverse the judgment, the plurality of
three reflects the controlling decision of the Court on the narrowest ground.). That cannot
be said of the judgments in either Harmelin or Ewing, since two justices essential to the
majority would reject any form of proportionality analysis, including the limited one
Justice Kennedy espouses. See Nichols v. United States, 511 U.S. 738, 745-46, 114 S. Ct.
1921, 128 L. Ed. 2d 745 (1994) (application of Marks to some divided decisions may
prove difficult when a "lowest common denominator" is not readily apparent; resulting
confusion of that sort suggests "a reason for reexamining" the substantive issue); United
States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (Marks inapplicable
when plurality and concurring opinions "take distinct approaches" or "the various
opinions supporting the Court's decision are mutually exclusive"); United States v. Alcan
Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003).
At the close of its 2011 term, the United States Supreme Court issued a decision
holding mandatory sentences of life without parole imposed on juveniles committing
murder to be constitutionally cruel and unusual punishment. Miller v. Alabama, 567 U.S.
___, ___ S. Ct. ___, ___ L. Ed. 2d ___, 2012 WL 2368659 (2012). The decision
effectively expanded the principal rationale of Graham—that juveniles as a class are less
30