State v. Proctor - Kansas Judicial Branch

two justices who would find the death penalty unconstitutional in every instance).
Expanding on that authority, the United States Supreme Court recently upheld a
categorical challenge to the imposition of life sentences without the possibility of parole
on juvenile offenders found to have committed offenses other than homicide. Graham v.
Florida, 560 U.S. ___, 130 S. Ct. 2011, 2034, 176 L. Ed. 2d 825 (2010).
By contrast, a case-specific challenge contends the imposition of a given sentence,
typically incarceration for a term of years or life, is grossly disproportionate to the
circumstances of a particular criminal incident and offender and, therefore, violates the
prohibition on cruel and unusual punishment. That sort of proportionality attack depends
upon the facts of a given case and directly affects only the particular defendant. See
Graham, 130 S. Ct. at 2021-22.
Proctor does not assert a categorical challenge and relies solely on the
disproportionality of lifetime postrelease supervision as it might affect him based on the
circumstances of this case. The criteria for establishing categorical unconstitutionality
arguably are more rigorous than those for demonstrating disproportionality of a
punishment in a particular instance. See Graham, 130 S. Ct. at 2023 (categorical
challenge bottomed on "objective indicia of national consensus"); Roper, 543 U.S. at
602-03 (O'Connor, J., dissenting) (evidence fails to support categorical challenge to
execution of juveniles, but capital punishment might be unconstitutional in given cases).
We, therefore, neither consider nor decide the constitutionality of lifetime postrelease
supervision outlined in the Kansas statutes as a category of punishment or as it might be
applied to anyone other than Proctor. We also note that, in the main, cases addressing the
death penalty as cruel and unusual punishment have little direct relevance here. The
courts have consistently acknowledged death to be materially different from any
punishment based on incarceration, whatever its duration, and have generally discounted
capital cases as inapposite in deciding other Eighth Amendment issues. Solem v. Helm,
463 U.S. 277, 294, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Rummel v. Estelle, 445 U.S.
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