Expanding Graham

In the other criminal justice opinion issued by SCOTUS today, a 6-3 court held in  Graham v. Florida that life without parole for juveniles convicted of non-homicide crimes violates the Constitution’s ban on Cruel and Unusual Punishments.  The decision is a beautiful thing, for sure. Combined with Roper, the Supreme Court has now categorically banned the death penalty for juveniles and LWOP for those juveniles convicted of non-homicide crimes.
This, however, has left a gap in the juvenile jurisprudence, one that is sure to be addressed sooner rather than later. What of LWOP for those juveniles who have committed some sort of homicide?
I believe the issue is ripe for pickin’ and there may be enough votes on the Court to hold that such a sentence would violate the Eighth Amendment.
Consider the following quotes. First, the Court sets up the framework under which this claim is to be analyzed:

The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence. The approach in cases such as Harmelin and Ewing is suited for considering a gross proportionality challenge to a particular defendant’s sentence, but here a sentencing practice itself is in question. This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes. As a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advance the analysis. Here, in addressing the question presented, the appropriate analysis is the one used in cases that involved the categorical approach, specifically Atkins, Roper, and Kennedy.

Shunning the case-by-case approach in favor of the “bright line” approach is a trend on the Court and certainly works in favor of those arguing that LWOP for all juveniles is cruel and unusual.

In accordance with the constitutional design, “the task of interpreting the Eighth Amendment remains our responsibility.” Roper, 543 U. S., at 575. The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. Id., at 568; Kennedy, supra, at ___ (slip op., at 27–28); cf. Solem, 463 U. S., at 292. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. Kennedy, supra, at ___ (slip op., at 30–36); Roper, supra, at 571–572; Atkins, supra, at 318–320.

The Court then goes through all the research and data relied on in Roper on the mental development of juveniles to support its holding that LWOP serves no penological purpose for this category of defendants:

because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. 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 characteristics mean that “[i]t is difficult even for expert psychologists 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 responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).

Then the court ties together two threads: 1) that offenders who do not kill are categorically less deserving of the most serious punishments and 2) that LWOP is the second most serious punishment permissible. Thus, it concludes, juveniles who do not kill and are sentenced to LWOP have a “twice diminished moral culpability”.
The Court recognizes the fact that for juveniles – who have a diminished moral culpability – a sentence of LWOP is a death sentence and is unfair as it categorically denies them the opportunity to be rehabilitated and to atone for their mistakes and to prove that they are worthy of being given an opportunity to reintegrate into and contribute to society:

A sentence of life imprisonment without parole, how-ever, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community,the State makes an irrevocable judgment about that per-son’s value and place in society. This judgment is not appropriate in light of a juvenile non homicide offender’s capacity for change and limited moral culpability.

Which, if any, of the foregoing quotes excerpting the Court’s reasoning would be inapplicable to juveniles who have committed homicides? Certainly, I don’t disagree that it would be a tougher sell, but given the various rehabilitative and psychological factors underpinning the basis for the Court’s decision, one can make a strong legitimate argument that LWOP for all juveniles violates the Eighth Amendment ban on cruel and unusual punishments [and I'm not the only one to notice this potential]. The converse of that argument – that juveniles who kill are just incorrigible enough and irredeemable enough to warrant spending the rest of their natural lives in jail despite their particular characteristics and the development of their brains – doesn’t hold water, especially when viewed in light of the quote above.
Excited as I am by this historic decision, the potential for application of Graham to all juveniles has me doubly excited. Are you?
A Connecticut aside: the issue of whether LWOP for juveniles who commit a capital felony is cruel and unusual was considered and rejected by the Connecticut Supreme Court in post-Roper, pre-Graham 2008:
The defendant contends that the sociological and physiological evidence on which Roper relied, which demonstrates that persons under the age of eighteen differ from adults in terms of their culpability and moral responsibility,  necessarily dictates a similar result because a life sentence without the possibility of release excludes the possibility of rehabilitation, the main objective for juvenile offenders. We disagree.
Maybe then, but perhaps no longer? Quoth Justice Stevens:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete…Standards of decency have evolved since 1980. They will never stop doing so.

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