Some follow-up on Graham v. Florida:

Let’s set aside the fact—demonstrated overwhelmingly by Justice Thomas’s dissent—that Justice Kennedy and his four co-conspirators (Justices Stevens, Ginsburg, Breyer, and Sotomayor) are obviously just making it up in holding that it is constitutionally impermissible to sentence a juvenile offender to life in prison without parole for a nonhomicide crime. What rule do they imagine that they have established? What constitutional dimensions, in other words, must the parole process have?

Kennedy’s opinion states (on page 24) that a state “must … give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” and that “[i]t is for the state, in the first instance, to explore the means and mechanisms for compliance.” Gee, that’s helpful.

As Kennedy’s opinion acknowledges (on page 6), Florida law already enables the governor to grant executive clemency to someone serving a life sentence without possibility of parole. Why isn’t that discretion sufficient? Would it be sufficient if the governor issued an executive order stating that he would grant executive clemency to nonhomicide juvenile offenders serving life sentences without parole if they demonstrate to him their “maturity and rehabilitation”? If not, why not? Can anyone seriously maintain that the federal Constitution requires that the parole function be distinct from the governor’s power to grant executive clemency?