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May Minors Be Retributively Punished after Panetti (and Graham)?

5 Pages Posted: 24 Jul 2010 Last revised: 22 Sep 2010

Dan Markel

Florida State University College of Law (Deceased)


In this brief essay, I try to draw some connections between the Supreme Court’s recent decision in Graham v. Florida and its reasoning in a significant but not yet sufficiently appreciated 2007 decision in Panetti v. Quarterman. Specifically, I will argue that the outcome in Graham coheres startlingly well with the reasoning in Panetti, a case prohibiting the execution of a defendant who was deemed presently incompetent. These connections are present, I believe, but the Court still seems unaware of them; the best evidence of this conclusion is that Graham nowhere cites Panetti for support.

From the standpoint of a humane and compelling conception of retributive justice, this omission is lamentable. Once Graham is properly understood in light of Panetti, along with the Court’s other precedents, the grounds for an unsettling conclusion take root: specifically, that the Eighth Amendment likely forbids state-imposed retributive punishment against minors. To be sure, Graham doesn’t say anything like that. Indeed, I want to emphasize that the inferences I draw for capital and noncapital punishment are not stripped from the face of the Panetti opinion. Instead, they are predicated upon the ratio decidendi of the case - the rationale that makes the best sense of the holding in this otherwise potentially obscure Supreme Court opinion. Thus, what I hope to show is that Graham, like Roper and Atkins, is a case whose holding is evidence of a rationale I think is implicit in and compelled by the logic embraced by the Court in Panetti. That rationale would, I believe, require the further conclusion that minors are not fit objects for the state’s blaming practices associated with retributive punishment.

Depriving the state of its authority to punish minors in the name of retribution does not entail that crime by youth must be left unheeded, but rather that the approach must be one combining rehabilitation with other methods of social self-defense against the specific threat posed by that juvenile offender. What’s precluded, in other words, is the condemnatory rebuke associated with retributive justice properly conceived and implemented.

This paper draws on claims developed more clearly and at length in a previous article of mine: Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 Nw U. L Rev. 1163 (2009), available on my SSRN page. This particular paper is part of an upcoming colloquium reflecting on Graham and the Eighth Amendment in the Federal Sentencing Reporter. Other contributors include Alice Ristroph, Eva Nilsen, Richard Frase, John Stinneford, Rachel Barkow, David Gray, and Youngjae Lee. Kudos to Michael O'Hear for putting this conversation together.

Keywords: juvenile justice, retributive justice, punishment, Eighth Amendment

Suggested Citation

Markel, Dan, May Minors Be Retributively Punished after Panetti (and Graham)?. Federal Sentencing Reporter, Vol. 23, No. 62, 2010; FSU College of Law, Public Law Research Paper No. 471. Available at SSRN:

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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