JO’C called our attention to a citation to the UCMJ in Justice Thomas’s Graham dissent.  Graham v. Florida, __ U.S. ___, No. 08-7412 (May 17, 2010) (Thomas, J., dissenting).  In a portion of his dissent joined by Justices Scalia and Alito, Justice Thomas observed that “the Federal Government, . . . 37 States, and the District [of Columbia] authorize life-without-parole sentences for certain nonhomicide offenses, and authorize the imposition of such sentences on persons under 18.”  Id., slip op. at 11.  He notes that “[o]nlyfive States prohibit juvenile offenders from receiving a life-without-parole sentence that could be imposed on an adult convicted of the same crime.”  Id., slip. op. at 11-12.  He concludes, “No plausible claim of a consensus against this sentencing practice can be made in light of this overwhelming legislative evidence.”   Id., slip op. at 12.  After noting the primacy of “federal civilian law” in assessing the presence of absence of a national consensus, Justice Thomas observes in a footnote:

Although the Court previously has dismissed the relevance of the Uniform Code of Military Justice to its discernment of consensus, see Kennedy v. Louisiana, 554 U. S. ___, ___ (2008) (statement of KENNEDY,J., respecting denial of rehearing), juveniles who enlist in the military are nonetheless eligible for life-without-parole sentences if they commit certain nonhomicide crimes. See 10 U. S. C. §§505(a) (permitting enlistment at age 17), 856a, 920 (2006 ed., Supp. II).

Id., slip op. at 12 n.7.

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