Using Roper‘s focus on age in post-Booker sentencings

The Supreme Court’s ruling in Roper (basics here and here) includes much interesting discussion of the “diminished culpability of juveniles” and the “mitigating force of youth,” due in part to the “immaturity” and “vulnerability” of juveniles. Though much is said in all the Roper opinions about what this should mean for purposes of the death penalty, my Booker-oriented mind has me thinking about what this should mean for non-capital sentencing.

Of course, “death is different” and rarely does capital sentencing jurisprudence impact non-capital sentencing decision-making (even though I think it should).  Nevertheless, if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders’ “immaturity” and “vulnerability” and the general “mitigating force of youth,” shouldn’t these same realities and concerns come to bear in at least some non-capital sentencing cases?

The US Sentencing Guidelines have long declared age a “discouraged” sentencing factor, though post-Booker we have seen a few judges question whether that determination jibes with the commands of 3553(a).  In my view, Roper adds significant force to an argument that age must (or at least should) be a significant consideration in some non-capital sentencing decisions.