June 27, 2012
Fault Lines in the Eighth Amendment
The Supreme Court on Monday ruled that a mandatory term of life imprisonment without the possibility of parole for juveniles convicted of murder violated the Eighth Amendment. The ruling, Miller v. Alabama, leaves open the option of discretionary life without parole for juveniles, even as it rules out mandatory life without parole. In other words, the ruling means that judges and juries must consider mitigating factors, including the offender's youth, before sentencing a minor to life imprisonment without parole.
Justice Kagan wrote the majority opinion for herself and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito. (Justices Thomas and Alito each wrote their own concurrences, both joined by Justice Scalia only.)
The 5-4 split on the Court reveals (again) two important fault lines in Eighth Amendment jurisprudence that will undoubtedly affect future rulings. First, the Court split sharply over how to read prior Eighth Amendment precedents--and whether those cases reflect a difference based on youth (the majority position) or a difference based on sentences and crimes (the principal dissent's position). Thus, Justice Kagan wrote for the majority that two strands of precedent--one involving youth, the other involving mandatory death sentence--converged to drive the result here. Justice Kagan wrote that the first strand--including Roper (holding that the Eighth Amendment bars capital punishment for children) and Graham (holding that the Eighth Amendment bars life without parole for a nonhomicide offense for children)--turned on the principal characteristic of the offender--youth. She wrote that the second strand--Woodson (prohibiting a mandatory death sentence, without consideration of characteristics of a defendant and details of the offense)--said that legislatures can't impose death rigidly, without allowing for a consideration of important defendant characteristics (like youth). Justice Kagan wrote that these strands, taken together, say that courts must be able to take into account a defendant's youth before imposing a permanent sentence like life without parole. In other words, youth is at the intersection of these strands.
On the other side, Chief Justice Roberts wrote that these cases really turn on the nature of the underlying sentences and crimes, not youth. Chief Justice Roberts wrote that Roper turned on the unique feature of a death sentence--the ultimate permanence--and the idea that death is different. ("[M]ore importantly," he wrote, "Roper reasoned that the death penalty was not needed to deter juvenile murderers in part because 'life imprisonment without the possibility of parole' was available." Dissent at 8, quoting Roper.) He wrote that Graham turned on the difference between homicide and other serious violent offenses. Chief Justice Roberts recognized that youth matters, but, in contrast to Justice Kagan, he argued that the prior cases turned not on youth, but on sentences and crimes.
With five Justices understanding the cases to turn on youth--and now with this case solidifying that understanding, and with increasing scientific evidence supporting the youth-are-different approach--we can expect future Eighth Amendment cases and challenges involving youth to also turn principally on youth.
Second, the Court split sharply over how to understand and interpret "evolving standards of decency," "objective indicia of society's standard," and a "consensus again" a sentencing standard--that is, the standards that the Court uses in measuring whether a sentence is "cruel and unusual" in violation of the Eighth Amendment. Justice Kagan wrote that 29 jurisdictions (28 states plus the federal government) have mandatory-life-without-parole for juveniles. This is a majority, to be sure, but other features of those laws mean that not all juveniles prosecuted for murder will necessarily receive mandatory life without parole. And in any event, this is 10 fewer jurisdictions than the number that imposed life-without-parole overturned in Graham. Justice Kagan says that the Court is therefore breaking no new ground in counting jurisdictions this way to determine whether a sentence is "cruel and unusual."
Chief Justice Roberts countered that life-without-parole has become more and more common in the past 25 years--reflecting an "evolving standard of decency"--and that in any event, "the number of mandatory life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is over 5,000 times higher than the corresponding number in Graham." Dissent at 4. Moreover, he argues that the majority's approach puts the Court on the road to overturning even discretionary life-without-parole sentences (as those become less and less frequent, thus reflecting a new practice)--or, for that matter (as Justice Alito adds, in his own dissent), to overturning any sentence that the Court's majority feels is out of line with practice.
With five Justices understanding "evolving standards," "objective indicia," and "consensus" as measured as Justice Kagan did (and not as Chief Justice Roberts would), a majority has clearly ruled out the minority's stricter, more narrow approach to determining "consensus." We can expect future Eighth Amendment challenges to look somewhat more broadly at state and federal legislative practice to discern any "consensus."
In all, with this majority's read of Roper and Graham and Woodson, and with this majority's understanding of "evolving standards," "objective indicia," and "consensus," the Court--even if by a bare majority--now seems set firmly on a trajectory that considers youth first (and not the sentence or the crime first) and understands "consensus" more broadly (and not so rigidily, just counting jurisdictions or sentences).
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