Miller’s Unanswered Questions and the Future of the Eighth Amendment

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Since it was handed down late last month, the Supreme Court’s decision in Miller v. Alabama has deservedly received much attention from lawyers and nonlawyers alike.  The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to mandatory terms of life imprisonment without parole; “JLWOP” can only be imposed by a judge who has discretion to consider the juvenile’s “youth and attendant circumstances.”  (20)  Miller thus nicely complements the Court’s 2010 decision in Graham v. Florida, in which the Court banned JLWOP for all offenses less severe than homicide.  In Miller, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain procedural requirements are satisfied, that is, only if the sentencing judge considers “youth and attendant circumstances.”

Like GrahamMiller breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole.  In Graham, for the first time in a noncapital case, the Court used the methodology it had developed for determining whether the death penalty could be applied to particular categories of offenders, such as juveniles and the mentally retarded.  Before Graham, it seemed as if there were no meaningful substantive limitations on noncapital sentences.  Similarly, before Miller, there was a well-developed body of Eighth Amendment doctrine regarding the sentencing procedures that had to be followed in capital cases, but no corresponding doctrine for noncapital cases.  Miller suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.

Graham and Miller may lay the foundation for a revolution in the constitutional law of sentencing.  Or maybe not.  It’s too early to say for sure.  Perhaps this Court just has a soft spot for kids (see, for instance, last term’s decision in J.D.B. v. North Carolina.)

In any event, as the revolution or non-revolution plays out, we are likely to see the courts wrestling with many interesting questions raised by Miller.  I’ll highlight a few in the remainder of this post.

Several of the most interesting questions overlap with those raised by Graham.  Between the two decisions, the Court has recognized, but not yet defined, a significant new legal category for Eighth Amendment purposes, the sentence of life without parole.  Both the “life” and the “without parole” parts of the formula present difficulties.  For instance, for a sentence to count as a “life” sentence, must that magic word be pronounced by the judge, or might some terms of years be recognized as the functional equivalent of a life sentence?  When a judge sentences a defendant to 200 years in prison, it is hard to deny that the defendant has effectively gotten life, but what about 100 years or 80 years or 50 years?  Does the answer depend on the defendant’s age and/or state of health at the time of sentencing?  If so, how exactly are those factored in?  (Coincidentally, earlier this week, the Seventh Court raised, but did not clearly answer, some interesting questions about the use of actuarial life expectancy tables at sentencing.)

Likewise, what does “without parole” mean?  Is it enough for a state simply to have on the books a prison-release mechanism that is called “parole,” or must the mechanism actually function in certain ways?  California is notorious for its phony “life with parole” sentence; grant rates are extraordinarily low, and the state is at least arguably ignoring its own statutory criteria for release.  There is thus a good case to be made that in the Golden State the sentence of “life with parole” is the functional equivalent of a sentence of “life without parole.”  And, while California may present the most extreme example, many other states have also made parole release significantly harder to obtain since the 1970s.  If courts don’t use a formalistic test for “without parole,” there will likely be some very difficult line-drawing issues.

Miller raises at least one additional question in common with Graham: who, besides juveniles, will benefit?  Based on the Court’s capital sentencing jurisprudence, there is a very strong argument that mentally retarded offenders must be given the same Eighth Amendment protections that are given to juveniles.  There are also respectable arguments that the protections should be extended to offenders who suffer from some types of mental illness that are not quite sufficient to support an insanity defense.  Other categories of potential beneficiaries will no doubt suggest themselves to creative defense counsel — really, anyone whose decisionmaking ability was impaired for any reason at the time of the offense at least has an argument to make.

Indeed, more generally — and we move now away from the shared questions to issues more specific to the procedural protections of Miller – there is an argument that anyone who is not among the “worst of the worst” (the cold-blooded, adult, fully competent killer) has a right under the logic of Miller to present mitigating evidence at sentencing and to have that information considered by the judge before getting life without parole.  This might effectively mean the end of LWOP as a mandatory minimum sentence.

But let’s assume now that the courts don’t go there, and Miller is limited to juveniles.  The Court indicates that, as to them, the sentencing judge must consider “youth and attendant characteristics.”  What are “attendant characteristics” to youth?  Would abusive parents or a dysfunctional family more generally count?  How about socioeconomic disadvantage, which afflicts youth disproportionately to the rest of the population and from which youths cannot normally escape on their own?  How about neighborhood culture, harmful peer influences, or a terrible school?

And what does it mean to “consider” such characteristics?  Here, courts might look to the large body of cases on the question of what it means, in a post-Booker world, to “consider” the sentencing factors set forth in 18 U.S.C. § 3553(a).  But I hope they don’t — those cases are hardly impressive for their analytical rigor or consistency.  Many presume that the sentencing judge “considered” an argument simply because the judge was physically present in the courtroom when the argument was made and the judge technically had discretion to take the argument into account.

An interesting philosophical question lurks behind some of these questions of practical doctrine: what’s the point of a purely procedural requirement like Miller‘s.  Miller himself apparently gets a resentencing, but the judge could very well exercise discretion to give him the same LWOP sentence that was mandatory the first time around.  Of course, such a decision might trigger a new substantive holding by the Supreme Court extending the protections of Graham in one of a number of different ways.  But, until then, sentencing judges remain free to give LWOP to juvenile killers as long they are not required to do so by operation of statute.

Miller is premised on the view that LWOP is rarely, if ever, an appropriate sentence for a juvenile — even one convicted of a homicide offense.  In light of the particular mitigating characteristics that are more-or-less inherent to youth, LWOP is apt to be an unjustified, disproportionately harsh sentence for a juvenile.  Miller thus provides an opportunity for sentencing judges to avoid substantively bad outcomes that would otherwise have been mandatory.

Seen this way, the point of the procedural requirement of Miller is to further a substantive agenda of proportionality in sentencing.  This perspective seems to underly the Court’s closing recapitulation:

By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.  (27, emphasis added)

Procedural rules are commonly thought of in this way: they are good to the extent that they promote substantively better decisions.  But fair process can also be thought of as a form of justice in its own right.  (See, for instance, the influential writings of Tom Tyler on procedural justice.)

This suggests a different perspective on the rule of Miller.  On this view, the real problem with the mandatory sentencing schemes at issue in Miller was that they made the sentencing proceeding, including the defendant’s allocution, an empty ritual.  Since juveniles cannot be executed, the mandatory minimum of LWOP was not really a minimum; it was simply the sentence — the judge could not go above or below it.  In effect, Miller was denied a meaningful right to be heard on his punishment.

There is a parallel issue in the victims’ rights field.  Many victims want to be heard at sentencing, to tell their side of the story — this is said to be cathartic for some and ultimately a basic matter of respecting their dignity.  Some have responded by proposing that victims be given an opportunity to speak only after the sentence is imposed, which addresses concerns that sentences will be inappropriately determined by the immediate, highly emotional responses to victim testimony.  The (perfectly fair) response is that a post-sentencing impact statement seems meaningless; if it can’t affect anything, then it’s not much of a right to be heard.

Mandatory sentences similarly rob defendants (and victims, too, for that matter) of a meaningful opportunity to be heard.  The significance of this deprivation increases as the severity of the sentence increases.  (The same intuition is also embodied in our procedural due process jurisprudence, which recognizes greater fair hearing rights when greater interests are at stake.)  When so severe a sentence as LWOP is at issue, the case seems very strong indeed for providing the defendant with a meaningful opportunity to be heard.

Something of this spirit comes through in the plurality opinion inWoodson v. North Carolina, 428 U.S. 280 (1976), which banned mandatory death sentences and which Miller itself relied on.  Woodson put it this way:

[I]n capital casess the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death.  (304)

The same “fundamental respect for humanity” might similarly be invoked in opposition to mandatory LWOP, and this might be so regardless of the age of the offender.

Cross posted at Life Sentences Blog.

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