{"id":17774,"date":"2012-07-14T14:42:26","date_gmt":"2012-07-14T19:42:26","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17774"},"modified":"2012-07-15T18:12:47","modified_gmt":"2012-07-15T23:12:47","slug":"millers-unanswered-questions-and-the-future-of-the-eighth-amendment","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/07\/millers-unanswered-questions-and-the-future-of-the-eighth-amendment\/","title":{"rendered":"Miller\u2019s Unanswered Questions and the Future of the Eighth Amendment"},"content":{"rendered":"

Since it was handed down late last month, the Supreme Court\u2019s decision in\u00a0Miller v. Alabama\u00a0<\/a><\/em>has deservedly received much attention from lawyers and nonlawyers alike.\u00a0 The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to\u00a0mandatory<\/em>\u00a0terms of life imprisonment without parole; \u201cJLWOP\u201d can only be imposed by a judge who has discretion to consider the juvenile\u2019s \u201cyouth and attendant circumstances.\u201d\u00a0 (20)\u00a0\u00a0Miller\u00a0<\/em>thus nicely complements the Court\u2019s 2010 decision in\u00a0Graham v. Florida<\/em>, in which the Court banned JLWOP for all offenses less severe than homicide.\u00a0 In\u00a0Miller<\/em>, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain\u00a0procedural\u00a0<\/em>requirements are satisfied, that is, only if the sentencing judge considers \u201cyouth and attendant circumstances.\u201d<\/p>\n

Like\u00a0Graham<\/em>,\u00a0Miller\u00a0<\/em>breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole.\u00a0 In\u00a0Graham,\u00a0<\/em>for the first time in a noncapital case, the Court\u00a0used 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.\u00a0 Before\u00a0Graham<\/em>, it seemed as if there were no meaningful\u00a0substantive\u00a0<\/em>limitations on noncapital sentences.\u00a0 Similarly, before\u00a0Miller,\u00a0<\/em>there was a well-developed body of Eighth Amendment doctrine regarding the sentencing\u00a0procedures\u00a0<\/em>that had to be followed in capital cases, but no corresponding doctrine for noncapital cases.\u00a0\u00a0Miller\u00a0<\/em>suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.<\/p>\n

Graham\u00a0<\/em>and\u00a0Miller\u00a0<\/em>may lay the foundation for a revolution in the constitutional law of sentencing.\u00a0 Or maybe not.\u00a0 It\u2019s too early to say for sure.\u00a0 Perhaps this Court just has a soft spot for kids (see, for instance, last term\u2019s decision in\u00a0J.D.B. v. North Carolina<\/a><\/em>.)<\/p>\n

In any event, as the revolution or non-revolution plays out,\u00a0we are likely to see the courts wrestling with many interesting questions raised by\u00a0Miller<\/em>.\u00a0 I\u2019ll highlight a few in the remainder of this post.<\/p>\n

<\/p>\n

Several of the most interesting questions overlap with those raised by\u00a0Graham<\/em>.\u00a0 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.\u00a0 Both the \u201clife\u201d and the \u201cwithout parole\u201d parts of the formula present difficulties.\u00a0 For instance, for a sentence to count as a \u201clife\u201d 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?\u00a0 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?\u00a0 Does the answer depend on the defendant\u2019s age and\/or state of health at the time of sentencing?\u00a0 If so, how\u00a0exactly are those factored in?\u00a0 (Coincidentally, earlier this week,\u00a0the Seventh Court raised, but did not clearly answer<\/a>, some interesting questions about the use of actuarial life expectancy tables at sentencing.)<\/p>\n

Likewise, what does \u201cwithout parole\u201d mean?\u00a0 Is it enough for a state simply to have on the books a prison-release mechanism that is called \u201cparole,\u201d or must the mechanism actually function in certain ways?\u00a0 California is notorious for its phony \u201clife with parole\u201d sentence; grant rates are extraordinarily low, and the state is at least arguably\u00a0ignoring its own statutory criteria for release<\/a>.\u00a0 There is thus a good case to be made that in the Golden State the sentence of \u201clife\u00a0with<\/em>\u00a0parole\u201d is the functional equivalent of a sentence of \u201clife\u00a0without<\/em>\u00a0parole.\u201d\u00a0 And, while California may present the most extreme example, many other states have also made parole release significantly harder to obtain since the 1970s.\u00a0 If courts don\u2019t use a formalistic test for \u201cwithout parole,\u201d there will likely be some very difficult line-drawing issues.<\/p>\n

Miller\u00a0<\/em>raises at least one additional question in common with\u00a0Graham<\/em>: who, besides juveniles, will benefit?\u00a0 Based on the Court\u2019s 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.\u00a0 There are also respectable arguments that the protections should be extended\u00a0to offenders who suffer from some types of mental illness that are not quite sufficient to support an insanity defense.\u00a0 Other categories of potential beneficiaries will no doubt suggest themselves to creative defense counsel \u2014 really, anyone whose decisionmaking ability was impaired for any reason at the time of the offense at least has an argument to make.<\/p>\n

Indeed, more generally \u2014 and we move now away from the shared questions to issues more specific to the procedural protections of\u00a0Miller\u00a0<\/em>\u2013 there is an argument that anyone who is not among the \u201cworst of the worst\u201d (the cold-blooded, adult, fully competent killer) has a right under the logic of\u00a0Miller\u00a0<\/em>to present mitigating evidence at sentencing and to have that information considered by the judge before getting life without parole.\u00a0 This might effectively\u00a0mean the end of LWOP as a\u00a0mandatory minimum sentence.<\/p>\n

But let\u2019s assume now that the courts don\u2019t go\u00a0there,\u00a0<\/em>and\u00a0Miller\u00a0<\/em>is limited to juveniles.\u00a0 The Court indicates that, as to them, the sentencing judge must consider \u201cyouth and attendant characteristics.\u201d\u00a0 What are \u201cattendant characteristics\u201d to youth?\u00a0 Would abusive parents or a\u00a0dysfunctional family more generally count?\u00a0 How about socioeconomic disadvantage, which afflicts youth disproportionately to the rest of the population and from which youths cannot normally escape on their own?\u00a0 How about neighborhood culture, harmful peer influences, or a terrible school?<\/p>\n

And what does it mean to \u201cconsider\u201d such characteristics?\u00a0 Here, courts might look to the\u00a0large body of cases on the question of what it means, in a post-Booker\u00a0<\/em>world, to \u201cconsider\u201d the sentencing factors set forth in 18 U.S.C. \u00a7 3553(a).<\/a>\u00a0 But I hope they don\u2019t \u2014 those cases are hardly impressive for their analytical rigor or consistency.\u00a0 Many presume that the sentencing judge \u201cconsidered\u201d an argument simply because the judge was physically present in the courtroom when the argument was made and the judge\u00a0technically had discretion\u00a0to take the argument into account.<\/p>\n

An interesting philosophical question lurks behind some of these questions of practical doctrine: what\u2019s the point of a purely\u00a0procedural\u00a0<\/em>requirement like\u00a0Miller<\/em>\u2018s.\u00a0 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.\u00a0 Of course, such a decision might trigger a new\u00a0substantive\u00a0<\/em>holding by the Supreme Court extending the protections of\u00a0Graham\u00a0<\/em>in one\u00a0of a number of different ways.\u00a0 But, until then, sentencing judges remain free to give LWOP to juvenile killers as long they are not\u00a0required\u00a0<\/em>to do so by operation of statute.<\/p>\n

Miller\u00a0<\/em>is premised on the view that LWOP is rarely, if ever, an appropriate sentence for a juvenile \u2014 even one convicted of a homicide offense.\u00a0 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.\u00a0\u00a0Miller\u00a0<\/em>thus provides an opportunity for sentencing judges to avoid substantively bad outcomes that would otherwise have been mandatory.<\/p>\n

Seen this way, the point of the procedural requirement of\u00a0Miller\u00a0<\/em>is to further a substantive agenda of proportionality in sentencing.\u00a0 This perspective seems to underly the Court\u2019s closing recapitulation:<\/p>\n

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\u00a0violate this principle of proportionality<\/em>, and so the Eighth Amendment\u2019s ban on cruel and unusual punishment.\u00a0 (27, emphasis added)<\/p><\/blockquote>\n

Procedural rules are commonly thought of in this way: they are good to the extent that they promote substantively better decisions.\u00a0 But\u00a0fair process can also be thought of as a form of justice in its own right.\u00a0 (See, for instance, the\u00a0influential writings of Tom Tyler on procedural justice<\/a>.)<\/p>\n

This suggests a different perspective on the rule of\u00a0Miller<\/em>.\u00a0 On this view, the real problem with the mandatory sentencing schemes at issue in\u00a0Miller\u00a0<\/em>was that they made the sentencing proceeding, including the defendant\u2019s allocution, an empty ritual.\u00a0 Since juveniles cannot be executed, the mandatory minimum of\u00a0LWOP was not really a minimum; it was simply\u00a0the\u00a0<\/em>sentence \u2014 the judge could not go above or below it.\u00a0 In effect, Miller was denied a meaningful right to be heard on his punishment.<\/p>\n

There is a parallel issue in the victims\u2019 rights field.\u00a0 Many victims want to be heard at sentencing, to tell their side of the story \u2014 this is said to be cathartic for some and ultimately a basic matter of respecting their dignity.\u00a0 Some have responded by proposing that victims be given an opportunity to speak only\u00a0after\u00a0<\/em>the sentence is imposed, which addresses concerns that sentences will be\u00a0inappropriately determined\u00a0by the immediate, highly\u00a0emotional responses to victim testimony.\u00a0 The (perfectly fair) response is that a post-sentencing impact statement seems meaningless; if it can\u2019t affect anything, then it\u2019s not much of\u00a0a right to be heard.<\/p>\n

Mandatory sentences similarly rob defendants (and victims, too, for that matter) of a meaningful\u00a0opportunity to be heard.\u00a0 The significance of this deprivation increases as the severity of the sentence increases.\u00a0 (The same intuition is also embodied in our procedural due process jurisprudence, which recognizes greater fair hearing rights when greater interests are at stake.)\u00a0 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.<\/p>\n

Something of this spirit comes through in the plurality opinion inWoodson v. North Carolina<\/em>, 428 U.S. 280 (1976), which banned mandatory death sentences and which\u00a0Miller\u00a0<\/em>itself relied on.\u00a0\u00a0Woodson\u00a0<\/em>put it this way:<\/p>\n

[I]n capital casess the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character\u00a0and 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.\u00a0 (304)<\/p><\/blockquote>\n

The same \u201cfundamental respect for humanity\u201d might similarly be invoked in opposition to mandatory LWOP, and this might be so regardless of the age of the offender.<\/p>\n

Cross posted at Life Sentences Blog.<\/p>\n","protected":false},"excerpt":{"rendered":"

Since it was handed down late last month, the Supreme Court\u2019s decision in\u00a0Miller v. Alabama\u00a0has deservedly received much attention from lawyers and nonlawyers alike.\u00a0 The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to\u00a0mandatory\u00a0terms of life imprisonment without parole; \u201cJLWOP\u201d can only be imposed by a judge who has discretion to […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,122,24],"tags":[],"class_list":["post-17774","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17774","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=17774"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/17774\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=17774"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=17774"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=17774"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}