12.9 Cruel and Unusual Punishment

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

12.9 CRUEL AND UNUSUAL PUNISHMENT

The Eighth Amendment, as applied to the states by the Fourteenth Amendment, ²⁷² prohibits infliction of cruel and unusual punishment. Historically, the prohibition reached only torturous and barbarous punishment, ²⁷³ but it has been expanded in recent years to include punishment disproportionate to the offense. ²⁷⁴ In addition, the United States Supreme Court has ruled that the Eighth Amendment proscription against cruel and unusual punishment prohibits imposing the death penalty for crimes committed when the offender is under age 18. ²⁷⁵

In Miller v. Alabama, ²⁷⁶ the United States Supreme Court held that mandatory life imprisonment without parole for offenders who were under the age of 18 when their crimes were committed violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Court found that "children are constitutionally different from adults for sentencing purposes" because they have diminished culpability and greater prospects for reform. While the Court had previously held that life imprisonment of juveniles without parole for non-homicide offenses constituted cruel and unusual punishment, ²⁷⁷ the Miller decision, in considering two instances involving 14-year-old youths, expanded that position to cover convictions for murder. However, the Court did not categorically prohibit a sentencing scheme that might result in a life sentence without parole for a juvenile convicted of homicide if the sentencing authority takes into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

In Montgomery v. Louisiana, ²⁷⁸ the United States Supreme Court held that Miller v. Alabama's prohibition of mandatory life sentences without

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parole for juvenile offenders announced a new substantive rule that, under the United States Constitution, is retroactive in cases on state collateral review. In Malvo v. Mathena, ²⁷⁹ a case in which the petitioner was 17 at the time of his crimes, a federal district court applied the Miller ruling retroactively, vacated the petitioner's Virginia sentences, and remanded the cases to the state trial courts for sentencing. This ruling will likely be appealed by the government.

In Angel v. Commonwealth, ²⁸⁰ the Virginia Supreme Court ruled that a juvenile sentenced to three life terms for a non-homicide offense is distinguishable from the holding of Graham v. Florida because section 53.1-40.01 of...