Eighth Amendment differentness.

• Author: Berry, III, William W.
• Position: Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. INTRODUCTION

   Be an opener of doors.

   --Ralph Waldo Emerson (1)

   In March 2013, I had the privilege of participating in a symposium at the University of Missouri School of Law that addressed the question of whether the United States Supreme Court's recent decision in Miller v. Alabama was a "bombshell" or a "baby step." (2) As discussed below, Miller held that the Eighth Amendment barred the use of mandatory juvenile life-without-parole (LWOP) sentences. (3)

   As the fifth case in a decade to expand the scope of the Eighth Amendment (4) and the second to broaden its application to juvenile LWOP, (5) Miller certainly may be no more than another incremental step within a broader line of cases. (6) On the other hand, Miller suggests a number of possible avenues for broadening the Eighth Amendment. And the need to expand the Eighth Amendment has not diminished with the Court's work over the past decade. (7) In an age of penal populism, the United States remains an outlier, arguably in the history of the world, in its use of mass incarceration of criminal offenders. (8)

   Contrary to Professor Frank Bowman's claim, the Court's recent Eighth Amendment cases are not a judicial revolution seeking to curb the power of legislatures. (9) Rather, the Supreme Court's expansion of the Eighth Amendment, as Judge Nancy Gertner suggests, simply restores an absent Court to its proper role of policing legislative overreaching. (10) Prior to its 2002 decision in Atkins v. Virginia, the Supreme Court largely abdicated its role of protecting the rights of individuals against the majoritarian legislative enactments that have resulted in the United States' position as an outlier in the world in its use of severe punishments. (11) The failure to abolish capital punishment, (12) the proliferation of mandatory minimum sentences, (13) the expansive use of LWOP sentences, (14) and the mass incarceration of criminal offenders (15) render the United States unique among Western nations in its harsh approach to criminal sentencing. (16)

   Given this reality, this Article does not seek to offer a prediction as to what Miller will mean, as others in the symposium have done quite well. (17) Instead, the Article explores what Miller can mean. In doing so, the Article highlights different avenues for extending Miller such that it can become a bombshell over time, albeit by offering potential baby steps to theorists and litigators alike. (18)

   This contribution, then, illuminates the potential doctrinal and theoretical consequences of the Miller decision within the broader context of the Supreme Court's Eighth Amendment jurisprudence. Without arguing for one normative outcome over the other and recognizing that the Court's work in this area has been largely incremental, this Article offers an intellectual road map that develops many of the arguments for broadening the Eighth Amendment made more plausible after the Miller decision.

   At the heart of this exploration is the concept that "juveniles are different." (19) Specifically, this Article argues that there are two distinct meanings of this conceptualization: (1) that juveniles are unique as offenders, and (2) that juvenile LWOP is a unique punishment. While certainly not mutually exclusive, each interpretation offers its own set of consequences and paths to pursue in challenging criminal sentences under the Eighth Amendment.

   Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court's Eighth Amendment jurisprudence. Part III describes the Court's "different" jurisprudence, linking the concept of "juveniles are different" to the Court's longstanding view that "death is different." (20) In Part IV, the Article demonstrates how the two possible interpretations of the Court's statement in Miller that "juveniles are different" --as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness--create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, Parts V and VI explore the potential theoretical and doctrinal consequences of each of those understandings.

2. CONSTITUTIONAL UNDERPINNINGS

   Before investigating the possible directions for doctrinal expansion of the Eighth Amendment, it is important to explore its broader constitutional underpinnings. The force and persuasiveness of each of the potential approaches outlined below rests, in part, on their respective abilities to capture the theoretical constructs of the Eighth Amendment developed by the Supreme Court.

   1. Defining "Cruel and Unusual"

      1. The Text

         It has long been within the purview of the Court to define what the language of the Constitution means, as well as its scope. (21) In theory, this allows the Court to protect the interests of the minority--those who are subject to punishment by the State--against overreaching by the legislature in the form of cruel and unusual punishments. (22)

         Cruel punishments are ones that are excessive in light of the offense. (23) This can occur in two senses. First, a punishment becomes cruel when it causes an unwarranted amount of physical pain and suffering. (24) A second related way that a punishment becomes cruel is when its imposition results in a deprivation of life or liberty incongruent with the conduct of the offender. (25) Unusual punishments, by contrast, are those that states rarely impose. (26) What makes a punishment unusual, then, is its uncommonness or rarity. (27) And this rarity is the very thing that calls it into question under the Constitution. (28)

         These basic definitions of cruel and unusual remain largely uncontested. There remains ambiguity, however, surrounding which of the multiple possible meanings of the conjunction "and" apply. (29) One possible reading is the conjunctive one, in which a punishment must be both cruel and unusual to violate the Eighth Amendment. (30) Another reading is the disjunctive one, where the Amendment would prohibit cruel punishments and unusual punishments. (31) Finally, a third reading would group the two concepts collectively, such that a "cruel and unusual" punishment is a singular idea. (32) This reading combines the ideas because cruel punishments are by their nature unusual, and unusual punishments are, by their nature, cruel. (33)

         As with most constitutional provisions, the Court must next decide what its frame of reference for interpretation should be. Two schools of interpretation --originalism and living constitutionalism--have dominated this discussion in recent years. (34) The next two sections consider the implications of these approaches for interpreting the Eighth Amendment.

      2. The Originalists

         The most obvious originalist approach to the Eighth Amendment, which Justice Antonin Scalia has advocated, (35) restricts the definition of cruel and unusual punishments to those punishments proscribed at the time of the adoption of the Constitution. (36) Such an approach would mean that capital punishment in particular creates no Eighth Amendment issue because state governments commonly used that punishment in 1787. (37) As Justice Scalia and others have argued, under this approach only punishments involving infliction of torture or some similar brutality would infringe upon the prohibition against cruel and unusual punishments. (38)

         In recent years, however, Professor John Stinneford and others have called this originalist view into question based on historical research. (39) Professor Stinneford claims that the original meaning of the Eighth Amendment contemplated adjustment over time as a one-way expanding ratchet that would prohibit certain punishments based on increased societal understanding that a particular punishment is cruel and unusual. (40) Further, Professor Stinneford has suggested that implicit in this understanding is the concept of proportionality. (41) In other words, a punishment that, under modern standards, is excessive with respect to the culpability of the offender and the harm caused by the criminal act violates the Eighth Amendment. (42)

         Ironically, under either approach to the original meaning of the Eighth Amendment, LWOP sentences may be unconstitutional. Under the approach adopted by Justice Scalia, such sentences did not exist in 1787, or at the very least did not enjoy widespread usage. (43) In that case, the Eighth Amendment's application to LWOP sentences would rest upon whether such sentences are more severe than the punishments permitted in 1787; namely, the death penalty. Many have argued that an LWOP sentence is worse than a capital sentence, (44) and the high number of death row volunteers--inmates who waive their appeals in order to accelerate their execution dates--seems to support this conclusion. (45)

         Under the Stinneford reading of the original meaning of the cruel and unusual punishment clause, LWOP sentences could also violate the Eighth Amendment, at least in cases in which that punishment is excessive for the crimes committed. While the Supreme Court has rejected this idea before, (46) it is certainly possible that the societal view of proportionate punishment has evolved over time to conclude that LWOP sentences are excessive for certain crimes, particularly non-violent, victimless crimes. (47)

      3. The Evolving Standards of Decency

         The second common method of constitutional interpretation is that of a living Constitution, one whose meaning is not static but evolves over time consistent with modern understanding (48) This approach reasons that the world is very different from what it was in 1787, and that the point of employing broad constitutional language--like "cruel and unusual punishments" --was to allow the political branches to supply it with more specified content over time. (49)

         In Weems v. United States, the Supreme Court adopted such an approach. (50) Explaining that for a constitutional principle "to be vital, [it] must be capable of wider...