Juvenile lifers and judicial overreach: a curmudgeonly meditation on Miller v. Alabama.

Author:Bowman, Frank O., III
Position:Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

    Imprisoning an adolescent for life without the possibility of release is a dreadful idea, regardless of the beastliness of the conduct that earned the sentence. Such sentences are fiscally extravagant, morally doubtful exercises in protracted antiseptic savagery. They are quite literally inhumane inasmuch as their imposition requires that the law ignore our deepest intuitions about human development and human nature. Most notably, the young lack the capacity for moral discrimination and impulse control that more years will bring. And of nearly equal moment, no one who achieves a normal modern life expectancy is remotely the same creature at the end of that span as he was at its teenage beginning. It is thus a grievous wrong to decree lifelong bondage, unransomable by any degree of reformation, for the adult who will be for the misdoings of the child who once was. That said, not all dreadful ideas are unconstitutional and the United States Supreme Court is not empowered to right all wrongs. Moreover, the Court is sadly apt to do mischief when it steps outside its proper sphere. Sometimes the mischief comes in the galling, but relatively benign, form of logically tangled doctrine born of failure to carefully reconnoiter the legal regions the Court's beneficent instincts have prompted it to enter. But sometimes the Court intrudes so far into the preserves of other constitutional actors as to create serious question about the legitimacy of its behavior.

    In Miller v. Alabama, the Court found unconstitutional under the Eighth Amendment's Cruel and Unusual Punishment Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (LWOP). (1) Miller followed by two years the 2010 case of Graham v. Florida, in which the Court voided statutes imposing LWOP sentences on juveniles who committed non-homicide crimes.

    These cases were striking for several reasons. First, of course, they have dramatic implications in the area of juvenile justice. The Court continued down the path it embarked on in Roper v. Simmons when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less criminally culpable and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. (3) Second, the Court's reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan's majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether death or a term of imprisonment. (4)

    This Article focuses very little on the implications of Miller and Graham for the population they most directly affect--juvenile offenders previously eligible for sentences of life without parole--and more on the implications of the Court's reasoning in Miller and Graham for sentencing generally. However gratifying the results of Miller and Graham may be as sentencing policy, they are troubling as a constitutional matter both because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures--state and federal--to the courts.


    Throughout the American constitutional period it has been universally accepted--and repeatedly held--that legislatures, not judges, have the power to define crimes. (5) Judicial crime creation lacks democratic legitimacy. And it applies a necessarily retrospective method to a lawmaking process that, in order to comply with the overriding principle of legality, (6) should be prospective, giving potential offenders fair notice of the nature of prohibited conduct and the severity of potential punishment. (7) This seemingly elementary observation is more consequential than it seems because even otherwise sophisticated lawyers and judges tend to use the word "crime" carelessly without pausing to consider what a "crime" is. The answer, as the Court itself finally figured out in the line of Sixth Amendment jury trial cases beginning with Apprendi v. New Jersey, (8) is that a "crime" is simply a name, a legal shorthand, used to signify a correlation between a particular bundle of legislatively specified facts, called "elements," and a legislatively specified array of punishments a judge is allowed to impose if all the elements are proven. (9) In short, a "crime" is not, as lawyers are prone to think, simply a list of elements. It is instead a list of factual elements legislatively paired with a particular range of punishments. (10) If one changes either the elements or the range of punishments the legislature has specified for those elements, the result is a different crime. (11)

    For example, imagine a crime, call it "blasphemy," for which the legislature has decreed that if the government proves Facts A, B, and C, the judge must impose a sentence of imprisonment between three and five years. Suppose that, one day, a court were to hold, in reliance on the Eighth Amendment or the Sixth Amendment or some other constitutional provision, that the statutorily prescribed sentence of three to five years could be imposed on a defendant charged with blasphemy only if the government proved Facts A, B, and C that the legislature enumerated, plus a new Fact D that the court itself added to the list of required elements. We would all understand that the court in such a case had redefined blasphemy by changing the list of elements associated with its prescribed penalty of three to five years.

    Then suppose, on another day, a court were to hold, again for some assertedly constitutional reason, that for a defendant charged with blasphemy, proof of Facts A, B, and C no longer authorized imprisonment of three to five years, but no more than one year, thus transforming blasphemy from a felony into a misdemeanor. In this second case, the court would not merely be judicially softening the punishment for blasphemy. Here, too, by changing the correlation between factual elements and permissible punishment authorized by the legislature and given the name "blasphemy," it would be redefining that "crime." In sum, to change either the list of factual elements authorizing a particular set of punishments or to change the set of punishments authorized by proof of a list of factual elements is to redefine a "crime." (12)

    As noted above, courts are not supposed to intrude on the legislative prerogative to define crimes. Moreover, the United States Supreme Court should be particularly chary of issuing decisions that redefine state crimes. Considerations of federalism should make federal judges especially reluctant to second-guess the judgments of state legislatures in matters of state criminal justice policy. (13) But in its Eighth Amendment cases, first in the death penalty area and now with respect to juvenile life sentence cases, the Supreme Court has engaged in both types of judicial crime redefinition--changing the set of punishments authorized by legislatures for a crime and changing the legislatively prescribed elements of crimes.

    The courts' power to engage, at least occasionally, in the first type of judicial crime redefinition--limiting the varieties of legislatively authorized punishments permitted by a set of element facts--is necessarily implicit in the Eighth Amendment. If the Cruel and Unusual Punishment Clause is judicially enforceable at all, it must, at a bare minimum, include a grant of power to declare that at least some punishments are so barbaric that they can never be imposed on anyone regardless of the facts of the offender's wrongdoing. And if the Clause is to be accorded anything more than this minimalist interpretation, it also implies a grant of judicial power to declare that certain punishments, though acceptable in some circumstances, cannot be imposed in others because to do so would be unjustly disproportionate. In its capital cases, the Court has employed this categorical proportionality analysis to find the death penalty unconstitutional for rape, either of an adult (14) or of a child, (15) and even for murder if the defendant is insane, (16) mentally retarded, (17) or a minor. (18)

    But the Court has also invoked the Eighth Amendment to judicially alter the legislatively prescribed elements of crimes. Indeed, the central project of the Court's entire line of death penalty cases beginning with Furman v. Georgia (19) is a judicial redefinition of capital murder. The Court has said, in effect: "The list of element facts which state legislatures formerly said constituted capital murder and thus authorized death is no longer sufficient. We, the Court, now decree that new, judicially-mandated, facts--those 'aggravating factors' required by Furman (20 21 22 23) and Gregg 1--must be added to state statutes and thereafter be proven to juries to authorize the old penalty."

    Though the passage of time since Gregg v. Georgia makes this seem unremarkable, it is pretty radical stuff. In its death penalty cases, the Court did not merely say, "There shall be no burning or breaking on the wheel or drawing and quartering." Or even, "There shall be no judicially sanctioned killing by the state." Instead, it said, "There can be judicially sanctioned killing, but only if you legislatures change the definitions of the crimes for which it is authorized to include new elements that we judges approve, but which have never, in the centuries-long history of Anglo-American law, been included by any legislature as elements of capital murder.


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