Miller v. Alabama: what it is, what it may be, and what it is not.

• Author: Gertner, Nancy
• Position: Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. INTRODUCTION

   In Miller v. Alabamathe Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. (2) The decision raises a host of important questions that the University of Missouri School of Law's recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? Does it suggest a new constitutional procedural right to individualized sentencing for terms of imprisonment just as the Court has required for the death penalty--even casting doubt on mandatory sentences in other areas? Or is it a limited extension of the Court's "death is different" jurisprudence to what some have called the "living death sentence," (3) excluding one generic offender category and raising the possibility that other generic offender categories may also be excluded as they have been in death penalty jurisprudence? Or even if it applies "only" to juvenile mandatory life sentences, what are its implications for other areas involving juveniles and the criminal justice system? I offer tentative answers to these questions; others may disagree with this proposition.

   Sadly, I do not believe that Miller has ushered in a general "right to individualized sentencing," let alone a constitutional right to proportionality analysis in imprisonment cases, at least not given the current composition of the Supreme Court. As 1 describe below, our Supreme Court--unlike other common law high courts--has resisted such an analysis in its Eighth Amendment jurisprudence; this resistance is unlikely to fade any time soon. To put it mildly, Eighth Amendment jurisprudence thus far has been a less than powerful tool to deal with the extraordinary prison terms that we have been imposing on defendants across this country for the past three decades. (4)

   It has been a less than powerful tool to address three strikes laws that impose onerous and plainly disproportionate terms for repeat petty offenders. (5) It has been a less than powerful tool to stop America's failed experiment with mass incarceration. (6)

   While scholars have argued that the Eighth Amendment requires a proportionality analysis--in other words, "that punishment for crime should be graduated and proportioned to [the] offense" (7)--this view has not found purchase on the Court. Indeed, some justices have not merely rejected the approach, they have suggested that the inquiry itself is illegitimate. (8) Proportionality analysis, as Justice Antonin Scalia has suggested, is not even part of the American judicial role in sentencing at all; it is normative, policy-like--the responsibility and prerogative of the legislature and not the courts. (9) In fact, as I suggest below, part of the appeal of Miller and Graham v. Florida (10) may be that the petitioners' arguments were based not on norms, policy choices, or values. (11) Rather, the arguments were based on science--the teachings of neuroscience that suggest meaningful physical differences between the adult and juvenile brains. (12)

   In death penalty cases, the Court has been willing to engage in a proportionality analysis but only at the margins--that is, only with respect to certain generic offenses and offender categories. (13) Miller and Graham may well follow the same pattern. While they may not open the door to constitutionally compelled proportionality analysis--at least not yet--they may well do so with respect to the exclusion of other generic categories from mandatory life without parole sentences.

   On the surface, Miller--and before that, Graham--surely seemed different. While the Court spoke in the same generic terms as it had in earlier cases, the context of the decisions, their application to imprisonment rather than just the death penalty, and especially the Court's language suggested a significant change. (14) Miller referred broadly to a "requirement of individualized sentencing for defendants facing the most serious penalties," (15) implying a procedural right in ordinary sentencing analogous to the right to an individualized determination of the application of the death penalty. Indeed, neuroscience, a field upon which the majority relied, (16) may one day open the door to individualized consideration of the brain mechanisms that affect impulse control, aggression, anger, or even mood instability. (17) In Miller, the Court finally seemed willing to impose limitations on legislative enactments, and thus exert a judicial check on the punishment process.

   But Miller's holding is cabined with restrictions. It barred the automatic imposition of life without parole sentences on juveniles, not the imposition of life without parole sentences generally. (18) And though it strongly suggested that sentencing juveniles to life without parole is illegitimate, it did not bar its use in toto, (19) The Court was also careful to confine its decision to a specific combination of a particular type of sentence and offender. (20) It applies to cases involving both mandatory life without parole and juvenile offenders--not all sentences of imprisonment, much less all sentences of life imprisonment, or all offender categories. (21)

   Nevertheless, Miller is a watershed opinion, if only for its effect on juvenile sentencing. Rightly or wrongly, Miller has changed the conversation on juvenile punishment from a general and important one about the evolving standards of decency, to one of fact, evidence, and even science. If the juvenile brain is so distinct and different from that of an adult, and if those differences are so clear that they can be demonstrated in functional Magnetic Resonance Imaging (fMRI) and scientific studies, we may need to change the way we treat juvenile offenders. This includes reconsidering the circum stances under which juvenile offenders are transferred to adult courts, the circumstances of their detention or interrogation, the capacity of juveniles for rehabilitation both within and without institutions, and the programs that juveniles receive.

2. EIGHTH AMENDMENT PROPORTIONALITY ANALYSIS: BEFORE MILLER

   The Supreme Court's Eighth Amendment case law reflects a continuing debate regarding whether the Constitution compels a constitutional proportionality principle for non-capital cases at all. (22) To some Supreme Court justices, proportionality analysis is not within the competency of the American judiciary or, worse yet, is not even within a judge's legitimate role. (23) As I have described elsewhere, according to this view "[proportionality analysis in criminal justice] is somehow too policy-centered, too 'activist.' It is a task best left to the legislature, or in the case of the federal sentencing guidelines, to an 'independent' agency in the judicial branch the United States Sentencing Commission." (24)

   The debate played out most acutely in Ewing v. California, (25) In Ewing, a plurality of the Court held that a sentence is not unconstitutionally excessive so long as it can be justified under any one of the traditional justifications for punishment. (26) To the plurality, the fact that the Constitution is not clear regarding the metes and bounds of "cruel and unusual punishment" as applied to imprisonment (27) means that the Court should not venture far to critically

   evaluate prison terms. To choose one penological purpose over others and evaluate the sentence in reference to that purpose would be to overstep the Court's role. Therefore, where imprisonment was concerned, the Court was simply not a significant institutional player. (28) Since the "traditional justifications of punishment"--retribution, rehabilitation, incapacitation, and deterrence --can justify virtually anything when broadly construed, the Court's decision amounts to a near...