Not just kid stuff? Extending Graham and Miller to adults.

• Author: O'Hear, Michael M.
• Position: I. Introduction into III. Making Sense of Harmelin and Ewing B. Harmelin v. Michigan, p. 1087-1119 - Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. INTRODUCTION

   The Supreme Court of the United States' recent decisions in Graham v. Florida (1) and Miller v. Alabama (2) are plainly milestones in the field of juvenile justice, but do they also point the way to expanded Eighth Amendment protections for adult defendants? In Graham, the Court prohibited sentences of life in prison without the possibility of parole (LWOP) for juveniles convicted of nonhomicide offenses. (3) The holding raises the question of whether there should be parallel Eighth Amendment limitations on the ability of a state to sentence adults to LWOP for nonhomicide offenses. Then, in Miller, the Court prohibited mandatory LWOP sentences for juveniles convicted of homicide; the majority held that the sentencing judge must be free to consider the juvenile offender's age as a mitigating factor on a case-by-case basis. (4) This raises the question of whether there should be any similar requirement mandating the individualized, discretionary sentencing of adults.

   In this Article, I consider the prospects for extending Graham and Miller to adults. I assume that, in the normal spirit of constitutional adjudication, the Supreme Court and lower courts will be--and should be--open to extending the decisions to new cases presenting reasonably analogous considerations, taking into account the holdings of earlier Eighth Amendment decisions and the general approach to judging associated with our common law traditions. (5)

   The Court's earlier decisions, however, are a mixed bag, which makes it difficult to offer firm conclusions about the meaning and significance of Graham and Miller. The central challenge is this: Graham and Miller differ markedly in spirit and analytical methodology from the Court's two prior decisions on the constitutionality of noncapital sentences, yet Graham and Miller did not overturn the earlier decisions or even offer particularly convincing grounds for distinguishing them. In Harmelin v. Michigan, the Court upheld a mandatory LWOP sentence for a drug crime. (6) Then, in Ewing v. California, the Court upheld California's draconian "three-strikes" law as applied to a defendant whose third strike was for a trivial shoplifting offense. (7) Despite their minimalist approach to Eighth Amendment protections, Harmelin and Ewing were recognized as good law in Graham (8) and Miller, (9) so any account of the latter two decisions must show how they can be reconciled with the former.

   In the end, I do not think it possible to fit these decisions together as the expression of a single, overarching principle. Rather, the decisions reflect an ad hoc, but not entirely incoherent, balancing of four ideals: (1) proportionality in punishment; (2) judicial deference to legislative policy choices and state court judgments; (3) social reintegration of offenders; and (4) individualized, discretionary sentencing. As the Court developed these concepts in Graham and Miller, they do not provide much basis for sweeping reversals of adult LWOP sentences. On the other hand, Graham and Miller may provide a basis for relief for various specific categories of adult offenders, either in the form of an LWOP prohibition for certain kinds of cases (a Graham remedy) (10) or a requirement for an individualized, discretionary process before LWOP can be imposed (a Miller remedy). (11)

   In further developing these points, the Article proceeds as follows. Part 11 more fully unpacks the central jurisprudential values that animate Graham and Miller. By reference to these values, Part III explains how Graham and Miller may be reconciled with Harmelin and Ewing. Finally, Part IV discusses the application of Graham and Miller to one particular category of adult offenders--those sentenced under the three-strikes provision of 21 U.S.C. [section] 841(b)(1)(A)--and concludes that at least some of these offenders may have viable Eighth Amendment claims.

2. MAKING SENSE OF GRAHAM AND MILLER

   Graham and Miller are centrally concerned with the ideal of proportionality in punishment, but neither opinion is structured as simply an open-ended inquiry into the excessiveness of a challenged sentence. Rather, the proportionality analysis of both opinions seems conditioned by a set of collateral considerations--considerations that may influence the rigor of the proportionality analysis and the Court's choice of remedies. These considerations include ideals relating to judicial deference, the reintegration of offenders into society, and discretionary, individualized sentencing.

   This Part first explores the proportionality analysis of Graham and Miller, and then describes the role played by the conditioning considerations. It concludes that the Court may be heading toward a sliding-scale approach to Eighth Amendment review, similar to that which it uses in other areas of constitutional jurisprudence.

   1. Proportionality

      Graham and Miller are explicitly premised on the belief that the Eighth Amendment prohibits disproportionately harsh punishments. As the Court put it in Graham'. "Embodied in the Constitution's ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to the offense." (12) Thus, the Court has banned various sentencing practices "based on mismatches between the culpability of a class of offenders and the severity of the penalty." (13) This Section discusses the basic structure of the "mismatch" analysis in Graham and Miller, unpacks the factors that the Court has particularly used to assess culpability, and finally considers the role of utilitarian purposes of punishment (deterrence, incapacitation, and rehabilitation) in the Court's reasoning.

      1. Basic Structure of the Analysis: Categorical, Ordinal Ranking of Offenses and Penalties

         Despite the popularity of glib proportionality formulae like "an eye for eye," it is not at all clear how to translate a given level of offense severity into a particular sentence, especially when the sentence is a term of imprisonment. The units of measure for offense severity and punishment severity seem wholly incommensurable. Contemporary proportionality theory has met the problem by adopting an ordinal, as opposed to a cardinal, orientation; that is, the most serious category of crime should be punished with the most serious punishment, the second-most serious category of crime should be punished with the second-most serious punishment, and so forth. (14)

         This logic seems very much in line with Graham's approach to proportionality. Thus, for instance, Graham tells us that nonhomicide offenders must not be exposed to the worst punishment available to murderers--that is, the death penalty--because nonhomicide offenders are categorically less culpable than murderers. (15) Likewise, in light of the various deliberation- and character-related considerations to be discussed below, "when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability." (16) This calls for punishment that is also at least twice diminished, or, in other words, for something less than LWOP. (17) Conceptually speaking, it is easy to imagine this "degrees-of-diminution" formula being extended in various ways; for instance, by prohibiting a twice-diminished punishment (relative to the death penalty) from being imposed in cases of thrice-diminished culpability (relative to adult homicide). (18) This categorical, ordinal approach provides the basic structure of the proportionality analysis under Graham and Miller.

      2. Culpability Factors

         If the proportionality analysis requires a culpability-based comparison between the offender before us and an adult murderer, we must have some criteria for assessing culpability. Although the Court has not set forth such criteria in a systematic fashion, we can infer a workable list from the reasoning of Graham and other Eighth Amendment decisions.

         1. Harm

            The Court has emphasized the importance of harm in distinguishing the culpability of different classes of offenders, particularly in distinguishing between those guilty of homicide and those guilty of lesser crimes. Graham put it this way:

            There is a line between homicide and other serious violent offenses against the individual. Serious nonhomicide crimes may be devastating in their harm but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability. This is because life is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense. (19) Thus, although proportionality theorists are divided on the question of whether resulting harm should matter in assessing offense gravity, (20) the Court seems to have embraced harm as a key consideration. (21)

         2. Intent and Deliberation

            In addition to the objective harm done, the Court also sees the defendant's subjective state as an important aspect of culpability. This seems to include the traditional criminal law concept of "intent." For instance, while the Court sometimes seems to define the most serious culpability category exclusively by reference to resulting harm (as in the previously quoted passage), at other times the Court discusses the homicide category more broadly as also encompassing those who merely "intend to kill" or even "foresee that life will be taken." (22) The suggestion seems to be that a sufficiently blameworthy state of mind may elevate the seriousness of a crime beyond what would normally be expected based solely on the objective harm. If so, the converse might also be true--that is, an offender might not be held fully accountable for a harm that was neither intended nor foreseen. (23)

            While intent and knowledge do...