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

• Author: O'Hear, Michael M.
• Position: Continuation of III. Making Sense of Harmelin and Ewing B. Harmelin v. Michigan through V. Conclusion, with appendix and footnotes, p. 1119-1146 - Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

1. Reconciling Harmelin with Graham

   As to conditioning considerations, legislative deliberateness may best distinguish Graham from Harmelin. In contrast to the Graham Court's concerns regarding inadvertence, Justice Kennedy's controlling opinion in Harmelin emphasized the high quality of the Michigan legislature's work in adopting the "650 lifer law," which mandated LWOP for possession of more than 650 grams of cocaine. (146) Justice Kennedy elaborated, "This system is not an ancient one revived in a sudden or surprising way; it is, rather, a recent enactment calibrated with care, clarity, and much deliberation to address a most serious contemporary problem." (147) Additionally, and also in contrast with Graham, the Harmelin Court did not note and the defendant did not urge any inconsistency between the 650 lifer law and international legal norms. It is not surprising, then, that the controlling opinion in Harmelin emphasized deference as a central value in its analysis (149) and expressly used the language of rational-basis review. (150)

   Harmelin is also distinguishable from Graham in the categorical-proportionality analysis. Although both cases involved nonhomicide crimes and presented "once diminished" culpability on that basis, Harmelin did not offer as clear a ground as Graham for further diminution. Harmelin had no prior felony convictions, (151) but this does not necessarily count as mitigating; as suggested in the analysis of Ewing above, (152) it may make more sense to think of a first offense as the baseline condition in the culpability analysis and criminal history as aggravating.

   There is another possibility: perhaps Harmelin's crime was so minor that the culpability must be considered more than just once diminished. After all, his drug offense was not merely a nonhomicide crime, it was also seemingly nonviolent; we have no reason to think that Harmelin caused or intended to cause any sort of physical injury to any person in connection with his drug-dealing. However, the controlling opinion in Harmelin was expressly premised on the belief that the possession of 650 grams of cocaine could in some meaningful sense be characterized as violent:

   Petitioner was convicted of possession of more than 650 grams (over 1.5 pounds) of cocaine. This amount of pure cocaine has a potential yield of between 32,500 and 65,000 doses. From any standpoint, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem [v. Helm], Possession, use, and distribution of illegal drugs represent one of the greatest problems affecting the health and welfare of our population. Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity.... [T]he Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine--in terms of violence, crime, and social displacement--is momentous enough to warrant the deterrence and retribution of a life sentence without parole.... [A] rational basis exists for Michigan to conclude that petitioner's crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which no sentence of imprisonment would be disproportionate. (153) Given this premise--that possession of more than 650 grams of cocaine is analogous to felony murder for culpability purposes--and the absence of juvenile status or any other categorical basis for diminishing culpability, Harmelin's sentence is not inconsistent with the logic of Graham.

2. Reconciling Harmelin with Miller

   Harmelin involved not merely an LWOP sentence, but a mandatory LWOP sentence. Moreover, Harmelin--unlike Ewing--presented not only a substantive, Graham-type challenge to his sentence, but also a procedural, Miller-type claim. The affirmance of Harmelin's sentence thus seems to be in real tension with Miller's rejection of a mandatory LWOP regime.

   Despite this tension, there are at least four plausible (and not mutually exclusive) possibilities for reconciling the cases. First, the "care, clarity, and much deliberation" underlying the 650 lifer law contrasts with the legislative inadvertence found by the Court in Miller and seemingly demands a higher level of deference. Second, there is the "super-mitigator" theory suggested above (154): juvenile status may trigger special concerns regarding mandatory sentencing that were not present in Harmelin. Third, also suggested above, the Miller Court may intend to distinguish juvenile LWOP as a more severe and disfavored penalty than LWOP generally. (155)

   Finally, there is the intriguing suggestion in Miller that the declining use of the death penalty has altered the way LWOP should be viewed for Eighth Amendment purposes. (156) Miller noted that, even among adults convicted of homicide, "very few offenders actually receive" the death penalty, which results in "juvenile homicide offenders receiving the same nominal punishment as almost all adults, even though the two classes differ significantly in moral culpability and capacity for change." (157)

   However, the American death penalty was in a considerably more robust state in 1991 when Harmelin was decided, which meant that LWOP could more appropriately be characterized as the second-most severe penalty in the American criminal-justice system. (158) Today, with LWOP looking increasingly like our most severe penalty, Harmelin would present an analogous culpability-mismatch problem to that highlighted by the Miller Court: since LWOP has become de facto the harshest penalty imposed in homicide cases, the critical homicide-nonhomicide distinction is blurred when LWOP is permitted in nonhomicide cases as well. In other words, Harmelin may have been correctly decided in light of circumstances as they existed in 1991, but Miller was also correctly decided in light of the changed circumstances regarding the death penalty that existed two decades later.

   4. APPLICATION TO 21 U.S.C. [section] 841(b)(1)(A)

   Thus far, I have suggested a more nuanced way of reconciling the Eighth Amendment cases than through a rigid juvenile-adult distinction. My account of the cases provides room, at least in theory, for adults to challenge their LWOP sentences, either on substantive, Graham-type grounds or on procedural, Miller-type grounds. However, my account does not suggest that adult LWOP sentences will always or even usually be unconstitutional. Rather, the analysis turns on the particularities of the claim.

   In order to elucidate both the potential and the pitfalls of efforts to extend Graham and Miller to adults, this Part assesses the prospects for Eighth Amendment challenges to one mandatory LWOP regime established for certain drug offenders by 21 U.S.C. [section] 841(b)(1)(A). The analysis first describes the statutory regime and identifies a class of offenders who might plausibly raise an Eighth Amendment challenge to the regime. Next, the analysis separately considers the prospects for a Graham-type challenge and a Miller-type challenge. (159)

   1. Framing the Hypothetical Eighth Amendment Claims

      Section 841(b)(1)(A) appears within a graduated sentencing scheme for drug-trafficking offenses. (160) Quantity is a key consideration in this scheme, and [section] 841(b)(1)(A) deals with the highest-end quantities of drugs. The basic sentence under [section] 841(b)(1)(A) is a ten-year mandatory minimum. (161) However, the statute also provides for various enhancements. The provision of immediate concern imposes a mandatory LWOP sentence if the defendant has "two or more prior convictions for a felony drug offense." (162) This provision might thus be conceived as a sort of three-strikes law for drug offenders and, as a matter of convenience, this Part will refer to the provision this way.

      What seems most notable about the three-strikes law is its authorization of LWOP sentences for a class that I will call "drug-only" offenders; that is, offenders never convicted of a conventional violent or other non-drug crime and whose instant offense does not involve any proven actual injury, intent to injure, or threat of injury (except, of course, to the extent that drug use may be thought of as intrinsically injurious). The drug-only offender thus stands in marked contrast to the image of the hyperviolent gangster that figures so prominently in depictions of drug traffickers in popular culture and political rhetoric.

      The questions for consideration now are whether the Eighth Amendment permits LWOP sentences for drug-only offenders and, if so, whether such sentences may be imposed on a mandatory basis and without regard to any individualized mitigating circumstances the offender has to offer. (163)

   2. Substantive Constitutionality: The Graham Claim

      The substantive Eighth Amendment claim would go something like this: the drug-only three-strikers have culpability that is at least twice diminished because they are not only free of the taint of homicide, but are also innocent of any violence. Such multiple-diminution in culpability leaves them unfit for LWOP, which is no more than once diminished relative to the most severe penalty. Before evaluating this categorical-proportionality argument, however, one should first assess the various conditioning considerations.

1. Conditioning Considerations

   1. Deference

      Deference considerations provide little support for imposing LWOP on drug-only offenders. Consider frequency of the sentence first. Life sentences for drug trafficking offenses are hardly routine, although they may be more common than the juvenile LWOP sentences at issue in Graham and Miller. At the end of 2010, there were 2,472 defendants in federal prison on life terms for drug trafficking offenses. (164) This is a substantial number, but it is only a small percent of the total 96,829 federal drug-trafficking inmates. The disparity is even more marked in the...