The emerging Eighth Amendment consensus against life without parole sentences for nonviolent offenses.

• Author: Sarma, Bidish J.
• Position: Introduction into II. Choosing the Appropriate Eighth Amendment Doctrine: The Gross Disproportionality Approach or the Categorical Approach?, p. 525-552

CONTENTS INTRODUCTION I. HOW IT BECAME POSSIBLE FOR SOMEONE TO BE SENTENCED TO LIFE WITHOUT PAROLE FOR A NONVIOLENT OFFENSE A. Defining "Nonviolent" Offenses B. The Federal System C. States That Sentence Individuals to Life Without the Possibility of Parole for Nonviolent Offenses D. The Current Swing Against Nonviolent Life Without Parole Sentences 1. Changing Attitudes 2. Executive Action 3. Federal Legislation 4. State Legislation II. CHOOSING THE APPROPRIATE EIGHTH AMENDMENT DOCTRINE: THE GROSS DISPROPORTIONALITY APPROACH OR THE CATEGORICAL Approach? III. EVALUATING THE CASE FOR AN EIGHTH AMENDMENT CATEGORICAL BAN OF LIFE WITHOUT THE POSSIBILITY OF PAROLE SENTENCE FOR INDIVIDUALS CONVICTED OF NONVIOLENT OFFENSES A. Evaluating Objective Evidence of a National Consensus 1. The Number of Jurisdictions That Authorize the Punishment and the Number That Prohibit It 2. The Direction of Legislative Change 3. The Number of Sentences Imposed 4. The Degree of Geographic Isolation 5. Summary of the National Consensus Analysis B. Evaluating the Supreme Court's Independent Judgment 1. The Culpability of the Offenders in Light of Their Crimes 2. The Severity of the Punishment in Question 3. The Validity or Invalidity of Penological Goals a. Deterrence b. Retribution c. Rehabilitation d. Incapacitation 4. International Opinion CONCLUSION INTRODUCTION

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison. Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison. The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court--the institution in the best position to redress these excessive sentences of a bygone era.

This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of nonviolent offenses. First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime. This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole. The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.

This Article situates the punishment in the Eighth Amendment context. How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions? And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities? This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality. The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.

After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test. It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation. It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment. Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses. In other words, there is an emerging consensus that the Court should recognize.

1. HOW IT BECAME POSSIBLE FOR SOMEONE TO BE SENTENCED TO LIFE WITHOUT PAROLE FOR A NONVIOLENT OFFENSE

   The 1980s and 1990s saw the United States transform into the world's most carceral society, (1) in large part due to the dramatic expansion of state and federal government sentencing policies that imposed stiff mandatory minimum penalties for drug offenses and crippled the use of parole. (2) Among the millions of people that have subsequently been caught in the net of mass incarceration is a group of offenders sentenced to die in prison for nonviolent crimes. Just over 3,000 people are currently serving life without the possibility of parole (3) sentences in the United States for crimes that did not involve an act of violence. (4) These people are serving their sentences for property crimes, drug offenses, financial crimes, or public-order offenses. (5)

   The number of people serving life without parole sentences for nonviolent offenses began to climb in the late 1980s when mandatory minimums for drug and gun offenses gained currency and parole was largely abolished in the federal system. (6) The vast majority of people serving life without parole for nonviolent offenses in 2012 were sentenced in the federal system: 2,074 of 3,278 nationally or sixty-three percent. (7)

   After setting out a definition of nonviolent crimes, this Part will detail the federal government's implementation of harsh sentencing policies for drug offenders in the 1980s and '90s, which resulted in many nonviolent life without parole sentences, and explore the climate in which those laws were passed. It will also identify the small number of other jurisdictions that have sentenced people to life without parole for nonviolent offenses and the laws by which they have done so.

   This Part will also explore the recent shift away from this harsh sentencing regime. Legislative bodies, prominent political figures, and the President himself have begun to reject life without parole for nonviolent offenses as "an unnecessarily harsh sentence imposed in crueler times." (8) States are adjusting their sentencing schemes to divert nonviolent offenders out of prison and to place drug offenders into treatment. (9) Legislation currently pending before Congress would eliminate life without parole for people convicted of nonviolent offenses. (10) The vast majority of states have abandoned the policies and practices that result in nonviolent life without parole sentences, and the remaining sentences are concentrated in just a handful of jurisdictions, signaling waning support for the punishment nationally.

   1. Defining "Nonviolent" Offenses

      This Article relies heavily on a groundbreaking report that the American Civil Liberties Union (ACLU) published in November of 2013. The report, titled "A Living Death: Life Without Parole for Nonviolent Offenses," provides a thorough factual assessment of the issue, including what jurisdictions utilize the punishment and how many offenders are under the sentence. (11) Although the factual information contained in the report was compiled more than two years ago, it remains the most comprehensive, reliable, and accurate publicly-available source.

      The ACLU report defines crimes as nonviolent if they "do not involve the use or threat of physical force against a person." (12) Along with obviously violent crimes such as murder, attempted murder, manslaughter, sexual abuse crimes, assault, and robbery, the ACLU includes certain weapons offenses such as unlawful discharge of a weapon as violent crimes. (13) Moreover, though certain sex crimes, such as possession of child pornography, do not involve an act of violence against another person, the ACLU has excluded all sex crimes from the data it collected on the grounds that sex crimes inflict "a kind of harm grave enough to set them apart from other nonviolent offenses." (14)

      In coming to this definition, the ACLU notes the inherent difficulties involved in parsing the "unpredictable and haphazard" statutory and judicial classifications, some of which extend violent crime to the "risk of force against the person or property of another." (15) In certain jurisdictions, offenses such as burglary of an unoccupied dwelling or obstruction of justice are classified as violent crimes. (16) The ACLU dismisses these "inconsistent and overbroad" definitions of violence, as do we for the purposes of this Article. (17)

      Critically, the ACLU report's definition of violent crime does...