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

• Author: Sarma, Bidish J.
• Position: Continuation of II. Choosing the Appropriate Eighth Amendment Doctrine: The Gross Disproportionality Approach or the Categorical Approach? through Conclusion, with footnotes, p. 525-553

Not only is the gross disproportionality test unstable, (150) but it has also proven to be toothless. The case law is "sparse," (151) but the outcomes in a pair of 2003 Supreme Court cases, Ewing v. California (152) and Lockyer v. Andrade, (153) make clear that efforts to challenge long prison terms under the gross disproportionality approach are likely to fail. (154) In Ewing, the Supreme Court upheld a defendant's sentence of twenty-five years to life under California's three-strikes regime in which "[t]he sentence-triggering criminal conduct consist[ed] of the theft of three golf clubs priced at a total of $1,197." (155) And in Andrade, the Court reversed a lower court's grant of habeas relief to a defendant whom was sentenced to two consecutive twenty-five-to-life prison terms under California's three-strikes law for the theft of nine videotapes valued at approximately $150. (156) These cases culminate in what one commentator has called the "enfeeblement of the Eighth Amendment's proportionality requirement." (157)

Many legal scholars, litigants, and commentators have critiqued the gross disproportionality approach because it essentially commands courts to defer to legislatures and prosecutors, removing extremely harsh sentences from the Constitution's reach. The words of Professors Steiker and Steiker appropriately summarize these critiques: "The application of this ... threshold requirement of gross disproportionality has proven to be an insurmountable hurdle for Eighth Amendment challenges to long prison terms." (158) In other words, unless one subscribes to the premise that the Constitution does not entail a proportionality principle--a stance that one current Supreme Court justice defends (159)-- the current situation is bleak. The Constitution itself promises that the government will not inflict cruel and unusual punishments on individuals, but the Court has essentially decided that no noncapital sentence will ever be deemed unconstitutional. Rather than acknowledge that it has failed to devise an enforceable remedy to protect the individual's Eighth Amendment right, (160) the Court has instead determined that the right means so little that it may as well not exist. (161)

While it may seem that the jurisprudence forecloses a meaningful Eighth Amendment challenge to life without parole sentences for individuals convicted of nonviolent offenses, the Court's other approach, the categorical approach, provides an alternative well worth exploring. Before 2010, the Court only utilized this approach in death penalty cases. (162) Then, in Graham v. Florida, (163) the Court struck down the practice of sentencing juvenile offenders to life without the possibility of parole for nonhomicide crimes. (164) The categorical prohibition in Graham demonstrates that the Court no longer confines the categorical approach to death penalty cases. Whether Graham presages an extension of the categorical analysis to a broad range of prison-term sentences (beyond undeniably harsh life without the possibility of parole sentences) (165) or instead a demarcation of the approach's outer boundary, (166) the precedent has been set for the sentence at issue here.

In order for the Court to undertake the categorical approach, the party challenging a sentencing practice must claim that a government cannot subject to that particular sentence either a person convicted of "a type of crime" or a person who falls within "a class of individuals." (167) Coker v. Georgia (168) provides an example of the "type of crime" challenge. (169) In that case, the Court categorically prohibited all jurisdictions from sentencing to death an individual convicted of the crime of rape of an adult woman.170 It found that the "sentence of death is ... excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment...." (171) Examples of cases in which "a class of individuals" was exempted from a punishment include Atkins v. Virginia (172) and Roper v. Simmons. (173) In those cases, the Court prohibited jurisdictions from sentencing to death individuals with intellectual disabilities (174) and juvenile offenders (under the age of eighteen at the time of the crime) (175) respectively.

Categorical challenges to a punishment need not separate the "type of crime" and "class of individuals" categories. While the Court historically dealt with challenges involving one or the other, in Graham, the Court ruled on a claim that " implicate [d] a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes." (176) The petitioner successfully combined a claim involving a "class of individuals"--juvenile offenders--and a "type of crime"--all nonhomicide crimes.

A categorical challenge to life without the possibility of parole sentences for individuals convicted of nonviolent offenses represents a challenge based on the type of crime or "nature of the offense." (177) Put simply, the challenge asserts that because the offenses for which these individuals were sentenced to die in prison were not violent in nature, the Eighth Amendment prohibits this "second most severe [sentence] known to the law" (178)--and the most severe sentence possibly available for those crimes. (179) That the categorical approach is available means that the gross disproportionality approach can be bypassed altogether.

The mere availability of a categorical challenge, however, does not prove that the approach avoids the downsides that attend the gross disproportionality approach. Indeed, a great deal of ink has been spilled in critique of the categorical approach as well. (180) But unlike the gross disproportionality approach, the categorical approach is not incoherent, unstable, and impotent.

In terms of doctrinal coherence, the categorical approach is far better developed and much more stable than its counterpart. To start, only a plurality of justices has adopted the current formulation of the gross disproportionality test that Justice Kennedy crafted in Harmelin and Justice O'Connor utilized in Ewing. (181) By contrast, a majority of justices has repeatedly reaffirmed the Court's approach to identifying evolving standards of decency and exercising independent judgment of a punishment. (182) Not only does the categorical approach have multiple definite majority opinions establishing the Court's commitment to it, but it also has proven to be a stable doctrine over a number of cases spanning several years. (183) And, whereas litigants and courts lack clear guidance on how the gross disproportionality approach really applies, (184) "the Court has developed and applied an increasingly sophisticated form of the [categorical] analysis on more than a dozen occasions." (185) Although one could certainly critique the Supreme Court's entire Eighth Amendment jurisprudence (including the fact that two separate approaches apply in different contexts), (186) there is no doubt that between the two approaches, the categorical approach is more well-established and more stable.

The categorical approach is also superior because it demonstrates a capacity to detect and strike down punishments that are cruel and unusual. On the other hand, the gross disproportionality approach guts the Eighth Amendment protection because "the Court has treated proportionality as essentially lacking enforceable content in its modern cases concerning other [noncapital] punishments." (187) It is so weak that one might conclude the only viable claim of disproportionality would arise from a life sentence imposed on someone for a parking meter violation. (188) Because gross disproportionality enshrines nearly absolute deference to legislatures that adopt criminal sentencing laws, (189) the categorical approach actually represents a better mechanism to enforce and give some perceptible meaning to the Constitution's ban on cruel and unusual punishments. The fact that several challengers have persuaded the Court to strike down sentencing practices stands in stark contrast to the lone outlier case in which an individual prevailed on a claim of disproportionality. (190)

One other major comparative advantage of the categorical approach is that, by definition, it ensures that the Eighth Amendment will apply uniformly across the country. (191) The gross disproportionality test requires individual judges to make case-specific Eighth Amendment determinations on a case-by-case basis. (192) The categorical approach, on the other hand, empowers the U.S. Supreme Court to make binding determinations followed by all other courts. (193) To the extent that uniformity is a key value in the context of constitutional interpretation, the categorical approach protects that value, and the gross disproportionality approach sacrifices it, at least in theory. (194)

The inadequacies that plague the gross disproportionality approach render it an unsuitable vehicle for considering the claim that it is unconstitutional to sentence individuals convicted of nonviolent offenses to life without the possibility of parole. Because the constitutional issue here provides a clear category upon which to base a categorical challenge and because the categorical approach is far better equipped to deal meaningfully with the emerging facts, the appropriate Eighth Amendment framework is clear. The questions that remain are whether the Supreme Court should find that a national consensus against the sentencing practice exists, and, if it does, whether it should also find in its independent judgment that the punishment is unconstitutional.

III. EVALUATING THE CASE FOR AN EIGHTH AMENDMENT CATEGORICAL BAN OF LIFE WITHOUT THE POSSIBILITY OF PAROLE SENTENCE FOR INDIVIDUALS CONVICTED OF NONVIOLENT OFFENSES

This Part evaluates the strength of the claim that the Eighth Amendment categorically prohibits life without parole sentences for individuals convicted of nonviolent offenses. (195) This Part proceeds...