The mandate of Miller.

AuthorBerry, William W., III
Position8th Amendment protection in death-in-custody cases


It's a pity the law doesn't allow me to be merciful.

--Javert, from Les Miserables (1)

In applying the Eighth Amendment's prohibition against cruel and unusual punishments, (2) the United States Supreme Court has long abided by one core principle: death is different. (3) Because the consequences of an execution are unique in their severity and irrevocability, the Eighth Amendment requires that capital cases receive a heightened set of safeguards not available in non-capital cases. (4) In recent years, for instance, the Court has adopted categorical prohibitions against executions of offenders with mental retardation, (5) juvenile offenders, (6) and offenders whose criminal activity did not include homicide. (7) Likewise, the Court has historically refused to apply the Eighth Amendment to restrict disproportionate sentences in non-capital cases, even where the sentence imposed seems particularly excessive. (8)

Recently, however, the Court has twice breached this formerly impervious barrier between capital and non-capital cases. (9) In 2010, the Court held in Graham v. Florida that the Eighth Amendment barred imposition of life-without-parole sentences on juveniles in non-homicide cases. (10) And in 2012, the Court chipped away further at the bright-line distinction between capital and non-capital cases in Miller v. Alabama, holding that the Eighth Amendment barred mandatory life-without-parole sentences for juvenile offenders. (11)

To be sure, the outcomes in these cases rest upon the notion that, as a class, juvenile offenders' (12) are unique. (13) Because juveniles are categorically different from other offenders, reasoned the Court, the Eighth Amendment proscribes certain juvenile non-capital sentences. (14)

By crossing this bright-line rule in Graham, however, the Court also implicitly raised the issue of whether life-without-parole sentences require heightened Eighth Amendment scrutiny based on their own inherent severity and finality. (15) And Miller arguably highlights an obvious application for such scrutiny: mandatory life-without-parole sentences. (16)

It is not the mandatory sentence itself, but the consequence of such a sentence--death in the custody of the state--that implicates the Eighth Amendment. (17) The principal constitutional problem with mandatory death-in-custody sentences is that they deny offenders their day in court by prohibiting individualized consideration of the offender and the offense by the court and by foreclosing introduction of mitigating evidence. (18)

This day in court--an offender's opportunity to plead for his life--is so crucial because it will likely be his only opportunity to avoid a sentence to die in state custody. (19) The Court has made it clear that such a right is available to capital defendants, (20) and now, in Miller, for juveniles facing life imprisonment without parole. (21)

This Article argues for an extension of this Eighth Amendment protection to all cases in which a defendant faces the possibility of a death-in-custody sentence--a death sentence, a life-without-parole sentence, or a sentence with a term of years approaching the life expectancy of the offender. (22) Accordingly, the mandate of Miller is that the Eighth Amendment should require courts to make individualized sentencing determinations and consider mitigating evidence before imposing a death-in-custody sentence. (23)

Part I of the Article briefly considers the virtues and vices of mandatory sentences to contextualize the case for expanding the holding in Miller. Part II describes the meaning of Miller, highlighting the core principles of the Supreme Court's Eighth Amendment mandatory sentencing cases. In Part III, the Article then advances its central argument--the mandate of Miller--claiming that application of these principles authorizes an expansion of the Eighth Amendment to bar mandatory sentences in all death-in-custody cases and to provide for an opportunity to present mitigating evidence in such cases. Part IV explains where Miller's mandate matters, exploring the normative consequences of applying this approach. Finally, Part V demonstrates why Miller's mandate matters, articulating the policy reasons for expanding the scope of the Eighth Amendment in mandatory sentencing cases.


    Before assessing the propriety of broadening the Eighth Amendment to circumscribe the use of mandatory sentences in death-in-custody cases, it is instructive to consider the utility and propriety of mandatory sentences generally. At its core, the question of whether mandatory sentences are appropriate is one of institutional choice related to the allocation of sentencing discretion between the legislatures and the courts.

    When a legislature assigns a mandatory penalty for violation of a criminal law, the result is the removal of discretion from a court to determine the appropriate sentence in a given case. The legislature can achieve this completely, or in part, as in the case of a mandatory minimum sentence. Thus, the adoption of a mandatory sentence is a decision to allow the legislature, and not the court, to choose the specific sentence for a certain crime.

    Two theoretical juxtapositions are particularly useful to assess this institutional choice question: (1) bright-line rules versus case-by-case decisions, and (2) ex ante versus ex post decision-making.

    1. Bright-Line Rules versus Case-by-Case Decisions

      One presumed advantage of mandatory sentencing is its ability, as a bright-line rule, to create consistency in sentencing, (24) assuming the statute at issue is specific enough to identify similar conduct. (25) When the legislature removes the court's discretion in such a manner, offenders who violate the same criminal provision will receive the same sentence. (26) In the context of mandatory minimums, this goal of consistency aims to ensure all perpetrators of a particular crime receive a minimum sentence, placing a floor on the court's sentencing discretion. (27)

      The cost of adopting such a bright-line rule is that it precludes case-by-case consideration of the offender and the offense. Where the sentence is death-in-custody, the consequences of this inflexibility are more significant, as the bright-line rule will mandate death in prison regardless of mitigating circumstances. (28)

      Moreover, the actions of prosecutors and juries demonstrate that mandatory sentences may not provide the consistency or certainty they purport to, particularly it in death-in-custody cases. When a prosecutor deems a mandatory sentence to be excessive for a particular crime, he or she has the option to charge the offender with a lesser crime to avoid the mandatory sentence. (29) Similarly, a jury can choose to nullify the mandatory sentence it finds objectionable by finding the defendant innocent of the crime. (30) As a result, the purported bright-line consistency of mandatory sentences can become more theoretical than practical in nature.

    2. Ex Ante Versus Ex Post Decision-making

      Ex ante decisions, like the ones made by a legislature in adopting a mandatory sentence, have the advantage of careful consideration looking forward to determine the best approach to solving a problem. The legislature enjoys a degree of insulation from any particular case and, as a result, may possess more objectivity in sentencing than does a court. (31) The representatives in the legislature also have a different kind of political accountability than elected state judges, perhaps making it less likely that personal political calculations might affect sentencing decisions. (32)

      On the other hand, the exercise of making a determination through legislative debate results in a one-time judgment that may not appreciate many of the relevant ex post considerations that may later emerge during the commission of a crime. (33) It also assumes that ex ante decision-making of this type is practically achievable in that the cases that the legislature groups under the heading of a particular crime are fundamentally similar, or at least similar enough to warrant the same punishment. (34)

      Further, mandatory sentences forego the ex post benefits that emanate from the judicial branch in the sentencing process. By relying solely on an a priori decision of the legislature to determine the appropriate sentence, a court is unable to account for important facts or considerations that the legislature did not foresee. Indeed, the fine-tuning of a sentence that a judge can engage in by considering various aggravating or mitigating circumstances is lost when mandatory sentences foreclose the exercise of judicial discretion. Thus, mandating a particular sentence for a particular crime is likely to result in unfairness in at least some cases.

      Perhaps most troubling, though, is that in practice the ex post decision-making still persists in the office of the prosecutor. (35) Not only do mandatory sentences preclude judges from exercising discretion, but they also, in effect, shift the exercise of that discretion to the executive branch in its exercise of prosecutorial discretion to determine the appropriate sentence.

      Often criticized by commentators for this reason, mandatory sentences allow prosecutors to decide what sentence an offender merits by choosing what offense to charge. (36) The plea bargaining process facilitates this transfer of sentencing discretion from the court to the prosecutor, meaning that in many cases a sentencing outcome depends more upon which defendant has more to offer the prosecutor than upon what the circumstances of a particular case dictate to a judge at sentencing. (37)

      Despite their shortcomings from a policy perspective, mandatory sentences, on their face, comply with the requirements of the United States Constitution. (38) That is, there is nothing inherently unconstitutional about the mandatory sentence itself. (39) The Supreme Court has repeatedly emphasized that...

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