Does “Cruel and Unusual” Have to Be Unusual?

In Miller v. Alabama, the Supreme Court considered the case of Evan Miller, a fourteen-year-old who set a fire that killed a neighboring boy. The state of Alabama charged Miller as an adult with murder in the course of arson, a charge that carried a mandatory minimum of life in prison without the possibility of parole. A jury found Miller guilty, leaving no actor any discretion in sentencing; the law required a sentence of life without parole (“LWOP”.) The Alabama Court of Criminal Appeals held that the sentencing scheme was permissible under the Eighth Amendment and the Alabama Supreme Court denied review.

The Supreme Court voted 5-4 to reverse and remand, holding that the Eighth Amendment prohibits a sentencing scheme that mandates life in prison without parole for juvenile homicide offenders. Writing for the Court, Justice Kagan relied on two different chains of legal precedent to justify the decision. First, the Court has categorically banned sentencing practices where the severity of the penalty exceeded the culpability of the offenders. In Kennedy v. Louisiana, the Court forbid imposing the death penalty for almost all crimes outside of homicide. Likewise, the Court forbid imposing the death penalty on mentally retarded defendants in Atkins v. Virginia and on juveniles in Roper v. Simmons. These categorical bans were specific to the death penalty until Graham v. Florida, when the Court held that the Eighth Amendment prohibits imposition of life without parole sentence on juvenile offenders who did not commit homicides.

The second chain of precedent prohibited mandatory imposition of punishments the Court deemed sufficiently serious. In Lockett v. Ohio, the Court held judges must be able to consider all mitigating factors in determining whether or not to apply the death penalty; it cannot be automatic. Unlike the first chain of precedent, which the Court applied in 2010 to punishments outside the death penalty in Graham, this line of thought was exclusive to the death penalty until Miller.

Justice Kagan summed up the conclusions of the two chains of cases: Death may be different, but children are too; death may be different, but life without parole is too; our harshest penalties should not be applied categorically. Although Kagan argues that these principles establish the opinion as a natural extension of the caselaw, the Court made one leap, and it should give progressives reason to cheer: The mandatory imposition of life without parole on a juvenile murderer is not “unusual” in the slightest. More than half of the states require such sentences in certain circumstances. Justice Kagan questions whether the states truly intended to do so or instead inadvertently combined the two practices of trying juveniles as adults and mandatory LWOP sentences for “adult” defendants. Nonetheless, however the practice came about, it is extremely common, with over 2500 juveniles currently serving LWOP sentences. In the caselaw Justice Kagan claimed extended naturally to Miller, the majority stamped out extremely uncommon practices like the execution of mentally retarded defendants, relying on their rare use to justify declaring them “unusual.” Despite Justice Kagan’s protestations, the Court was not eliminating an outlying vestige of once common, brutal punishment, but instead a practice that was common. (A word which, as Justice Roberts suggested in dissenting, has as an antonym, “unusual.”) A glance at other brutal punishments makes clear why this development should be so encouraging to progressives.

In 2009, Atul Gawande argued persuasively to a national audience in the New Yorker that long-term solitary confinement is torture. If so, then torture is very common: Approximately 80,000 inmates are held in solitary confinement at any one time.

However abhorrent solitary confinement, opponents arguing against it are stuck: They have little recourse in the legislative branch, as the people they seek to protect are literally disenfranchised. Their friends and family are made up largely of communities that, political scientists suggest, have no influence on the legislative process whatsoever. The court system is willing to intervene should the practice become sufficiently uncommon, but advocates have no judicial or legislative path to arrive at “unusual.” In such a scenario, torture becomes constitutional by being widespread.

Miller may suggest a way out of the snare. For all of Justice Kagan’s straining, the mandatory sentencing practices at issue in Miller were common. The holding suggests the Court may be willing to take a more activist role in monitoring state criminal justice systems. In the United States, the world’s leader in incarceration, such a role would be welcome.

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Samuel Weiss is a 3L at Harvard Law School. He has a bachelor's degree from the University of Michigan. He has been a legal intern for the American Civil Liberties Union of Michigan, the Southern Center for Human Rights, and the National Prison Project. He edited The End of Race? Obama, 2008, and Racial Politics in America, released by Yale University Press in 2011.

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  • Sam, thanks for kicking off a new school year for the blog with a really interesting post. I have done quite a bit of work analyzing Miller for my job this summer, and this is an aspect of the case that I hadn’t thought much about. I think you found an intriguing possibility for future application of the decision.

    That being said, I don’t think that application is entirely likely. The dissenters do make a lot of hay about the diminishing requirements for a punishment to be considered “unusual.” In respose, Justice Kagan points out that the holding in Miller is a procedural requirement, not a categorical bar to the use of the punishment. Justice Kagan also notes the importance of the fact that the case involves juveniles, and she only analogizes other cases involving children to defend the proposition that the Court is not changing the meaning of “unusual.” Because both of those distinctions would be inapplicable to a challenge to long term solitary confinement, I’m not sure Miller would provide much support for that argument.

    I think the better argument against long term solitary confinement would make a case analogous to Furman, which lead to the national moratorium on the death penalty. The death penalty in the 1970s was obviously common, but the Court ruled that it was unconstitutional in the arbitrariness of its application. Because solitary confinement is a punishment imposed within prisons, its application is surely wildly disparate from prison to prison, and likely often grossly disproportionate to the precipitating offense.

    Given how common solitary confinement is, I don’t think the current 8th Amendment precedents support its complete abolition. A Furman-like argument though could force prison officials to use more rigorous and consistent standards in its application, which would almost certainly decrease the frequency of its use. I think Miller supports this proposition because it focuses on the need for individualized consideration in support of a proportionality principle. Rather than focusing individually on “cruel” and “unusual,” such an argument lets the Court apply its definition that “cruel and unusual” can mean “arbitrary” and “disproportionate.”

    • I think you’re overreading Miller. There is a big difference between a procedural and substantive rule under the Eighth Amendment, and Miller is procedural. Justice Kagan didn’t say the existing caselaw required the result, and in fact Justice Roberts attacked her specifically in dissent for reaching a result that was not compelled by the precedent. She only says that the precedent pointed in the direction of the result. There’s no doubt that the majority is morally opposed to a 14-year-old being locked up with no chance to ever be released, especially within a system with no discretion. Still, this decision is a legitimate extension of the prior precedents, not, to use an overused term, “judicial activism” with the judge’s imposing their own moral beliefs onto society as a whole. If the Court had outlawed the procedure completely, it would have been a much bigger leap, but this procedural decision leaves a lot of room for state systems to apply discretion and get the result they want.

      A decision forbidding prolonged solitary confinement would be a substantive ruling, imposing judicial beliefs about the efficacy of the practice over the discretion of prison officials. You’re right that the Court could do it, but with five votes the Court can do anything. The fact that the practice at issue in Miller was common doesn’t provide support for striking down other common criminal punishments because in Miller the Court didn’t strike anything down. It announced new procedural requirements that must be employed from now on, but did nothing to alter the rights of defendants retroactively.

      I agree that a step in the direction you indicate would be desirable, and I think the dissenters point out a slippery slope argument that is actually reasonable and desirable. If the court imposes new procedures that decrease the occurrence of a common practice, it’s a step toward the practice being “unusual” and maybe prohibited in the future. I think solitary confinement would need that middle step, too. If the Court imposed more procedural requirements that made the practice less common, maybe down the line it could be found to be both cruel and unusual. But for right now, I don’t think the law is there yet.

  • Let me take your last point first. I think I also allowed sloppy writing to imply a broader point than I intended to make. Miller is far too new to have its retroactivity settled as a matter of law. The issue probably won’t be definitively settled until it makes its way back up to the Supreme Court, as has happened with other recent sentencing cases (Ring (2002) –> Summerlin (2004), Crawford (2004) –> Whorton (2007)). I was expressing my understanding of what the likely application would be, given those other recent decisions, and the fact that I view the decision as a procedural one. Justice Kagan said that the “The Court was explicit that its “decision does not categorically bar a penalty for a class of offenders . . . . Instead, it mandates only that a sentencer follow a certain process . . . before imposing a particular penalty.” (slip op. at 20). Other much more credible legal scholars disagree with me, http://www.abajournal.com/news/article/chemerinsky_juvenile_life-without-parole_case_means_courts_must_look_at_sen, although I have spoken to at least one federal judge who thought I was right. All of your links cite defense attorneys and civil rights groups who are asserting that resentencing is required, but I don’t think resentencing is required for cases that are final. Here in Colorado, there is an appeal being heard in the state appeals court in a couple of weeks asking for resentencing, and I imagine similar appeals are being heard throughout the country right now. The Iowa thing is an interesting move, because I think if the opinion can be read beyond its specifics, mandatory sixty-year sentences would be just as objectionable as mandatory LWOP, because that doesn’t provide the individualized consideration central to the holding. I wonder if now even if Miller was held to be non-retroactive, the change in sentence might actually warrant its application to those cases?

    Like I said, I think it’s clear that the opinion is a procedural one. That being said, I think the majority believes strongly in the reduced culpability of juveniles, and therefore believes that with individualized consideration will come lesser sentences in most cases and therefore LWOP will become rare for juveniles. They may be projecting their own moral compass onto sentencing judges or juries and predicting an outcome that is more aspirational than legal. But at least if judges have to go on the record as to why they are imposing a life sentence, not every case will be justifiable and the sentence will have to become at least somewhat less common. The dissenters are right about what the majority wants to see, but they may be wrong about what will actually happen once that discretion is placed with sentencing juges or juries in places like Alabama.

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