Overshadowed by the Obamacare decision, Miller v. Alabama bans mandatory sentences of life without parole for juveniles, building upon Graham v. Florida’s ban on life without parole for juveniles charged with non-homicide offenses. The case raises several interesting issues regarding the scope of the Eighth Amendment and juvenile justice, including the idea of how common practices can be considered “unusual,” as Sam has written about. One such issue involves how we measure the “evolving standards of decency that mark the progress of a maturing society.”

Can we square the invocation of evolving standards of decency with the recognized fact that the criminal justice system in the United States is, in general, far more punitive than it once was? I think that we can, if we allow for a fuller recognition of both the compromises that go into legislation and the expression of social values in extra-legal settings. First, the factual recognition of the trajectory toward greater punishment through the imposition of lengthier sentences for a wider variety of crimes is recognized on both the left and the right – on the right, to claim that the punishments in question are not “unusual,” and on the left, to raise awareness of and raise opposition to the existence of what Michelle Alexander has described as the “New Jim Crow.” But the existence of this culture of punishment does not exhaust the social indicia of what constitutes appropriate punishment in America. The legal regime of mass incarceration is a product of specific political responses to structural problems with how responsibility for the justice system is allocated. Governors know that they become personally responsible for any crimes committed when a prisoner is released or a parole is granted, making their incentives skewed strictly in terms of increasing punishment. The families and communities of the incarcerated, who might benefit from the release of prisoners who have served appropriate sentences, are numerically and politically less significant. While this structures the political reality of sentencing, it is a far cry from the paeans to democratic governance in the dissents to Miller.

But this is not the only strand of legal evolution as regards punishment. There is also growing awareness of a number of problems with criminal justice, including racial disparities in sentencing and the need to consider the biology and psychology of adolescent development. We don’t just throw the book at defendants (though we do plenty of that); we are also aware that our system of punishment is uniquely harsh among developed countries, and that it is often an imperfect vehicle for justice. The laws on the books are an important measure of social attitudes regarding punishment, but they do not tell the whole story. That index is keyed to the politics of fear as regards crime. Alternative measures may reflect more cautious meditation on the connection between sentencing policies and the complex facts of particular sentences for particular crimes. The legal tools that allow for the imposition of harsh sentences exist alongside less formal, but no less significant, resources for pushing back.

There is the further problem of identifying whose standards are in play. Needless to say, the fact that life imprisonment without parole of juveniles is explicitly banned in Article 37(a) of the Convention on the Rights of the Child suggests that by international standards this practice is not part of an evolved standard of decency, but the community by whose standards we judge our practices does not often extend beyond the border. Should it? Rather than seeing the application of international standards to national practices as some violation of sovereignty, the more fruitful line of inquiry is to ask why we seem to be such outliers when it comes to punishment. And this brings us back to the need to consider the texture of our politics of criminal justice: do our laws with respect to the punishment of juveniles reflect a lack of political leadership in creating more lenient practices? How does race enter into it? Or, on the other side of the issue, to what extent do international bans reflect public standards that we want to compare ourselves to? Regardless of one’s position on appropriate levels of punishment, as Americans we need to acknowledge that in this realm “American exceptionalism” is real, and we need to understand how we have gotten ourselves in this position. Until we do, invocations of (d)evolved standards of decency lack any serious analytical grounding.

A final thought: the logic of Graham, as articulated by Kagan’s majority opinion, seems to reach beyond juvenile sentencing. If we understand life without parole to be analogous in basic ways to the death sentence, the bright line that separates the death penalty from everything else becomes a little bit dimmer; even if the majority says that it does not run afoul of Harmelin v. Michigan, the reasoning of that precedent is directly targeted by Graham, and now by Miller. Nothing suggests a priori why life without parole should cease to be considered akin to a death sentence once an individual turns eighteen. The line of precedents invoked by the court regarding the prohibition of mandatory capital sentences, which here is extended to life without parole for juveniles, can also be extended more generally. The tenuous compromise in Miller, for which the Harmelin distinction holds for adults while Graham’s blurred boundary holds for minors, is hardly satisfying, even if we accept that sentencing for children should be different than sentencing for adults. Putting adult sentences of life without parole on an even footing with the death penalty seems more plausible than Alito’s concern (in his dissent) that life without parole for juveniles will be banned outright (his nightmare scenario would, again, be in keeping with the practices of the rest of the world as per the Convention on the Rights of Children). Miller forces us to acknowledge the gravity of the decision to lock up a child for life with no chance of release. Once we decide that this serious determination must be made on an individualized basis, what justification remains for not individualizing it for adults? Precisely because individualization is more flexible than an outright ban, it may prove easier to extend.