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.