In Miller v. Alabamathe Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. (2) The decision raises a host of important questions that the University of Missouri School of Law's recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? Does it suggest a new constitutional procedural right to individualized sentencing for terms of imprisonment just as the Court has required for the death penalty--even casting doubt on mandatory sentences in other areas? Or is it a limited extension of the Court's "death is different" jurisprudence to what some have called the "living death sentence," (3) excluding one generic offender category and raising the possibility that other generic offender categories may also be excluded as they have been in death penalty jurisprudence? Or even if it applies "only" to juvenile mandatory life sentences, what are its implications for other areas involving juveniles and the criminal justice system? I offer tentative answers to these questions; others may disagree with this proposition.
Sadly, I do not believe that Miller has ushered in a general "right to individualized sentencing," let alone a constitutional right to proportionality analysis in imprisonment cases, at least not given the current composition of the Supreme Court. As 1 describe below, our Supreme Court--unlike other common law high courts--has resisted such an analysis in its Eighth Amendment jurisprudence; this resistance is unlikely to fade any time soon. To put it mildly, Eighth Amendment jurisprudence thus far has been a less than powerful tool to deal with the extraordinary prison terms that we have been imposing on defendants across this country for the past three decades. (4)
It has been a less than powerful tool to address three strikes laws that impose onerous and plainly disproportionate terms for repeat petty offenders. (5) It has been a less than powerful tool to stop America's failed experiment with mass incarceration. (6)
While scholars have argued that the Eighth Amendment requires a proportionality analysis--in other words, "that punishment for crime should be graduated and proportioned to [the] offense" (7)--this view has not found purchase on the Court. Indeed, some justices have not merely rejected the approach, they have suggested that the inquiry itself is illegitimate. (8) Proportionality analysis, as Justice Antonin Scalia has suggested, is not even part of the American judicial role in sentencing at all; it is normative, policy-like--the responsibility and prerogative of the legislature and not the courts. (9) In fact, as I suggest below, part of the appeal of Miller and Graham v. Florida (10) may be that the petitioners' arguments were based not on norms, policy choices, or values. (11) Rather, the arguments were based on science--the teachings of neuroscience that suggest meaningful physical differences between the adult and juvenile brains. (12)
In death penalty cases, the Court has been willing to engage in a proportionality analysis but only at the margins--that is, only with respect to certain generic offenses and offender categories. (13) Miller and Graham may well follow the same pattern. While they may not open the door to constitutionally compelled proportionality analysis--at least not yet--they may well do so with respect to the exclusion of other generic categories from mandatory life without parole sentences.
On the surface, Miller--and before that, Graham--surely seemed different. While the Court spoke in the same generic terms as it had in earlier cases, the context of the decisions, their application to imprisonment rather than just the death penalty, and especially the Court's language suggested a significant change. …