Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller V. Alabama
Bowman, Frank O.,, III, Missouri Law Review
Imprisoning an adolescent for life without the possibility of release is a dreadful idea, regardless of the beastliness of the conduct that earned the sentence. Such sentences are fiscally extravagant, morally doubtful exercises in protracted antiseptic savagery. They are quite literally inhumane inasmuch as their imposition requires that the law ignore our deepest intuitions about human development and human nature. Most notably, the young lack the capacity for moral discrimination and impulse control that more years will bring. And of nearly equal moment, no one who achieves a normal modern life expectancy is remotely the same creature at the end of that span as he was at its teenage beginning. It is thus a grievous wrong to decree lifelong bondage, unransomable by any degree of reformation, for the adult who will be for the misdoings of the child who once was. That said, not all dreadful ideas are unconstitutional and the United States Supreme Court is not empowered to right all wrongs. Moreover, the Court is sadly apt to do mischief when it steps outside its proper sphere. Sometimes the mischief comes in the galling, but relatively benign, form of logically tangled doctrine born of failure to carefully reconnoiter the legal regions the Court's beneficent instincts have prompted it to enter. But sometimes the Court intrudes so far into the preserves of other constitutional actors as to create serious question about the legitimacy of its behavior.
In Miller v. Alabama, the Court found unconstitutional under the Eighth Amendment's Cruel and Unusual Punishment Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (LWOP). (1) Miller followed by two years the 2010 case of Graham v. Florida, in which the Court voided statutes imposing LWOP sentences on juveniles who committed non-homicide crimes.
These cases were striking for several reasons. First, of course, they have dramatic implications in the area of juvenile justice. The Court continued down the path it embarked on in Roper v. Simmons when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less criminally culpable and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. (3) Second, the Court's reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan's majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether death or a term of imprisonment. (4)
This Article focuses very little on the implications of Miller and Graham for the population they most directly affect--juvenile offenders previously eligible for sentences of life without parole--and more on the implications of the Court's reasoning in Miller and Graham for sentencing generally. However gratifying the results of Miller and Graham may be as sentencing policy, they are troubling as a constitutional matter both because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures--state and federal--to the courts.
II. CRIME DEFINITION AND LEGISLATIVE POWER
Throughout the American constitutional period it has been universally accepted--and repeatedly held--that legislatures, not judges, have the power to define crimes. (5) Judicial crime creation lacks democratic legitimacy. And it applies a necessarily retrospective method to a lawmaking process that, in order to comply with the overriding principle of legality, (6) should be prospective, giving potential offenders fair notice of the nature of prohibited conduct and the severity of potential punishment. …