Not Just Kid Stuff? Extending Graham and Miller to Adults
O'Hear, Michael M., Missouri Law Review
1. Reconciling Harmelin with Graham
As to conditioning considerations, legislative deliberateness may best distinguish Graham from Harmelin. In contrast to the Graham Court's concerns regarding inadvertence, Justice Kennedy's controlling opinion in Harmelin emphasized the high quality of the Michigan legislature's work in adopting the "650 lifer law," which mandated LWOP for possession of more than 650 grams of cocaine. (146) Justice Kennedy elaborated, "This system is not an ancient one revived in a sudden or surprising way; it is, rather, a recent enactment calibrated with care, clarity, and much deliberation to address a most serious contemporary problem." (147) Additionally, and also in contrast with Graham, the Harmelin Court did not note and the defendant did not urge any inconsistency between the 650 lifer law and international legal norms. It is not surprising, then, that the controlling opinion in Harmelin emphasized deference as a central value in its analysis (149) and expressly used the language of rational-basis review. (150)
Harmelin is also distinguishable from Graham in the categorical-proportionality analysis. Although both cases involved nonhomicide crimes and presented "once diminished" culpability on that basis, Harmelin did not offer as clear a ground as Graham for further diminution. Harmelin had no prior felony convictions, (151) but this does not necessarily count as mitigating; as suggested in the analysis of Ewing above, (152) it may make more sense to think of a first offense as the baseline condition in the culpability analysis and criminal history as aggravating.
There is another possibility: perhaps Harmelin's crime was so minor that the culpability must be considered more than just once diminished. After all, his drug offense was not merely a nonhomicide crime, it was also seemingly nonviolent; we have no reason to think that Harmelin caused or intended to cause any sort of physical injury to any person in connection with his drug-dealing. However, the controlling opinion in Harmelin was expressly premised on the belief that the possession of 650 grams of cocaine could in some meaningful sense be characterized as violent:
Petitioner was convicted of possession of more than 650 grams (over 1.5 pounds) of cocaine. This amount of pure cocaine has a potential yield of between 32,500 and 65,000 doses. From any standpoint, this crime falls in a different category from the relatively minor, nonviolent crime at issue in Solem [v. Helm], Possession, use, and distribution of illegal drugs represent one of the greatest problems affecting the health and welfare of our population. Petitioner's suggestion that his crime was nonviolent and victimless, echoed by the dissent, is false to the point of absurdity.... [T]he Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine--in terms of violence, crime, and social displacement--is momentous enough to warrant the deterrence and retribution of a life sentence without parole.... [A] rational basis exists for Michigan to conclude that petitioner's crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which no sentence of imprisonment would be disproportionate. (153)
Given this premise--that possession of more than 650 grams of cocaine is analogous to felony murder for culpability purposes--and the absence of juvenile status or any other categorical basis for diminishing culpability, Harmelin's sentence is not inconsistent with the logic of Graham.
2. Reconciling Harmelin with Miller
Harmelin involved not merely an LWOP sentence, but a mandatory LWOP sentence. Moreover, Harmelin--unlike Ewing--presented not only a substantive, Graham-type challenge to his sentence, but also a procedural, Miller-type claim. …