Life Without Parole

Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed - that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.” This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatmen...

This paper provides a thorough research about the life without parole sentences given to juveniles who commit violent and heinous crimes specifically murder. The paper further provides an analysis about the implications and legal consequences of using and adopting this type of sentences. Our primary focus in this paper is on the cruel and unusual punishment doctrine found in the Eighth Amendment and how it is related to the JLWOP sentences. Moreover, the paper explores both the arguments against and for the JLWOP; that is, weighing both the advantages and disadvantages of this practice to reach a conclusion of whether or not it is in the best interest of the criminal justice system and society. After exploring and shedding the light on both arguments –the pros and cons-we can raise the question of whether or not the life without parole sentences should be given to juveniles.

This symposium article is part of a broader discussion framed by the question of whether the United States Supreme Court’s recent decision in Miller v. Alabama was a “bombshell” or a “baby step.” Miller held that the Eighth Amendment barred the use of mandatory juvenile life- without-parole (JLWOP) sentences.
As the fifth case in a decade to expand the scope of the Eighth Amendment and the second to broaden its application to juvenile life-without-parole, Miller may be no more than another incremental step within a broader line of cases. On the other hand, Miller suggests a number of possible avenues for considering how to broaden the Eighth Amendment.
And the need to expand the Eighth Amendment has not diminished with the Court’s work over the past decade. In an age of penal populism, the United States remains an outlier, arguably in the history of the world, in its use of mass incarceration of criminal offenders.
Given this reality, this article does not seek to make a normative prediction as to what Miller will mean, as others in the symposium have done quite well. Instead, the article explores what Miller can mean. In doing so, the article aims to highlight different avenues of extending Miller such that it can become a bombshell over time, albeit by offering potential baby steps to theorists and litigators alike.
This contribution, then, illuminates the potential doctrinal and theoretical consequences of the Miller decision within the broader context of the Supreme Court’s Eighth Amendment jurisprudence. Without arguing for one normative outcome over the other and recognizing that the Court’s work in this area has been largely incremental, this article offers an intellectual compass that develops many of the arguments for broadening the Eighth Amendment made more plausible after the Miller decision.
At the heart of this exploration is the concept that “juveniles are different.” Specifically, this article argues that there are two distinct meanings of this conceptualization: (1) that juveniles are unique as offenders and (2) that juvenile life-without-parole is a unique punishment. While certainly not mutually exclusive, each interpretation offers its own set of consequences and paths to pursue in challenging criminal sentences under the Eighth Amendment.
Part I of the article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part II describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part III, the article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different”—as a character-based form of differentness and, in the form of JLWOP, as a punishment-based form of differentness— create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, Parts IV and V explore the potential theoretical and doctrinal consequences of each of those understandings.

The Supreme Court has traditionally applied the Eighth Amendment differently to capital and non-capital cases based on the longstanding notion that “death-is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case. The Court held that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. This dramatic change led dissenting justices to argue that this decision marked the end of the Court’s “death-is-different” jurisprudence.
This Article argues, however, that the decision does not curtail the significance of death cases. Rather, the decision signals an opportunity to establish a new category of Eighth Amendment review for life-without- parole sentences. While life without parole may not be as “different” from other sentences as the death penalty, it is still “different” enough from other sentences to warrant its own set of heightened standards of Eighth Amendment review.
Part Two of this Article describes the dichotomy between capital and non- capital cases in the Supreme Court’s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Three of the Article explains why life without parole—a sentence to die in prison—is “different” in its own way. Part Four then argues for the application of a new category of standards under the Eighth Amendment in life-without-parole cases and suggests other possible implications of Graham.

The United States is the only Western democracy to retain executions as a form of criminal punishment today. The death penalty in the United States dates back to the early Colonial Era wherein public executions were held to deter others from crimes involving people and property, but also to spread a message of white dominance during the era of slavery. Throughout this time, there have been stark racial, ethnic, class, gender, and geographic disparities in death sentencing and executions. Despite decades of social and legal challenges to correct these disparities, the American death penalty today continues to reflect a racist administration of justice, the primary focus of this article.

1. Introduzione. L’eccezionale asprezza delle pene comminate ai minori nel sistema penale statunitense: ragioni storiche e politico-criminali. – 1.1. In particolare: il “problema” delle juvenile life without parole sentences, c.d. JLWOP. – 2. L’elaborazione del principio “Youth Matters in Sentencing” nella giurisprudenza della Corte suprema federale: le decisioni Roper v. Simmons, Graham v. Florida, Miller v. Alabama, Montgomery v. Louisiana. – 2.1. La sentenza Roper v. Simmons. – 2.2. La sentenza Graham v. Florida. – 2.3. La sentenza Miller v. Alabama. – 2.4. La sentenza Montgomery v. Louisiana. – 3. Il caso Jones v. Mississippi. – 3.1. L’interpretazione restrittiva del precedente nella sentenza Jones v. Mississippi: l’opinione della Corte. – 3.2. La (meno ipocrita) opinione concorrente di Justice Thomas. – 3.3. L’opinione dissenziente del blocco liberal. – 4. Considerazioni critiche. – 4.1. Un overruling non dichiarato? Sul c.d. conservative judicial activism e la svalutazione dello stare decisis costituzionale. – 4.2. Il contradditorio impiego delle (neuro)scienze dello sviluppo ad opera della Corte. In particolare: la problematicità dei c.d. fattori Miller per scopi predittivi. – 4.3. Quali prospettive per garantire la tutela del diritto dei minori autori di omicidio a non subire pene eccessive? I possibili sviluppi del sindacato di proporzionalità as-applied-to the case. – 5. Le incoraggianti tendenze in sede di riforma legislativa: una sanzione crudele e disumana sempre più “unusual”. – 6. Rilievi conclusivi.

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions—guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules.  Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.

Two lines of cases have dominated the Supreme Court’s Eighth Amendment death penalty jurisprudence: the Furman-Gregg line of cases emphasizes the need to adopt rules to eliminate the arbitrariness inherent in unguided capital sentencing by juries, while the Woodson-Lockett line of cases emphasizes the opposite concern - the need for juries to make individualized sentencing determinations - highlighting the inadequacy of rules.

At first glance, these competing aims create some internal tension, if not outright conflict. In his concurrence in Walton v. Arizona, Justice Scalia argued that this conflict was irreconcilable: “[t]he latter requirement [individualized factual determinations] quite obviously destroys whatever rationality and predictability the former requirement [limitations on jury discretion] was designed to achieve...” And the Court has done little to reconcile this conflict. Indeed, in Kennedy v. Louisiana, Justice Kennedy recently stated, “this case law...is still in search of a unifying principle.”

This article attempts to provide just that - a unifying principle - through the concept of “proportionality.” As herein construed, proportionality requires that the applicable punishment be commiserate with the crime in both a relative and absolute sense. Using this principle, the article develops a framework by which to apply the Court’s Eighth Amendment jurisprudence, incorporating both lines of cases in a way that alleviates the inherent tension of pursuing the competing goals of general consistency and case-specific consideration.

This article, then, argues that the Supreme Court ought to apply the Eighth Amendment in capital cases solely in terms of two distinct types of proportionality - absolute and relative. Specifically, the model requires that the state court (and jury) determine the issue of absolute proportionality first, narrowing the individuals eligible for the death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then determine the issue of relative proportionality, further narrowing the cases in which the offender is eligible to receive capital punishment.

Part I of the article describes the “problem” - the apparent tension between the Furman-Gregg arbitrariness principle and the Woodson-Lockett individualized determination principle. In Part II, the article defines the concept of proportionality, describing both its absolute and relative forms. In Part III, the article articulates a new model for implementing the Eighth Amendment that solves the Walton “problem.” Finally, in Part IV, the article demonstrates how proportionality can serve as the unifying principle for the Court’s capital jurisprudence.

In applying the Eighth Amendment’s prohibition against cruel and unusual punishments, the United States Supreme Court has long abided by one core principle: death is different. Because the consequences of an execution are unique in their severity and irrevocability, counsels the Court, the Eighth Amendment requires that capital cases receive a heightened set of safeguards not available in non-capital cases. Likewise, the Court has historically refused to apply the Eighth Amendment to restrict disproportionate sentences in non-capital cases, even where the sentence imposed seems particularly excessive.

Recently, however, the Court has twice breached this formerly impervious barrier between capital and non-capital cases. In 2010, the Court held in Graham v. Florida that the Eighth Amendment barred imposition of life-without-parole sentences on juveniles in non-homicide cases. And last summer, the Court chipped away further at the bright line distinction between capital and non-capital cases in Miller v. Alabama, holding that the Eighth Amendment barred mandatory life-without-parole sentences for juvenile offenders.

By crossing this bright-line rule in Graham, the Court implicitly raised the issue of whether life-without-parole sentences require heightened Eighth Amendment scrutiny based on their own inherent severity and finality. And Miller arguably highlights an obvious application for such scrutiny: mandatory life-without-parole sentences.

It is not the mandatory sentence itself, but the consequence of such a sentence — death in the custody of the state — that implicates the Eighth Amendment. The principal constitutional problem with mandatory death-in-custody sentences is that they deny offenders their day in court by prohibiting individualized consideration of the offender and the offense by the court and by foreclosing introduction of mitigating evidence. The Court has made it clear that such a right is available to capital defendants, and now, in Miller, for juveniles facing life without parole.

This article, then, argues for an extension of this Eighth Amendment protection to all cases where a defendant faces the possibility of a death-in-custody sentence — a death sentence, a life-without-parole sentence, or a sentence with a term of years approaching the life expectancy of the offender. Accordingly, the mandate of Miller is that the Eighth Amendment should require individualized sentencing determinations and consideration of mitigating evidence by courts before the imposition of a death-in-custody sentence.

Part I of the article briefly considers the virtues and vices of mandatory sentences to contextualize the case for expanding the holding in Miller. Part II describes the meaning of Miller, highlighting the core principles of the Supreme Court’s Eighth Amendment mandatory sentencing cases. In Part III, the article then advances its central argument — the mandate of Miller — claiming that application of these principles authorizes an expansion of the Eighth Amendment to bar mandatory sentences in all death-in-custody cases and to provide for an opportunity to present mitigating evidence in such cases. Part IV explains where Miller’s mandate matters, exploring the normative consequences of applying this approach. Finally, Part V demonstrates why Miller’s mandate matters, articulating the policy reasons for expanding the scope of the Eighth Amendment in mandatory sentencing cases.

This article is adapted from a speech given by the author in honor of Hugo Adams Bedau, inaugurating the Hugo Adam Bedau Memorial Lecture Series at Tufts University. The article explores the differences and substantial similarities of a prisoner being sentenced to death row versus being sentenced to life without parole. The article strongly advocates granting parole eligibility to those with life sentences. It provides several examples detailing why this is so difficult politically, and highlights how Supreme Court rulings in Miller v. Alabama and Graham v. Florida, holding mandatory life without parole as unconstitutional for minors, implicate the same set of issues. The piece ends with a list of systemic reforms that would improve the criminal justice landscape.