Sometimes, getting what you wanted has unintended consequences.
In 1999, 98 people were executed in the United States. That was the most since capital punishment was reinstated by the Supreme Court's 1976 decision in Furman v. Georgia, and that was the high water mark of the death penalty. It's fallen steadily since then, all the way down to 37 in 2008. It's rebounded slightly, but has averaged less than half the 1999 total over the past six years. And basically, we're just working our way through inventory. The number of death sentences handed down has fallen from 294 in 1998 to 78 in 2011, a decline of almost 75%.
One reason for that decline is the addition, or substitution, of the penalty of life in prison without possibility of parole. When Texas introduced that option in 2005, the number of death sentences plummeted from 30 to 40 a year to single digits. The result is that in the quarter century after 1984, the number of individuals serving that sentence has quadrupled, from about 34,000 to over 140,000. And many of those sentences weren't imposed for homicides; the penalty is now available for child rape, some drug offenses, and for certain career offenders.
In the last few years the Supreme Court has focused on one aspect of LWOP: when it's imposed on juveniles. First came the 2010 decision in Graham v. Florida, holding that the sentence couldn't be imposed on juvenile non-homicide offenders. On Monday, in a combined decision in Miller v. Alabama and Jackson v. Hobbs, the court struck down the LWOP sentences that Miller and Jackson had received for murder.
And after reading the opinion, I started thinking: why stop with juveniles?
First, let's clear up what Miller holds. As I'd explained in my discussion of the oral argument, although the easiest way to resolve the case was simply to draw a line holding that LWOP was off the table for juvenile homicide offenders, none of the justices appeared particularly comfortable with that idea. I'd written then that "there's probably enough support among the justices for that point of view that a Graham-like solution will be in the offing," and that's pretty much what happened. Graham hadn't forbidden a state from keeping a juvenile non-homicide offender imprisoned for life; it just prohibited the imposition of a life without parole sentence, instead requiring the state to give those defendants a "meaningful opportunity" to show that they'd been rehabilitated. Miller basically requires the same thing, although one step removed from Graham. In both Miller and Jackson, the only sentence which could be imposed upon the defendants was life without parole, and it's the mandatory nature of that penalty that the five-member majority finds offensive. In short, life without parole is impermissible for juvenile non-homicide offenders; mandatory LWOP is impermissible for juveniles who commit homicides.
How the majority arrives at that determination isn't smooth sailing. Kagan's opinion begins its analysis with the declaration that "the Eighth Amendment's prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions," which will come as news to anyone whose knowledge of Supreme Court decisions extends beyond last week. In fact, up until Graham, the Court had rigorously maintained a two-tier analytical construct for 8th Amendment claims: there was the death penalty, and there was everything else. The death penalty was a "qualitatively different" punishment, and the Court was willing to preclude its imposition upon juveniles, the mentally retarded, or people who hadn't killed anyone. On the other hand, the defendant who'd been sentenced to life in prison under California's three-strikes law for stealing a pizza was out of luck, as was an Arizona defendant who received a 200-year prison sentence for possession of child porn; the length of a sentence wasn't subject to 8th Amendment review.
Graham broke that construct, and the Miller majority borrows heavily from its findings that juveniles lack the emotional and mental maturity to warrant the conclusion that, at 14 (the age of the defendants in both Miller and Jackson, although the decision would apply to anyone up to the age of 18), they can be written off as deserving to spend the rest of their life in prison. Well, not quite. A judge can decide to do that; it's the legislature which is prohibited from categorically imposing it on all juvenile homicide offenders. The key here is that the judge imposing the sentence must be able to weigh the defendant's characteristics, and the characteristics of the crime, in order to fashion the appropriate sentence. But there's no constitutional impediment to him deciding that life without parole is the appropriate sentence.
But let's back up for a second. As the opinion indicates, there's another decision that plays into this: the Court's 1976 decision in Woodson v. North Carolina, which nullified that state's law making imposition of a death sentence mandatory for all first-degree murder convictions. Again, the key factor in Woodson was the deprivation of the sentencing body (in that case a jury) to make any consideration of the characteristics of the offense or the offender. Woodson's point was emphasized two years later in Lockett v. Ohio, which struck down Ohio's death penalty statute because it limited the mitigating factors a jury could consider to those enumerated in the statute; the jury must be able to consider anything, the Court ruled.
So, a couple of questions here. If indeed the 8th Amendment requires consideration of individual factors, why should this be limited to (a) juveniles and (b) cases where a sentence of death was imposed? In short, can a mandatory LWOP sentence for adult offenders be nullified?
Miller certainly provides some ground for the argument, at least on the first basis. Clearly, a 14-year-old is much less mature than a 25-year-0ld, but what's the difference between a 17-year-old and an 18-year-old? Yes, lines have to be drawn -- a 65-year-old gets Medicare, a 64-year-old doesn't -- but we're not talking about someone having to wait an extra year to get (almost) free medical care, we're talking about someone spending the rest of his life in prison. Besides, that line is fairly fuzzy; it wasn't too far in the past that 21 was the age of majority.
The second one is a little tougher, simply because of the distinction the Court's made between a death sentence and anything else. But life without parole lends itself to the same "qualitative difference" argument that the Court has adopted for capital punishment. Analyzing whether a defendant's crime merited a prison sentence of a certain length always involves difficulties: is 50 years too much for a rape? Twenty years? Why one and not the other? A sentence of life without parole, however, is the functional equivalent of a death sentence imposed over time. Even for the life sentences that were upheld in the California three strikes cases, the defendants will at some point have the ability to show that they're rehabilitated or no longer a threat to society, justifying their release. Geraldine Lucas, who's been sitting in a Pennsylvania prison for 40 years under an LWOP sentence, won't have that opportunity, despite the fact that she's 79 years old -- and blind. And Pennsylvania is one of six states in the Union where LWOP is the only alternative to a death sentence. In fact, much of the decision in Graham was based on the Court's equating the death penalty to LWOP for juveniles.
It's not an airtight argument by any stretch. But one thing's notable in reading the Miller opinion: what constitutes cruel and unusual punishment has become largely unmoored from 8th Amendment jurisprudence. That may sound silly, but that's basically the situation: the Court spends most of its time bringing together the strands from two lines of cases: those holding that the death penalty can't be imposed on certain offenders, and those holding that the penalty can't be imposed without considering the characteristics of the offense and offender. From those strands, Graham and Miller were woven. LWOP may be another strand.