Many law students never get to study the Eighth Amendment to the Constitution. But the meaning of the Eighth Amendment’s prohibition on inflicting “cruel and unusual punishment” occupies a considerable amount of the Supreme Court’s time and often divides the Justices over the basic question of how to interpret the language of the Constitution.

The Court’s latest challenge is to determine whether it is “cruel and unusual punishment” to sentence a fourteen-year-old who has been convicted of murder to life in prison without the possibility of parole. This issue provides us with an opportunity to think about numerous different facets of what the Justices do.

For example, the issue illustrates how the Court often engages in incremental decision-making, limited to the circumstances of each case, one step at a time. Six years ago, in Roper v. Simmons (2005), the Court held that defendants who commit crimes when they are under the age of eighteen may not be subjected to the death penalty. And the Court ruled just last year in Graham v. Florida (2010) that a life sentence without possibility of parole for a juvenile is unconstitutional when it is imposed for a crime which did not involve murder.

On Monday, the Court agreed to consider yet another related question: whether the Eighth Amendment prohibits sentences of life without parole for juveniles convicted of murder.

Evan Miller, the petitioner in one of the cases granted on Monday, Miller v. Alabama (10-9646), was convicted for the 2003 death of his neighbor in a rural Alabama trailer park. Miller was fourteen when he beat the neighbor and then left him to die of smoke inhalation after setting the trailer on fire. In the other case, Jackson v. Arkansas (10-9647), Kuntrell Jackson went with two older boys to rob a video store in 1999, when he was fourteen. Jackson’s lawyers say that he acted as a lookout and was not the person who shot and killed the store clerk, but he was convicted of murder. Both boys were sentenced to life in prison without the possibility of parole, and their respective state appellate courts upheld the sentences.

Perhaps there is no more important – and divisive – role for the Justices than figuring out how to interpret for today’s world the meaning of phrases written for a very different world more than two hundred years ago. Does the phrase “cruel and unusual punishment,” written in 1789 and ratified as part of the Bill of Rights in 1791, have a fixed, readily understood, and universally shared meaning for today’s world? Or must those words be understood and interpreted as they were in 1791? Those questions continue to fracture the Justices.

In 1958, then-Chief Justice Earl Warren established what many consider a benchmark for understanding that phrase, writing in Trop v. Dulles that the measure of what is cruel and unusual punishment should be whether a practice violates “evolving standards of decency that mark the progress of a maturing society.” Warren’s formulation clearly contemplated that the meaning of the Eighth Amendment would change over time as society’s views on different criminal sanctions change.

Given the close divide of the current Court on ideologically freighted issues like this one, it is not surprising that Justice Anthony Kennedy is the Justice who most recently has helped to fill in the details of how to determine whether standards of decency have evolved. Writing for a bare majority last year in Graham, striking down life without parole for juvenile non-homicide cases, Kennedy explained that the Court should begin by looking to see whether there is a “national consensus against the sentencing practice at issue,” as reflected in state laws and practices. And then, Kennedy said, the Court must evaluate its own precedents to determine the “text, history, meaning and purpose” of the Eighth Amendment. This two-step process led Kennedy and the rest of the majority (composed of the Court’s four most-liberal members) to conclude that the Eighth Amendment required a clear rule prohibiting life without parole for juveniles who commit non-homicide crimes.

Using themes that will undoubtedly play a role in the two new cases, Justice Kennedy concluded that the weight of state practice militated against the sentence: while thirty-seven states allowed the life without parole sentence for juveniles in non-homicide cases, twenty-six of those states did not have anyone serving such a sentence, and there were only 123 juveniles facing the sentence nationwide when Graham was decided. He also relied on conclusions he reached five years earlier in Roper – that juveniles lack the maturity of adults and must be considered both less culpable and more capable of developing changed attitudes if given the opportunity to mature.

But, reflecting much the same struggle that takes place when the Court battles over abortion, affirmative action. and other rights issues, the “national consensus” approach to “evolving standards of decency” is simply too squishy and malleable for some more conservative Justices. In a dissent in Graham that was joined by Justices Antonin Scalia and Samuel Alito, Justice Clarence Thomas noted that the Constitution says nothing about specific sentencing practices; moreover, he emphasized, life-without-parole sentences for juveniles “would not have offended the standards that prevailed at the founding.” Thomas also disputed Kennedy’s analysis of where consensus may lie, suggesting that “[t]he news of this evolution will, I think, come as a surprise to the American people” whose legislators have chosen to make this form of punishment an option.

Justice Scalia was even more skeptical – and derisive — in his dissent in Roper, in which Justice Kennedy interpreted a changing national consensus to overrule the Court’s 1989 decision in Stanford v. Kentucky, in which the Court had held that there was no Eighth Amendment problem with sentencing minors between the ages of fifteen and eighteen to death. Scalia characterized the Court’s decision in Roper as making “a mockery” of the limited role that Alexander Hamilton envisioned for the judiciary, and he was dumbfounded by the Court’s apparent suggestion that the meaning of the Constitution has changed in the sixteen years between Stanford and Roper.

These sharp differences in approach will once again be on display in February or March of next year, when the Court hears oral arguments in these new cases.

Representing both convicted juveniles, Bryan Stevenson of the Equal Justice Initiative in Alabama told the Supreme Court in his petitions for certiorari that there are only seventy-three juveniles aged fourteen or younger who face life without parole, and such sentences have been employed in only eighteen states. These numbers represent only a “tiny fraction” of the homicide cases involving those fourteen or younger, Stevenson said, using Justice Kennedy’s own framework to suggest that there is a national consensus against this form of punishment.

Stevenson offered the possibility of even more incremental decision-making with his argument that juveniles aged fourteen and younger are a special and distinct group because of their youth: The Court could conceivably rule that life without parole is cruel and unusual punishment for the youngest juvenile offenders but leave for yet another day whether such punishment is permissible for minors age fifteen to eighteen.

As these new cases unfold, Justice Kennedy is once again likely to play the pivotal role, with the four most liberal members holding steady against such sentences. What will sway him: will the numbers suggest a consensus, or will he instead be moved either by the distinctive feature that these crimes – unlike those in Graham – are homicides or instead by the youth of the offenders? Will he distinguish between Miller’s direct role in the Alabama case and Jackson’s claim that he served only as the lookout in the Arkansas case? Will he follow his own argument in Graham that the interests of justice were best served by adopting a categorical rule against life-without=parole sentences?

On the other side, there are likely to be four votes – Chief Justice Roberts and Justices Scalia, Thomas, and Alito – against a new bright-line constitutional rule that prohibits sentences of life without parole when the Eighth Amendment is silent on the issue and when the guiding principle is to try to determine the “evolving standards of decency.”

A decision in the case is expected by the end of June 2012.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Defining the contours of the Eighth Amendment, SCOTUSblog (Nov. 11, 2011, 4:40 PM), https://www.scotusblog.com/2011/11/scotus-for-law-students-defining-the-contours-of-the-eighth-amendment/