March 1, 2013
During the Supreme Court’s last term, it heard two cases, Miller v. Alabama and Jackson v. Hobbs.
The Court ruled jointly on these cases because they dealt with the same question: Is it cruel and unusual punishment, in violation of the Eighth Amendment, to sentence someone who was a minor at the time of the crime to life imprisonment without parole?
In a significant expansion of Eight Amendment protections, the Court answered this question in the affirmative.
The magnitude of the ruling, however, extends beyond the text of the opinion: Miller is the latest in a line of Supreme Court rulings that have expanded Eight Amendment protections for juvenile defendants.
What’s more, these cases have all been decided within the past eight years.
In 2010’s Graham v. Florida, the Court ruled that the Eighth Amendment barred sentences imposing life without parole on juvenile offenders who did not commit homicide.
And the first of these cases, Roper v. Simmons, was decided eight years ago today, on March 1, 2005.
Roper, which held as unconstitutional the imposition of the death sentence on individuals who were under 18 years of age at time of their capital crimes, is perhaps the most groundbreaking of the three cases.
True, the Court did invalidate the death sentence of a defendant who was 15 years old at the time of his capital crime in 1988’s Thompson v. Oklahoma, but that ruling was followed less than a year later by Stanford v. Kentucky, which specifically upheld the use of the death penalty for that case’s defendant, who was 17 years old at the time of his crime.
Roper overruled Stanford, despite the fact that the ideological makeup of the Court barely shifted (the Court, in fact, experienced a shift rightward from 1989 to 2005).
The actual shift responsible for the overruling of precedent only 16 years of age occurred within only one of the Justices: Anthony Kennedy, who voted with the majority in Stanford and wrote the majority opinion in Roper.
These “evolving standards of decency” were first established in the 1958 decision Trop v. Dulles as a means of determining whether a criminal sentence is “cruel and unusual” under the Eighth Amendment. These standards typically look at whether there is a “national consensus” on the acceptability of the criminal sentence at issue (which usually means the Court looks at the pattern of federal and state laws on the sentence in recent history).
The Court noted in Roper “a national consensus has developed against the execution of [juvenile] offenders since Stanford,” and, as such, ruled that such sentences are “cruel and unusual punishment” and unconstitutional under the Eighth Amendment.
Graham made the same conclusion about imposing sentences of life imprisonment without parole for juvenile nonhomicide offenders, and Miller similarly made that conclusion about life without parole for all juvenile offenders.
Interesting, though, this standard seemed to play a greatly diminished part in the majority’s rationale relative to Roper; instead, the majority in both Graham and Miller focused on how juveniles are, for a wide variety of reasons, less culpable offenders than their adult counterparts, and, for that reason, they should not be held to the same standard as adults.
Why has the majority gradually departed from the “evolving standards of decency” principle?
It could be because of constant criticism from the Court’s Originalists who claim that the definition of “cruel and unusual” that should be used is that used by the Framers at the time of the Constitution’s drafting.
This explanation doesn’t seem as likely, however, as another: that the Graham and Miller majorities – and Justice Kennedy in particular – don’t want to be constrained by today’s standards. Instead, these Justices may be advocating a more prospective approach, one that takes a more active role in determining what is “cruel and unusual” instead of taking its cues from the states.
Whether the latter theory holds true remains to be seen.
However, the Court will have a clear opportunity to choose between adhering to “today’s standards” and advocating a more future-facing approach in two cases currently on its docket: Hollingsworth v. Perry and U.S. v. Windsor.
If the trend that began eight years ago maintains, it’s likely that Justice Kennedy will opt to take the prospective approach, which would mean a broad ruling in both cases striking down the challenged laws.