In 2012, the Supreme Court heard the case of Evan Miller, a juvenile found guilty for the murder of his mother's drug dealer Cole Cannon. He was 14 at the time of the crime. Miller received a mandatory sentence of life without the possibility of parole, which he subsequently challenged as a cruel and unusual punishment. The Supreme Court accepted his case on appeal, and in Miller v. Alabama (2012) struck down mandatory life without parole for juvenile homicide offenders as unconstitutional. Although juvenile life without parole for homicide remained generally permissible, the court required that it be applied on a case-specific basis, allowing a judge or jury to consider such mitigating circumstances as the juvenile's age, family and home environment, and potential for rehabilitation before delivering the sentence.
In the upcoming case Montgomery v. Louisiana, the U.S. Supreme Court will address whether its ruling in Miller should apply retroactively. In this case, Henry Montgomery is serving a life without the possibility of parole sentence for a murder he committed at age 17. He has been incarcerated since 1963. Montgomery signals the court's evolving treatment of juvenile sentencing and proportionality review — and a jurisprudential shift from "death is different" to "life without parole is (also) different."
"Death is different" refers to a series of Supreme Court decisions from the 1970s onward that revolutionized capital sentencing by mandating various procedural due process measures and establishing categorical bans on the death penalty. "Death is different" was first espoused in Furman v. Georgia (1972), in which the court ruled that capital punishment, as then imposed by the states, violated the Eighth Amendment's protection against cruel and unusual punishments. Furman spurred a nationwide de facto moratorium on the death penalty and marked the first of a series of cases establishing that death was constitutionally distinct from other punishments. Although the court reaffirmed the constitutionality of capital sentencing four years later in Gregg v. Georgia (1976), the court's subsequent rulings limited its scope by establishing legal protections previously absent from death penalty statutes. For example, the court endorsed bifurcated sentencing procedures, which divide capital trials into guilt and sentencing phases, and mandated that juries (rather than judges) deliver capital sentences. The court also established categorical bans on the death penalty. The court applied categorical proportionality review — the process of determining whether a given punishment is constitutionally excessive for certain crimes or classes of offenders — to find the death penalty unconstitutional as a punishment for the rape of an adult woman (Coker v. Georgia, 1977) and for intellectually disabled offenders (Atkins v. Virginia, 2002). In the 2005 case Roper v. Simmons, the court likewise invoked proportionality review to invalidate the execution of juvenile offenders, largely in recognition of their lessened criminal culpability.
Before 2010, the court reserved categorical proportionality review for capital sentencing cases. In Graham v. Florida (2010), however, the court extended it to life without parole, striking down the sentence as unconstitutionally disproportionate for juvenile non-homicide offenders. The court followed suit in Miller v. Alabama (2012), invalidating mandatory life without parole sentences for juvenile homicide offenders as unconstitutional.
Montgomery's question of Miller's retroactivity thus signals not only the court's heightened attention to juvenile sentencing, but also the court's expansion of proportionality review to life without parole — and potentially onward. "Life without parole is different" could mean that the court will someday invalidate it as a punishment for rape or for intellectually disabled offenders. The expansion of proportionality review may challenge the supposed "difference" of death from the nation's second most severe punishment, which, like capital sentencing, deprives an individual of hope for reconciliation outside prison, among many other freedoms and privileges.
Scant psychological research examines public opinion about the appropriateness of life without parole for certain crimes or classes of offenders. What does exist, however, suggests that although a slight majority of individuals support juvenile life without parole for murder, that support diminishes considerably when participants are presented with alternative punishments. Whether the American public believes that life without parole, like death, is sufficiently "different" to warrant extended proportionality review remains a ripe research inquiry for scholars in the psycho-legal field.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
