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January 24, 2013

"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"

The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:

In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government.  The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.”  The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual?  For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?

These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.”  The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.

January 24, 2013 at 02:50 PM | Permalink

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Not a great start, doesn't inspire me to want to read any further. Since the 1950's a consistent majority of the Court (Warren, Burger, Rehnquist, Roberts, granted, over strident dissents) has analyzed 8A cases differently from other Constitutional cases (under both odd and even numbered amendments), emphasizing the "evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 1956). In other words the Framers' understanding in 1791 is the start, but not necessarily the end, of 8A analysis.

Prof. Stan Adelman


Posted by: Stan Adelman

Posted by: Stan Adelman | Jan 24, 2013 5:13:26 PM

Over 100 times, the Supreme Court has held, the legal meaning of a word is the dictionary definition of the word. We are in the Eye of the Beholder episode Twilight Zone world of the lawyer traitor on the court. So the usual is called unusual. It is also not settled that the death penalty is cruller than long prison terms. The Court is less pro-criminal than it is pro-government, promoting make work schemes for lawyers and other government blood suckers. The reason? The government is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession, and it also happens to write their paychecks.


So save the lives of cold hearted, bloody butchers, so they may kill again. That generates employment, and that is all that matters to the lawyers on the Supreme Court.

All those who believe in prayer should pray these internal traitors, these Twilight Zone waking nightmares for our country are jacked by one of their little darlings. Now that would make a great Twilight Zone episode.

Posted by: Supremacy Claus | Jan 24, 2013 11:06:46 PM

loved this one!

" The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual? For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?"

Of course we are talking 2000 sentences out of what 50 MILLION total? not a big majority taken that way.

Or 2,000 out of how many total murder convictions? againt not a big number.

Posted by: rodsmith | Jan 25, 2013 3:18:13 AM

The actual proper denominator is not all convictions or even all murder convictions by all individuals, but murder offenses committed by individuals under the age of 18.

By definition, those under the age of 18 are a subset of the murder offenders. If you looked at the number of life without sentences being served for offenses committed by offenders between 30-35, you would have a small percentage of the total murder offenders (or total offenders) as well.

To make the argument that life without is "unusual" for juvenile offenders, but not for other offenders (which is what the Supreme Court essentially did), the percent of juveniles getting life without for murder would have to be significantly smaller than the percentage of adults getting life without for murder.

Posted by: tmm | Jan 25, 2013 9:44:19 AM

BTW, there's been legislation filed in Texas to address the post-Miller juvie LWOP issue, see here.

Posted by: Gritsforbreakfast | Jan 25, 2013 2:32:00 PM

"The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise."

That's a nice way of saying that 8A "jurisprudence" is lawless.

Posted by: federalist | Jan 26, 2013 5:37:45 PM

I'm a mother my 20yr old son was murder by a 17 yr old. miller v alabama is sending out a message it ok for juvenile to murder, a 2 yr old knows went he 's doing wrong, my family have to go to court , WHAT ABOUT THE LIFE THAT TAKEN!

Posted by: rev janice charles | Oct 1, 2013 12:14:23 PM

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