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June 26, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers

Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents.  Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent. 

Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents.  However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent.  In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents.  I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.

Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.'  Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such."  Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.

First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence.  Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP.  (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.) 

There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily).  I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson.  Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event.  It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual." 

Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence).  Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual."  But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.

Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year.  In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009.  Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event.  I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front.  (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)

Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago.  Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years.  Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event.  Something that happens only 2.5% of the time seems to me to be "unusual."

This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham.  But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual."  Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence.  But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.

June 26, 2012 at 03:03 PM | Permalink


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Also, while the Court has eviserated the 8th Amendment with various precedents over the years, it seems to me that the natural meaning of "cruel and unusual" has always been "grossly disproportionate" when viewed in the context of criminal sentences as a whole relative to the crime of conviction under these particular facts and circumstances. It is semantically equivalent to "very harsh" or "grossly excessive" punishment for the offense committed. The 8th Amendment also seems to forcibly vest the courts with making that determination whether or not their political theory would like to defer to legislative and trial court judgments generally, and calls upon judges to resort to their own gut understanding of what is fair and their own common decency.

Invalidating mandatory juvenile LWOP sentences en masse for discretionary resentencing is appropriate as a means to the end, in that view, if the offense may be grossly disproportionate, but it is impossible to determine this on appellate review due to the lack of a sentencing record, since there were no issues to consider at sentencing.

Posted by: ohwilleke | Jun 26, 2012 4:11:33 PM

Felony murder IS murder. Artificially parsing down the facts and circumstances of a case is a trompe l'oeil which has, unfortunately, gained favor in this line of "jurisprudence." Kuntrell joined a guy with a gun in a robbery. The prettying up of his supposed lack of culpability is stunning.

Posted by: federalist | Jun 26, 2012 4:20:35 PM

Do you view mens rea as irrelevant to any 8th A analysis, federalist?

Posted by: Doug B. | Jun 26, 2012 4:59:04 PM

@federalist: are you really saying that you can detect no difference between the actions of Miller and Jackson?

I assume that Doug will have something to say about Miller later, but in the above post he confines the analysis to Jackson, as there ought to be very little doubt that his case is different, and that he presents the more compelling anti-LWOP case.

But no one is saying he isn't culpable at all, only that his culpability does not warrant the most severe penalty that the law presently allows.

Posted by: Marc Shepherd | Jun 26, 2012 6:04:30 PM

I think it is too easy to play semantic games with unusual. One in 40 may not be particularly frequent, but is it rare enough to be unusual? The odds of having your home destroyed by a tornado to pick one natural disaster is probably less than that even in tornado alley, but it happens often enough to not merit the term unusual.

Additionally, this type of analysis of unusual seems to be somewhat perverse. We give officials discretion to attempt to weed out the worst homicides by juveniles (those meriting LWOP) from lesser homicides (those only meriting regular life) and then claim that the punishment is unusual when that discretion is used.

Posted by: TMM | Jun 26, 2012 6:07:06 PM

I disagree that the 8A necessarily vests the courts with the final decision based upon their gut instincts. Why should the "gut" of a federal judge necessarily mean more than the collective "gut" of each state legislature?

Posted by: Scott | Jun 26, 2012 6:08:18 PM

The odds of a child being diagnosed with autism is 1 in 88 and few people I know think that autism is an unusual diagnosis. Far from it.

Posted by: Steve Erickson | Jun 26, 2012 6:19:27 PM

"lso, while the Court has eviserated the 8th Amendment with various precedents over the years..."

cite please.

Posted by: Steve Erickson | Jun 26, 2012 6:21:46 PM

I'm with the others. I don't think that playing semantic games with the word unusual gets one far. I think a great deal of what is unusual depends on the context and that no universal quantification of unusual exists. It all depends on how you frame the term and naturally judges are going to frame the term in way that suits their predisposition on the matter.

To the extent that Roberts rests the 8A on quantification I think he's being silly. (I haven't read the opinion os that's a generic comment).

Posted by: Daniel | Jun 26, 2012 6:55:46 PM

I think many people would have fewer kids if autism was not an unusual event. Again, I realize this may be all semantics, but to me unusual is different than rare. More to the heart of this post, I just want to suggest it is plausible to view juve LWOP sentences as unusual, contrary to the Chief's assertion to the contrary.

Posted by: Doug B. | Jun 26, 2012 8:39:31 PM

So Doug, when the majority opinion says basically that LWOP for juveniles is still okay as long as it's not mandatory but cautions that it should be unusual, then as long as the sentence is not automatic the same number of juveniles could be sentenced to LWOP as there are now and that won't run afoul of the court's caution about its frequency?

Posted by: Steve Erickson | Jun 26, 2012 9:08:59 PM

Fair question, Steve, though I think if/when those subject to LWOP discretionarily end up being the type pf offenders Justice Alito mentiones --- i.e., the "17½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers" --- the claim that their sentences are cruel or unusual gets much weaker.

Posted by: Doug B. | Jun 26, 2012 9:25:03 PM

Wouldn't all of the brain related immaturity factors that make LWOP cruel still be at play for the 17.5 year old mall killer? Keep in mind that neuronal myelination keeps going well into the 30s.

Posted by: Steve Erickson | Jun 26, 2012 9:36:30 PM

Somewhat interesting that Kennedy joins the majority in this case. Would he, today, decide Harmelin the same way he did back then?

Posted by: Calif. Capital Defense Counsel | Jun 26, 2012 9:37:52 PM

I wonder whom amongst the majority would say that the State and/or parents should be able to determine if a minor got an abortion. After all, kids are different and need special consideration. I'll bet not all of them. Curious as to why.

Posted by: Scott | Jun 26, 2012 9:46:23 PM

Personally, Steve, I view LWOP as more cruel for any and everyone than even the death penalty. We are all going to die eventually, the death penalty just hastens the inevitable. But to be for every remaining waking breath locked in a cage with no hope of future freedom, deprived of all liberties (including the liberty to end one's own life), strikes me as more cruel in a nation "conceived in liberty" than death at any age.

I have never been convinced that brain science changes the constitutional equation a lot, but it does add support for the notion that it is cruel to impose a permanent punishment on one whose character is still in the earliest stages of development. More to the point, I do not think the brain science is what supports drawing a constitutional line at 18 for these or other purposes. But for a variety of reasons, the modern law (including constitutional law) has decided that 18 makes a convenient and sensible age line for differentiating between partial citizens and full citizens. (E.g., we do not generally say 17-year-olds are responsible enough to vote or have gun rights or serve in the military.) To allow states to treat kids under 18 just like adults for criminal responsibility, while not allowing these same kids to have other rights of being an adult just strikes me as incongruous at best, unconstitutional at worst.

Please understand that none of what I say here is meant as an assertion that Miller was an easy case or that the implications of the majority's ruling are clear/logical/convincing. But I am eager in a series of posts to highlight that what the dissenters say are also not quite so clear/logical/convincing.

Posted by: Doug B. | Jun 26, 2012 10:55:50 PM

Anyone up for a view of the 8th Amendment in which "cruel and unusual" isn't two things, but just one thing -- like "cruel and deviant"? It seems to me at least a plausible reading of the 8th Amendment that "unusual" was (maybe even originally) meant in the moral sense of "unnatural" or "deviant" rather than in the empirical sense of "rare." But I'm no originalist, so I stand ready to be corrected or pointed toward literature I obviously haven't read.

If the 8th Amendment is to have any principled reading, it seems to me, this silly legislative nose-counting has got to go. If we read other constitutional provisions that way, we'd still have gender discrimination and a host of other "usual" unconstitutionalities.

Posted by: Linda Meyer | Jun 27, 2012 4:40:15 PM

Doug, of course mens rea can be relevant to an Eighth Amendment analysis. But remember, this case really isn't about mens rea, it's about the totality of the circumstances. Now that's out of the way, a couple of points--felony murder IS murder. Jackson was part of a group that brutally killed an innocent person. In our tradition, felony murder is every bit as bad as regular murder. Now I understand that in capital cases, because death is different (something which shows how silly capital jurisprudence has become) minor participants in a crime that falls under the felony murder rule cannot receive the death penalty. But that is a far cry from telling legislatures that they cannot come to the conclusion "kids" who murder (i.e., deprive another human being of life) have simply forfeited any chance to walk the streets. The whole point of legislative judgments is that they apply to many cases with many different factual permutations. This idea of individualized determination is made up BS, and an invasion of the province of the legislature. The legislature can decide to resolve the question of what we do about "kids who kill" by saying that, effectively, they need to go away in all circumstances, even if in individual cases, there may be some alleged injustice. You hear so much BS about foreclosing all chance of rehabilitation etc. But there's also the punishment aspect of all of this. Murder is a horrible horrible crime. These animals thought they had the right to kill someone for a few dollars. It's certainly constitutional, no matter what Kagan says, for the legislature to resolve all issues of justice in favor of never letting these people out. At the end of the day, Kagan says that the Constitution tells society that it cannot simply make a categorical statement that those who kill may not walk the streets ever again. To state the proposition is to refute it.

Posted by: federalist | Jun 28, 2012 8:52:20 AM

"@federalist: are you really saying that you can detect no difference between the actions of Miller and Jackson?"

No, but when there is a limit to what punishment can be meted out, you are necessarily going to have worse crimes punished the same as lesser crimes. Let's say someone kills 10 people and gets death, does that foreclose someone who kills 3 from getting death?

And this whole thing is an exercise in silliness. Everyone weeps for Jackson because he got a mandatory JLWOP. What about the victim? She didn't even get a trial. Is it really "cruel" to say that one of the animals that did this isn't going to get some superduper due process to determine whether he should be eligible for discretionary parole? No. He killed someone. And he still lives.

Posted by: federalist | Jun 28, 2012 8:57:38 AM

@Linda Meyer - I don't have the cites handy, but I know that there has been a somewhat convincing originalist argument made that "cruel and unusual" as used in the British antecedents, as well as the drafting of the Bill of Rights, did mean something closer to what you describe than the current, quantitative interpretation -- i.e., the words functioned together as the equivalent of "grossly disproportionate," rather than unusual functioning separately to mean "rare."

Posted by: Anon | Jun 28, 2012 12:38:04 PM

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