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.