The Oral Argument in Miller v. Alabama

There were two cases argued yesterday before the Supreme Court dealing with the constitutionality of a sentence of life without the possibility of parole imposed on 14 year old defendants who have committed the crime of murder.  The cases are structured to build on the 'death is not really different' jurisprudence which seemed to emerge in Graham v. Florida, where the Court held that the imposition of LWOP on a juvenile for a non-homicidal offense violates the 8th Amendment.  The cases are Miller v. Alabama and Jackson v. Hobbs.  39 jurisdictions at present permit the punishment.

I think the more difficult of the cases is Miller v. Alabama, and the reason is that Miller participated quite personally in the horrifyingly brutal killing of his victim (do read the opinion of the Alabama Court of Criminal Appeals), while Jackson did not (he was convicted of felony murder as an accomplice, with the predicate felony being robbery).  Justice Sotomayor seems to agree with me ("I do see a world of difference between the Miller killing and the Jackson killing . . . .").  Because he was 14, Miller was (under Alabama law) transferred out of the juvenile system to the adult system, given the quality of the crime.  14 is the lowest age at which Alabama permits this transfer to occur.

The leitmotiv of the argument seems to show various Justices searching for some sort of compromise view; it does not seem that a majority of the Court is prepared to say that imposition of LWOP on minors who have committed murder is categorically a violation of the 8th Amendment, as it did say (notwithstanding what was to my mind a sensible concurrence by CJ Roberts) in Graham v. Florida that the 8th Amendment categorically forbids imposition of LWOP on minors for non-homicide offenses. Justice Kennedy (the author of Graham) talked about a holding that mandatory sentences of LWOP for juveniles convicted of a homicide would violate the 8th Amendment.  Justice Kennedy also mentioned rehabilitation specifically several times in the argument.  Justice Scalia was less interested in rehabilitation ("Let's assume I don't believe in rehabilitation, as I think sentencing authorities nowadays do not"...he might enjoy Meghan Ryan's new piece!), but pointed out quite reasonably the many line-drawing difficulties that the Court confronts -- now that it has moved away from its death-is-different position.

Justice Sotomayor seemed to suggest something like a bifurcated theory: an absolute bar on LWOP for offenders 14 and under and guilty of homicide, and a bar on mandatory LWOP for homicide offenders 15-18, but she was curious about how to work around the Court's holding in Harmelin v. Michigan, which dealt with the imposition of LWOP on a first-time offender for possession of cocaine.  The Harmelin Court engaged in a proportionality analysis, but the opinion was highly fractured.  Justice Kennedy argued for a contextual review in non-death penalty cases (setting out a multi-factor test): unless the sentence was grossly disproportionate to the offense, the Court would uphold it in a non-death penalty context.  Justice Sotomayor's question seems to be -- if the Court engages in a kind of contextual proportionality analysis when it is dealing with an adult who committed a non-homicide offense, why should it engage in a categorical no-LWOP-ever approach when it is dealing with a 17 year old who committed murder?  It is a good question.