The Mandate of Miller

In applying the Eighth Amendment’s prohibition against cruel and unusual punishments, the United States Supreme Court has long abided by one core principle: death is different. Because the consequences of an execution are unique in their severity and irrevocability, counsels the Court, the Eighth Amendment requires that capital cases receive a heightened set of safeguards not available in non-capital cases. Likewise, the Court has historically refused to apply the Eighth Amendment to restrict disproportionate sentences in non-capital cases, even where the sentence imposed seems particularly excessive.Recently, however, the Court has twice breached this formerly impervious barrier between capital and non-capital cases. In 2010, the Court held in Graham v. Florida that the Eighth Amendment barred imposition of life-without-parole sentences on juveniles in non-homicide cases. And last summer, the Court chipped away further at the bright line distinction between capital and non-capital cases in Miller v. Alabama, holding that the Eighth Amendment barred mandatory life-without-parole sentences for juvenile offenders.By crossing this bright-line rule in Graham, the Court implicitly raised the issue of whether life-without-parole sentences require heightened Eighth Amendment scrutiny based on their own inherent severity and finality. And Miller arguably highlights an obvious application for such scrutiny: mandatory life-without-parole sentences.It is not the mandatory sentence itself, but the consequence of such a sentence — death in the custody of the state — that implicates the Eighth Amendment. The principal constitutional problem with mandatory death-in-custody sentences is that they deny offenders their day in court by prohibiting individualized consideration of the offender and the offense by the court and by foreclosing introduction of mitigating evidence. The Court has made it clear that such a right is available to capital defendants, and now, in Miller, for juveniles facing life without parole. This article, then, argues for an extension of this Eighth Amendment protection to all cases where a defendant faces the possibility of a death-in-custody sentence — a death sentence, a life-without-parole sentence, or a sentence with a term of years approaching the life expectancy of the offender. Accordingly, the mandate of Miller is that the Eighth Amendment should require individualized sentencing determinations and consideration of mitigating evidence by courts before the imposition of a death-in-custody sentence.Part I of the article briefly considers the virtues and vices of mandatory sentences to contextualize the case for expanding the holding in Miller. Part II describes the meaning of Miller, highlighting the core principles of the Supreme Court’s Eighth Amendment mandatory sentencing cases. In Part III, the article then advances its central argument — the mandate of Miller — claiming that application of these principles authorizes an expansion of the Eighth Amendment to bar mandatory sentences in all death-in-custody cases and to provide for an opportunity to present mitigating evidence in such cases. Part IV explains where Miller’s mandate matters, exploring the normative consequences of applying this approach. Finally, Part V demonstrates why Miller’s mandate matters, articulating the policy reasons for expanding the scope of the Eighth Amendment in mandatory sentencing cases.