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Journal of Criminal Law and Criminology (forthcoming) EIGHTH AMENDMENT PARADIGM SHIFT: EXPANDING THE EVOLVING CONSTITUTIONAL RIGHTS OF JUVENILES TO ADULTS IN THE MASS INCARCERATION ERA Mugambi Jouet Thomas C. Grey Fellow Stanford Law School As America faced mass incarceration on a scale virtually unprecedented in global history, a slim majority of Supreme Court Justices insisted for three decades that the Eighth Amendment’s bar on “cruel and unusual punishment” essentially does not cover draconian prison terms. Yet the Court ultimately limited the scope of life imprisonment for juveniles in Graham v. Florida (2010), Miller v. Alabama (2012), and Montgomery v. Louisiana (2016). While scholars have primarily identified these decisions as stepping stones toward expanding juveniles’ rights, I address an original issue: whether the evolving constitutional rights of juveniles may be expanded to adult prisoners. The focus on the differences between juveniles and adults in the aftermath of these landmark decisions has obscured how they recognized key sentencing principles that are hardly age- dependent: dignity, proportionality, legitimacy, and rehabilitation. Dissenting Justices and lower courts previously advanced these principles in cases involving adults facing draconian prison terms. My research reveals that in Graham and its progeny the Court strikingly adopted multiple sentencing principles that it once rejected—and that have become the norm in other Western democracies. The Court’s evolution appears consistent with the changing judicial philosophy of Justice Anthony Kennedy, who distanced himself from his own past opinions interpreting the meaning of “cruel and unusual punishment” very narrowly. This paradigm shift in Eighth Amendment jurisprudence paralleled another intriguing development. The law has historically evolved from children having no constitutional rights under the traditional parens patriae system, to juveniles gaining practically the same constitutional rights as adults under the seminal In re Gault decision (1967), to juveniles now having far more constitutional rights than adults at sentencing following the Graham line of cases. This historic reversal suggests that one cannot exclude another paradigm shift leading adult prisoners to gain the same constitutional rights as juveniles under the Eighth Amendment. All of these reasons caution against a new “juveniles are different” doctrine that may prove as rigid as the “death is different” doctrine that formerly made the Eighth Amendment a dead letter except in capital cases. Tellingly, the Justices have relied on neurological and behavioral science establishing that juveniles are more impulsive than adults. This same body of research shows that the brain does not fully mature until the early twenties and that the crime rate drops considerably with age, beginning to flatten by the fifties—calling into question the constitutionality of extremely lengthy prison terms for adults. Word Count: 18,069 i EIGHTH AMENDMENT PARADIGM SHIFT Journal of Criminal Law and Criminology (forthcoming) TABLE OF CONTENTS INTRODUCTION ............................................................................................................................... 1 I. THE EIGHTH AMENDMENT’S EVOLUTION IN THE AGE OF MASS INCARCERATION ............. 6 II. TOWARD A SENTENCING MODEL: THE HISTORIC REVERSAL OF JUVENILE JUSTICE ....... 19 A. The Traditional Parens Patriae System Deprived Children of Constitutional Rights... 19 B. In re Gault Gave Children Essentially the Same Constitutional Rights as Adults ........ 23 C. Roper, Graham, Miller, and Montgomery Granted Children Far More Constitutional Rights Than Adults at Sentencing ........................................................................................... 26 III. EXPANDING THE EIGHTH AMENDMENT RIGHTS OF JUVENILES TO ADULTS ..................... 29 A. Human Dignity .................................................................................................................. 30 B. Proportionality of Punishment to Culpability .................................................................. 34 C. Heightened Review of Punishments Serving No Legitimate Penal Purpose.................. 37 D. Hope for Rehabilitation and Release ............................................................................... 41 CONCLUSION ................................................................................................................................ 49 ii Journal of Criminal Law and Criminology (forthcoming) INTRODUCTION Supreme Court decisions restricting draconian punishments for juveniles have become part of a quiet revolution in Eighth Amendment jurisprudence. After abolishing the juvenile death penalty in Roper v. Simmons,1 the Justices limited the scope of life imprisonment for juveniles in Graham v. Florida,2 Miller v. Alabama,3 and Montgomery v. Louisiana.4 These developments inspired groundbreaking court decisions and legislative reforms regarding juvenile sentencing in multiple states, from Iowa to Texas and beyond.5 While scholars and proponents of criminal justice reform have welcomed these social changes, they have mainly identified them as stepping stones toward expanding juveniles’ rights.6 This Article examines a broader hypothesis: may the quiet revolution in children’s constitutional rights provide guidance to restrict draconian prison terms for adults in the age of mass incarceration? 1 Roper v. Simmons, 543 U.S. 551, 572-73 (2005) (reasoning that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability”). 2 Graham v. Florida, 560 U.S. 48 (2010) (barring life imprisonment without parole for juveniles convicted of nonhomicide offenses). 3 Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that life in prison without parole cannot be a mandatory punishment for juveniles convicted of homicide). 4 Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller established a substantive constitutional rule that should apply retroactively to teenagers mandatorily sentenced to life without parole). 5 See generally Iowa v. Sweet, 879 N.W.2d 811 (Iowa 2016) (abolishing life without parole for juveniles under the Iowa Constitution); CAMPAIGN FOR THE FAIR SENTENCING OF YOUTH, RIGHTING WRONGS: THE FIVE-YEAR GROUNDSWELL OF STATE BANS ON LIFE WITHOUT PAROLE FOR CHILDREN (2016) (indicating that seventeen states ban life imprisonment without parole for juveniles following a nationwide reform movement); Editorial, Juvenile Sentences That Defy the Law, N.Y. TIMES, Sept. 11, 2016, at SR10 (“In the last five years, 12 states—including Texas, Nevada, Wyoming and West Virginia—have banned life-without-parole sentences for juveniles in all cases, for a total of 17 . .”). 6 See, e.g., CAMPAIGN FOR THE FAIR SENTENCING OF YOUTH, supra note 5, at 4 (discussing the “growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole”); Beth Caldwell, Banished for Life: Deportation of Juvenile Offenders as Cruel and Unusual Punishment, 34 CARDOZO L. REV. 2261 (2013) (suggesting that immigration authorities apply Graham and Miller’s reasoning to juvenile deportation proceedings); Sarah French Russell, Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment, 89 IND. L.J. 373 (2014) (arguing that Graham and Miller should lead to reforms in juvenile parole procedures); Robin Walker Sterling, Juvenile-Sex-Offender Registration: An Impermissible Life Sentence, 82 U. CHI. L. REV. 295 (2015) (proposing reforms to teenage sex offender registration based on Graham and Miller). By contrast, few scholars have especially focused on extending Graham and its progeny to the rights of adult prisoners. See, e.g., Jonathan Simon, Dignity and Risk: The Long Road from Graham v. Florida to Abolition of Life without Parole, in LIFE WITHOUT PAROLE 282 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012); William W. Berry III, More Different Than Life, Less Different Than Death, 71 OHIO ST. L.J. 1109, 1113 (2010) (arguing that Graham should lead to heightened constitutional review of all life without parole sentences). 1 EIGHTH AMENDMENT PARADIGM SHIFT Journal of Criminal Law and Criminology (forthcoming) For three decades before its 2010 Graham decision, a divided Supreme Court repeatedly held that the Eighth Amendment offers no protection to persons receiving life sentences for relatively minor offenses. 7 Even as America faced mass incarceration on a scale nearly unprecedented in global history,8 a narrow majority of Justices insisted that a sentence need not be proportional to the crime except in a capital case—a doctrine known as “death is different.”9 Harmelin v. Michigan, a controversial 1991 plurality opinion, was particularly influential in concluding that draconian prison terms are essentially outside the scope of “cruel and unusual punishment.” 10 Yet, in Graham and its progeny, the Justices ultimately engaged in proportionality review of prison sentences by limiting the applicability of life imprisonment to juveniles. In doing so, the Supreme Court may have taken a step toward an interpretation of the Eighth Amendment that would call into question mass incarceration and merciless sentences for all persons, whether teenagers or adults. Indeed, juvenile sentencing principles recognized in Graham, Miller, and Montgomery

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