Proportionality and Juvenile Offenders

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Court has distinguished the treatment of juvenile offenders in considering proportionality under the “cruel and unusual punishment” standard. In Graham v. Florida,1 Justice Anthony Kennedy, writing for a five-Justice majority, declared that “[t]he concept of proportionality is central to the Eighth Amendment,” in holding that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 2 Justice Anthony Kennedy characterized proportionality cases as falling within two general types. The first type comprises challenges to the length of actual sentences imposed as being grossly disproportionate, and such challenges are resolved under approaches taken in Solem, Harmelin, and similar cases. The second type comprises challenges to particular sentencing practices as being categorically impermissible, but categorical restrictions had theretofore been limited to imposing the death penalty on those with diminished capacity. In Graham, Justice Anthony Kennedy broke new ground and recognized a categorical restriction on life without parole for nonhomicide offenses by juveniles, citing considerations and applying analysis similar to those used in his juvenile capital punishment opinion in Roper v. Simmons.3 In considering objective indicia of a national consensus on the sentence, the Graham opinion looked beyond statutory authorization—thirty-seven states and the District of Columbia permitted life without parole for some juvenile nonhomicide offenders—to actual imposition, which was rare outside Florida. Justice Anthony Kennedy also found support “in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adhere[d] to a sentencing practice rejected the world over.” 4 After finding that a consensus had developed against the sentencing practice at issue, Justice Anthony Kennedy expressed an independent judgment that imposing life without parole on juveniles for nonhomicide offenses failed to serve legitimate penological goals adequately.5 Factors in reaching this conclusion included the severity of the sentence, the relative culpability of juveniles, and the prospect for their rehabilitation.6

The concept of proportionality also drove Justice Elena Kagan’s majority opinion in Miller v. Alabama, in which the Court held that the Eighth Amendment forbids any sentencing scheme that mandates life without parole for juveniles convicted of homicide.7 The Miller Court’s analysis began by recounting the factors, stated in Roper and Graham, that mark children as constitutionally different from adults for purposes of sentencing: Children have diminished capacities and greater prospects for reform.8 In the Court’s view, a process that mandates life imprisonment without parole for juvenile offenders is constitutionally flawed because it forecloses any consideration of the hallmark attributes of youth in meting out society’s severest penalties.9 Nevertheless, the majority concluded that those factors, even when coupled with the severity of a life without parole sentence, did not require a categorical bar on life without parole for juveniles in homicide cases.10 Rather, the Court held that sentencers who consider an offender’s youth and attendant characteristics may impose discretionary juvenile life without parole sentences in homicide cases.11 Building on Miller, in Montgomery v. Louisiana, the Court held that Miller's prohibition on mandatory life without parole sentences for juvenile offenders applied retroactively to convictions that were final before Miller was decided.12 Justice Anthony Kennedy, joined by five other Justices, explained that Miller had prohibited life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 13

After the foregoing decisions expanded Eighth Amendment protections for juvenile offenders, the Supreme Court declined to further extend those protections in Jones v. Mississippi.14 In that case, a man convicted of murder as a juvenile argued that the Eighth Amendment, as interpreted in Miller and Montgomery, prohibits sentencing juvenile homicide offenders to life without parole unless they are found to be “permanently incorrigible.” 15 Justice Brett Kavanaugh’s majority opinion rejected that argument, holding that “a separate factual finding of permanent incorrigibility is not required” before a juvenile may be sentenced to life without parole.16 Rather, a state sentencing scheme that gives the sentencer discretion whether to impose a life without parole sentence for a juvenile homicide offender “is both constitutionally necessary and constitutionally sufficient.” 17

1: 560 U.S. 48 (2010).
2: Id. at 82. The opinion distinguished life without parole from a life sentence. An offender need not be guaranteed eventual release under the Graham holding, just a realistic opportunity for release based on conduct during confinement.
3: See 543 U.S. 551 (2005). Concurring in the judgement in Graham, Chief Justice John Roberts resolved the case under a proportionality test, finding the majority’s categorical restriction to be unwise and unnecessary in Graham's circumstances. 560 U.S. 48 (2010) (Roberts, C.J., concurring).
4: Graham, 560 U.S. at 80.
5: For a parallel discussion in Roper, see 543 U.S. 551, 568–75 (2005).
6: In dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia and, in part, by Justice Samuel Alito, questioned both the basis and the reach of the majority opinion. In addition to strongly objecting to adopting any categorical rule in a nonhomicide context, Justice Clarence Thomas pointedly criticized the conclusion that the legislative and judicial records established a consensus against imposing life without parole on juvenile offenders in nonhomicide cases. He also disparaged the majority’s independent judgment on the morality and justice of the sentence as wrongfully pre-empting the political process. Graham, 560 U.S. 48 (Thomas, J., dissenting).
7: 567 U.S. 460, 465 (2012).
8: Id. at 471.
9: Id. at 477.
10: Id. at 479.
11: Id. at 479–80.
12: 577 U.S. 190, 205 (2016).
13: Id. at 208–09.
14: No. 18-1259, slip op. at 1–2 (U.S. Apr. 22, 2021).
15: Id. at 1.
16: Id. at 5.
17: Id.