Introduction

The final week of the Supreme Court’s 2011 Term will be remembered for the “Obamacare” decision, National Federation of Independent Business v. Sebelius1 (NFIB), in which the Court substantially upheld the federal Patient Protection and Affordable Care Act.2 But NFIB was not the only significant case that the Court handed down that week. Three days prior to NFIB, the Court decided Miller v. Alabama, holding that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”3 In this Essay, I argue that, despite the Court’s narrow framing, Miller suggests a fundamental shift in the Court’s Eighth Amendment methodology.

While important, the actual result in Miller was not unheralded. The Supreme Court had previously struck down, as cruel and unusual, severe punishments applied to juveniles, the mentally ill, and offenders convicted of nonhomicide offenses.4 The real significance of Miller lies less in the result and more in the method employed—or, more precisely, the method not employed. Prior to Miller, the Supreme Court consistently relied on “objective indicia,” such as legislative enactments and sentencing practices, to determine contemporary social norms—and, consequently, to ascertain the meaning of “cruel and unusual.” But Justice Kagan, writing for the Miller Court, declined to apply objective indicia analysis.

Justice Kagan’s opinion positions Miller as an exception to the methodological rule, but I argue that Miller signals that the Court may be poised to abandon objective indicia analysis across all of its Eighth Amendment decisions. I propose that, in place of objective indicia analysis, the Court should adopt what I call a “suspect categories” approach to applying the Eighth Amendment. Under this approach, heightened scrutiny would apply both to those categories of defendant and crime for which we have particular reason to suspect the punishment to be excessive or disproportionate, and to those punishments—such as the death penalty—that may be inherently excessive or disproportionate.

I begin this Essay by outlining the Court’s standard model for determining whether a punishment is cruel and unusual. I then describe the holding and rationale of Miller and contrast the majority’sapproach in Miller with the standard model. Although Miller, on its terms, falls short of a wholesale repudiation of objective indicia analysis, Justice Kagan’s opinion offers several indications of a broad attitudinal change toward the Eighth Amendment. Further, given the fatal shortcomings of objective indicia analysis, we should encourage and applaud the Court’s nascent rejection of that approach. Although the Court ought to continue to view the meaning of “cruel and unusual” through the lens of evolving standards of decency, the Court should implement that interpretive standard by applying different levels of scrutiny (and deference) to different categories of punishment, crime, and offender.5 This “suspect categories” approach, I argue, coheres with Justice Kagan’s approach toward the Eighth Amendment, as demonstrated by her majority opinion in Miller.

I. The Court’s Standard Approach

The overarching theme of Eighth Amendment interpretation has long been that the meaning of “cruel and unusual” is determined in light of “the evolving standards of decency that mark the progress of a maturing society.”6 The Court’s application of this principle has not always been consistent, but over the past decade the Court has developed a specific method for determining whether the Eighth Amendment prohibits a particular punishment from being applied to a class of offenders.7 In each of these rulings, the Court employed a two-pronged approach to assessing whether a punishment is cruel and unusual. I call these two prongs the “objective indicia analysis” and the “independent judgment analysis.”

By employing objective indicia analysis, the Court avoids the charge that the Justices (free from the constraints that the original meaning of the Clause would provide) impose their individual moral views under the guise of society’s evolving standards. The Court considers quantifiable factors—such as the number of jurisdictions that allow or prohibit the practice and the frequency with which the sentence is applied—that (so the argument goes) reflect the community’s contemporary standards about the relevant punishment practice. If enough states prohibit a practice, or allow the practice but do not apply it, then there is a national consensus against the punishment, which in turn shows that the punishment is cruel and unusual.8

But the Court has also insisted that the objective indicia analysis should not dispose of the constitutional question. Rather, the Constitution contemplates a role for the Justices’ “independent judgment”9 whether the punishment practice is cruel and unusual. Hence the second line of analysis, in which the Justices bring to bear their own judgments whether the punishment in question is disproportionate or excessive.

In theory, the Justices’ independent judgments whether a given punishment is cruel and unusual may diverge from the national consensus. The Court has never adequately explained how these two potentially conflicting lines of inquiry fit together to form a coherent methodology.10 It is unclear, for instance, which prong of analysis has priority if the two lead to divergent conclusions. Nor is it obvious how objective indicia analysis provides a meaningful constraint on independent, subjective judicial morals if the objective data are not dispositive. As it happens, the Court has never been pressed to clarify the tension between the two prongs, which have never led to divergent conclusions. In every case involving both objective indicia analysis and independent judgment analysis, the results of each inquiry have converged: either the objective indicia and the Justices’ independent judgment have both supported upholding the relevant punishment practice, or the two methods have supported striking it down.11 Apparently, each Justice’s independent judgment always accords with (that Justice’s understanding of) society’s judgment—even when that Justice’s independent judgment conflicts with those of his or her colleagues.12

II. Miller v. Alabama

In Miller, the Court held that mandatory life without parole for juvenile offenders violates the Eighth Amendment. Justice Kagan, writing for the Court, reiterated the directive that “cruel and unusual” be understood in light of evolving societal standards of decency.13 But the Court eschewed the use of objective indicia to determine current societal standards. Rather, Justice Kagan’s opinion asserted that “the confluence of these two lines of precedent leads to the conclusion” that such sentences are unconstitutional.14 The first line of precedent involves categorical bans on a particular punishment for a class of offenders, the most recent and relevant being Graham v. Florida,15 in which the Court banned life without parole for nonhomicide juvenile offenders. The second line of precedent consists of those cases prohibiting mandatory imposition of capital punishment, beginning with Woodson v. North Carolina.16 From the former set of cases, the Miller majority discerned the principle that life without parole is to juveniles as the death penalty is to adult offenders.17 From the latter line of cases, the majority identified a requirement for “individualized sentencing” when imposing the death penalty.18 The synthesis of those two principles led the Court to conclude that imposing life without parole on a juvenile requires consideration of individual factors, including, most importantly, the youth of the offender and the implications for his or her culpability.19

Perhaps the most striking aspect of Miller is the majority’s assertion that objective indicia analysis was inapposite in this case. The Court argued that Miller and its companion case20 were “different from the typical one in which we have tallied legislative enactments.”21 The typical tallying case, Justice Kagan maintained, involves a categorical bar to imposing a penalty on a class of offenders or offense, whereas Miller “mandate[d] only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.”22

By adopting that position, the Miller Court avoided justifying its stance by reference to the number of states that subject juveniles to mandatory life without parole. Justice Kagan’s opinion only referred to the data to counter the claim that the objective indicia support upholding the punishment.23 But the Miller Court did not explicitly declare that objective indicia analysis would no longer be employed in other types of Eighth Amendment cases, most notably cases involving a categorical bar.24 There are, however, several reasons that suggest the Court may—and should—extend Miller’s approach and disavow objective indicia analysis in all Eighth Amendment cases.

III. Abandoning Objective Indicia Analysis

Despite Justice Kagan’s framing of Miller as addressing only the mandatory imposition of juvenile life without parole, there are strong indications that the Court will forsake objective indicia analysis in a broader range of cases, including those involving a categorical bar.

The Court’s recent history demonstrates a steady extension in the Eighth Amendment’s reach. When the Court has imposed a bar to punishment, it has framed its holding narrowly, carefully distinguishing the set of practices to which the ban applies from the broader set of practices not affected by the holding.25 But when the Court has later confronted a punishment of the kind distinguished in a prior case, it has routinely construed the prior decision as not ruling that only the punishments banned by the prior holding are cruel and unusual. Justice Kagan’s treatment of Graham is a case in point. The Miller Court acknowledged that “Graham’sflat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm.”26 But the majority in Miller argued that none of what Graham had said about child offenders—“about their distinctive (and transitory) mental traits and environmental vulnerabilities”—was limited to nonhomicide offenses.27 Those factors applied equally to juveniles convicted of homicide. Even though Graham’sholding was expressly limited to juvenile nonhomicide cases, Graham’srationale also supported a ban encompassing juvenile homicide offenders.

We can expect a similar fate for Miller. Although the Miller Court limited its methodology to “process” cases, and expressly distinguished “categorical bar” cases, future cases are unlikely to preserve this distinction. First, the majority did not conclusively distinguish Miller from the objective indicia analysis. As we have discussed, Justice Kagan argued that Miller differed from the typical objective indicia case because Miller involves prohibiting a process—mandatory imposition of a punishment—rather than a category of punishments. But the majority’s description of categorical-bar cases did not match the Court’s previous account of categorical-bar cases. In earlier cases, including Graham, the Court distinguished cases involving a category of punishments from cases in which a particular defendant’s sentence is challenged; the Court did not distinguish between categorical-bar cases and process cases.28 The majority opinion also did not note that the paradigmatic process case, Woodson v. North Carolina, itself employed objective indicia analysis.29 And none of the cases following Woodson suggest that objective indicia analysis does not apply to determining the constitutionality of mandatory punishments.30 In other words, there is no doctrinal reason to apply a different methodology in process cases. The force of prior mandatory-sentencing cases is quite to the contrary.

In addition, the rationale for applying objective indicia analysis applies equally to both process and categorical-bar cases. The Court’s opinion in Miller affirmed that the meaning of “cruel and unusual” is always determined in light of evolving standards of decency. That is, the Miller Court accepted that “evolving standards of decency” is the appropriate standard for assessing Eighth Amendment challenges both to substantive categories of punishment and to the processes by which punishments are imposed—including mandatory imposition, as in Miller itself. The Court has never suggested, and did not suggest in Miller, that whether a punishment procedure is cruel and unusual is determined by the original understanding of “cruel and unusual,” rather than evolving standards. In other words, whether mandatory juvenile life without parole is cruel and unusual, even if it is characterized as a procedural rule, depends on contemporary standards of decency. The justification for objective indicia analysis is that it provides a barometer of current standards of decency, based on factors independent of the Justices’ individual moral preferences.31 It is far from self-evident, however, why the Court would require that objective guidance to determine whether a category of punishment accords with current standards, even though the Court would not need objective data to determine contemporary social views about the permissibility of punishment processes. Since the Court has retained “evolving standards of decency” as an interpretive principle, it makes little sense to reject objective indicia analysis in process cases, but continue to employ it in categorical-bar cases.

In combination, these two factors—(1) the trend of extending the Eighth Amendment’s application and (2) the weakness of justifications for cabining Miller’s methodology to process challenges—suggest that the Court will likely follow Miller and decline to employ objective indicia analysis in other cases, ultimately abandoning the methodology entirely. In the following Part, I briefly discuss why this predicted development is a salutary one.

IV. The Shortcomings of Objective Indicia Analysis

The Court’s use of objective indicia to determine whether a punishment practice is contrary to contemporary standards of decency has numerous shortcomings. I will mention four of the problems, some of which have been described in detail by other scholars.32

First, objective indicia analysis makes the meaning of the Eighth Amendment dependent on legislative action, which contradicts the nature of the Amendment as a limitation on legislatures’ power to punish.33 If, tomorrow, every state were to enact legislation endorsing some punishment practice—any punishment practice—then objective indicia analysis would support the constitutional validity of that practice. By acting together, states could, at least in theory, constitutionalize their enactments through the very fact of enacting them. Even if courts were to use other indicia of society’s preferences (including jury decisions), the problem would remain that the majority’s preferences would define a countermajoritarian right.34

Second, objective indicia analysis raises federalism concerns. The legislatures of a majority of states could, in effect, dictate the law of a minority of states. If a previously valid punishment were prohibited by a majority of state legislatures, then the practice would become cruel and unusual and so could not be applied even in the minority of states whose legislatures wish to retain the punishment.35

Third, objective indicia analysis is not really objective in the relevant sense. The data are highly malleable, with enormous discretion involved in determining whether enough states prohibit a punishment (or few enough states allow, or have recently imposed, the punishment) that a national moral consensus exists against the punishment. With such latitude allowed, objective indicia analysis does not provide the meaningful constraint on Justices that is its raison d’être: it does not ensure that judges apply social mores and not their own personal values.36 One need only recall that a majority of the Supreme Court has never held that a punishment is cruel and unusual according to the Justices’ individual judgments, but not cruel and unusual according to the objective indicia (or vice versa). Either that fact is an extraordinary coincidence, or it is evidence that the Court manipulates objective indicia analysis to support its desired outcome.

Finally, whether a state imposes, allows, or prohibits a punishment may not reflect the moral views or standards of the people of the state. There is a wide range of explanations, other than community standards, why a state legislature would enact or not enact a particular law. For example, a state may decline to impose the death penalty on a certain class of offenders because state legislators believe that the punishment would be struck down as unconstitutional.37 If so, the lack of legislation tells us nothing about whether the state’s citizenry believes the punishment to be morally impermissible. In other words, the punishment practices of state legislatures and sentencing bodies do not necessarily reflect underlying social norms.

V. A New Eighth Amendment Methodology

If the Supreme Court is moving to abandon objective indicia analysis, the pressing question is: what methodology will take its place? The Court’s Miller opinion does not provide a complete answer. The core of the Court’s reasoning is simply that the result in Miller flows inevitably from the confluence of the two lines of precedent discussed above. The Miller opinion does, however, contain some hints as to how the Court will assess whether a punishment is cruel and unusual in cases that the Court cannot claim are so directly controlled by precedent.

The Miller Court endorses the view that the central concept of the Eighth Amendment is that punishment must not be excessive, but instead must be proportional to the offender and to the offense.38 A punishment is excessive if it goes beyond what is necessary to achieve the legitimate penological goals of punishment, such as retribution, deterrence, and incapacitation.39 But it is incredibly difficult to calibrate the precise level of punishment that is required (or allowed) by these justifications for a given offense or offender, and there is room for reasonable people to disagree.40 The independent judgment portions of the Justices’ opinions, which essentially consist of the Justice’s judgment whether legitimate penological goals justify a punishment, reflect that disagreement. Hence the recourse to objective indicia analysis. But since this analysis is neither objective nor indicative of social standards, we need an alternative decision rule to resolve reasonable disagreements.

The Court’s opinion in Miller suggests a different way to resolve the issue. “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence,” Justice Kagan wrote, “such a scheme poses too great a risk of disproportionate punishment.”41 That claim reflects the notion that, for some sets of punishments, offenses, and offenders, we have specific reasons to suspect that the punishment will be disproportionate in an individual case—just as we have reason to suspect, in equal protection analysis, that distinctions based on race or gender are illegitimate. In the Eighth Amendment context, one such set is juvenile offenders, who as a class lack the mental capacity of adults. As a result, “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders.”42 We thus have reason to suspect that a legislative determination that a harsh punishment usually reserved for the worst of the worst, such as death or life without parole, is disproportionate for juvenile offenders. Moreover, the basis for treating juvenile offenders as a suspect category—their diminished capacity and moral culpability compared with adults—is both a general principle of modern law and a view widely shared by and reflected in contemporary societal standards.43 The uncontroversial notion that juveniles are, as a class, less culpable than adults therefore provides an indication of evolving norms—one that is grounded in something more tangible than the subjective value judgments of individual Justices, yet also avoids the state nose-counting that characterizes objective indicia analysis.

Juveniles are not the only class of offenders for whom we have reason to suspect that a harsh punishment may be disproportionate. Mentally retarded individuals are generally accepted as having less capacity, and accordingly less moral culpability, than nonretarded adults.44 Similarly, there are classes of offenses that are treated as generally involving less culpability than others, such as crimes of omission.45 Because we consider crimes of omission, as a class, to be less reprehensible than crimes of commission, we have reason to be skeptical that a harsh punishment is proportional to an omission offense—such as, for example, mandatory life imprisonment for failure to register as a sex offender.46

In light of this, I suggest that the Court should decide Eighth Amendment cases under a model inspired by—but not identical to—the “tiers of scrutiny” review applied under the Fourteenth Amendment. In situations in which there is reason to suspect that the punishment is disproportionate—such as when the punishment is especially harsh, when the offender is a juvenile or mentally retarded, and when the offense is an omission—then the Court should apply strict scrutiny to the legislature’s implicit claim that the punishment is justified by legitimate penological goals. For example, the death penalty and life without parole are generally considered proportional only for the small number of the most morally culpable, irredeemable offenders who commit the most extreme crimes. Consequently, if a legislature allows that punishment to be imposed on a category of offenders who, as a general rule, have comparatively low moral culpability, the Court should scrutinize the punishment strictly.

This heightened scrutiny could place a heavy burden on the legislature to show that the aims of retribution, incapacitation, or deterrence require the harsh punishment. In situations that do not involve suspect categories (for example, an adult with full capacity sentenced to a term of years) courts would generally defer to the legislature’s view that the punishment is proportional. The party challenging the punishment would have a high burden to show that it is excessive. In cases in which reasonable people disagree about which punishment penological goals require in a particular case, whether a suspect category is involved—and hence who bears the burden of persuasion—will often be decisive. This dynamic again mirrors the tiers-of-scrutiny approach to the Equal Protection Clause, with strict scrutiny almost impossible to pass and rational basis review commonly satisfied.

I must stress, however, that the analogy between my proposal for the Eighth Amendment and Equal Protection Clause tiers of scrutiny should not be mistaken for wholesale incorporation. The Equal Protection Clause approach serves merely as a guiding model, in two ways. First, the equal protection experience demonstrates that it is possible to interpret a broad constitutional provision in a manner that reflects contemporary norms without allowing the majority to dictate the provision’s meaning. When the Supreme Court held that an antimiscegenation law violated equal protection, for example, it did so on the basis that the law failed to satisfy the requirements of strict scrutiny; it did not determine the constitutional issue by merely analyzing the number of states that prohibited interracial marriage.47 Second, Equal Protection Clause doctrine provides an example of different levels of scrutiny being triggered by the existence of a reason to be suspicious of a legislative classification.

But the analogy only goes so far: the classes I propose as “suspect” for Eighth Amendment purposes are not the same classes considered “suspect” under the Equal Protection Clause. Nor is the reason for heightened scrutiny the same in each case. Under a tiers-of-scrutiny approach to the Eighth Amendment, a class of offenders or offenses is suspect when we have a category-related reason to be skeptical that the punishment is proportional to the crime, not when the class has been historically subordinated, or is a “discrete and insular” minority.48 The specific critiques of current equal protection doctrine49 therefore do not automatically apply to a tiers-of-scrutiny approach to the Eighth Amendment.

Conclusion

By holding that mandatory life without parole is cruel and unusual punishment, Miller continues the Supreme Court’s gradual expansion of the Eighth Amendment’s scope over the past ten years. But it does so by departing from the Court’s now familiar methodology. Unlike its predecessors, Miller does not rely on objective indicia of evolving standards of decency. The Court’sopinion purports to distinguish Miller from earlier cases involving objective indicia, but that distinction will not last long. The Court, led in this instance by Justice Kagan, may be moving toward abandoning objective indicia when applying the Cruel and Unusual Punishments Clause. Justice Kagan has not yet set forth a fully developed alternative methodology, but her majority opinion in Miller suggests a “suspect categories” approach to the Eighth Amendment. According to this approach, the Court would apply heightened scrutiny when considering a category of crime or offender that contemporary society, and the modern legal system, generally regards as involving less moral culpability. This approach not only reflects evolving standards of decency, but also provides a means to decide Eighth Amendment cases even though reasonable persons may differ whether the punishment at issue is excessive.

Ian P. Farrell is an assistant professor at the University of Denver Sturm College of Law.

Preferred citation: Ian P. Farrell, Abandoning Objective Indicia, 122 Yale L.J. Online 303 (2013), http://yalelawjournal.org/forum/abandoning-objective-indicia.