The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.
Many scholars and advocates have applauded these decisions as necessary to constrain judges and juries from imposing such punishments on members of vulnerable, less culpable groups. They have argued that, for the members of these groups, traditional aims of punishment, such as deterrence and retribution, are less applicable. Although we agree with this underlying logic, we write to raise questions about the potential costs of these “categorical bars,” which draw bright lines to separate those who are constitutionally deserving of mercy and redemption from those who are not. We have found that, although the Court may have sought to make extreme punishment less arbitrary, such stark demarcation often contributes to arbitrariness by tying punishment more to birth date than to culpability. These bright lines favor blunt administrability at the cost of nuanced, individualized sentencing determinations.
In drawing these conclusions, we rely not only on research but on lived experience. One of us, Terrell (“Rell”) Woolfolk, was sentenced to life without parole for a crime committed as a young man in his twenties. Following Graham and Miller, Rell was initially buoyed by the Court’s recognition that brain development impacted both crime and culpability. However, he grew disenchanted with the decision to draw a hard line at eighteen—an age not supported by the very same neuroscience that the Court’s opinion appeared to rest on. Rell saw firsthand how the Court’s jurisprudence resulted in arbitrary outcomes: relief bestowed on people who had committed intentional murder at age seventeen but denied from those only a few months older, whose killings were unintentional. The other of us, Kathryn Miller, experienced the Graham and Miller decisions from a more privileged position. As a criminal defense attorney, she attempted to seek relief for qualifying individuals. Although she interviewed potential clients at the same facility at which Rell was incarcerated, their paths never crossed because Rell’s age categorically barred him from consideration as a potential client.
Through a critical inventory of Eighth Amendment jurisprudence, scholarship, and experience, we argue for state solutions to this constitutional myopia. States should blur the lines associated with sentencing relief. Rather than focus on a person’s age, they should create individualized sentencing opportunities for anyone facing sentences of death by incarceration whose stories exhibit the characteristics underlying the reasoning of Graham and Miller. Individuals who can demonstrate that they possessed the immaturity, impulsivity, or vulnerability that the Court recognized reduces culpability, along with the changeability that demonstrates their redemption, should qualify for sentencing relief.
