3.6: Excessive Punishment

The prohibition against cruel and unusual punishment comes from the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Alaska Constitution has a similar provision. Alaska Const. Art. 1, §12. Although the ban on cruel and unusual punishment relates directly to sentencing, which is a criminal procedure issue, criminal statutes mandating various penalties can be held unconstitutional under the Eighth Amendment just like statutes offending the due process clause, so a brief discussion is relevant to this chapter. Another facet of excessive punishment is a criminal sentencing enhancement that is based on facts not found beyond a reasonable doubt by a jury. This has been held to violate the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right to a…trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

In this section, three issues are analyzed and discussed: the infliction of cruel punishment, a criminal sentence that is too severe, and a criminal sentence that is invalid under the right to a jury trial. All three issues, although process-oriented, impact when, and to what extent, criminal liability is implicated.

Infliction of Cruel Punishment

In general, the government must refrain from inflicting cruel or barbaric punishments on criminal defendants in violation of the Eighth Amendment. In particular, cases asserting that a criminal punishment is inhumane often focus on capital punishment, which is the death penalty.

Brief Synopsis of the History of Capital Punishment^[1]

The death penalty has been used as a criminal punishment since the eighteenth century B.C. American death penalty law is influenced by the British because the colonists brought English common law principles, including capital punishment, with them to the Americas. The first execution in America took place in 1608, for spying. Methods of execution and capital crimes varied from colony to colony. In the late 1700s, a movement to abolish the death penalty began, and in 1846, Michigan became the first state to eliminate the death penalty for all crimes except treason. Throughout the nineteenth and twentieth centuries, the United States fluctuated in its attitude toward capital punishment. Executions were at an all-time high in the 1930s.

Except for a four-year span between 1972 and 1976, the US Supreme Court consistently upheld the constitutionality of the death penalty. In 1972, in the landmark decision of Furman v. Georgia, 408 U.S. 238 (1972), the US Supreme Court held that Georgia’s death penalty statute, which gave the jury complete discretion to sentence a criminal defendant to death, was arbitrary and therefore cruel and unusual punishment in violation of the Eighth Amendment. This decision invalidated death penalty statutes in forty states. Importantly, the US Supreme Court found that the process of imposing the death penalty was unconstitutional; the Court did not find the death penalty itself unconstitutional. The Court has been clear that capital punishment is not inherently barbaric or an unacceptable form of punishment. Instead, the Court has repeatedly focused on the specific application (method) of the death penalty.

In 1976, the US Supreme Court revisited the constitutionality of capital punishment statutes in the case of Gregg v. Georgia, 428 U.S. 153 (1976), in which it found that capital punishment passed constitutional muster if the government employed a “guided discretion” statute. Specifically, the court established a three-part process to impose the death penalty. First, the trial must be bifurcated – the jury must consider the defendant’s guilt separate from the defendant’s sentence. Second, the jury’s decision to impose the death penalty must be guided by specific, statutory aggravating and mitigating factors. Finally, the jury’s decision must include an automatic right of appeal. See id. at 205-07.

As of May 2021, 27 states and the federal government authorize the death penalty; 23 states and the District of Columbia do not. Alaska does not authorize the death penalty, although the state has considered it several times throughout its history.

Disproportionate Punishment

Disproportionate punishment may also fall within the ambit of cruel and unusual punishment. Disproportionate punishment asserts that a criminal punishment is too severe for the crime. Two criminal punishments garner many disproportionate punishment claims: capital punishment and “three-strikes statutes.”

Capital Punishment as Disproportionate

Although the criticisms of the death penalty are well-known, the US Supreme Court has been clear that capital punishment is not inherently barbaric or unacceptable. Instead, the Court has repeatedly focused on whether the specific application of the death penalty is barbaric or inhumane. Capital punishment can be disproportionate because it is too severe for the crime or because it is too severe for the particularcriminal defendant.

Capital Punishment That Is Disproportionate to the Crime

Death is the ultimate punishment, so it must be proportional to the crime the defendant committed. Although the states and the federal government have designated many capital crimes that may result in death (for example, treason), the US Supreme Court has confirmed that the death penalty is too severe for most crimes. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that a sentence of death is grossly disproportionate for the crime of raping an adult woman. Many years later, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court extended this principle and found that “the death penalty is not a proportional punishment for the rape of a child.” See id. at 446. Kennedy maintained the distinction between crimes committed against individuals and crimes committed against the government, like terrorism or treason. See id. at 437. The only crime against an individual that currently merits the death penalty is murder, which is the unlawful killing of another with malice aforethought.

Capital Punishments That Are Disproportionate to the Criminal Defendant

Capital punishment is overly severe for certain criminal defendants. Given that all criminal punishments, including capital punishment, must serve a penological purpose, some criminal defendants are ineligible for the death penalty. Specifically, the imposition of the death penalty is cruel and unusual punishment for a criminal defendant who was a juvenile at the time of the offense, (Roper v. Simmons, 567 U.S 460 (2005), who is mentally incompetent at the time of the execution (Ford v. Wainwright, 477 U.S. 399 (1986)), or suffers from a severeintellectual disability (mental retardation) at the time of the execution (Atkins v. Virginia, 536 U.S. 304 (2002)).

US Supreme Court jurisprudence recognizes that juveniles are different, and must be treated differently when imposing severe sentences. This principle is explored in more detail below. Mental competency, on the other hand, can cover a variety of disorders, but the US Supreme Court has held that a criminal defendant has a constitutional right to a determination of “sanity” before execution. See Ford, 477 U.S. at 405. Intellectual disability is distinct from mental illness and is defined by the US Supreme Court as a substantial intellectual impairment that impacts everyday life, and was present at the defendant’s birth or during childhood. See Atkins, 536 U.S. at 317.

Disproportionate Punishment of Juveniles

In Roper v. Simmons, the Court invalidated the death penalty for all juvenile offenders under the age of 18 at the time of the offense. In explaining its rationale, the Court noted that punishment must be graduated and proportioned to both the offender and the offense. See id at 560. Imposing the death penalty on a juvenile, given the physical and mental immaturity, is fundamentally disproportionate. However, the Court has not limited its intervention to capital punishment. In Graham v. Florida, 560 U.S. 48 (2010), the Court held that life without parole violated the Eighth Amendment when imposed on juvenile nonhomicide offenders. In Graham, a sixteen-year-old defendant was convicted of armed burglary and received life without the possibility of parole. The Court found that such a severe sentence was grossly disproportionate to the severity of the offense. See id at 82. The Eighth Amendment precludes a juvenile who is not convicted of murder from receiving a life sentence. The possibility of rehabilitation has to be considered.

Miller v. Alabama, 567 U.S. 460 (2012)

Miller v. Alabama was decided two short years after Graham. In Miller, the US Supreme Court faced the question left unanswered by Graham – whether a juvenile could be sentenced to a mandatory term of life without the possibility of parole for murder. As you read the case, consider whether it makes sense to treat juveniles differently for such serious crimes.

132 S.Ct. 2455
Supreme Court of the United States
Evan MILLER, Petitioner
v.
ALABAMA.
Decided June 25, 2012.

Opinion

Justice KAGAN delivered the opinion of the Court.

The two 14–year–old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” … and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold 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.”

…

I.

In November 1999, petitioner Kuntrell Jackson, then 14 years old, and two other boys decided to rob a video store. En route to the store, Jackson learned that one of the boys, Derrick Shields, was carrying a sawed-off shotgun in his coat sleeve. Jackson decided to stay outside when the two other boys entered the store. Inside, Shields pointed the gun at the store clerk, Laurie Troup, and demanded that she “give up the money.” Troup refused. A few moments later, Jackson went into the store to find Shields continuing to demand money. At trial, the parties disputed whether Jackson warned Troup that “[w]e ain’t playin’,” or instead told his friends, “I thought you all was playin.” When Troup threatened to call the police, Shields shot and killed her. The three boys fled empty-handed.

Arkansas law gives prosecutors discretion to charge 14–year-olds as adults when they are alleged to have committed certain serious offenses. The prosecutor here exercised that authority by charging Jackson with capital felony murder and aggravated robbery. Jackson moved to transfer the case to juvenile court, but after considering the alleged facts of the crime, a psychiatrist’s examination, and Jackson’s juvenile arrest history (shoplifting and several incidents of car theft), the trial court denied the motion, and an appellate court affirmed. A jury later convicted Jackson of both crimes. Noting that “in view of [the] verdict, there’s only one possible punishment,” the judge sentenced Jackson to life without parole.

…

Like Jackson, petitioner Evan Miller was 14 years old at the time of his crime. Miller had by then been in and out of foster care because his mother suffered from alcoholism and drug addiction and his stepfather abused him. Miller, too, regularly used drugs and alcohol; and he had attempted suicide four times, the first when he was six years old.

One night in 2003, Miller was at home with a friend, Colby Smith, when a neighbor, Cole Cannon, came to make a drug deal with Miller’s mother. The two boys followed Cannon back to his trailer, where all three smoked marijuana and played drinking games. When Cannon passed out, Miller stole his wallet, splitting about $300 with Smith. Miller then tried to put the wallet back in Cannon’s pocket, but Cannon awoke and grabbed Miller by the throat. Smith hit Cannon with a nearby baseball bat, and once released, Miller grabbed the bat and repeatedly struck Cannon with it. Miller placed a sheet over Cannon’s head, told him “ ‘I am God, I’ve come to take your life,’ ” and delivered one more blow. The boys then retreated to Miller’s trailer, but soon decided to return to Cannon’s to cover up evidence of their crime. Once there, they lit two fires. Cannon eventually died from his injuries and smoke inhalation.

Alabama law required that Miller initially be charged as a juvenile, but allowed the District Attorney to seek removal of the case to adult court. The D.A. did so, and the juvenile court agreed to the transfer after a hearing. The State accordingly charged Miller as an adult with murder in the course of arson. That crime (like capital murder in Arkansas) carries a mandatory minimum punishment of life without parole.

Relying in significant part on testimony from Smith, who had pleaded to a lesser offense, a jury found Miller guilty. He was therefore sentenced to life without the possibility of parole. The Alabama Court of Criminal Appeals affirmed, ruling that life without parole was “not overly harsh when compared to the crime” and that the mandatory nature of the sentencing scheme was permissible under the Eighth Amendment.

We granted certiorari in both cases and now reverse.

II.

The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. As we noted the last time we considered life-without-parole sentences imposed on juveniles, “[t]he concept of proportionality is central to the Eighth Amendment.” [citingGraham]. And we view that concept less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society.

The cases before us implicate two strands of precedent reflecting our concern with proportionate punishment. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana, 554 U.S. 407 (2008); Atkins v. Virginia, 536 U.S. 304 (2002). Several of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of our precedents. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.

To start with the first set of cases: Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, “they are less deserving of the most severe punishments.” [citing Graham]. Those cases relied on three significant gaps between juveniles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. [citing Roper]. Second, children “are more vulnerable … to negative influences and outside pressures,” including from their family and peers; they have limited “control over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “ well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable depravity.” [citing Roper].

Our decisions rested not only on common sense—on what “any parent knows”—but on science and social science as well. In Roper, we cited studies showing that [only a relatively small proportion of adolescents who engage in illegal activity develop entrenched patterns of problem behavior. And in Graham, we noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, in “parts of the brain involved in behavior control.” We reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “deficiencies will be reformed.”

Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “the heart of the retribution rationale” relates to an offender’s blameworthiness, “‘the case for retribution is not as strong with a minor as with an adult.” Nor can deterrence do the work in this context, because the same characteristics that render juveniles less culpable than adults – their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a “juvenile offender forever will be a danger to society” would require “making a judgment that he is incorrigible”—but “incorrigibility is inconsistent with youth.” And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” It reflects “an irrevocable judgment about an offender’s value and place in society,” at odds with a child’s capacity for change.

…

Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate. “An offender’s age,” we made clear in Graham, “is relevant to the Eighth Amendment,” and so “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”[…]

But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham ‘s (and also Roper ‘s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.

In light of Graham’s reasoning, [our precedent] show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17–year–old and the 14–year–old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14–year–olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses—but really, as Graham noted, a greater sentence than those adults will serve.

So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. […] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Both cases before us illustrate the problem. Take Jackson’s first. As noted earlier, Jackson did not fire the bullet that killed Laurie Troup; nor did the State argue that he intended her death. […]To be sure, Jackson learned on the way to the video store that his friend Shields was carrying a gun, but his age could well have affected his calculation of the risk that posed, as well as his willingness to walk away at that point. All these circumstances go to Jackson’s culpability for the offense. And so too does Jackson’s family background and immersion in violence: Both his mother and his grandmother had previously shot other individuals. At the least, a sentencer should look at such facts before depriving a 14–year–old of any prospect of release from prison.

That is true also in Miller’s case. No one can doubt that he and Smith committed a vicious murder. But they did it when high on drugs and alcohol consumed with the adult victim. And if ever a pathological background might have contributed to a 14–year–old’s commission of a crime, it is here. Miller’s stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten. Nonetheless, Miller’s past criminal history was limited—two instances of truancy and one of “second-degree criminal mischief.” That Miller deserved severe punishment for killing Cole Cannon is beyond question. But once again, a sentencer needed to examine all these circumstances before concluding that life without any possibility of parole was the appropriate penalty.

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

[…]

It is so ordered.

Gray v. State, 267 P.3d 667 (Alaska App. 2011)

The Alaska Court of Appeals decided Gray v. State several years before Miller v. Alabama. As you read Gray, ask yourself whether the decision is inconsistent with – and thus invalid – given the US Supreme Court’s decision in Miller.

267 P.3d 667
Court of Appeals of Alaska.
Kira GRAY, Appellant,
v.
STATE of Alaska, Appellee.
No. A–10305.
Dec. 9, 2011.

BOLGER, Judge.

Alaska Statute 47.12.030(a) provides that when a sixteen-year-old minor commits certain serious felonies, including murder, the minor “shall be charged, held, released on bail, prosecuted, sentenced, and incarcerated in the same manner as an adult.” Kira Gray argues that her sentence for first-degree murder violates the constitutional protections against cruel and unusual punishment … because she was a minor at the time of her offense. But we conclude that this combination of the automatic waiver statute and the adult sentencing statute is consistent with “evolving standards of decency” and [therefore constitutional].

[…]

Background
Gray was sixteen years old and dating Mario Page, an Anchorage drug dealer. While Page was out of state, Gray stole nine ounces of cocaine from Page and gave it to her sister’s boyfriend, Terrell Houngues. When Page returned and found out about the theft, he became angry.

Gray concocted a plan to pacify Page. She falsely told Houngues that she had had an argument with Page and that she knew where Page hid money and drugs. She suggested to Houngues that they should steal Page’s money and drugs. This plan was simply a ruse to kidnap Houngues.

Gray picked up Houngues and drove him to a remote location in the Mat–Su Valley. Page and three other men then arrived in a separate car and forced Houngues into the trunk. They drove to another spot and removed Houngues from the trunk. Page demanded to know what became of the nine ounces of stolen cocaine. When Houngues denied any knowledge of the drugs, Gray shot him in the knee. Houngues was then screaming in pain, so Page told Gray to “shut him up.” Gray and another man, Tommie Patterson, then shot Houngues multiple times, killing him.

Gray was charged and prosecuted as an adult based on the statute that automatically waives juvenile jurisdiction for certain serious crimes. Prior to trial, Gray made a motion for the court to declare the automatic waiver statute unconstitutional, but Superior Court Judge Eric Smith denied the motion. Gray, Page, and Patterson were convicted of murder and kidnapping in separate trials.

At the sentencing hearing, Gray presented testimony from two mental health professionals. Drs. Marty Beyer and Ronald Roesch provided opinions on developmental immaturity in general, along with specific opinions about Gray’s mental state. Dr. Beyer testified that Gray “showed a variety of kinds of immature thinking … that led to irrational behavior and poor moral reasoning, especially when she felt coerced.” Dr. Beyer also testified that juvenile sentences should be less punitive than adult sentences and should generally provide more and earlier opportunities for parole or release because most juvenile offenders are very immature and have “a huge amount of developing still to do.”

Dr. Roesch testified that Gray was “amenable to rehabilitation and that she does have a high potential for change.” Like Dr. Beyer, Dr. Roesch emphasized that, in crafting a juvenile sentence, the court must take developmental differences between juveniles and adults into consideration.
At the conclusion of the sentencing hearing, Judge Smith imposed a sentence of ninety-nine years’ imprisonment with forty-four years suspended for Gray’s murder conviction and a consecutive sentence of ten years’ imprisonment for kidnapping. Gray now appeals.

Discussion

The automatic waiver statute does not constitute cruel and unusual punishment.

As noted above, when a sixteen-year-old minor commits certain serious felonies, the minor is “prosecuted, sentenced, and incarcerated in the same manner as an adult.” Under this statute, a minor convicted of first-degree murder is subject to the same sentence as an adult—generally a sentence of twenty to ninety-nine years’ imprisonment. Gray argues that this statutory scheme violates the state and federal prohibitions against cruel and unusual punishment because the statutes do not recognize the differences in culpability between juveniles and adults by providing for early eligibility for discretionary parole.

Gray relies mainly on two recent decisions from the United States Supreme Court: Roper v. Simmons and Graham v. Florida. In Roper, the Court concluded that the Eighth Amendment bars the execution of individuals who were juveniles at the time they committed murder. In Graham, the Court concluded that the Eighth Amendment forbids a juvenile from being sentenced to life without parole for a nonhomicide crime.

In both cases, the Court applied a test that focuses on the characteristics of the offender, considering whether there is a “national consensus” against the imposition of the sentence in question and whether the sentence is categorically unconstitutional. [Specifically, the Graham Court] concluded that

juveniles (as a group) are “less deserving of the most severe punishments” because, compared to adults, they exhibit a “lack of maturity and an underdeveloped sense of responsibility,” because they are “more vulnerable or susceptible to negative influences and … peer pressure,” and because their characters are “not as well formed.”

Under the Alaska Constitution, we have generally applied a different test when we have focused on the characteristics of the penalty imposed. We have asked whether the punishment is so disproportionate to the offense as to be completely arbitrary and shocking to a sense of justice. But in a case where the Alaska Supreme Court focused on the characteristics of the offender, it applied a test similar to the test employed in Roper and Graham, asking whether the sentence violated “the evolving standards of decency that mark the progress of a maturing society.” The present case focuses on Gray’s status as a juvenile. We will therefore focus on national standards and categorical considerations to decide whether a juvenile can be sentenced to an adult sentence for first-degree murder.

The Wisconsin Supreme Court recently considered a similar question in State v. Ninham. Omer Ninham was sentenced to life in prison without the possibility of parole for first-degree intentional homicide. On appeal, Ninham argued that sentencing a fourteen-year-old to life imprisonment violates the Eighth Amendment.

The Wisconsin court considered whether sentencing a fourteen-year-old to life without parole is inconsistent with evolving standards of decency. It noted that Graham only prohibited life without parole for nonhomicide offenses and that Roper prohibited capital punishment of juveniles. But neither case directly addressed the constitutionality of a sentence of life imprisonment without parole for an intentional homicide.

The Wisconsin court evaluated whether there is a national consensus against sentencing minors to life without parole for intentional homicides. It found that forty-four states allow life imprisonment without parole for homicide offenses for juveniles. Moreover, although few juveniles age fourteen or younger have ever been sentenced to life without a possibility of parole, the court concluded that the statistic did not necessarily show there was a consensus against such a penalty. In summary, the court concluded that there is no national consensus against a sentence of life imprisonment without parole for an intentional homicide committed by a minor.

In addition to our review of any national consensus, we also have a responsibility to exercise our independent judgment regarding whether an adult sentence for a minor convicted of murder serves legitimate penological goals. The research that Gray relies on suggests that some minors may have a greater potential for rehabilitation and that there is a lesser need to isolate them to protect the public. This is consistent with our previous recognition that rehabilitation and individual deterrence should be accorded “careful scrutiny and appropriate weight” in cases involving youthful first offenders convicted of first-degree murder.

But a lengthy sentence for the crime of murder promotes other goals. A lengthy sentence affirms the important community norms that protect the value of a human life. And a lengthy sentence can serve as an important deterrent to potential homicide offenders, even when the offenders are juveniles.

Several other courts considering the question have distinguished Graham and held that a life sentence can be imposed on a juvenile convicted of murder without violating the ban on cruel and unusual punishment. We conclude that sentencing a minor to an adult sentence for first-degree murder is not categorically unconstitutional.

[Moreover,] Gray did not receive a life sentence; she received a sentence of only sixty-five years’ imprisonment. She will be eligible for discretionary parole after serving twenty-five years of her sentence. But Gray argues that this sentencing scheme involves cruel and unusual punishment because it does not allow for early eligibility for discretionary parole.

As noted above, the combination of the automatic waiver statute and the adult sentencing statutes promotes various penological goals, especially the goals of general deterrence and affirmation of societal norms. In view of these legitimate legislative considerations, we conclude that the difficulty in applying the goals of rehabilitation and isolation to a juvenile offender does not render this scheme unconstitutionally cruel. The legislature could reasonably determine that, when a minor is convicted of first-degree murder, general sentencing considerations require a substantial delay before the minor becomes eligible for discretionary parole. This aspect of the operation of the automatic waiver statute does not constitute cruel and unusual punishment.

[…]

Conclusion
We AFFIRM the superior court’s judgment and sentence.

Disproportionate Punishment Under Three-Strikes Laws

Under the Eighth Amendment, the criminal penalties should generally be graded and matched to the severity of the convicted offense. Yet, in an effort to be “tough-on-crime” several states have enacted “three strikes and you’re out” statutes. Three-strikes statutes punish habitual offenders more harshly when they commit a second or third felony after an initial serious or violent felony. California was the first state to enact a “three strikes and you’re out” law. See Cal. Penal Code § 667. And it remains one of the toughest in the nation; it mandates a minimum twenty-five-year to life sentence for felons convicted of a third strike.

Not all three-strikes statutes are created equal. For example, Alaska’s three-strikes statute only applies to offenders who are convicted of a very serious felony and have been convicted of two prior very serious felonies. AS 12.55.125(l). If convicted of a third very serious felony, the offender faces a mandatory 99-year prison term; the sentencing judge has no discretion to reduce the term of imprisonment. AS 12.55.125.

Although Alaska’s three-strikes statute has not been challenged, other three-strikes statutes have been attacked as disproportionate to the convicted offense. This is especially true when the offender’s third felony is a nonviolent felony. However, the US Supreme Court has upheld three-strikes statutes even for relatively minor third offenses, holding that they are not cruel and unusual punishment under the Eighth Amendment. See Ewing v. California, 538 U.S. 11 (2003).

Figure 3.9 The Eighth Amendment

Sentencing that Violates the Right to a Jury Trial

One final aspect of sentencing is the constitutional role of the criminal jury pursuant to the Sixth Amendment. Although a detailed discussion of sentencing procedure is beyond the scope of this book, a brief overview of sentencing and the roles of the judge and jury is necessary to a fundamental understanding of this important trial right.

The Role of the Judge and Jury in Sentencing Fact-Finding

Recall that before a defendant may be found guilty of a criminal offense, the government must prove all essential elements to the trier of fact beyond a reasonable doubt. If the government fails to prove an essential element beyond a reasonable doubt, the Constitution requires that the accused be acquitted. The trier of fact in a criminal prosecution is almost always a jury because of the fundamental right to a jury trial guaranteed by the Sixth Amendment. Occasionally, the parties agree to waive a jury trial and the judge, acting as the trier of fact, conducts a bench trial.

Whereas the jury determines guilt, the judge generally determines the appropriate sentence. As discussed above, the death penalty is an exception. In death penalty cases, the jury must decide whether to impose the death penalty during the sentencing phase after the guilt phase has concluded.

Generally speaking, the purpose of criminal sentencing is for the judge to impose a criminal sanction taking into account the unique facts of the crime and the unique circumstances of the offender. Criminal sentencing, by design, is an inclusive process, requiring the sentencing judge to consider multiple different factors. To be fair and just, criminal sentencing must be individualized.

For this reason, until recently, judges have had almost exclusive control of sentencing. The judge was entitled to receive new evidence at sentencing if it was relevant. For example, a judge was permitted to determine if the defendant used a weapon when committing an armed robbery even if the jury did not consider the question. The judge was also entitled to determine a defendant’s prior criminal history for purposes of sentencing enhancement or a three-strikes statute.

Beginning in 2000, the US Supreme Court began expanding the role of the jury in sentencing, finding that a defendant’s Sixth Amendment right to a jury trial limited what a judge could consider unless proven beyond a reasonable doubt to a jury.

Sentencing Enhancement by Judges

Beginning in 2000, in the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the US Supreme Court held that before a judge could exceed a sentence beyond the statutory maximum the jury must determine the disputed facts beyond a reasonable doubt. In Apprendi, the trial court enhanced the defendant’s sentence beyond the statutory maximum for felon-in-possession under New Jersey’s hate crimes statute. Although the jury did not determine that the defendant’s crime was a hate crime, the sentencing judge relied upon new evidence introduced at sentencing that indicated the defendant’s shooting into a residence was racially motivated. The US Supreme Court reversed the conviction, noting that the defendant had the constitutional right to have the trial jury – not the sentencing judge – determine the operative facts that enhanced a sentence beyond the statutory maximum. The Court held that the one exception to this rule was evidence of a prior conviction, which could be determined by a sentencing judge.

Following Apprendi, the US Supreme Court struck down the mandatory US Sentencing Guidelines, which permitted judges to enhance an offender’s sentence with the statutory guideline using the preponderance of evidence standard. See U.S. v. Booker, 543 U.S. 220 (2005). In Booker, the Court ruled that the US Sentencing Guidelines are advisory only, and never mandatory. Booker was based on Blakely v. Washington, 542 U.S. 296 (2004), which invalidated a similar Washington State sentencing procedure. The same analysis applies to statutory mandatory minimum sentences. See Alleyne v. U.S., 570 U.S. 99 (2013).

Pursuant to this line of cases, a criminal defendant is entitled to a jury determination on any operative fact that could be used to enhance the defendant’s sentence beyond the statutory maximum. The only exception to the rule is criminal history – the sentencing judge is entitled to determine an offender’s criminal history; the jury need not determine an offender’s criminal history.

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1. For more information see generally, Death Penalty Information Center, http://deathpenaltyinfo.org (last visited May 27, 2021). ↵