Not Just Kid Stuff? Extending Graham and Miller to Adults

Michael M. O'Hear

Marquette University - Law School

Missouri Law Review, Vol. 78, No. 4, 2013
Marquette Law School Legal Studies Paper No. 13-14

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

Number of Pages in PDF File: 61

Keywords: sentencing, Eighth Amendment, life without parole, adult offender

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Date posted: May 21, 2013 ; Last revised: July 23, 2014

Suggested Citation

O'Hear, Michael M., Not Just Kid Stuff? Extending Graham and Miller to Adults. Missouri Law Review, Vol. 78, No. 4, 2013; Marquette Law School Legal Studies Paper No. 13-14. Available at SSRN: https://ssrn.com/abstract=2267595

Contact Information

Michael M. O'Hear (Contact Author)
Marquette University - Law School ( email )
Sensenbrenner Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-3587 (Phone)
414-288-5914 (Fax)
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