Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama

46 Pages Posted: 28 Aug 2013 Last revised: 30 Oct 2013

Samuel H. Pillsbury

Loyola Law School Los Angeles

Abstract

After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value. The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.

Keywords: juveniles, eighth amendment, cruelty, punishment

Suggested Citation

Pillsbury, Samuel H., Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama. Loyola of Los Angeles Law Review, Vol. 46, 2013; Loyola-LA Legal Studies Paper No. 2013-­‐34. Available at SSRN: https://ssrn.com/abstract=2316196

Samuel H. Pillsbury (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1093 (Phone)

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