The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses
56 Pages Posted: 14 Mar 2016
Date Written: 2015
As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison. Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison. The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court - the institution in the best position to redress these excessive sentences of a bygone era.
This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses. First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime. This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole. The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.
This Article situates the punishment in the Eighth Amendment context. How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions? And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities? This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality. The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.
After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test. It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation. It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment. Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses. In other words, there is an emerging consensus that the Court should recognize.
Keywords: Eighth Amendment, nonviolent crime, natonal consensus, Supreme Court
JEL Classification: K14, K41
Suggested Citation: Suggested Citation