Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation

39 Pages Posted: 22 Aug 2017

See all articles by Sarah French Russell

Sarah French Russell

Quinnipiac University School of Law

Tracy Denholtz

Quinnipiac University - School of Law

Date Written: February 29, 2016


With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences. Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences.

Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide. The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence? Which crimes are “nonhomicides?” Do the decisions apply retroactively?

A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment. Across the country, states are using a range of approaches. In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases. Other states have provided little guidance to sentencing courts.

In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. With these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using. Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation? Are courts conducting sentencing hearings in compliance with Miller’s mandates?

Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context. With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults. Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.

Keywords: Juvenile Sentencing, Eighth Amendment

Suggested Citation

Russell, Sarah French and Denholtz, Tracy, Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation (February 29, 2016). Available at SSRN: or

Sarah French Russell (Contact Author)

Quinnipiac University School of Law ( email )

275 Mt. Carmel Avenue
Hamden, CT 06518
United States

Tracy Denholtz

Quinnipiac University - School of Law

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

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