On June 25, the U.S. Supreme Court held in Miller v. Alabama that mandatory life without parole sentences for juveniles are unconstitutional because they violate the 8th Amendment's ban on cruel and unusual punishments. The Court got the result right, but it was the reasoning of Justice Elena Kagan's majority opinion that grabbed my attention. It expresses perfectly the problems not just with treating juveniles as adults, but also with using mandatory sentences to treat all offenders as if they are the same.
In fact, much of the Miller opinion sounded familiar, because it echoes what my organization, Families Against Mandatory Minimums (FAMM), has been saying for over 20 years. Mandatory sentences don't allow judges to consider all the unique, intricate details of each crime and each offender -- including whether he is a juvenile. These one-size-fits-all penalties apply to a growing list of crimes (murder, drug offenses, gun possession) and are triggered whenever that charge is brought by a prosecutor. The prosecutor becomes the judge because the charge decides the sentence. The result is what all too often happens with anything labeled "one size fits all": for many people, the punishment is too big, too long, excessive -- and, by definition, cruel and unusual.
A mandatory life without parole sentence for juveniles is unconstitutional, Justice Kagan writes, because it does not allow judges to consider not just the offender's "chronological age and its hallmark features -- among them, immaturity, impetuosity, and failure to appreciate risks and consequences," but also the offender's "family and home environment" and "the circumstances of the homicide offense, including the extent of his participation in the conduct." But all of these factors are crucial to imposing an appropriate sentence in any case, for any crime, for any offender, at any age. And mandatory sentences ignore them all.
Justice Kagan goes to great lengths in the Miller opinion to validate a 1991 Supreme Court case, Harmelin v. Michigan, which held that mandatory minimum life without parole sentences were not cruel and unusual punishment -- even for the hundreds of first-time, nonviolent, low-level Michigan drug offenders receiving them in those early, frenzied days of the War on Drugs. (FAMM eventually succeeded in advocating for Michigan's reform of that law, as well as most of its other mandatory sentences for drug crimes.) The difference between Miller and Harmelin, Justice Kagan said, is that the killers in Miller are children, and drug offender Harmelin was an adult. Indeed, she writes, it appears that just as "death is different" in Supreme Court cases, "children are different too."
But why should Justice Kagan's otherwise sound sentencing logic -- that people must be sentenced as individuals -- only apply to juveniles? Why is it permissible to strong-arm judges into giving a mandatory life without parole sentence to an 18 year-old, but not to a 17 year-old? A mandatory minimum sentence is no less unjust, no less disregarding of the facts and circumstances of the crime and the offender, and no less cruel and unusual if the offender is 19, 27, 45, or 90. Age is an important sentencing factor, but it should not be the divider between constitutional and unconstitutional mandatory minimum sentences.
Ask any prisoner and her family: each and every day of mandatory punishment that is more than necessary and merited, is cruel and unusual punishment. To be sure, sentencing is an inexact business. There is no single, ideal sentence for each crime and offender. But our current system sends first-time drug offenders to prison for decades and requires life sentences for many people who pose no threat to anyone's physical safety. This excess -- and the indiscriminate way it is meted out -- is a flagrant violation of the Constitution's requirement of proportional punishment.
The Miller opinion opens the door for a renewed look at Harmelin and the constitutionality of mandatory minimum sentences. For over two decades, mandatory sentences have sapped judges of the power to do what Miller demands: give people the dignity of punishments that fit them and their crimes. If depriving someone of that most basic principle of American justice is not cruel and unusual, the 8th Amendment is poor protection for all of us.
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And I'm sure the vast majority of prisoners are poor, visible minorities or mentally ill, probably all three at once.
The solutions are not more prisons but more Head Start, better schools, well-paying jobs with benefits.
The only people to benefit from all the prisons are the 1% and their cronies raking in profits from the privatized prison system.