MILLER v. ALABAMA

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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Nos. 10–9646 and 10–9647

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EVAN MILLER, PETITIONER

10–9646 v.

ALABAMA

on writ of certiorari to the court of criminal appeals of alabama

KUNTRELL JACKSON, PETITIONER

10–9647 v.

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

on writ of certiorari to the supreme court of arkansas

[June 25, 2012]

Justice Kagan delivered the opinion of the Court.

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”

I A

In November 1999, petitioner Kuntrell Jackson, then 14 years old, and two other boys decided to rob a video store. En route to the store, Jackson learned that one of the boys, Derrick Shields, was carrying a sawed-off shotgun in his coat sleeve. Jackson decided to stay outside when the two other boys entered the store. Inside, Shields pointed the gun at the store clerk, Laurie Troup, and demanded that she “give up the money.” Jackson v. State, 359 Ark. 87, 89, 194 S. W. 3d 757, 759 (2004) (internal quotation marks omitted). Troup refused. A few moments later, Jackson went into the store to find Shields continuing to demand money. At trial, the parties disputed whether Jackson warned Troup that “[w]e ain’t playin’,” or instead told his friends, “I thought you all was playin’.” Id., at 91, 194 S. W. 3d, at 760 (internal quotation marks omitted). When Troup threatened to call the police, Shields shot and killed her. The three boys fled empty-handed. See id., at 89–92, 194 S. W. 3d, at 758–760.

Arkansas law gives prosecutors discretion to charge 14-year-olds as adults when they are alleged to have committed certain serious offenses. See Ark. Code Ann. §9–27–318(c)(2) (1998). The prosecutor here exercised that authority by charging Jackson with capital felony murder and aggravated robbery. Jackson moved to transfer the case to juvenile court, but after considering the alleged facts of the crime, a psychiatrist’s examination, and Jackson’s juvenile arrest history (shoplifting and several incidents of car theft), the trial court denied the motion, and an appellate court affirmed. See Jackson v. State, No. 02–535, 2003 WL 193412, *1 (Ark. App., Jan. 29, 2003); §§9–27–318(d), (e). A jury later convicted Jackson of both crimes. Noting that “in view of [the] verdict, there’s only one possible punishment,” the judge sentenced Jackson to life without parole. App. in No. 10–9647, p. 55 (hereinafter Jackson App.); see Ark. Code Ann. §5–4–104(b) (1997) (“A defendant convicted of capital murder or treason shall be sentenced to death or life imprisonment without parole”). 1 Jackson did not challenge the sentence on appeal, and the Arkansas Supreme Court affirmed the convictions. See 359 Ark. 87, 194 S. W. 3d 757.

Following Roper v. Simmons, 543 U. S. 551 (2005) , in which this Court invalidated the death penalty for all juvenile offenders under the age of 18, Jackson filed a state petition for habeas corpus. He argued, based on Roper’s reasoning, that a mandatory sentence of life without parole for a 14-year-old also violates the Eighth Amendment. The circuit court rejected that argument and granted the State’s motion to dismiss. See Jackson App. 72–76. While that ruling was on appeal, this Court held in Graham v. Florida that life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders. After the parties filed briefs addressing that decision, the Arkansas Supreme Court affirmed the dismissal of Jackson’s petition. See Jackson v. Norris, 2011 Ark. 49, ___ S. W. 3d ___. The majority found that Roper and Graham were “narrowly tailored” to their contexts: “death-penalty cases involving a juvenile and life-imprisonment-without-parole cases for nonhomicide offenses involving a juvenile.” Id., at 5, ___ S. W. 3d, at ___. Two justices dissented. They noted that Jackson was not the shooter and that “any evidence of intent to kill was severely lacking.” Id., at 10, ___ S. W. 3d, at ___ (Danielson, J., dissenting). And they argued that Jackson’s mandatory sentence ran afoul of Graham’s admonition that “ ‘[a]n offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.’ ” Id., at 10–11, ___ S. W. 3d, at ___ (quoting Graham, 560 U. S., at ___ (slip op., at 25)). 2

B

Like Jackson, petitioner Evan Miller was 14 years old at the time of his crime. Miller had by then been in and out of foster care because his mother suffered from alcoholism and drug addiction and his stepfather abused him. Miller, too, regularly used drugs and alcohol; and he had attempted suicide four times, the first when he was six years old. See E. J. M. v. State, 928 So. 2d 1077, 1081 (Ala. Crim. App. 2004) (Cobb, J., concurring in result); App. in No. 10–9646, pp. 26–28 (hereinafter Miller App.).

One night in 2003, Miller was at home with a friend, Colby Smith, when a neighbor, Cole Cannon, came to make a drug deal with Miller’s mother. See 6 Record in No. 10–9646, p. 1004. The two boys followed Cannon back to his trailer, where all three smoked marijuana and played drinking games. When Cannon passed out, Miller stole his wallet, splitting about $300 with Smith. Miller then tried to put the wallet back in Cannon’s pocket, but Cannon awoke and grabbed Miller by the throat. Smith hit Cannon with a nearby baseball bat, and once released, Miller grabbed the bat and repeatedly struck Cannon with it. Miller placed a sheet over Cannon’s head, told him “ ‘I am God, I’ve come to take your life,’ ” and delivered one more blow. Miller v. State, 63 So. 3d 676, 689 (Ala. Crim. App. 2010). The boys then retreated to Miller’s trailer, but soon decided to return to Cannon’s to cover up evidence of their crime. Once there, they lit two fires. Cannon eventually died from his injuries and smoke inhalation. See id., at 683–685, 689.

Alabama law required that Miller initially be charged as a juvenile, but allowed the District Attorney to seek removal of the case to adult court. See Ala. Code §12–15–34 (1977). The D. A. did so, and the juvenile court agreed to the transfer after a hearing. Citing the nature of the crime, Miller’s “mental maturity,” and his prior juvenile offenses (truancy and “criminal mischief”), the Alabama Court of Criminal Appeals affirmed. E. J. M. v. State, No. CR–03–0915, pp. 5–7 (Aug. 27, 2004) (unpublished memorandum). 3 The State accordingly charged Miller as an adult with murder in the course of arson. That crime (like capital murder in Arkansas) carries a mandatory minimum punishment of life without parole. See Ala. Code §§13A–5–40(9), 13A–6–2(c) (1982).

Relying in significant part on testimony from Smith, who had pleaded to a lesser offense, a jury found Miller guilty. He was therefore sentenced to life without the possibility of parole. The Alabama Court of Criminal Appeals affirmed, ruling that life without parole was “not overly harsh when compared to the crime” and that the mandatory nature of the sentencing scheme was permissible under the Eighth Amendment. 63 So. 3d, at 690; see id., at 686–691. The Alabama Supreme Court denied review.

We granted certiorari in both cases, see 565 U. S. ___ (2011) (No. 10–9646); 565 U. S. ___ (2011) (No. 10–9647), and now reverse.

II

The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” Roper, 543 U. S., at 560. That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense. Ibid. (quoting Weems v. United States, 217 U. S. 349, 367 (1910) ). As we noted the last time we considered life-without-parole sentences imposed on juveniles, “[t]he concept of proportionality is central to the Eighth Amendment.” Graham, 560 U. S., at ___ (slip op., at 8). And we view that concept less through a historical prism than according to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U. S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).

The cases before us implicate two strands of precedent reflecting our concern with proportionate punishment. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See Graham, 560 U. S., at ___ (slip op., at 9–10) (listing cases). So, for example, we have held that imposing the death penalty for nonhomicide crimes against individuals, or imposing it on mentally retarded defendants, violates the Eighth Amendment. See Kennedy v. Louisiana, 554 U. S. 407 (2008) ; Atkins v. Virginia, 536 U. S. 304 (2002) . Several of the cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper held that the Eighth Amendment bars capital punishment for children, and Graham concluded that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty itself, thereby evoking a second line of our precedents. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. See Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion); Lockett v. Ohio, 438 U. S. 586 (1978) . Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. 4

To start with the first set of cases: Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, “they are less deserving of the most severe punishments.” Graham, 560 U. S., at ___ (slip op., at 17). Those cases relied on three significant gaps between juveniles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U. S., at 569. Second, children “are more vulnerable . . . to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570.

Our decisions rested not only on common sense—on what “any parent knows”—but on science and social science as well. Id., at 569. In Roper, we cited studies showing that “ ‘[o]nly a relatively small proportion of adolescents’ ” who engage in illegal activity “ ‘develop entrenched patterns of problem behavior.’ ” Id., at 570 (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham, we noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”—for example, in “parts of the brain involved in behavior control.” 560 U. S., at ___ (slip op., at 17). 5 We reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “ ‘deficiencies will be reformed.’ ” Id., at ___ (slip op., at 18) (quoting Roper, 543 U. S., at 570).

Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not as strong with a minor as with an adult.’ ” Graham, 560 U. S., at ___ (slip op., at 20–21) (quoting Tison v. Arizona, 481 U. S. 137, 149 (1987) ; Roper, 543 U. S., at 571). Nor can deterrence do the work in this context, because “ ‘the same characteristics that render juveniles less culpable than adults’ ”—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. Graham, 560 U. S., at ___ (slip op., at 21) (quoting Roper, 543 U. S., at 571). Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a “juvenile offender forever will be a danger to society” would require “mak[ing] a judgment that [he] is incorrigible”—but “ ‘incorrigibility is inconsistent with youth.’ ” 560 U. S., at ___ (slip op., at 22) (quoting Workman v. Commonwealth, 429 S. W. 2d 374, 378 (Ky. App. 1968)). And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” Graham, 560 U. S., at ___ (slip op., at 23). It reflects “an irrevocable judgment about [an offender’s] value and place in society,” at odds with a child’s capacity for change. Ibid.

Graham concluded from this analysis that life-without-parole sentences, like capital punishment, may violate the Eighth Amendment when imposed on children. To be sure, Graham’s flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. See id., at ___ (slip op., at 18). But none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same degree, when (as in both cases here) a botched robbery turns into a killing. So Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.

Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. In the circumstances there, juvenile status precluded a life-without-parole sentence, even though an adult could receive it for a similar crime. And in other contexts as well, the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate. Cf. id., at ___ (slip op., at 20–23) (generally doubting the penological justifications for imposing life without parole on juveniles). “An offender’s age,” we made clear in Graham, “is relevant to the Eighth Amendment,” and so “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Id., at ___ (slip op., at 25). The Chief Justice, concurring in the judgment, made a similar point. Although rejecting a categorical bar on life-without-parole sentences for juveniles, he acknowledged “Roper’s conclusion that juveniles are typically less culpable than adults,” and accordingly wrote that “an offender’s juvenile status can play a central role” in considering a sentence’s proportionality. Id., at ___ (slip op., at 5–6); see id., at ___ (slip op., at 12) (Graham’s “youth is one factor, among others, that should be considered in deciding whether his punishment was unconstitutionally excessive”). 6

But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance— by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.

And Graham makes plain these mandatory schemes’ defects in another way: by likening life-without-parole sentences imposed on juveniles to the death penalty itself. Life-without-parole terms, the Court wrote, “share some characteristics with death sentences that are shared by no other sentences.” 560 U. S., at ___ (slip op., at 19). Imprisoning an offender until he dies alters the remainder of his life “by a forfeiture that is irrevocable.” Ibid. (citing Solem v. Helm, 463 U. S. 277 –301 (1983)). And this lengthiest possible incarceration is an “especially harsh punishment for a juvenile,” because he will almost inevitably serve “more years and a greater percentage of his life in prison than an adult offender.” Graham, 560 U. S., at ___ (slip op., at 19–20). The penalty when imposed on a teenager, as compared with an older person, is therefore “the same . . . in name only.” Id., at ___ (slip op., at 20). All of that suggested a distinctive set of legal rules: In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment. We imposed a categorical ban on the sentence’s use, in a way unprecedented for a term of imprisonment. See id., at ___ (slip op., at 9); id., at ___ (Thomas, J., dissenting) (slip op., at 7) (“For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone”). And the bar we adopted mirrored a proscription first established in the death penalty context—that the punishment cannot be imposed for any nonhomicide crimes against individuals. See Kennedy, 554 U. S. 407 ; Coker v. Georgia, 433 U. S. 584 (1977) .

That correspondence—Graham’s “[t]reat[ment] [of] juvenile life sentences as analogous to capital punishment,” 560 U. S., at ___ (Roberts, C. J., concurring in judgment) (slip op., at 5)—makes relevant here a second line of our precedents, demanding individualized sentencing when imposing the death penalty. In Woodson, 428 U. S. 280 , we held that a statute mandating a death sentence for first-degree murder violated the Eighth Amendment. We thought the mandatory scheme flawed because it gave no significance to “the character and record of the individual offender or the circumstances” of the offense, and “exclud[ed] from consideration . . . the possibility of compassionate or mitigating factors.” Id., at 304. Subsequent decisions have elaborated on the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses. See, e.g., Sumner v. Shuman, 483 U. S. 66 –76 (1987); Eddings v. Oklahoma, 455 U. S. 104 –112 (1982); Lockett, 438 U. S., at 597–609 (plurality opinion).

Of special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the “mitigating qualities of youth.” Johnson v. Texas, 509 U. S. 350, 367 (1993) . Everything we said in Roper and Graham about that stage of life also appears in these decisions. As we observed, “youth is more than a chronological fact.” Eddings, 455 U. S., at 115. It is a time of immaturity, irresponsibility, “impetuousness[,] and recklessness.” Johnson, 509 U. S., at 368. It is a moment and “condition of life when a person may be most susceptible to influence and to psychological damage.” Eddings, 455 U. S., at 115. And its “signature qualities” are all “transient.” Johnson, 509 U. S., at 368. Eddings is especially on point. There, a 16-year-old shot a police officer point-blank and killed him. We invalidated his death sentence because the judge did not consider evidence of his neglectful and violent family background (including his mother’s drug abuse and his father’s physical abuse) and his emotional disturbance. We found that evidence “particularly relevant”—more so than it would have been in the case of an adult offender. 455 U. S., at 115. We held: “[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered” in assessing his culpability. Id., at 116.

In light of Graham’s reasoning, these decisions too show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses—but really, as Graham noted, a greater sentence than those adults will serve. 7 In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.

So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U. S., at ___ (slip op., at 27) (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U. S. ___, ___ (2011) (slip op., at 5–6) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Both cases before us illustrate the problem. Take Jackson’s first. As noted earlier, Jackson did not fire the bullet that killed Laurie Troup; nor did the State argue that he intended her death. Jackson’s conviction was instead based on an aiding-and-abetting theory; and the appellate court affirmed the verdict only because the jury could have believed that when Jackson entered the store, he warned Troup that “[w]e ain’t playin’,” rather than told his friends that “I thought you all was playin’.” See 359 Ark., at 90–92, 194 S. W. 3d, at 759–760; supra, at 2. To be sure, Jackson learned on the way to the video store that his friend Shields was carrying a gun, but his age could well have affected his calculation of the risk that posed, as well as his willingness to walk away at that point. All these circumstances go to Jackson’s culpability for the offense. See Graham, 560 U. S., at ___ (slip op., at 18) (“[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability”). And so too does Jackson’s family background and immersion in violence: Both his mother and his grandmother had previously shot other individuals. See Record in No. 10–9647, pp. 80–82. At the least, a sentencer should look at such facts before depriving a 14-year-old of any prospect of release from prison.

That is true also in Miller’s case. No one can doubt that he and Smith committed a vicious murder. But they did it when high on drugs and alcohol consumed with the adult victim. And if ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here. Miller’s stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten. See 928 So. 2d, at 1081 (Cobb, J., concurring in result); Miller App. 26–28; supra, at 4. Nonetheless, Miller’s past criminal history was limited—two instances of truancy and one of “second-degree criminal mischief.” No. CR–03–0915, at 6 (unpublished memorandum). That Miller deserved severe punishment for killing Cole Cannon is beyond question. But once again, a sentencer needed to examine all these circumstances before concluding that life without any possibility of parole was the appropriate penalty.

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U. S., at ___ (slip op., at 24) (“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U. S., at 573; Graham, 560 U. S., at ___ (slip op., at 17). Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. 8

III

Alabama and Arkansas offer two kinds of arguments against requiring individualized consideration before sentencing a juvenile to life imprisonment without possibility of parole. The States (along with the dissents) first contend that the rule we adopt conflicts with aspects of our Eighth Amendment caselaw. And they next assert that the rule is unnecessary because individualized circumstances come into play in deciding whether to try a juvenile offender as an adult. We think the States are wrong on both counts.

A

The States (along with Justice Thomas) first claim that Harmelin v. Michigan, 501 U. S. 957 (1991) , precludes our holding. The defendant in Harmelin was sentenced to a mandatory life-without-parole term for possessing more than 650 grams of cocaine. The Court upheld that penalty, reasoning that “a sentence which is not otherwise cruel and unusual” does not “becom[e] so simply because it is ‘mandatory.’ ” Id., at 995. We recognized that a different rule, requiring individualized sentencing, applied in the death penalty context. But we refused to extend that command to noncapital cases “because of the qualitative difference between death and all other penalties.” Ibid.; see id., at 1006 (Kennedy, J., concurring in part and concurring in judgment). According to Alabama, invalidating the mandatory imposition of life-without-parole terms on juveniles “would effectively overrule Harmelin.” Brief for Respondent in No. 10–9646, p. 59 (hereinafter Alabama Brief); see Arkansas Brief 39.

We think that argument myopic. Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders. We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children. Capital punishment, our decisions hold, generally comports with the Eighth Amendment—except it cannot be imposed on children. See Roper, 543 U. S. 551 ; Thompson, 487 U. S. 815 . So too, life without parole is permissible for nonhomicide offenses—except, once again, for children. See Graham, 560 U. S., at ___ (slip op., at 24). Nor are these sentencing decisions an oddity in the law. To the contrary, “ ‘[o]ur history is replete with laws and judicial recognition’ that children cannot be viewed simply as miniature adults.” J. D. B., 564 U. S., at ___ (slip op., at 10–11) (quoting Eddings, 455 U. S., at 115–116, citing examples from criminal, property, contract, and tort law). So if (as Harmelin recognized) “death is different,” children are different too. Indeed, it is the odd legal rule that does not have some form of exception for children. In that context, it is no surprise that the law relating to society’s harshest punishments recognizes such a distinction. Cf. Graham, 560 U. S., at ___ (Roberts, C. J., concurring in judgment) (slip op., at 7) (“Graham’s age places him in a significantly different category from the defendan[t] in . . . Harmelin”). Our ruling thus neither overrules nor undermines nor conflicts with Harmelin.

Alabama and Arkansas (along with The Chief Justice and Justice Alito) next contend that because many States impose mandatory life-without-parole sentences on juveniles, we may not hold the practice unconstitutional. In considering categorical bars to the death penalty and life without parole, we ask as part of the analysis whether “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice,’ ” show a “national consensus” against a sentence for a particular class of offenders. Graham, 560 U. S., at ___ (slip op., at 10) (quoting Roper, 543 U. S., at 563). By our count, 29 jurisdictions (28 States and the Federal Government) make a life-without-parole term mandatory for some juveniles convicted of murder in adult court. 9 The States argue that this number precludes our holding.

We do not agree; indeed, we think the States’ argument on this score weaker than the one we rejected in Graham. For starters, the cases here are different from the typical one in which we have tallied legislative enactments. Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham, and our individualized sentencing cases that youth matters for purposes of meting out the law’s most serious punishments. When both of those circumstances have obtained in the past, we have not scrutinized or relied in the same way on legislative enactments. See, e.g., Sumner v. Shuman, 483 U. S. 66 (relying on Woodson’s logic to prohibit the mandatory death penalty for murderers already serving life without parole); Lockett, 438 U. S., at 602–608 (plurality opinion) (applying Woodson to require that judges and juries consider all mitigating evidence); Eddings, 455 U. S., at 110–117 (similar). We see no difference here.

In any event, the “objective indicia” that the States offer do not distinguish these cases from others holding that a sentencing practice violates the Eighth Amendment. In Graham, we prohibited life-without-parole terms for juveniles committing nonhomicide offenses even though 39 jurisdictions permitted that sentence. See 560 U. S., at ___ (slip op., at 11). That is 10 more than impose life without parole on juveniles on a mandatory basis. 10 And in Atkins, Roper, and Thompson, we similarly banned the death penalty in circumstances in which “less than half” of the “States that permit[ted] capital punishment (for whom the issue exist[ed])” had previously chosen to do so. Atkins, 536 U. S., at 342 (Scalia, J., dissenting) (emphasis deleted); see id., at 313–315 (majority opinion); Roper, 543 U. S., at 564–565; Thompson, 487 U. S., at 826–827 (plurality opinion). So we are breaking no new ground in these cases. 11

Graham and Thompson provide special guidance, because they considered the same kind of statutes we do and explained why simply counting them would present a distorted view. Most jurisdictions authorized the death penalty or life without parole for juveniles only through the combination of two independent statutory provisions. One allowed the transfer of certain juvenile offenders to adult court, while another (often in a far-removed part of the code) set out the penalties for any and all individuals tried there. We reasoned that in those circumstances, it was impossible to say whether a legislature had endorsed a given penalty for children (or would do so if presented with the choice). In Thompson, we found that the statutes “t[old] us that the States consider 15-year-olds to be old enough to be tried in criminal court for serious crimes (or too old to be dealt with effectively in juvenile court), but t[old] us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders.” 487 U. S., at 826, n. 24 (plurality opinion) (emphasis deleted); see also id., at 850 (O’Connor, J., concurring in judgment); Roper, 543 U. S., at 596, n. (O’Connor, J., dissenting). And Graham echoed that reasoning: Although the confluence of state laws “ma[de] life without parole possible for some juvenile nonhomicide offenders,” it did not “justify a judgment” that many States actually “intended to subject such offenders” to those sentences. 560 U. S., at ___ (slip op., at 16). 12

All that is just as true here. Almost all jurisdictions allow some juveniles to be tried in adult court for some kinds of homicide. See Dept. of Justice, H. Snyder & M. Sickmund, Juvenile Offenders and Victims: 2006 National Report 110–114 (hereinafter 2006 National Report). But most States do not have separate penalty provisions for those juvenile offenders. Of the 29 jurisdictions mandating life without parole for children, more than half do so by virtue of generally applicable penalty provisions, imposing the sentence without regard to age. 13 And indeed, some of those States set no minimum age for who may be transferred to adult court in the first instance, thus applying life-without-parole mandates to children of any age—be it 17 or 14 or 10 or 6. 14 As in Graham, we think that “underscores that the statutory eligibility of a juvenile offender for life without parole does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration.” 560 U. S., at ___ (slip op., at 16). That Alabama and Arkansas can count to 29 by including these possibly (or probably) inadvertent legislative outcomes does not preclude our determination that mandatory life without parole for juveniles violates the Eighth Amendment.

B

Nor does the presence of discretion in some jurisdictions’ transfer statutes aid the States here. Alabama and Arkansas initially ignore that many States use mandatory transfer systems: A juvenile of a certain age who has committed a specified offense will be tried in adult court, regardless of any individualized circumstances. Of the 29 relevant jurisdictions, about half place at least some juvenile homicide offenders in adult court automatically, with no apparent opportunity to seek transfer to juvenile court. 15 Moreover, several States at times lodge this decision exclusively in the hands of prosecutors, again with no statutory mechanism for judicial reevaluation. 16 And those “prosecutorial discretion laws are usually silent regarding standards, protocols, or appropriate considerations for decisionmaking.” Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, P. Griffin, S. Addie, B. Adams, & K. Firestine, Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting 5 (2011).

Even when States give transfer-stage discretion to judges, it has limited utility. First, the decisionmaker typically will have only partial information at this early, pretrial stage about either the child or the circumstances of his offense. Miller’s case provides an example. As noted earlier, see n. 3, supra, the juvenile court denied Miller’s request for his own mental-health expert at the transfer hearing, and the appeals court affirmed on the ground that Miller was not then entitled to the protections and services he would receive at trial. See No. CR–03–0915, at 3–4 (unpublished memorandum). But by then, of course, the expert’s testimony could not change the sentence; whatever she said in mitigation, the mandatory life-without-parole prison term would kick in. The key moment for the exercise of discretion is the transfer—and as Miller’s case shows, the judge often does not know then what she will learn, about the offender or the offense, over the course of the proceedings.

Second and still more important, the question at transfer hearings may differ dramatically from the issue at a post-trial sentencing. Because many juvenile systems require that the offender be released at a particular age or after a certain number of years, transfer decisions often present a choice between extremes: light punishment as a child or standard sentencing as an adult (here, life without parole). In many States, for example, a child convicted in juvenile court must be released from custody by the age of 21. See, e.g., Ala. Code §12–15–117(a) (Cum. Supp. 2011); see generally 2006 National Report 103 (noting limitations on the length of juvenile court sanctions). Discretionary sentencing in adult court would provide different options: There, a judge or jury could choose, rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years. It is easy to imagine a judge deciding that a minor deserves a (much) harsher sentence than he would receive in juvenile court, while still not thinking life-without-parole appropriate. For that reason, the discretion available to a judge at the transfer stage cannot substitute for discretion at post-trial sentencing in adult court—and so cannot satisfy the Eighth Amendment.

IV

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment. We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings not inconsistent with this opinion.

It is so ordered.

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1  Jackson was ineligible for the death penalty under Thompson v. Oklahoma, 487 U. S. 815 (1988) (plurality opinion), which held that capital punishment of offenders under the age of 16 violates the Eighth Amendment.

2  For the first time in this Court, Arkansas contends that Jackson’s sentence was not mandatory. On its view, state law then in effect allowed the trial judge to suspend the life-without-parole sentence and commit Jackson to the Department of Human Services for a “training-school program,” at the end of which he could be placed on probation. Brief for Respondent in No. 10–9647, pp. 36–37 (hereinafter Arkansas Brief) (citing Ark. Code Ann. §12–28–403(b)(2) (1999)). But Arkansas never raised that objection in the state courts, and they treated Jackson’s sentence as mandatory. We abide by that interpretation of state law. See, e.g., Mullaney v. Wilbur, 421 U. S. 684 –691 (1975).

3  The Court of Criminal Appeals also affirmed the juvenile court’s denial of Miller’s request for funds to hire his own mental expert for the transfer hearing. The court pointed out that under governing Alabama Supreme Court precedent, “the procedural requirements of a trial do not ordinarily apply” to those hearings. E. J. M. v. State, 928 So. 2d 1077 (2004) (Cobb, J., concurring in result) (internal quotation marks omitted). In a separate opinion, Judge Cobb agreed on the reigning precedent, but urged the State Supreme Court to revisit the question in light of transfer hearings’ importance. See id., at 1081 (“[A]lthough later mental evaluation as an adult affords some semblance of procedural due process, it is, in effect, too little, too late”).

4  The three dissenting opinions here each take issue with some or all of those precedents. See post, at 5–6 (opinion of Roberts, C. J.); post, at 1–6 (opinion of Thomas, J.); post, at 1–4 (opinion of Alito, J.). That is not surprising: their authors (and joiner) each dissented from some or all of those precedents. See, e.g., Kennedy, 554 U. S., at 447 (Alito, J., joined by Roberts, C. J., and Scalia and Thomas, JJ., dissenting); Roper, 543 U. S., at 607 (Scalia, J., joined by Thomas, J., dissenting); Atkins, 536 U. S., at 337 (Scalia, J., joined by Thomas, J., dissent-ing); Thompson, 487 U. S., at 859 ((Scalia, J., dissenting); Graham v. Collins, 506 U. S. 461, 487 (1993) (Thomas, J., concurring) (contending that Woodson was wrongly decided). In particular, each disagreed with the majority’s reasoning in Graham, which is the foundation stone of our analysis. See Graham, 560 U. S., at ___ (Roberts, C. J., concurring in judgment) (slip op., at 1); id., at ___ (Thomas, J., joined by Scalia and Alito, JJ., dissenting) (slip op., at 1–25); id., at ___ (Alito, J., dissenting) (slip op., at 1). While the dissents seek to relitigate old Eighth Amendment battles, repeating many arguments this Court has previously (and often) rejected, we apply the logic of Roper, Graham, and our individualized sentencing decisions to these two cases.

5  The evidence presented to us in these cases indicates that the science and social science supporting Roper’s and Graham’s conclusions have become even stronger. See, e.g., Brief for American Psychologi-cal Association et al. as Amici Curiae 3 (“[A]n ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the Court’s conclusions”); id., at 4 (“It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance”); Brief for J. Lawrence Aber et al. as Amici Curiae 12–28 (discussing post-Graham studies); id., at 26–27 (“Numerous studies post-Graham indicate that exposure to deviant peers leads to increased deviant behavior and is a consistent predictor of adolescent delinquency” (footnote omitted)).

6  In discussing Graham, the dissents essentially ignore all of this reasoning. See post, at 3–6 (opinion of Roberts, C. J.); post, at 4 (opinion of Alito, J.). Indeed, The Chief Justice ignores the points made in his own concurring opinion. The only part of Graham that the dissents see fit to note is the distinction it drew between homicide and nonhomicide offenses. See post, at 7–8 (opinion of Roberts, C. J.); post, at 4 (opinion of Alito, J.). But contrary to the dissents’ charge, our decision today retains that distinction: Graham established one rule (a flat ban) for nonhomicide offenses, while we set out a different one (individualized sentencing) for homicide offenses.

7  Although adults are subject as well to the death penalty in many jurisdictions, very few offenders actually receive that sentence. See, e.g., Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts 2006—Statistical Tables, p. 28 (Table 4.4) (rev. Nov. 22, 2010). So in practice, the sentencing schemes at issue here result in juvenile homicide offenders receiving the same nominal punishment as almost all adults, even though the two classes differ significantly in moral culpability and capacity for change.

8  Given our holding, and the dissents’ competing position, we see a certain irony in their repeated references to 17-year-olds who have committed the “most heinous” offenses, and their comparison of those defendants to the 14-year-olds here. See post, at 2 (opinion of Roberts, C. J.) (noting the “17-year old [who] is convicted of deliberately murdering an innocent victim”); post, at 3 (“the most heinous murders”); post, at 7 (“the worst types of murder”); post, at 5 (opinion of Alito, J.) (warning the reader not to be “confused by the particulars” of these two cases); post, at 1 (discussing the “171∕2-year-old who sets off a bomb ina crowded mall”). Our holding requires factfinders to attend to exactly such circumstances—to take into account the differences among defendants and crimes. By contrast, the sentencing schemes that the dissents find permissible altogether preclude considering these factors.

9  The States note that 26 States and the Federal Government make life without parole the mandatory (or mandatory minimum) punishment for some form of murder, and would apply the relevant provision to 14-year-olds (with many applying it to even younger defendants). See Alabama Brief 17–18. In addition, life without parole is mandatory for older juveniles in Louisiana (age 15 and up) and Texas (age 17). See La. Child. Code Ann., Arts. 857(A), (B) (West Supp. 2012); La. Rev. Stat. Ann. §§14:30(C), 14:30.1(B) (West Supp. 2012); Tex. Family Code Ann. §§51.02(2)(A), 54.02(a)(2)(A) (West Supp. 2011); Tex. Penal Code Ann. §12.31(a) (West 2011). In many of these jurisdictions, life without parole is the mandatory punishment only for aggravated forms of murder. That distinction makes no difference to our analysis. We have consistently held that limiting a mandatory death penalty law to particular kinds of murder cannot cure the law’s “constitutional vice” of disregarding the “circumstances of the particular offense and the character and propensities of the offender.” Roberts v. Louisiana, 428 U. S. 325, 333 (1976) (plurality opinion); see Sumner v. Shuman, 483 U. S. 66 (1987) . The same analysis applies here, for the same reasons.

10  In assessing indicia of societal standards, Graham discussed “ac-tual sentencing practices” in addition to legislative enactments, noting how infrequently sentencers imposed the statutorily available penalty. 560 U. S., at ___ (slip op., at 11). Here, we consider the constitutional-ity of mandatory sentencing schemes—which by definition remove a judge’s or jury’s discretion—so no comparable gap between legislation and practice can exist. Rather than showing whether sentencers consider life without parole for juvenile homicide offenders appropriate, the number of juveniles serving this sentence, see post, at 1, 3–4 (Roberts, C. J., dissenting), merely reflects the number who have com-mitted homicide in mandatory-sentencing jurisdictions. For the same reason, The Chief Justice’s comparison of ratios in this case and Gra-ham carries little weight. He contrasts the number of mandatorylife-without-parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, with “the corresponding number” of sentences in Graham (i.e., the number of life-without-parole sentences for juveniles who committed serious nonhomicide crimes, as compared to arrests for those crimes). Post, at 4. But because the mandatory nature of the sentences here necessarily makes them more common, The Chief Justice’s figures do not “correspon[d]” at all. The higher ratio is mostly a function of removing the sentencer’s discretion. Where mandatory sentencing does not itself account for the number of juveniles serving life-without-parole terms, the evidence we have of practice supports our holding. Fifteen jurisdictions make life without parole discretionary for juveniles. See Alabama Brief 25 (listing 12 States); Cal. Penal Code Ann. §190.5(b) (West 2008); Ind. Code §35–50–2–3(b) (2011); N. M. Stat. §§31–18–13(B), 31–18–14, 31–18–15.2 (2010). According to available data, only about 15% of all juvenile life-without-parole sentences come from those 15 jurisdictions, while 85% come from the 29 mandatory ones. See Tr. of Oral Arg. in No. 10–9646, p. 19; Human Rights Watch, State Distribution of Youth Offenders Serv-ing Juvenile Life Without Parole (JLWOP), Oct. 2, 2009, online athttp: // www.hrw.org / news/2009 / 10/02 / state-distribution-juvenile-offenders-serving-juvenile-life-without-parole (as visited June 21, 2012, and available in Clerk of Court’s case file). That figure indicates that when given the choice, sentencers impose life without parole on children relatively rarely. And contrary to The Chief Justice’s argument, see post, at 5, n. 2, we have held that when judges and juries do not often choose to impose a sentence, it at least should not be mandatory. See Woodson v. North Carolina, 428 U. S. 280 –296 (1976) (plurality opinion) (relying on the infrequency with which juries imposed the death penalty when given discretion to hold that its mandatory imposition violates the Eighth Amendment).

11  In response, The Chief Justice complains: “To say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.” Post, at 5. To be clear: That description in no way resembles our opinion. We hold that the sentence violates the Eighth Amendment because, as we have exhaustively shown, it conflicts with the fundamental principles of Roper, Graham, and our individualized sentencing cases. We then show why the number of States imposing this punishment does not preclude our holding, and note how its mandatory nature (in however many States adopt it) makes use of actual sentencing numbers unilluminating.

12  The Chief Justice attempts to distinguish Graham on this point, arguing that there “the extreme rarity with which the sentence in question was imposed could suggest that legislatures did not really intend the inevitable result of the laws they passed.” Post, at 6. But neither Graham nor Thompson suggested such reasoning, presumably because the time frame makes it difficult to comprehend. Those cases considered what legislators intended when they enacted, at different moments, separate juvenile-transfer and life-without-parole provisions—by definition, before they knew or could know how many juvenile life-without-parole sentences would result.

13  See Ala. Code §§13A–5–45(f), 13A–6–2(c) (2005 and Cum. Supp. 2011); Ariz. Rev. Stat. Ann. §13–752 (West 2010), §41–1604.09(I) (West 2011); Conn. Gen. Stat. §53a–35a(1) (2011); Del. Code Ann., Tit. 11, §4209(a) (2007); Fla. Stat. §775.082(1) (2010); Haw. Rev. Stat. §706–656(1) (1993); Idaho Code §18–4004 (Lexis 2004); Mich. Comp. Laws Ann. §791.234(6)(a) (West Cum. Supp. 2012); Minn. Stat. Ann. §§609.106, subd. 2 (West 2009); Neb. Rev. Stat. §29–2522 (2008); N. H. Rev. Stat. Ann. §630:1–a (West 2007); 18 Pa. Cons. Stat. §§1102(a), (b), 61 Pa. Cons. Stat. §6137(a)(1) (Supp. 2012); S. D. Codified Laws §22-6-1(1) (2006), §24–15–4 (2004); Vt. Stat. Ann., Tit. 13, §2311(c)(2009); Wash. Rev. Code §10.95.030(1) (2010).

14  See Del. Code Ann., Tit. 10, §1010 (1999 and Cum. Supp. 2010), Tit. 11, §4209(a) (2007); Fla. Stat. §985.56 (2010), 775.082(1); Haw. Rev. Stat. §571–22(d) (1993), §706–656(1); Idaho Code §§20–508, 20–509 (Lexis Cum. Supp. 2012), §18–4004; Mich. Comp. Laws Ann. §712A.2d (West 2009), §791.234(6)(a); Neb. Rev. Stat. §§43–247, 29–2522 (2008); 42 Pa. Cons. Stat. §6355(e) (2000), 18 Pa. Cons. Stat. §1102. Other States set ages between 8 and 10 as the minimum for transfer, thus exposing those young children to mandatory life without parole. See S. D. Codified Laws §§26–8C–2, 26–11–4 (2004), §22–6–1 (age 10); Vt. Stat. Ann., Tit. 33, §5204 (2011 Cum. Supp.), Tit. 13, §2311(a) (2009) (age 10); Wash. Rev. Code §§9A.04.050, 13.40.110 (2010), §10.95.030 (age 8).

15  See Ala. Code §12–15–204(a) (Cum. Supp. 2011); Ariz. Rev. Stat. Ann. §13–501(A) (West Cum. Supp. 2011); Conn. Gen. Stat. §46b–127 (2011); Ill. Comp. Stat. ch. 705, §§405/5–130(1)(a), (4)(a) (West 2010); La. Child. Code Ann., Art. 305(A) (West Cum. Supp. 2012); Mass. Gen. Laws, ch. 119, §74 (West 2010); Mich. Comp. Laws Ann. §712A.2(a) (West 2002); Minn. Stat. Ann. §260B.007, subd. 6(b) (West Cum. Supp. 2011), §260B.101, subd. 2 (West 2007); Mo. Rev. Stat. §§211.021(1), (2) (2011); N. C. Gen. Stat. Ann. §§7B–1501(7), 7B–1601(a), 7B–2200 (Lexis 2011); N. H. Rev. Stat. Ann. §169–B:2(IV) (West Cum. Supp. 2011), §169–B:3 (West 2010); Ohio Rev. Code Ann. §2152.12(A)(1)(a) (Lexis 2011); Tex. Family Code Ann. §51.02(2); Va. Code Ann. §§16.1–241(A), 16.1–269.1(B), (D) (Lexis 2010).

16  Fla. Stat. Ann. §985.557(1) (West Supp. 2012); Mich. Comp. Laws Ann. §712A.2(a)(1); Va. Code Ann. §§16.1–241(A), 16.1–269.1(C), (D).

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 10–9646 and 10–9647

_________________

EVAN MILLER, PETITIONER

10–9646 v.

ALABAMA

on writ of certiorari to the court of criminal appeals of alabama

KUNTRELL JACKSON, PETITIONER

10–9647 v.

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

on writ of certiorari to the supreme court of arkansas

[June 25, 2012]

Justice Alito, with whom Justice Scalia joins, dissenting.

The Court now holds that Congress and the legislatures of the 50 States are prohibited by the Constitution from identifying any category of murderers under the age of 18 who must be sentenced to life imprisonment without parole. Even a 17½-year-old who sets off a bomb in a crowded mall or guns down a dozen students and teachers is a “child” and must be given a chance to persuade a judge to permit his release into society. Nothing in the Constitution supports this arrogation of legislative authority.

The Court long ago abandoned the original meaning of the Eighth Amendment, holding instead that the prohibition of “cruel and unusual punishment” embodies the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); see also Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 7); Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) ; Roper v. Simmons, 543 U. S. 551 –561 (2005); Atkins v. Virginia, 536 U. S. 304 –312 (2002); Hudson v. McMillian, 503 U. S. 1, 8 (1992) ; Ford v. Wainwright, 477 U. S. 399, 406 (1986) ; Rhodes v. Chapman, 452 U. S. 337, 346 (1981) ; Estelle v. Gamble, 429 U. S. 97, 102 (1976) . Both the provenance and philosophical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?) But at least at the start, the Court insisted that these “evolving standards” represented something other than the personal views of five Justices. See Rummel v. Estelle, 445 U. S. 263, 275 (1980) (explaining that “the Court’s Eighth Amendment judgments should neither be nor appear to be merely the subjective views of individual Justices”). Instead, the Court looked for objective indicia of our society’s moral standards and the trajectory of our moral “evolution.” See id., at 274–275 (emphasizing that “ ‘judgment should be informed by objective factors to the maximum possible extent’ ” (quoting Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion))).

In this search for objective indicia, the Court toyed with the use of public opinion polls, see Atkins, supra, at 316, n. 21, and occasionally relied on foreign law, see Roper v. Simmons, supra, at 575; Enmund v. Florida, 458 U. S. 782 , n. 22 (1982); Thompson v. Oklahoma, 487 U. S. 815 –831 (1988); Coker, 433 U. S., at 596, n. 10 (plurality opinion).

In the main, however, the staple of this inquiry was the tallying of the positions taken by state legislatures. Thus, in Coker, which held that the Eighth Amendment prohibits the imposition of the death penalty for the rape of an adult woman, the Court noted that only one State permitted that practice. Id., at 595–596. In Enmund, where the Court held that the Eighth Amendment forbids capital punishment for ordinary felony murder, both federal law and the law of 28 of the 36 States that authorized the death penalty at the time rejected that punishment. 458 U. S., at 789.

While the tally in these early cases may be characterized as evidence of a national consensus, the evidence became weaker and weaker in later cases. In Atkins, which held that low-IQ defendants may not be sentenced to death, the Court found an anti–death-penalty consensus even though more than half of the States that allowed capital punishment permitted the practice. See 536 U. S., at 342 (Scalia, J., dissenting) (observing that less than half of the 38 States that permit capital punishment have enacted legislation barring execution of the mentally retarded). The Court attempted to get around this problem by noting that there was a pronounced trend against this punishment. See id., at 313–315 (listing 18 States that had amended their laws since 1986 to prohibit the execution of mentally retarded persons).

The importance of trend evidence, however, was not long lived. In Roper, which outlawed capital punishment for defendants between the ages of 16 and 18, the lineup of the States was the same as in Atkins, but the trend in favor of abolition—five States during the past 15 years—was less impressive. Roper, 543 U. S., at 564–565. Nevertheless, the Court held that the absence of a strong trend in support of abolition did not matter. See id., at 566 (“Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change”).

In Kennedy v. Louisiana, the Court went further. Holding that the Eighth Amendment prohibits capital punishment for the brutal rape of a 12-year-old girl, the Court disregarded a nascent legislative trend in favor of permitting capital punishment for this narrowly defined and heinous crime. See 554 U. S., at 433 (explaining that, although “the total number of States to have made child rape a capital offense . . . is six,” “[t]his is not an indication of a trend or change in direction comparable to the one supported by data in Roper”). The Court felt no need to see whether this trend developed further—perhaps because true moral evolution can lead in only one direction. And despite the argument that the rape of a young child may involve greater depravity than some murders, the Court proclaimed that homicide is categorically different from all (or maybe almost all) other offenses. See id., at 438 (stating that nonhomicide crimes, including child rape, “may be devastating in their harm . . . but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability” (internal quotation marks and citation omitted)). As the Court had previously put it, “death is different.” Ford, supra, at 411 (plurality opinion).

Two years after Kennedy, in Graham v. Florida, any pretense of heeding a legislative consensus was discarded. In Graham, federal law and the law of 37 States and the District of Columbia permitted a minor to be sentenced to life imprisonment without parole for nonhomicide crimes, but despite this unmistakable evidence of a national consensus, the Court held that the practice violates the Eighth Amendment. See 560 U. S., at ___ (Thomas, J., dissenting) (slip op., at 1–3). The Court, however, drew a distinction between minors who murder and minors who commit other heinous offenses, so at least in that sense the principle that death is different lived on.

Today, that principle is entirely put to rest, for here we are concerned with the imposition of a term of imprisonment on offenders who kill. The two (carefully selected) cases before us concern very young defendants, and despite the brutality and evident depravity exhibited by at least one of the petitioners, it is hard not to feel sympathy for a 14-year-old sentenced to life without the possibility of release. But no one should be confused by the particulars of the two cases before us. The category of murderers that the Court delicately calls “children” (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies; much more typical are murderers like Donald Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday. Roper, 543 U. S., at 556.

Seventeen-year-olds commit a significant number of murders every year, 1 and some of these crimes are incredibly brutal. Many of these murderers are at least as mature as the average 18-year-old. See Thompson, 487 U. S., at 854 (O’Connor, J., concurring in judgment) (noting that maturity may “vary widely among different individuals of the same age”). Congress and the legislatures of 43 States have concluded that at least some of these murderers should be sentenced to prison without parole, and 28 States and the Federal Government have decided that for some of these offenders life without parole should be mandatory. See Ante, at 20–21, and nn. 9–10. The majority of this Court now overrules these legislative judgments. 2

It is true that, at least for now, the Court apparently permits a trial judge to make an individualized decision that a particular minor convicted of murder should be sentenced to life without parole, but do not expect this possibility to last very long. The majority goes out of its way to express the view that the imposition of a sentence of life without parole on a “child” (i.e., a murderer under the age of 18) should be uncommon. Having held in Graham that a trial judge with discretionary sentencing authority may not impose a sentence of life without parole on a minor who has committed a nonhomicide offense, the Justices in the majority may soon extend that holding to minors who commit murder. We will see.

What today’s decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards. Our Eighth Amendment case law is now entirely inward looking. After entirely disregarding objective indicia of our society’s standards in Graham, the Court now extrapolates from Graham. Future cases may extrapolate from today’s holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency.

The Eighth Amendment imposes certain limits on the sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures—and with good reason. Determining the length of imprisonment that is appropriate for a particular offense and a particular offender inevitably involves a balancing of interests. If imprisonment does nothing else, it removes the criminal from the general population and prevents him from committing additional crimes in the outside world. When a legislature prescribes that a category of killers must be sentenced to life imprisonment, the legislature, which presumably reflects the views of the electorate, is taking the position that the risk that these offenders will kill again outweighs any countervailing consideration, including reduced culpability due to immaturity or the possibility of rehabilitation. When the majority of this Court countermands that democratic decision, what the majority is saying is that members of society must be exposed to the risk that these convicted murderers, if released from custody, will murder again.

Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey.

__________________________________

1  Between 2002 and 2010, 17-year-olds committed an average combined total of 424 murders and nonnegligent homicides per year. See Dept. of Justice, Bureau of Justice Statistics, §4, Arrests, Age of persons arrested (Table 4.7).

2  As the Court noted in Mistretta v. United States, 488 U. S. 361, 366 (1989) , Congress passed the Sentencing Reform Act of 1984 to eliminate discretionary sentencing and parole because it concluded that these practices had led to gross abuses. The Senate Report for the 1984 bill rejected what it called the “outmoded rehabilitation model” for federal criminal sentencing. S. Rep. No. 98–225, p. 38 (1983). According tothe Report, “almost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated.” Ibid. The Report also “observed that the indeterminate-sentencing system had two ‘unjustifi[ed] and ‘shameful’ consequences. The first was the great variation among sentences imposed by different judges upon similarly situated offenders. The second was uncertainty as to the time the offender would spend in prison. Each was a serious impediment to an evenhanded and effective operation of the criminal justice system.” Mistretta, supra, at 366 (quoting S. Rep. No. 98–225, at 38, 65 (citation omitted)).

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 10–9646 and 10–9647

_________________

EVAN MILLER, PETITIONER

10–9646 v.

ALABAMA

on writ of certiorari to the court of criminal appeals of alabama

KUNTRELL JACKSON, PETITIONER

10–9647 v.

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

on writ of certiorari to the supreme court of arkansas

[June 25, 2012]

Justice Thomas, with whom Justice Scalia joins, dissenting.

Today, the Court holds that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Ante, at 2. To reach that result, the Court relies on two lines of precedent. The first involves the categorical prohibition of certain punishments for specified classes of offenders. The second requires individualized sentencing in the capital punishment context. Neither line is consistent with the original understanding of the Cruel and Unusual Punishments Clause. The Court compounds its errors by combining these lines of precedent and extending them to reach a result that is even less legitimate than the foundation on which it is built. Because the Court upsets the legislatively enacted sentencing regimes of 29 jurisdictions without constitutional warrant, I respectfully dissent. 1

I

The Court first relies on its cases “adopt[ing] categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Ante, at 6–7. Of these categorical proportionality cases, the Court places particular emphasis on Roper v. Simmons, 543 U. S. 551 (2005) , and Graham v. Florida, 560 U. S. ___ (2010). In Roper, the Court held that the Constitution prohibits the execution of an offender who was under 18 at the time of his offense. 543 U. S., at 578. The Roper Court looked to, among other things, its own sense of parental intuition and “scientific and sociological studies” to conclude that offenders under the age of 18 “cannot with reliability be classified among the worst offenders.” Id., at 569. In Graham, the Court relied on similar considerations to conclude that the Constitution prohibits a life-without-parole sentence for a nonhomicide offender who was under the age of 18 at the time of his offense. 560 U. S., at ___ (slip op., at 24).

The Court now concludes that mandatory life-without-parole sentences for duly convicted juvenile murderers “contraven[e] Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Ante, at 11–12. But neither Roper nor Graham held that specific procedural rules are required for sentencing juvenile homicide offenders. And, the logic of those cases should not be extended to create such a requirement.

The Eighth Amendment, made applicable to the States by the Fourteenth Amendment, provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As I have previously explained, “the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.” Graham, supra, at ___ (dissenting opinion) (slip op., at 3) (internal quotation marks and citations omitted). 2 The clause does not contain a “proportionality principle.” Ewing v. California, 538 U. S. 11, 32 (2003) (Thomas, J., concurring in judgment); see generally Harmelin v. Michigan, 501 U. S. 957 –985 (1991) (opinion of Scalia, J.). In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty.” Graham, supra, at ___ (Thomas, J., dissenting) (slip op., at 5).

The legislatures of Arkansas and Alabama, like those of 27 other jurisdictions, ante, at 19–20, have determined that all offenders convicted of specified homicide offenses, whether juveniles or not, deserve a sentence of life in prison without the possibility of parole. Nothing in our Constitution authorizes this Court to supplant that choice.

II

To invalidate mandatory life-without-parole sentences for juveniles, the Court also relies on its cases “prohibit[ing] mandatory imposition of capital punishment.” Ante, at 7. The Court reasons that, because Graham compared juvenile life-without-parole sentences to the death penalty, the “distinctive set of legal rules” that this Court has imposed in the capital punishment context, including the requirement of individualized sentencing, is “relevant” here. Ante, at 12–13. But even accepting an analogy between capital and juvenile life-without-parole sentences, this Court’s cases prohibiting mandatory capital sentencing schemes have no basis in the original understanding of the Eighth Amendment, and, thus, cannot justify a prohibition of sentencing schemes that mandate life-without-parole sentences for juveniles.

A

In a line of cases following Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), this Court prohibited the mandatory imposition of the death penalty. See Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325 (1976) (same); Sumner v. Shuman, 483 U. S. 66 (1987) . Furman first announced the principle that States may not permit sentencers to exercise unguided discretion in imposing the death penalty. See generally 408 U. S. 238 . In response to Furman, many States passed new laws that made the death penalty mandatory following conviction of specified crimes, thereby eliminating the offending discretion. See Gregg v. Georgia, 428 U. S. 153 –181 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). The Court invalidated those statutes in Woodson, Roberts, and Sumner. The Court reasoned that mandatory capital sentencing schemes were problematic, because they failed “to allow the particularized consideration” of “relevant facets of the character and record of the individual offender or the circumstances of the particular offense.” Woodson, supra, at 303–304 (plurality opinion). 3

In my view, Woodson and its progeny were wrongly decided. As discussed above, the Cruel and Unusual Punishments Clause, as originally understood, prohibits “torturous methods of punishment.” See Graham, 560 U. S., at ___ (Thomas, J., dissenting) (slip op., at 3) (internal quotation marks omitted). It is not concerned with whether a particular lawful method of punishment—whether capital or noncapital—is imposed pursuant to a mandatory or discretionary sentencing regime. See Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed”). In fact, “[i]n the early days of the Republic,” each crime generally had a defined punishment “prescribed with specificity by the legislature.” United States v. Grayson, 438 U. S. 41, 45 (1978) . Capital sentences, to which the Court analogizes, were treated no differently. “[M]andatory death sentences abounded in our first Penal Code” and were “common in the several States—both at the time of the founding and throughout the 19th century.” Harmelin, 501 U. S., at 994–995; see also Woodson, supra, at 289 (plurality opinion) (“At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses”). Accordingly, the idea that the mandatory imposition of an otherwise-constitutional sentence renders that sentence cruel and unusual finds “no support in the text and history of the Eighth Amendment.” Harmelin, supra, at 994.

Moreover, mandatory death penalty schemes were “a perfectly reasonable legislative response to the concerns expressed in Furman” regarding unguided sentencing discretion, in that they “eliminat[ed] explicit jury discretion and treat[ed] all defendants equally.” Graham v. Collins, 506 U. S. 461, 487 (1993) (Thomas, J., concurring). And, as Justice White explained more than 30 years ago, “a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that a criminal’s character is such that he deserves death.” Roberts, supra, at 358 (dissenting opinion). Thus, there is no basis for concluding that a mandatory capital sentencing scheme is unconstitutional. Because the Court’s cases requiring individualized sentencing in the capital context are wrongly decided, they cannot serve as a valid foundation for the novel rule regarding mandatory life-without-parole sentences for juveniles that the Court announces today.

B

In any event, this Court has already declined to extend its individualized-sentencing rule beyond the death penalty context. In Harmelin, the defendant was convicted of possessing a large quantity of drugs. 501 U. S., at 961 (opinion of Scalia, J.). In accordance with Michigan law, he was sentenced to a mandatory term of life in prison without the possibility of parole. Ibid. Citing the same line of death penalty precedents on which the Court relies today, the defendant argued that his sentence, due to its mandatory nature, violated the Cruel and Unusual Punishments Clause. Id., at 994–995 (opinion of the Court).

The Court rejected that argument, explaining that “[t]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’ ” Id., at 995. In so doing, the Court refused to analogize to its death penalty cases. The Court noted that those cases had “repeatedly suggested that there is no comparable [individualized-sentencing] requirement outside the capital context, because of the qualitative difference between death and all other penalties.” Ibid. The Court observed that, “even where the difference” between a sentence of life without parole and other sentences of imprisonment “is the greatest,” such a sentence “cannot be compared with death.” Id., at 996. Therefore, the Court concluded that the line of cases requiring individualized sentencing had been drawn at capital cases, and that there was “no basis for extending it further.” Ibid.

Harmelin’s reasoning logically extends to these cases. Obviously, the younger the defendant, “the great[er]” the difference between a sentence of life without parole and other terms of imprisonment. Ibid. But under Harmelin’s rationale, the defendant’s age is immaterial to the Eighth Amendment analysis. Thus, the result in today’s cases should be the same as that in Harmelin. Petitioners, like the defendant in Harmelin, were not sentenced to death. Accordingly, this Court’s cases “creating and clarifying the individualized capital sentencing doctrine” do not apply. Id., at 995 (internal quotation marks omitted).

Nothing about our Constitution, or about the qualitative difference between any term of imprisonment and death, has changed since Harmelin was decided 21 years ago. What has changed (or, better yet, “evolved”) is this Court’s ever-expanding line of categorical proportionality cases. The Court now uses Roper and Graham to jettison Harmelin’s clear distinction between capital and noncapital cases and to apply the former to noncapital juvenile offenders. 4 The Court’s decision to do so is even less supportable than the precedents used to reach it.

III

As The Chief Justice notes, ante, at 8–9 (dissenting opinion), the Court lays the groundwork for future incursions on the States’ authority to sentence criminals. In its categorical proportionality cases, the Court has considered “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue.” Graham, 560 U. S., at ___ (slip op., at 10) (quoting Roper, 543 U. S., at 563). In Graham, for example, the Court looked to “[a]ctual sentencing practices” to conclude that there was a national consensus against life-without-parole sentences for juvenile nonhomicide offenders. 560 U. S., at ___ (slip op., at 11–14); see also Roper, supra, at 564–565; Atkins v. Virginia, 536 U. S. 304, 316 (2002) .

Today, the Court makes clear that, even though its decision leaves intact the discretionary imposition of life-without-parole sentences for juvenile homicide offenders, it “think[s] appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.” Ante, at 17. That statement may well cause trial judges to shy away from imposing life without parole sentences and embolden appellate judges to set them aside when they are imposed. And, when a future petitioner seeks a categorical ban on sentences of life without parole for juvenile homicide offenders, this Court will most assuredly look to the “actual sentencing practices” triggered by this case. The Court has, thus, gone from “merely” divining the societal consensus of today to shaping the societal consensus of tomorrow.

*  *  *

Today’s decision invalidates a constitutionally permissible sentencing system based on nothing more than the Court’s belief that “its own sense of morality . . . pre-empts that of the people and their representatives.” Graham, supra, at ___ (Thomas, J., dissenting) (slip op., at 29). Because nothing in the Constitution grants the Court the authority it exercises today, I respectfully dissent.

__________________________________

1  I join The Chief Justice’s opinion because it accurately explains that, even accepting the Court’s precedents, the Court’s holding in today’s cases is unsupportable.

2  Neither the Court nor petitioners argue that petitioners’ sentences would have been among “the ‘modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.’ ” Graham, 560 U. S., at ___ (Thomas, J., dissenting) (slip op., at 10, n. 3) (quoting Ford v. Wainwright, 477 U. S. 399, 405 (1986) ). Nor could they. Petitioners were 14 years old at the time they committed their crimes. When the Bill of Rights was ratified, 14-year-olds were subject to trial and punishment as adult offenders. See Roper v. Simmons, 543 U. S. 551 , n. 1 (2005) (Scalia, J., dissenting). Further, mandatory death sentences were common at that time. See Harmelin v. Michigan, 501 U. S. 957 –995 (1991). It is therefore implausible that a 14-year-old’s mandatory prison sentence—of any length, with or without parole—would have been viewed as cruel and unusual.

3  The Court later extended Woodson, requiring that capital defendants be permitted to present, and sentencers in capital cases be permitted to consider, any relevant mitigating evidence, including the age of the defendant. See, e.g., Lockett v. Ohio, 438 U. S. 586 –608 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U. S. 104 –112 (1982); Skipper v. South Carolina, 476 U. S. 1 –5 (1986); Johnson v. Texas, 509 U. S. 350 –368 (1993). Whatever the validity of the requirement that sentencers be permitted to consider all mitigating evidence when deciding whether to impose a nonmandatory capital sentence, the Court certainly was wrong to prohibit mandatory capital sentences. See Graham v. Collins, 506 U. S. 461 –500 (1993) (Thomas, J., concurring).

4  In support of its decision not to apply Harmelin to juvenile offenders, the Court also observes that “ ‘[o]ur history is replete with laws and judicial recognition that children cannot be viewed simply as miniature adults.’ ” Ante, at 19 (quoting J. D. B. v. North Carolina, 564 U. S. ___, ___ (2011) (slip op., at 10–11) (some internal quotation marks omitted)). That is no doubt true as a general matter, but it does not justify usurping authority that rightfully belongs to the people by imposing a constitutional rule where none exists.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 10–9646 and 10–9647

_________________

EVAN MILLER, PETITIONER

10–9646 v.

ALABAMA

on writ of certiorari to the court of criminal appeals of alabama

KUNTRELL JACKSON, PETITIONER

10–9647 v.

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

on writ of certiorari to the supreme court of arkansas

[June 25, 2012]

Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.

Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy. Our role, however, is to apply the law, not to answer such questions. The pertinent law here is the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishments.” Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such. I therefore dissent.

The parties agree that nearly 2,500 prisoners are presently serving life sentences without the possibility of parole for murders they committed before the age of 18. Brief for Petitioner in No. 10–9647, p. 62, n. 80 (Jackson Brief ); Brief for Respondent in No. 10–9646, p. 30 (Alabama Brief ). The Court accepts that over 2,000 of those prisoners received that sentence because it was mandated by a legislature. Ante, at 22, n. 10. And it recognizes that the Federal Government and most States impose such mandatory sentences. Ante, at 19–20. Put simply, if a 17-year-old is convicted of deliberately murdering an innocent victim, it is not “unusual” for the murderer to receive a mandatory sentence of life without parole. That reality should preclude finding that mandatory life imprisonment for juvenile killers violates the Eighth Amendment.

Our precedent supports this conclusion. When determining whether a punishment is cruel and unusual, this Court typically begins with “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice.’ ” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 10); see also, e.g., Kennedy v. Louisiana, 554 U. S. 407, 422 (2008) ; Roper v. Simmons, 543 U. S. 551, 564 (2005) . We look to these “objective indicia” to ensure that we are not simply following our own subjective values or beliefs. Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Such tangible evidence of societal standards enables us to determine whether there is a “consensus against” a given sentencing practice. Graham, supra, at ___ (slip op., at 10). If there is, the punishment may be regarded as “unusual.” But when, as here, most States formally require and frequently impose the punishment in question, there is no objective basis for that conclusion.

Our Eighth Amendment cases have also said that we should take guidance from “evolving standards of decency that mark the progress of a maturing society.” Ante, at 6 (quoting Estelle v. Gamble, 429 U. S. 97, 102 (1976) ; internal quotation marks omitted). Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty.

In this case, there is little doubt about the direction of society’s evolution: For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. See, e.g., Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003); see generally Crime and Public Policy (J. Wilson & J. Petersilia eds. 2011). Statutes establishing life without parole sentences in particular became more common in the past quarter century. See Baze v. Rees, 553 U. S. 35 , and n. 10 (2008) (Stevens, J., concurring in judgment). And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to mandatory life without parole. Jackson Brief 54–55; Alabama Brief 4–5.

The Court attempts to avoid the import of the fact that so many jurisdictions have embraced the sentencing practice at issue by comparing this case to the Court’s prior Eighth Amendment cases. The Court notes that Graham found a punishment authorized in 39 jurisdictions unconstitutional, whereas the punishment it bans today is mandated in 10 fewer. Ante, at 21. But Graham went to considerable lengths to show that although theoretically allowed in many States, the sentence at issue in that case was “exceedingly rare” in practice. 560 U. S., at ___ (slip op., at 16). The Court explained that only 123 prisoners in the entire Nation were serving life without parole for nonhomicide crimes committed as juveniles, with more than half in a single State. It contrasted that with statistics showing nearly 400,000 juveniles were arrested for serious nonhomicide offenses in a single year. Based on the sentence’s rarity despite the many opportunities to impose it, Graham concluded that there was a national consensus against life without parole for juvenile nonhomicide crimes. Id., at ___ (slip op., at 13–16).

Here the number of mandatory life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is over 5,000 times higher than the corresponding number in Graham. There is thus nothing in this case like the evidence of national consensus in Graham. 1

The Court disregards these numbers, claiming that the prevalence of the sentence in question results from the number of statutes requiring its imposition. Ante, at 21, n. 10. True enough. The sentence at issue is statutorily mandated life without parole. Such a sentence can only result from statutes requiring its imposition. In Graham the Court relied on the low number of actual sentences to explain why the high number of statutes allowing such sentences was not dispositive. Here, the Court excuses the high number of actual sentences by citing the high number of statutes imposing it. To say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head. 2

The Court also advances another reason for discounting the laws enacted by Congress and most state legislatures. Some of the jurisdictions that impose mandatory life without parole on juvenile murderers do so as a result of two statutes: one providing that juveniles charged with serious crimes may be tried as adults, and another generally mandating that those convicted of murder be imprisoned for life. According to the Court, our cases suggest that where the sentence results from the interaction of two such statutes, the legislature can be considered to have imposed the resulting sentences “inadvertent[ly].” Ante, at 22–25. The Court relies on Graham and Thompson v. Oklahoma, 487 U. S. 815, 826, n. 24 (1988) (plurality opinion), for the proposition that these laws are therefore not valid evidence of society’s views on the punishment at issue.

It is a fair question whether this Court should ever assume a legislature is so ignorant of its own laws that it does not understand that two of them interact with each other, especially on an issue of such importance as the one before us. But in Graham and Thompson it was at least plausible as a practical matter. In Graham, the extreme rarity with which the sentence in question was imposed could suggest that legislatures did not really intend the inevitable result of the laws they passed. See 560 U. S., at ___ (slip op., at 15–16). In Thompson, the sentencing practice was even rarer—only 20 defendants had received it in the last century. 487 U. S., at 832 (plurality opinion). Perhaps under those facts it could be argued that the legislature was not fully aware that a teenager could receive the particular sentence in question. But here the widespread and recent imposition of the sentence makes it implausible to characterize this sentencing practice as a collateral consequence of legislative ignorance. 3

Nor do we display our usual respect for elected officials by asserting that legislators have accidentally required 2,000 teenagers to spend the rest of their lives in jail. This is particularly true given that our well-publicized decision in Graham alerted legislatures to the possibility that teenagers were subject to life with parole only because of legislative inadvertence. I am aware of no effort in the wake of Graham to correct any supposed legislative oversight. Indeed, in amending its laws in response to Graham one legislature made especially clear that it does intend juveniles who commit first-degree murder to receive mandatory life without parole. See Iowa Code Ann. §902.1 (West Cum. Supp. 2012).

In the end, the Court does not actually conclude that mandatory life sentences for juvenile murderers are unusual. It instead claims that precedent “leads to” today’s decision, primarily relying on Graham and Roper. Ante, at 7. Petitioners argue that the reasoning of those cases “compels” finding in their favor. Jackson Brief 34. The Court is apparently unwilling to go so far, asserting only that precedent points in that direction. But today’s decision invalidates the laws of dozens of legislatures and Congress. This Court is not easily led to such a result. See, e.g., United States v. Harris, 106 U. S. 629, 635 (1883) (courts must presume an Act of Congress is constitutional “unless the lack of constitutional authority . . . is clearly demonstrated”). Because the Court does not rely on the Eighth Amendment’s text or objective evidence of society’s standards, its analysis of precedent alone must bear the “heavy burden [that] rests on those who would attack the judgment of the representatives of the people.” Gregg, 428 U. S., at 175. If the Court is unwilling to say that precedent compels today’s decision, perhaps it should reconsider that decision.

In any event, the Court’s holding does not follow from Roper and Graham. Those cases undoubtedly stand for the proposition that teenagers are less mature, less responsible, and less fixed in their ways than adults—not that a Supreme Court case was needed to establish that. What they do not stand for, and do not even suggest, is that legislators—who also know that teenagers are different from adults—may not require life without parole for juveniles who commit the worst types of murder.

That Graham does not imply today’s result could not be clearer. In barring life without parole for juvenile nonhomicide offenders, Graham stated that “[t]here is a line ‘between homicide and other serious violent offenses against the individual.’ ” 560 U. S., at ___ (slip op., at 18) (quoting Kennedy, 554 U. S., at ___ (slip op., at 27)). The whole point of drawing a line between one issue and another is to say that they are different and should be treated differently. In other words, the two are in different categories. Which Graham also said: “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” 560 U. S., at ___ (slip op., at 18) (emphasis added). Of course, to be especially clear that what is said about one issue does not apply to another, one could say that the two issues cannot be compared. Graham said that too: “Serious nonhomicide crimes . . . cannot be compared to murder.” Ibid. (internal quotation marks omitted). A case that expressly puts an issue in a different category from its own subject, draws a line between the two, and states that the two should not be compared, cannot fairly be said to control that issue.

Roper provides even less support for the Court’s holding. In that case, the Court held that the death penalty could not be imposed for offenses committed by juveniles, no matter how serious their crimes. In doing so, Roper also set itself in a different category than this case, by expressly invoking “special” Eighth Amendment analysis for death penalty cases. 543 U. S., at 568–569. But more importantly, Roper reasoned that the death penalty was not needed to deter juvenile murderers in part because “life imprisonment without the possibility of parole” was available. Id., at 572. In a classic bait and switch, the Court now tells state legislatures that—Roper’s promise notwithstanding—they do not have power to guarantee that once someone commits a heinous murder, he will never do so again. It would be enough if today’s decision proved Justice Scalia’s prescience in writing that Roper’s “reassurance . . . gives little comfort.” Id., at 623 (dissenting opinion). To claim that Roper actually “leads to” revoking its own reassurance surely goes too far.

Today’s decision does not offer Roper and Graham’s false promises of restraint. Indeed, the Court’s opinion suggests that it is merely a way station on the path to further judicial displacement of the legislative role in prescribing appropriate punishment for crime. The Court’s analysis focuses on the mandatory nature of the sentences in this case. See ante, at 11–17. But then—although doing so is entirely unnecessary to the rule it announces—the Court states that even when a life without parole sentence is not mandatory, “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Ante, at 17. Today’s holding may be limited to mandatory sentences, but the Court has already announced that discretionary life without parole for juveniles should be “uncommon”—or, to use a common synonym, “unusual.”

Indeed, the Court’s gratuitous prediction appears to be nothing other than an invitation to overturn life without parole sentences imposed by juries and trial judges. If that invitation is widely accepted and such sentences for juvenile offenders do in fact become “uncommon,” the Court will have bootstrapped its way to declaring that the Eighth Amendment absolutely prohibits them.

This process has no discernible end point—or at least none consistent with our Nation’s legal traditions. Roper and Graham attempted to limit their reasoning to the circumstances they addressed—Roper to the death penalty, and Graham to nonhomicide crimes. Having cast aside those limits, the Court cannot now offer a credible substitute, and does not even try. After all, the Court tells us, “none of what [Graham] said about children . . . is crimespecific.” Ante, at 10. The principle behind today’s decision seems to be only that because juveniles are different from adults, they must be sentenced differently. See ante, at 14–17. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults. Learning that an Amendment that bars only “unusual” punishments requires the abolition of this uniformly established practice would be startling indeed.

*  *  *

It is a great tragedy when a juvenile commits murder—most of all for the innocent victims. But also for the murderer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another. In recent years, our society has moved toward requiring that the murderer, his age notwithstanding, be imprisoned for the remainder of his life. Members of this Court may disagree with that choice. Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again. See ante, at 8–11. But that is not our decision to make. Neither the text of the Constitution nor our precedent prohibits legislatures from requiring that juvenile murderers be sentenced to life without parole. I respectfully dissent.

__________________________________

1  Graham stated that 123 prisoners were serving life without parole for nonhomicide offenses committed as juveniles, while in 2007 alone 380,480 juveniles were arrested for serious nonhomicide crimes. 560 U. S., at ___ (slip op., at 13–14). I use 2,000 as the number of prisoners serving mandatory life without parole sentences for murders committed as juveniles, because all seem to accept that the number is at least that high. And the same source Graham used reports that 1,170 juveniles were arrested for murder and nonnegligent homicide in 2009. Dept.of Justice, Office of Juvenile Justice and Delinquency Prevention,C. Puzzanchera & B. Adams, Juvenile Arrests 2009, p. 4 (Dec. 2011).

2  The Court’s reference to discretionary sentencing practices is a distraction. See ante, at 21–22, n. 10. The premise of the Court’s decision is that mandatory sentences are categorically different from discretionary ones. So under the Court’s own logic, whether discretionary sentences are common or uncommon has nothing to do with whether mandatory sentences are unusual. In any event, if analysis of discretionary sentences were relevant, it would not provide objective support for today’s decision. The Court states that “about 15% of all juvenile life-without-parole sentences”—meaning nearly 400 sentences—were imposed at the discretion of a judge or jury. Ante, at 22, n. 10. Thus the number of discretionary life without parole sentences for juvenile murderers, relative to the number of juveniles arrested for murder, is about 1,000 times higher than the corresponding number in Graham.

3  The Court claims that I “take issue with some or all of these precedents” and “seek to relitigate” them. Ante, at 7–8, n. 4. Not so: applying this Court’s cases exactly as they stand, I do not believe they support the Court’s decision in this case.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 10–9646 and 10–9647

_________________

EVAN MILLER, PETITIONER

10–9646 v.

ALABAMA

on writ of certiorari to the court of criminal appeals of alabama

KUNTRELL JACKSON, PETITIONER

10–9647 v.

RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

on writ of certiorari to the supreme court of arkansas

[June 25, 2012]

Justice Breyer, with whom Justice Sotomayor joins, concurring.

I join the Court’s opinion in full. I add that, if the State continues to seek a sentence of life without the possibility of parole for Kuntrell Jackson, there will have to be a determination whether Jackson “kill[ed] or intend[ed] to kill” the robbery victim. Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 18). In my view, without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing Jackson to such a sentence, regardless of whether its application is mandatory or discretionary under state law.

In Graham we said that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” Ibid. (emphasis added). For one thing, “compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed.” Id., at ___ (slip op., at 17) (internal quotation marks omitted). See also ibid. (“[P]sychology and brain science continue to show fundamental differences between juvenile and adult minds” making their actions “less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults” (quoting Roper v. Simmons, 543 U. S. 551, 570 (2005) )); ante, at 8–9. For another thing, Graham recognized that lack of intent normally diminishes the “moral culpability” that attaches to the crime in question, making those that do not intend to kill “categorically less deserving of the most serious forms of punishment than are murderers.” 560 U. S., at ___ (slip op., at 18) (citing Kennedy v. Louisiana, 554 U. S. 407 –435 (2008); Enmund v. Florida, 458 U. S. 782 (1982) ; Tison v. Arizona, 481 U. S. 137 (1987) ). And we concluded that, because of this “twice diminished moral culpability,” the Eighth Amendment forbids the imposition upon juveniles of a sentence of life without parole for nonhomicide cases. Graham, supra, at ___, ___ (slip op., at 18, 32).

Given Graham’s reasoning, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. Quite simply, if the juvenile either kills or intends to kill the victim, he lacks “twice diminished” responsibility. But where the juvenile neither kills nor intends to kill, both features emphasized in Graham as extenuating apply. The dissent itself here would permit life without parole for “juveniles who commit the worst types of murder,” post, at 7 (opinion of Roberts, C. J.), but that phrase does not readily fit the culpability of one who did not himself kill or intend to kill.

I recognize that in the context of felony-murder cases, the question of intent is a complicated one. The felony-murder doctrine traditionally attributes death caused in the course of a felony to all participants who intended to commit the felony, regardless of whether they killed or intended to kill. See 2 W. LaFave, Substantive Criminal Law §§14.5(a) and (c) (2d ed. 2003). This rule has been based on the idea of “transferred intent”; the defendant’s intent to commit the felony satisfies the intent to kill required for murder. See S. Kadish, S. Schulhofer, & C. Streiker, Criminal Law and Its Processes 439 (8th ed. 2007); 2 C. Torcia, Wharton’s Criminal Law §147 (15th ed. 1994).

But in my opinion, this type of “transferred intent” is not sufficient to satisfy the intent to murder that could subject a juvenile to a sentence of life without parole. As an initial matter, this Court has made clear that this artificially constructed kind of intent does not count as intent for purposes of the Eighth Amendment. We do not rely on transferred intent in determining if an adult may receive the death penalty. Thus, the Constitution forbids imposing capital punishment upon an aider and abettor in a robbery, where that individual did not intend to kill and simply was “in the car by the side of the road . . . , waiting to help the robbers escape.” Enmund, supra, at 788. Cf. Tison, supra, at 157–158 (capital punishment permissible for aider and abettor where kidnaping led to death because he was “actively involved” in every aspect of the kidnaping and his behavior showed “a reckless disregard for human life”). Given Graham, this holding applies to juvenile sentences of life without parole a fortiori. See ante, at 12–13. Indeed, even juveniles who meet the Tison standard of “reckless disregard” may not be eligible for life without parole. Rather, Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who “kill or intend to kill.” 560 U. S., at ___ (slip op., at 18).

Moreover, regardless of our law with respect to adults, there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill. At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate. See 2 LaFave, supra, §14.5(c). Yet the ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively. Ante, at 8–9. Justice Frankfurter cautioned, “Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to a determination of a State’s duty toward children.” May v. Anderson, 345 U. S. 528, 536 (1953) (concurring opinion). To apply the doctrine of transferred intent here, where the juvenile did not kill, to sentence a juvenile to life without parole would involve such “fallacious reasoning.” Ibid.

This is, as far as I can tell, precisely the situation present in Kuntrell Jackson’s case. Jackson simply went along with older boys to rob a video store. On the way, he became aware that a confederate had a gun. He initially stayed outside the store, and went in briefly, saying something like “We ain’t playin’ ” or “ ‘I thought you all was playin,’ ” before an older confederate shot and killed the store clerk. Jackson v. State, 359 Ark. 87, 91, 194 S. W. 3d 757, 760 (2004). Crucially, the jury found him guilty of first-degree murder under a statute that permitted them to convict if, Jackson “attempted to commit or committed an aggravated robbery, and, in the course of that offense, he, or an accomplice, caused [the clerk’s] death under circumstance manifesting extreme indifference to the value of human life.” Ibid. See Ark. Code Ann. §5–10–101(a)(1) (1997); ante, at 15. Thus, to be found guilty, Jackson did not need to kill the clerk (it is conceded he did not), nor did he need to have intent to kill or even “extreme indifference.” As long as one of the teenage accomplices in the robbery acted with extreme indifference to the value of human life, Jackson could be convicted of capital murder. Ibid.

The upshot is that Jackson, who did not kill the clerk, might not have intended to do so either. See Jackson v. Norris, 2011 Ark. 49, at 10, ___ S. W. 3d ___ (Danielson, J., dissenting) (“[A]ny evidence of [Jackson’s] intent to kill was severely lacking”). In that case, the Eighth Amendment simply forbids imposition of a life term without the possibility of parole. If, on remand, however, there is a finding that Jackson did intend to cause the clerk’s death, the question remains open whether the Eighth Amendment prohibits the imposition of life without parole upon a juvenile in those circumstances as well. Ante, at 17.

Print this transcript Transcript: 

ORAL ARGUMENT OF BRYAN A. STEVENSON ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 10-9647, Jackson v. Hobbs.

Welcome back.

[Laughter]

Mr. Stevenson: Thank you, Mr. Chief Justice, and may it please the Court:

Justice Antonin Scalia: You haven't changed your mind in the interim?

[Laughter]

Mr. Stevenson: --No, Justice Scalia, I haven't.

I do want to emphasize -- yes.

Justice Sonia Sotomayor: Could you start -- I know that Enmund and Tison has to do with death eligibility with respect to adults, but it does draw a line between death eligibility with respect to intentionality or not, or recklessness.

Assuming for the sake of argument that some of us might be interested in whether a line should be created for juveniles who intended or didn't intend death, with respect to their eligibility for life without parole, whether it's mandatory or voluntary, how would we write that?

Would -- would we just import all the Enmund and Tison jurisprudence?

Or would we say something different with respect to juveniles?

Mr. Stevenson: Well, I -- I think you -- you could do that.

In fact, in Graham, the Court makes these statements that they're trying to exempt and shield juveniles who did not kill, quote,

"or did not intend to kill. "

And that language could be a basis for organizing the Court's thinking on this issue.

And, obviously, in this case where there wasn't a requirement of the specific intent to kill that was required in the Alabama case, that -- that might dictate a certain different outcome.

I think the challenge with that is that juvenile status, juvenile intent, is a much more complicated issue, and that for many of the same reasons that are problematic with how kids function at the first stage of these trials, it would be hard--

Justice Sonia Sotomayor: That has to do with your general rule, which -- which we shouldn't impose it at all.

Mr. Stevenson: --That -- that's right.

But--

Justice Sonia Sotomayor: But if we go even to your second step rule--

Mr. Stevenson: --I think--

Justice Sonia Sotomayor: --assuming we bifurcate--

Mr. Stevenson: --Yes, I hear--

Justice Sonia Sotomayor: --then -- then we still have the question of when do we permit a mandatory imposition?

Mr. Stevenson: --I think there is no question, Justice Sotomayor, there would be more justification for those crimes where there is an intent to kill, because this Court in its jurisprudence had recognized that kind of hierarchy which you've outlined and is exhibited in Enmund and then in the Court's other cases.

Now, it's true that in -- in Arkansas under this provision an adult would still be subject to the death penalty, because they used this "recklessness" language so that even a focus on "intent to kill" that we addressed in Enmund might not categorically protect these other juveniles, which I think the Court can rightly acknowledge have diminished culpability.

It's also worth noting that in many of these States where there are children being sentenced to life without parole, there is no confusion about this.

They are being convicted of homicide offenses for which there is no intent to kill.

No dispute.

Those jurisdictions, those provisions would likely be addressed by the Enmund analysis.

Justice Sonia Sotomayor: Well, in fact, Jackson was convicted with a nonintent, just a felony--

Mr. Stevenson: Well, it would -- you're absolutely right that it's felony murder, but it's a little different.

In Arkansas, if you cooperate or give aid to someone who commits a crime, even if it's not intentional, if it's a reckless indifference to life, you can be found guilty of what is capital felony murder.

And the Arkansas court has interpreted that to mean for an adult you'd be subject to the death penalty.

And here Kuntrell Jackson was subject to life without parole.

The State argues that there was support for that and even some kind of intent, because there was a dispute about the words -- just quickly, you know, these three--

Justice Sonia Sotomayor: --It doesn't matter.

Mr. Stevenson: --Yes.

Justice Sonia Sotomayor: The jury didn't have to -- all the jury found was that he didn't meet his affirmative burden of proving.

Mr. Stevenson: That's correct.

That's exactly right.

Justice Sonia Sotomayor: And he didn't counsel -- they didn't make a finding--

Mr. Stevenson: That's exactly right.

Justice Sonia Sotomayor: --as to what words were used and what the intent was.

Mr. Stevenson: That -- that's exactly right.

And the dissenters of the Arkansas Supreme Court relied on that in making the determination that they did not conclude that intent had been established here in a way that would support the judgment that -- that we seek.

But that goes back to one of the earlier questions that was posed about what happens at the guilt phase.

Is it -- Justice Kennedy, it is true that in Alabama and in most jurisdictions, you would not be permitted to tell the jury what the sentencing outcome would be.

And in many of these cases there -- there isn't a lesser included.

That's going to be up to the -- to the prosecution in -- in some of these crimes.

And there are a range of offenses for which that would not help a jury kind of deal with the -- the kind of -- the choice that--

Justice Samuel Alito: Is that what -- is that true under the law of Arkansas?

In most jurisdictions, I would think if -- if someone's charged with the highest degree of homicide, the defense can request an instruction on -- you don't have to have a separate charge on a lesser included offense; the defense can request an instruction on lesser included offenses if it could be supported by the evidence.

Mr. Stevenson: --It -- it would really depend, Justice Alito, on the facts.

For example, one of our provisions in Alabama makes the -- the crime sort of a -- a homicide a capital crime if the victim is under the age of 14.

You're not entitled to some diminished culpability, some other kind of homicide charge unless there's something else going on that would support that.

Our laws and this Court's law say there has to be evidence in support of that lesser included instruction before the court is constitutionally obligated to provide it.

And so, for that reason, it's not a given that that would happen.

And I think the challenge with the mandatory scheme that we've been talking about in both of these cases is that it does put the sentencer in a very difficult situation, where there is no ability to consider the age; there is no ability to consider the factual diminished culpability that might exist in one case or the other; no ability in either of these cases to consider the fact that an older codefendant got a lesser sentence.

That there is something else going on here that -- that goes beyond just the particulars of this crime and this particular offender's culpability.

Justice Stephen G. Breyer: Before we leave it, could -- could -- what was the instruction the jury was given?

Was it you find him guilty if he was deliberately indifferent, if he was recklessly -- what are the words they used?

Mr. Stevenson: It's a reckless indifference to life.

Justice Stephen G. Breyer: If he was recklessly indifferent to life.

Mr. Stevenson: And if he gave aid or assistance to someone in that capacity, and the question, Justice Breyer, turned on -- on this statement made that the -- the codefendant who testified against Kuntrell Jackson--

Justice Stephen G. Breyer: Yes.

Mr. Stevenson: --initially told the police he -- that he came in and said we ain't playing, and then he testified that he said,

"I thought y'all were -- were playing. "

Justice Sonia Sotomayor: I'm not sure reckless indifference means that.

Meaning if he knew they were carrying guns, doesn't that make him liable for the reckless indifference--

Mr. Stevenson: Well--

Justice Sonia Sotomayor: --whether he thought they would use them or not?

Mr. Stevenson: --Yes, and that's what the State argued here, is that the fact that he had knowledge of this gun and that they went in there made him guilty of reckless indifference even though it didn't create the kind of intent to kill that -- that we typically require for these kinds of showings.

That's again why there was the significance around this language, that if you come in and you say something declaratory that suggests that it's directed at the victim, it might help kind of support that intent finding if you don't--

Justice Stephen G. Breyer: Reckless -- reckless indifference to life suffices for the death penalty for an adult.

Mr. Stevenson: --Yes.

What -- what the Court does--

Justice Stephen G. Breyer: If that's right, then we'd -- you would have to argue on, if we took this tack--

Mr. Stevenson: --That--

Justice Stephen G. Breyer: --which I don't know that we would--

Mr. Stevenson: --That's--

Justice Stephen G. Breyer: --but that you cannot sentence a juvenile to life without parole for murder unless he, e.g., specifically intends the death or something equivalent, but something stronger than reckless indifference to life.

Mr. Stevenson: --That -- that's correct, Justice Breyer.

And, again, I think that this Court knows its own precedents, but as you'll recall, Tison followed Enmund, and in Tison v. Arizona is when the Court allowed there to be this kind of room around this intent standard in the way that you just described.

Justice Samuel Alito: So, you would draw the line at -- at a specific intent to kill?

Mr. Stevenson: Again, my -- I would -- I would categorically prohibit no matter what the intent is.

I think particularly for children at this age.

What I think this case highlights, what's meant by

"I thought you all were playing. "

versus "we ain't playing" isn't a very good indicator of whether someone should be subject to life without parole.

Justice Samuel Alito: What if it was a lot clearer?

What if they had said, okay, before we go in, let's understand what's going on here; Shields has got -- has got the sawed-off shotgun, and if we need to use it, we'll use it; we'll do whatever it takes to -- to bring this off?

Mr. Stevenson: I -- I think the evidence--

Justice Samuel Alito: There might not be a specific intent--

Mr. Stevenson: --Yes.

Justice Samuel Alito: --to kill there.

Mr. Stevenson: Yes.

I think the evidence that would support a finding of aggravated murder would obviously be stronger, but even there -- and this is what the Court points out in -- in Roper, the -- the decisionmaking of children, that the thinking of children is categorically different.

They're not thinking three steps ahead; they're not thinking about consequences; they're not actually experienced enough with the world to understand how they deal with their frustrations in the same way that an adult is.

And so, their judgments about what they intend to do, their declarations, mean something very, very different.

And one of the factors that we haven't talked about, but I just want to emphasize, is it's not just their inherent internal attributes; it's also the external circumstances that they find themselves in.

Kuntrell Jackson was born in a household where there was nothing but violence and guns and people shooting each other.

His grandmother shot his uncle.

His mother shot a neighbor.

His brother shot someone.

They were all put to jail.

But, unlike an adult, these children don't have the ability to escape.

A child of 14 cannot leave his criminogenic or violent environment.

They have no control over that.

And--

Justice Elena Kagan: Mr. -- I'm sorry; go ahead.

Mr. Stevenson: --And just because of that, I think it does reinforce why even their judgments, their so-called intentional judgments, reflect a very different kind of understanding of their character, their potential for rehabilitation, than it would with an adult.

Justice Elena Kagan: One of the arguments that the State makes is that when you look at all these numbers, the number that is most different between this pair of cases and Graham is the denominator.

And I am wondering whether you would address that.

What kind of denominator we should be using here and how it compares to the denominators that we have used in past cases.

Mr. Stevenson: Yes.

I think, first of all, it is true that homicide offenses are less common than non-homicidic offenses.

In Graham, this Court looked at a range of non-homicide crimes, and that was a huge number, 300,000, that's largely because we were talking about a multitude of offenses and here we are talking about a single offense.

I think the fact that there have been 7,000 children arrested for homicide and non-negligent murder -- manslaughter, over this 40-year time period and only 79 children have been sentenced to life without parole is a significant fact that reinforces our claim that this is a very rare sentence.

That is 1 percent.

And the fact that it's over 40 years, that's also true for the 79.

We got to that--

Justice Samuel Alito: It's arrests to start out with, it's not -- it's not convictions.

Mr. Stevenson: --That's right.

Justice Samuel Alito: And it's not for the type of offense for which one could be sentenced to life imprisonment without parole, it's a broader category of homicide offenses.

Mr. Stevenson: Well, you're absolutely right, Justice Alito, on the first point, that these are arrest data.

Of course, that's what we used in Graham, because again in this cohort, conviction data is simply very difficult to get.

But it's not true that only children arrested for aggravated murder are subject to life without parole.

As I have mentioned, in the States that create the largest population of these kids, all kinds of homicide can subject you to life without parole.

So it is true--

Justice Samuel Alito: Is it true that in the States that permit life without parole for a minor homicide -- a minor murder, a person -- a minor convicted of -- of murder, that that is permitted for every non-negligent homicide?

Mr. Stevenson: --In some States, yes.

That is to the extent that you get convicted of murder some of these States, South Dakota and Pennsylvania come to mind, whether it's first degree or second degree, you are subject to life imprisonment without parole and it is a mandatory sentence.

Justice Samuel Alito: Some States, but not in all--

Mr. Stevenson: Not in all States, that's true.

Justice Samuel Alito: --So you have a very imprecise denominator, you have arrests for a broader category of offenses.

Mr. Stevenson: Yes.

But I don't think--

Justice Samuel Alito: You don't know how much smaller that number would be if we narrowed it down appropriately, do we?

Mr. Stevenson: --Well, we can't get beyond what the data tell us.

But I want to suggest it's no less precise than what this Court had to deal with in Graham.

In Graham, we talked about 380,000 non-homicide offenders.

Half of that class were people convicted of drug crimes, which no one has suggested would subject you to life without parole.

Another 60,000 were convicted of assaults and kids get into fights all the time.

But we used the aggregate of all of those numbers when we made that comparison.

So I'd actually argue that we are dealing here with a category definition that is much more precise than what we dealt with in Graham.

And, Justice Kagan, to return to your question we do have some precedence that help us with this.

In Coker v. Georgia, this Court was trying to make an assessment about the propriety of the death penalty for the crime of rape.

And what the Court noted was that nine out of ten of the jury that made decisions about life versus death chose life.

And there we were talking about a death rate, if you will, of 10 percent.

Here, with a larger universe, we are talking about a rate of 1 percent.

Justice Stephen G. Breyer: How do you -- think about this, which is not your favorite position, but it's a position you've taken.

It's the same question I asked before.

If I say, well, doesn't there have to be some line, 3 years old, you will say of course.

10 years old, you will say of course.

But nobody -- there is no problem with sentencing 10-year-olds to life without parole.

12 years old.

Well, hum, now maybe your opponents want to defend that.

13 years old, 14 years old and of course I am walking right into the buzz saw, well, leave it up to the legislature.

But suppose that there's something to be said for not leaving it up to the legislature, at least for the numbers that were in that range.

But how would you defend the cutoff for no life without parole at say 14, older than 14, rather than older than 15, rather than older than 13.

What kind of argument is there that isn't totally random for picking that number as the age below which you cannot impose life without parole even for the most horrendous murder.

Mr. Stevenson: Yeah.

I think two nonrandom arguments can be made for the two ages.

I will start with the young age of 14.

When you consider the fact that 13 jurisdictions have thought about this, and have all but one set the age above 14, I think we can then rely on that to make a determination that if there is a minimum age, it's above 14.

I think we can also, consistent with this Court's precedents, look at the frequency of the sentence for this population.

Most States have never sentenced a child to life without parole for a crime at 14.

They've just never done it.

32 States, there are no children 14 and younger serving life without parole.

And so, I think that allows this Court in a very nonrandom way to defend that judgment.

But I also think a nonrandom argument can be made to draw the line at 18.

That is offenders under the age of 18.

That's exactly what this Court has done in Roper, it's what this Court has done in Graham.

What we have relied on about juvenile status is applicable to that poll.

I concede that these other indicia are not quite as compelling.

Justice Stephen G. Breyer: 18, you use for a lot of purposes, 18 -- you could say, okay, 18.

The difficulty with 18 is you are running into 2300, not 79.

Mr. Stevenson: That's right--

Justice Stephen G. Breyer: And the difficulty is that in Roper, it said, well, don't worry so much about not having the death penalty, the other one, don't worry so much about it because there's always life without parole.

And the fact that 18-year-olds or 17-year-olds in many respects are quite mature or at least can be.

And so that makes 18 seem not quite right.

But there's a problem with each of them, so that's--

Mr. Stevenson: --Yeah, but I guess just on that point, Justice Breyer, I think you're right that the indicia are more complicated.

But I want to just stress that they are less meaningful here.

Because with mandatory sentences, they don't tell you the same thing they do in these other contexts.

But I also think it's true that we have recognized that up until the age of 18, you are a juvenile, your status is coherent with what the Court has recognized in these other cases.

And so I do think it's defensible there.

While it's true that you are more developed than a child of 14 or a child of 10, it's also true that you are not an adult.

And we make that distinction in lots of ways.

Justice Stephen G. Breyer: --Any other distinction that you have been able to think of growing out of the literature or growing out of the law where the cutoff for some roughly comparable series of things is between 14 and 15 or between 14 and 16, or something like that.

Mr. Stevenson: Well, yes, this Court in Thompson made a distinction between offenders that were under the age of 15, 15 and younger, then older offenders.

And for 20 some years, the law in this country was you could not subject younger offenders to the death penalty in ways that you could older offenders.

And so there is clearly precedent for that and we have appended also lots of statutes, I mean, that also make those kinds of distinctions.

I mean, we do draw these lines frequently in a range of areas, not just dealing with the constitutional questions that we are dealing with here.

But just kind of to complete my analysis, Justice Kagan, about these comparisons.

The other point that I will reference is that in Thompson, this Court was also struggling over this question about frequency and rarity.

And what the Court did there was actually look at the number of juveniles that were sentenced to death under the age of 16 that were on death row and compared them to the number of people on death row at the time, and they noted that it was.36 percent of the population of people on death row.

If you did the same thing here, the Sentencing Project reports that there are over 41,000 people in the United States serving sentences of life imprisonment without parole.

And if you compare our number of 79 to that, that is actually again a lower proportion of people serving life without parole than the Court found to be constitutionally significant in Thompson.

So I think Thompson and Coker all reinforce what we are saying here, that this is an exceedingly rare sentence where the majority of States have never chose to impose it.

That would provide a basis for this Court to conclude that it is cruel and unusual.

Justice Ruth Bader Ginsburg: You are making an argument now in Jackson's case.

Jackson was the felony murder case and I think at least in your brief, you made the argument it was just happenstance and bad luck that in Jackson's case the shop attendant was killed.

And in Graham's case, the person who was assaulted survived.

But your argument to us seems to make no distinction between the two cases.

Mr. Stevenson: No, no, I -- I -- I don't intend to do that Justice Ginsburg.

I think -- I think there is a distinction, there is no question that there is a stronger argument that by traditional measures there is lower culpability in Kuntrell Jackson's case.

He was not found to have specifically intended to kill.

In the State of Alabama he could not have been subject to life without parole, and there are States where he would not be subject to that, based on his degree of culpability.

I -- I guess my -- my -- my point is that even there, there is a challenge that if the Court wants to engage in that kind of thinking, what children intend because they are children is a very complicated question.

It's a very different question.

I don't mean to concede that it's an irrelevant question.

I think the Court absolutely can and should conclude that there is diminished culpability in the Jackson case, and that is evident based on the facts in the crime.

Actually it was the dissenter in -- in the Jackson case that made this observation about the consequences of crime.

And, of course, for many non-homicide crimes there are these kind of fortuities that sometimes prevent death wonderfully, and we were grateful for that.

My problem is that the differences between children and adults, these internal attributes, if you will, these deficits in judgment are not crime specific.

The person who intends to kill doesn't actually have any better judgment, any more character, any more maturity, any more impulse control than the person who doesn't.

And a way of characterizing a rule would be to recognize that and to create a categorical ban.

If there are no further questions, I will reserve the rest of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Holt?

ORAL ARGUMENT OF KENT G. HOLT ON BEHALF OF THE RESPONDENT

Mr. Holt: Thank you, Mr. Chief Justice, and may it please the Court:

The decision below falls squarely within the framework of Roper and Graham, and there are three reasons to affirm this judgment.

First, murder is the worst of all crimes.

Society has drawn that line.

Second, legislatures have the power to authorize sentences that are commensurate with crimes like murder.

Third, Jackson has not demonstrated any consensus in this case against the practice, and in fact, there is a supermajority of States and of governments that authorize this sentence.

The landscape of this case is -- is different than Graham, because in Graham no one was -- no one was killed.

Terrence Graham was lucky no one was killed, because he acted with a reckless disregard for human life as well, but it's an important thing in our law that the law punishes the -- the result, the harm that is inflicted.

And if I could, go to the Arkansas statute.

Jackson was charged with the highest crime you could be charged with in Arkansas, it was capital felony murder.

In that the legislature has set out several enumerated, several violent felonies that if you commit this particular crime -- and aggravated robbery is one of them -- if you commit that crime and in the course and furtherance of that, you or an accomplice act with extreme indifference to the value of human life during the commission of it or in the flight from it, then you are guilty of capital felony murder.

So, in this case the jury was called upon, because there were other accomplices with Kuntrell Jackson, they were called on to determine whether or not Kuntrell Jackson acted as an accomplice, whether he aided and assisted and whether or not he or an accomplice acted with extreme indifference to the value of human life.

In that process, Kuntrell Jackson asserted the affirmative defense that essentially is available for capital murder.

He said that, I did not have -- I was not the triggerman, and I did not -- I did not commit the homicide offense, and I did not aid or procure counsel, all of those are listed -- the exact words of the affirmative defense are listed in our brief at page 4.

And -- but he asserted that defense.

The Arkansas Supreme Court noted in its opinion that in his challenge to the sufficiency of the evidence, that there was sufficient evidence to convict him of capital murder and that the jury was well within its right to believe that he said that he -- that when he walked in and took -- took the lead in this robbery that he said, "We ain't playing", and after that the clerk responded that she was going to call the police--

Justice Sonia Sotomayor: Counsel, I -- I -- I know that this seems like block building, but I -- I think of law as sort of logical.

If you are involved in a felony, and you counsel the felony where someone dies under Arkansas law, you are guilty of felony murder, correct?

Mr. Holt: --Of capital felony murder, yes, Your Honor.

Justice Sonia Sotomayor: So whether or not that he intended to counsel the crime, he was guilty of felony murder, unless he could prove the affirmative defense, right?

Mr. Holt: Yes, Your Honor.

Justice Sonia Sotomayor: So obviously he didn't prove the affirmative defense, but that doesn't mean that the jury actually found that he used one set of words or another.

It just means that they didn't believe that he had proven by his burden of proof that he had not counseled, correct?

Mr. Holt: That's correct.

The Arkansas Supreme Court said they could -- they could accept that as -- they pointed to that as--

Justice Sonia Sotomayor: As a possibility--

Mr. Holt: --As a possibility, yes.

Justice Sonia Sotomayor: --But not that it was an actual finding by the jury?

Mr. Holt: No.

No, Your Honor.

It was not an actual finding--

Justice Sonia Sotomayor: All right.

Mr. Holt: --because an actual -- in regard to sentences in terms of years, we don't require that individualized responsibility that we do, for instance, in a death penalty case.

So--

Justice Stephen G. Breyer: Well, so in Arkansas if a 13-year-old or a 14-year-old is in a get-away car and knowingly accepts the money that someone gets from a robbery and intends to drive off with it, and that other person shoots the teller and kills him, then that individual who is 14 years old is guilty of felony murder, capital felony murder?

Mr. Holt: --Your Honor--

Justice Stephen G. Breyer: He aided?

Is that right or not?

Mr. Holt: --Yes.

Justice Stephen G. Breyer: Okay.

If that's right, do -- do you think that such a person is less culpable, knowing only that, than a person who actually takes out a gun and shoots the teller?

Morally speaking?

Mr. Holt: Yes, Your Honor.

Yes.

Justice Stephen G. Breyer: Okay.

Now, if the answer to that question is yes, what is the argument for not being able to tell that to the jury or judge who is going to impose the sentence?

What is the argument for not allowing a judge or a jury, at least to think about that question, before they have -- before imposing mandatory life without parole?

Mr. Holt: Well, Your Honor, that -- that -- telling a jury about that doesn't go to their guilt.

Justice Stephen G. Breyer: I know.

I mean my obvious point is that -- that the Arkansas system, once we have he was the get-away driver or assisted the get-away driver, they must sentence him at that age, or despite that age, to life without parole.

And so, the other side is saying, well, at the very least -- he has three other positions -- but at the very least, the Constitution, maybe it's the due process clause, requires the sentencer to take that into account, the fact that he was just the assistant get-away driver and may not have thought about the murder in reality, and may not have expected it in reality.

Why not have to take that into account in sentencing?

That's the argument.

I want to hear directly your answer to that, which is taking the fourth or possibly the least weakest of his positions or the least radical.

What's your answer to that?

Mr. Holt: Your Honor, it's -- a legislative judgment has been made with regard to drawing a baseline for all murderers, whether they are juvenile murderers, whether they are get-away drivers.

And when you -- when you counsel or aid or do anything that gets you liability for being a capital murderer, then that's the -- that is the minimum sentence.

What he has gotten, on account of his youth, is he's gotten -- this -- this Court decided in Roper in that he could not -- he could not get the death penalty.

All of those individualized characteristics that would give him the lesser penalty, he doesn't even have to put on.

It's swept off the table because he is not exposed.

And that is -- those are all those factors in terms of what he -- what he might -- that might mitigate.

So he would actually would sort of be double dipping to come back again and say, oh, and by the way, I'm a youth, so I should even -- I should get not the lesser punishment, I should get the lesser, lesser punishment.

So there is a certain symmetry that this case has with the Graham case, in that the Graham case was very specific about the way it defined itself.

One commentator has made the note that the majority opinion in Graham contained the word non-homicide 47 times.

Graham essentially said what it wasn't.

It wasn't a homicide.

It was that other line that society draws between homicide and every other crime.

And crimes are -- the criminal statutes are scalar.

There's a certain amount of culpability that's built into each one of those, whether it be capital murder or first-degree murder, or second-degree murder.

And it does go on what you know, the -- the knowledge that you have.

Maturity is taken into consideration, or immaturity is taken into consideration in capital murder in that you can't get the worst -- if you've been shown to do these acts, you can't get the worst punishment.

Justice Ruth Bader Ginsburg: What is the standard in Arkansas for moving a child from the juvenile system?

We heard, I think, in Alabama it was -- was age 13?

Mr. Holt: Yes.

Your Honor--

Justice Ruth Bader Ginsburg: It was age 12.

Mr. Holt: --Yes.

Your Honor, Arkansas has sort of a three-tier system.

The age for moving into the adult system is 14.

And -- but the middle-tier system in Arkansas is called extended juvenile jurisdiction.

And in that particular case -- in those cases, the prosecutor can move to take a younger age and put in -- and it's a blended sentence between the -- and a youth is just found delinquent of a crime and not -- and found guilty.

Justice Anthony Kennedy: What -- what are the factors the judges and prosecutors use in making that determination?

Mr. Holt: Your Honor, at age 14 -- and it's the specific -- there are specific crimes that a prosecutor would move a case into an adult court.

It is the prosecutor's discretion weighing -- there are 10 different factors that include the severity of the offense, the -- and -- but they also take into consideration the maturity of the -- of the youth, the--

Justice Anthony Kennedy: But -- but if you submit that as a justification for your scheme, why couldn't those same factors be applied to the judge -- by the sentencing judge after the conviction?

In other words, all of the -- all of the discretion is up front before the conviction.

Mr. Holt: --Well, there is discretion up front, and that is the only -- that is the only instance when a defendant can actually challenge a transfer, where a prosecutor decides to put it.

But there are also -- so, there is -- there's discretion at the front end.

Justice Anthony Kennedy: I guess my point is, if the concern is that -- that we have too indefinite standards, too few specifics to guide the judge in determining whether there should be a life sentence, the same criticism could apply to the determination if they didn't put him in the adult system at the outset.

Mr. Holt: Well, Your Honor, the -- it is -- admittedly, it is at the discretion of the prosecutor on those ages to move it into the--

Justice Anthony Kennedy: I assume discretion is guided by certain standards or it's no discretion at all.

So, there are standards.

Mr. Holt: --Well, Your Honor, the -- the prosecutor -- that -- that decision to move it in there is challengeable.

It is reviewable by a court.

He moves -- the juvenile moves it to transfer it to -- back to juvenile.

That is appealed.

That was done in this case, and then the Arkansas Court of Appeals reviewed that decision and said that the court -- the court's decision was not erroneous.

So, that -- that is the discretion that one would exercise on the front end.

Again, on the latter end, this Court has said in Harmelin that the individualized sentencing is not required, and, in fact, the -- all of the -- all of the -- the mitigating circumstances that would -- that have been considered because it's -- he's -- the death penalty has been taken off the table.

That's a big -- that's a big deal, especially in a case like this one where Kuntrell Jackson -- we believe the evidence showed that he also acted with reckless indifference to the value of human life, based -- based on the evidence in this case.

That he would be -- by way of analogy, that he would be a Tison offender himself.

But irrespective of that, the legislature in Arkansas -- it's -- the legislative judgment has been that the minimum sentence that a person can receive for committing a capital murder in Arkansas is life without parole.

I would like to clarify one point that I think -- earlier that was made.

The two other individuals in this particular case were -- one was a cousin who testified against Mr. Jackson, and he was 15.

He had turned 15 the day before this robbery.

And the second, the second individual, the triggerman, was -- he was also 14, and he received a sentence of life without parole as well.

It's our position that -- as is Alabama's, that the main -- the principal justification in this case lies with the retributive principle that society needs to convey the message that people that Laurie -- that Laurie Troup's life, the victim in this case, was more important than the money in that cash register.

The harm here was irrevocable.

And this kind -- the punishment for this -- it's qualitative -- death -- the death penalty is qualitatively different.

But the punishment for -- for this crime reinforces the sanctity of human life and it expresses the State's moral outrage that something like this could happen.

We think that the respect due life is -- is what this message conveys, and it conveys it more as a life-without-parole sentence than it does life without.

Justice Ruth Bader Ginsburg: You say the sanctity of human life, but you're dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope.

I mean, essentially, you're making a 14-year-old throwaway person.

Mr. Holt: Your Honor, I'd respectfully disagree that he's a throwaway person.

The -- we want to -- we want him to come to an understanding of his own humanity.

We want him to realize the enormity of his crime.

I can only speak for Arkansas, but in Arkansas, instances -- it's not in the record, but this particular petitioner, Jackson has made efforts to obtain his GED; he has taken anger management classes.

You can -- juvenile life without parole -- people serving this sentence are enrolled in vo-tech programs in prison.

Justice Sonia Sotomayor: I'm sorry.

What hope does he have?

Mr. Holt: Excuse me?

Justice Sonia Sotomayor: What hope does he have?

Mr. Holt: Your Honor, he has -- the hope that he may have is that he -- is an application for commutation through the parole board.

Other than that, he will -- or perhaps retroactive legislation--

Justice Sonia Sotomayor: I'm sorry--

Mr. Holt: --if the legislature comes to another view.

Justice Sonia Sotomayor: --I thought he was life without parole.

I thought he was sentenced to life without parole.

How can the parole board--

Mr. Holt: Oh, what I'm saying is the parole board is -- reviews applications for commutation in Arkansas.

So, he -- this particular Petitioner has not--

Justice Anthony Kennedy: How many commutations of life imprisonment sentences are ordered every year in Arkansas?

Mr. Holt: --Your Honor, I don't have figures on that -- on how many per year, but there is a case that -- that listed -- it's Rogers v. State.

It is a 1979 case that actually listed -- 30 clemency requests were granted in the last 5 years from that opinion.

They were life sentences.

Justice Anthony Kennedy: From life sentences?

From life without parole?

Mr. Holt: Well, life without -- life and life without parole in Arkansas are the same type of sentence.

Chief Justice John G. Roberts: Do we know how old Laurie Troup was when she was shot?

Mr. Holt: Yes, Your Honor.

Laurie Troup was 28 years old when she was shot.

She was discovered by her mother and her 11-year old son.

Justice Stephen G. Breyer: I understand the arguments, which are very good ones, for the importance of Arkansas emphasizing the importance of life and not killing people.

But a person who is an adult who is faced with the death penalty, which is certainly a strong statement along your lines, is permitted by the Constitution nonetheless to make any mitigating argument he wants.

And Arkansas has to do that.

They have to let him make any mitigating argument he wants.

And so, the argument here is basically, well, the same is true when a 14-year-old, because of the lack of maturity, faces life without parole.

And that seems to be the hard issue in this case.

Just as -- just as the death penalty is unique for anyone and therefore requires mitigating elements, isn't the life without parole special enough for an adolescent that you have to let him at least make any mitigating arguments he wants?

Now, Arkansas hasn't really expressed a view in its legislation on that question, or maybe it has and just rejected it.

But I don't know.

That's -- if you want to say something about that, I'd be interested.

Mr. Holt: That's -- that's not a view that -- that I know that's been expressed.

Justice Stephen G. Breyer: Yes.

But I mean, that's what their brief is filled with on the other side, basically.

And so is Roper.

Mr. Holt: Yes, Your Honor.

But this -- this is qualitatively different.

And -- and that's been taken off the table.

I think that all of -- all of those things that he would put to get the -- that he would -- that he would put forward to get the lesser sentence is -- initially is that he would just get a -- as I said, a lesser -- lesser sentence.

Justice Ruth Bader Ginsburg: Is that because Arkansas has no life with parole?

Mr. Holt: Your Honor, the only provision, and -- and this does go to show that Arkansas has -- has thought about this in ways -- has make -- taken deliberate steps.

In its extended juvenile jurisdiction, there is the provision that -- that a -- for instance, a 14-year-old in this particular case, if -- if they had deemed that they would go in extended juvenile jurisdiction could receive a life penalty, except it is life with parole, yes.

So, that is -- that--

Justice Ruth Bader Ginsburg: But that's not available to an adult.

That's only available to--

Mr. Holt: --That's not available to an adult.

No, Your Honor.

As I -- as I was saying, the -- there's a certain constitutional symmetry to this case and to Graham's case because -- because Graham committed a -- a non-homicide offense and he was a youth, and so he had twice-diminished punishment.

But he only received one diminishment in his -- in his punishment, because he had -- he was -- he had twice-diminished culpability.

In this particular case, Jackson does not have twice-diminished culpability.

He has -- he is a youth.

Even if he were to -- even if we were to say that, well, he didn't pull the trigger, or we can't show that he didn't -- that he acted -- didn't act with reckless indifference -- even if we were to say that that was twice-diminished, he is still criminally responsible.

There's not a -- there's not a special class of not guilty by reason of youth.

He is still criminally responsible for what he did.

And -- and a teenager -- teenagers must know that if you commit the worst crime, you will get the worst punishment that's available under the Constitution.

And so, the symmetry here is that -- that Terrence Graham was the lucky one.

It's not that Kuntrell Jackson was the unlucky one.

This is a -- when you go into a place with a sawed-off shotgun, it's a dangerous activity; it's inherently dangerous.

And what was left out of the calculus a minute -- a few minutes ago was the fact that he could -- it's not just kill or intend to kill, but foresee what could happen.

And certainly the evidence in this case demonstrated that Kuntrell Jackson could foresee that at an armed robbery, someone could get hurt.

And that's what the law punishes, is the result.

If there are no further questions--

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Stevenson, you have 8 minutes remaining.

REBUTTAL ARGUMENT OF BRYAN A. STEVENSON ON BEHALF OF THE PETITIONER

Mr. Stevenson: Just -- just a few points.

Justice Kennedy, I just want to kind of remark, there is some literature out there about commutation in Arkansas.

And it was actually quite common up until 1980, and this case that my colleague referenced was prior to that date.

But since then, it's been very uncommon.

There's only been one commutation since 2007 with the current governor, and that was for a non-homicide offense.

I -- I also want to say, but just kind of consistent with my earlier argument, that this Court did strike down mandatory death sentences in Woodson v. North Carolina and Roberts v. Louisiana for many of the reasons that the Court has highlighted here that made that sentence unconstitutional and inappropriate.

And we think that in the same way, the Court could certainly do that here.

But my final point is really to just say we are not suggesting that States should not be able to impose very harsh punishments and very severe sentences on even children who commit these kinds of violent crimes.

That's not our position.

The State of Arkansas and the State of Alabama have parole boards in place.

They can even impose sentences that give them the authority to maintain control of the lives of these children for the rest of their natural lives.

What we are arguing is that they cannot do so with no hope of release, that that would be incompatible with child status.

And that's the rule of Roper.

That's the logic of Roper and Graham.

It could be argued that every person is more than the worst thing they've ever done.

And a policymaker and a decisionmaker might consider that in constructing what kind of sentences to impose and what kind of regime to create, and that's totally up to the legislatures.

But what this Court has said is that children are uniquely more than their worst act.

They are quintessentially children in a way that the Constitution requires that we respect their child status.

And our argument is simple.

Our argument is that it would be unusual to recognize that in virtually every area of the law but when a crime is committed, to simply abandon it, to simply ignore it.

Roper and Graham teach us that we can't do that consistently with our Eighth Amendment prohibitions.

And so, for that reason, it is unusual, and it's our judgment that it would be cruel to declare these children fit only to die in prison given what we now know about their status, about their development, and about their potential.

And for those reasons, we would ask this Court to reverse the lower court judgments and grant relief in this case, Jackson v. Arkansas.

Chief Justice John G. Roberts: Thank you, Mr. Stevenson, Mr. Holt.

The case is submitted.

Print this transcript Transcript: 

ORAL ARGUMENT OF BRYAN A. STEVENSON ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-9646, Miller v. Alabama.

Mr. Stevenson.

Mr. Stevenson: Mr. Chief Justice, and may it please the Court:

In Graham v. Florida, this Court recognized that children are inherently characterized by internal attributes and external circumstances that preclude a finding of a degree of culpability that would make a sentence of life imprisonment without the possibility of parole constitutionally permissible under the Court's Eighth Amendment excessiveness analysis.

While the issue in Graham involved juveniles that were convicted of non-homicide offenses, these deficits in maturity and judgment and decisionmaking are not crime-specific.

All children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.

In fact, in Roper, this Court acknowledged that these differences between children and adults exist even in the cases involving the most aggravated murders.

These deficits, these differences, are even more pronounced in young children.

Justice Ruth Bader Ginsburg: Mr. Stevenson, but in Roper, the Court also made the point -- when it ruled out the death penalty, it said,

"To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction. "

So, the Court in Roper seemed to be anticipating this case and suggesting that -- that it was all right, it was constitutional.

Mr. Stevenson: There's no question, Justice Ginsburg, that the -- the default sentence in Roper was life imprisonment without parole, but we actually think that, specifically with regard to that provision, there is no greater deterrent effect, and these deficits, that these problems that children experience, lend themselves to an analysis that is subject when the punishment is life imprisonment without parole.

Like the death penalty--

Justice Antonin Scalia: What about 50 years?

Is that -- is that too much?

Mr. Stevenson: --What the Court held in -- in Graham--

Justice Antonin Scalia: Well, you know, once -- once you depart from the principle that we've enunciated that death is different, why is life without parole categorically different from 60 years or 70 years or -- you know, you'd be back here next term with a 60-year sentence?

Mr. Stevenson: --Justice Scalia, I think you're absolutely right, that there is a point at which a term of year sentence could constitute the same kind of judgment--

Justice Antonin Scalia: Okay.

Mr. Stevenson: --as life imprisonment without parole.

Justice Antonin Scalia: Good.

Mr. Stevenson: But there is a distinction obviously between life imprisonment without parole and any other term sentence.

Those sentences in most instances, if the sentence is not too extreme, do permit the possibility of release.

And what this Court held in Graham is not that the State forfeits the ability to incarcerate for life--

Justice Antonin Scalia: I'll change my -- I'll change my question to 50 years without possibility of parole.

Mr. Stevenson: --Yes.

And--

Justice Antonin Scalia: Then you have no -- no distinction, right?

Mr. Stevenson: --Well, I think there, it would be a tough case.

I think imposed on a juvenile, a 50-year sentence--

Justice Antonin Scalia: Without--

Mr. Stevenson: --would not create the meaningful possibility of release that this Court ordered in the Graham context.

It would be right on the line, but I think 50 years would actually be on the other side of a meaningful possibility of release.

It would be sort of a cynical reaction, if this Court were to say we ban life without parole for these kinds of offenders, it would be somewhat problematic to suggest that we're going to get as close to death as possible and then facilitate some kind of review.

I think what we're interested in--

Justice Antonin Scalia: --How about 15 years old?

15, 60 years; or 14, 70 years?

Mr. Stevenson: --I think all of the--

Justice Antonin Scalia: What -- what's the distinction between 14 and 15?

Mr. Stevenson: --Well, I think from a sentencing perspective, all of those sentences would be problematic.

But the distinction between a 14-year-old and a 15-year-old for constitutional purposes that, of course, the younger you are, the more compelling are these deficits, these distinctions, that--

Justice Antonin Scalia: I understand, but how are we -- how are we to know where to draw those lines?

We can't do it on the basis of any historical tradition, certainly.

Mr. Stevenson: --Well, I think that--

Justice Antonin Scalia: The common law left it up to the jury to take account of the youthfulness of the offender.

Mr. Stevenson: --Well, what I think--

Justice Antonin Scalia: They're all entitled to jury trial, right, before their--

Mr. Stevenson: --Well, that's true.

But of course in this case, Justice Scalia, and in the other case, there was no discretion for the sentence.

Neither the judge nor the jury could give any effect to the age of Evan Miller, who was 14.

But I also think that we've identified lots of laws that make these distinctions.

We do provide for greater responsibilities--

Justice Ruth Bader Ginsburg: Would that satisfy you if the -- if it were not a mandatory term and it was left to the trier to put -- put in all the mitigating circumstances?

Mr. Stevenson: --That would not satisfy me, Justice Ginsburg, for all the reasons that this Court acknowledged in Graham.

That -- that the problem with many of these crimes is that the offense itself can overwhelm all of these mitigating factors, all of these aspects of juvenile decisionmaking that we think are constitutionally permissible.

The other problem is that we still can't make good judgments about whether a child -- whether these characteristics are transitory or permanent.

Justice Anthony Kennedy: So, you're saying it would be unprincipled for us to say -- or at least unsupported for us to say -- that the sentence cannot be mandatory, but that in some cases, it might still be imposed.

Mr. Stevenson: I think it would be principled to -- to kind of strike down mandatory sentences, but I think constitutionally what this Court has recognized in Roper and in Graham, that it would be a -- a mistake to equate kids with adults.

And we don't have the ability to make those judgments even if we create a different kind of process.

Justice Antonin Scalia: --Even--

Justice Anthony Kennedy: If you take that off the table, then you leave us with nothing but saying that the sentence is never permitted or that it's always permitted.

Mr. Stevenson: Well, I -- I don't mean to take it off the table; I just mean to argue, as we did previously, that a categorical ban would be consistent with the Court's understanding about child status and development.

Justice Samuel Alito: If you could write the opinion for us, what would you hold?

Mr. Stevenson: I would hold that children are categorically prohibited from being subjected to sentences--

Justice Samuel Alito: What's -- what's the definition of a child for that purpose?

Mr. Stevenson: --Well, we've presented data in this case that would exclude a youth 14 and younger.

No State that has set a minimum age for life without parole has set it beneath the age of 15, other than one.

And so, we -- we would make that holding.

I do think it would be--

Justice Samuel Alito: So, you -- you would hold you can't -- there cannot be a sentence of life imprisonment without parole for anyone under 15, but for anybody over 15, it would be permissible.

Mr. Stevenson: --No, I would also hold, Your Honor, that a mandatory sentence for that cohort would also be in violation of this Eighth Amendment principle.

Justice Ruth Bader Ginsburg: Well, you could say you reserve that question for another day.

Mr. Stevenson: Well, I think that the problem, Justice Ginsburg, is -- is that these cases with the mandatory sentencing aspects to them create kind of a data issue that this Court has usually relied on to kind of generate an interest.

I think right now, we know that excluding considerations of age and character in a sentencing determination of life imprisonment without parole is problematic.

The Court in--

Justice Samuel Alito: Can you tell us where the age line needs to be drawn for constitutional purposes?

Mr. Stevenson: --I -- I would draw it at 18, Justice Alito, because we've done that previously; we've done that consistently.

Justice Samuel Alito: That's where you think the logic of your argument leads.

Mr. Stevenson: That's exactly right.

Justice Samuel Alito: And you would say that a 17 -- a person of 17 years and 10 months, 11 months, who commits the worst possible string of offenses still -- and demonstrates great maturity -- still cannot be sentenced to life imprisonment without parole.

Mr. Stevenson: That's right, for the same reasons that we made that determination in Graham and that the Court made that determination in Roper.

I understand that there are some tensions when we draw those kinds of lines--

Justice Sonia Sotomayor: I'm sorry.

I thought you just said a second earlier that you had a bifurcated rule: No life without parole whatsoever for 15 and under, and no mandatory life for 16 -- 15 and over.

Mr. Stevenson: --That -- that would be -- I'd have two rules, Justice Sotomayor.

My preferred rule would be a categorical ban on all juveniles under the age of 18.

And I don't want to retreat from that in any way.

All of these deficits, all of these characteristics, that we're talking about have been recognized to apply to all youth up until the age of 18.

Justice Sonia Sotomayor: How do you -- how do you write the opinion to do the bifurcated rule?

What justifies an absolute ban at a certain age and a modified ban above an age, and how do you deal with Harmelin with respect to the second part of your rule--

Mr. Stevenson: Yes.

Justice Sonia Sotomayor: --if Harmelin says we don't look at individualized sentencing?

So, how do we get rid of the mandatory if that's what we're were going to do?

Mr. Stevenson: It's a challenge, and I -- and I concede that.

But I -- so, the first part of my answer would be that I think the easier rule to write would be that there is a categorical ban on all life without parole sentences for all children up until the age of 18, acknowledging--

Justice Antonin Scalia: --How -- how do I come to that decision?

What do I -- just consult my own preferences on this matter?

Something like 39 States allow it.

I mean, the American people, you know, have decided that that's the rule.

They allow it.

And the Federal government allows it.

So, I'm supposed to impose my -- my judgment on -- on what seems to be a consensus of the American people?

Mr. Stevenson: --Well, at least in this case, you'd look to your precedent in Roper and in Graham, which drew that line.

Justice Antonin Scalia: Well, that's not going to help me, you know.

Mr. Stevenson: I understand--

[Laughter]

I understand, Justice Scalia, but I don't think you can draw much comfort in the fact that 39 jurisdictions make this theoretically possible.

That same number existed in the Graham context.

Most of those jurisdictions have not addressed a minimum age for life without parole.

In fact--

Justice Samuel Alito: What do you mean when you say that, that they have not addressed it?

If State law allows it, have they not addressed it?

Mr. Stevenson: --Yes.

That is, what the State permits is that--

Justice Samuel Alito: So, legislators don't understand that their law permits this?

Mr. Stevenson: --I don't think we can read into a transfer judgment, which is the only judgment that they've made.

They've said that some children of some age can be treated like adults.

They haven't talked about what that -- what the punishment should be.

And the reason why I say that, Justice Alito, is that in many of these States, there's no minimum age for trying a child as an adult.

Justice Samuel Alito: But I don't really understand this argument.

You mean the legislatures have enacted these laws, but they don't realize that, under these laws, a -- a person under the age of 18 may be sentenced to life imprisonment without parole for -- for murder.

They don't understand that?

Mr. Stevenson: They -- they have not considered that or adopted or endorsed it, would be more accurate.

Justice Anthony Kennedy: That's difficult because the statistics show there are 2,300 prisoners now under sentence of -- with life without parole for juvenile murders and they're -- that were committed under 18.

2,300 nationwide.

Mr. Stevenson: That -- that's correct.

Justice Anthony Kennedy: So, it's very difficult to assess your answer to Justice Alito that, oh, the legislatures don't know about this.

Mr. Stevenson: Well, in -- that answer -- that number, Your Honor, is partly rooted in the fact that these sentences are mandatory.

There is no one capable, once the court makes a decision to try the child as an adult, to do anything to consider the status of children.

Justice Elena Kagan: Mr. Stevenson--

Justice Samuel Alito: If you think these legislators don't understand what their laws provide, why don't you contact them?

And when they -- when you tell them, do you realize that in your State a -- a 16-year-old or a 17-year-old may be sentenced to life in prison without parole for murder, they'll say: Oh, my gosh, I never realized that.

Let's change the law.

Mr. Stevenson: Well, I -- I mean, I don't think there are any legislatures that are -- that are quick to make their sentences less -- more compassionate, more responsive to -- to juvenile crime of any sort.

Justice Samuel Alito: So, they've made a decision on this.

Now maybe it's a bad decision--

Mr. Stevenson: Yes.

Justice Samuel Alito: --but I really don't understand how you can argue that they have not made a decision on this--

Mr. Stevenson: I think--

Justice Samuel Alito: --and they are not aware of what their law provides.

Mr. Stevenson: --Yes.

I think the strength of my argument, Justice Alito, is that the States that have actually considered, discussed, and passed laws setting a minimum age for life without parole have all set that minimum age above 15.

That's my primary argument.

Thirteen States have done it; all of them except for one have set it at 18--

Justice Samuel Alito: And you think there is a difference between the State that says expressly a juvenile below a certain age may be sentenced to life imprisonment without parole and a State that says that if a person is convicted of capital murder, that sentence may be imposed and, in another -- in another provision, says that juveniles may be transferred for prosecution as adults.

Mr. Stevenson: --I--

Justice Samuel Alito: There's a difference between those two?

Mr. Stevenson: --There is.

And that's because the -- the transfer question, which is what informs whether children can be subject to these sentences or not, is a very different question.

It's a question about whether the juvenile system that may mandate release at age 18 or age 21 is adequate for an offender.

It's not a judgment that that child should therefore be subject to life imprisonment without parole.

And so, you have this disconnect.

You have transfer judgments, which this Court recognized in Thompson and in Graham were not proxies for sentencing judgments.

And because of that, it is a very different calculation.

The second point is that if there is no minimum age for trying children as adults or even prosecuting children as adults, I think we'd have to concede that there is an age at which a life without parole sentence would be constitutionally impermissible for any crime.

And to the extent that the State hasn't addressed that, which they clearly haven't -- you know, in this cohort of 79 children with life without parole for crimes at 14 and younger, more than half come from States where there's no minimum age for trying children as adults.

That means in that State, a 10-year-old child would arguably have been contemplated by the legislature to be an appropriate person for life without parole, or an 8-year-old child and a 6-year-old child, and I think that asks too much of these statutes.

Justice Sonia Sotomayor: Counsel, there is no question that you're dealing with a much smaller universe of children sentenced to life without parole who are 14 and under.

There's an argument that that's because so few of them commit the crimes.

But putting that aside, the universe is rather small.

Mr. Stevenson: Yes, Your Honor.

Justice Sonia Sotomayor: All right?

There is a much, much larger group, as Justice Kennedy pointed out, for life without parole for juveniles at 15 and above.

Mr. Stevenson: Yes.

Justice Sonia Sotomayor: Go back to my question.

Mr. Stevenson: Yes.

Yes.

Justice Sonia Sotomayor: I need an answer to it.

Mr. Stevenson: Yes.

Justice Sonia Sotomayor: Which is, assuming--

Mr. Stevenson: Yes.

Justice Sonia Sotomayor: --the bifurcated theory that you proffered, tell me how we get around Harmelin.

How would you write that decision?

Mr. Stevenson: Yes.

Well, I think that, first of all, what this Court has relied on when it has looked at these numbers, what it has been trying to figure out, are these objective indicia of society's standards, its mores, its decency meter, if you will.

And we've looked at these numbers to inform us, are these sentences that are -- that are consistent with evolving standards of decency, or are they now beyond a maturing society?

And we've always found in these data some measures.

In the death penalty context, we've looked at that in the Roper area, in the Atkins area, and we've been able to make some judgments.

The reason why we could do it in these death penalty cases is that unlike the cases here, the death penalty determination is discretionary.

The sentencer is required to consider and evaluate a range of mitigating circumstances and facts, including age, that help us assess whether the determination that death is the appropriate punishment means something in a society still trying to evolve.

Here that's not true.

The majority of these sentences are mandatory.

So, the number tells us less about what the Constitution requires--

Justice Elena Kagan: --Mr. Stevenson, do you have statistics about how many of these sentences are imposed in under 18-year-olds in nonmandatory States?

Mr. Stevenson: --The -- the data on the larger population is not as precise, Justice Kagan, as it is with our younger population, but the majority of States are mandatory States, and the estimates are about that 85 percent of those sentences are mandatory sentences.

Certainly, the States that have the largest populations -- Michigan, Pennsylvania -- these States have mandatory regimes.

Justice Elena Kagan: So, you think it would be true, going up to age 18, that 80-plus percent are imposed in States that have mandatory systems?

Mr. Stevenson: That -- that's correct.

And, in fact, the overwhelming majority of those sentences come from a handful of States where there is very little discretion to impose a sentence other than life imprisonment without parole.

And because of that feature, I don't think, Justice Sotomayor, that the -- that the reliance on the number is quite as powerful here as it has been in the death penalty context, where that number represented a very communal judgment with a lot of factors.

Justice Sonia Sotomayor: There wasn't a majority in theory in Harmelin, and -- but at least three Justices spoke about a gross disproportionality.

Mr. Stevenson: Right.

Justice Sonia Sotomayor: Is it your views that life -- a mandatory life without parole for someone like a juvenile is grossly disproportionate?

Mr. Stevenson: It is, for the very reasons that the Court articulates in both Roper and Graham.

We're not arguing that life without parole is disproportionate to the crime of aggravated murder.

We're arguing that the status of children, with all of the deficits that childhood status creates, make that kind of judgment cruel.

Justice Anthony Kennedy: If we can focus on the mandatory aspects of the case, I think -- I know you'd prefer a more general rule -- it may be that we have to have your general rule.

I'm not sure.

If I'm the trial judge, and I have to determine whether or not I'm going to give life without parole, and it's discretionary, what -- what do I look at?

Are -- can I get social scientists to come in and tell me what the chances of rehabilitation are?

Are there -- are there statistics?

Now, we have some quite compelling stories of rehabilitation in this case.

I don't know if they're isolated; I don't know where they are in the statistical universe of how often rehabilitation is -- is demonstrated and is real.

What do I look at?

What's a judge supposed to do?

Mr. Stevenson: Well, I think one of the problems, Your Honor, with -- with trying to make these judgments is that -- that even psychologists say that we can't make good long-term judgments about the rehabilitation and -- and transitory character of these young people.

That's the reason why in Graham this Court didn't permit that kind of discretion.

We know that--

Justice Antonin Scalia: Well, I thought that modern penology has abandoned that rehabilitation thing, and they -- they no longer call prisons reformatories or -- or whatever, and punishment is the -- is the criterion now.

Deserved punishment for crime.

Mr. Stevenson: --Well--

Justice Antonin Scalia: Now, if that's the criterion, is everything that you say irrelevant?

Mr. Stevenson: --I--

Justice Antonin Scalia: Let's assume I don't believe in rehabilitation, as I think sentencing authorities nowadays do not.

Both at the Federal and the State levels, it's been made clear.

Mr. Stevenson: --Well, I -- I -- no.

I think it would still be relevant, Justice Scalia, but -- but I also don't think that correctional facilities have identified themselves as having no role to play in the rehabilitative process.

I mean, one of the problems with this sentence of life imprisonment without parole is that it actually bans and shields this population from a whole range of services that are specifically designed to rehabilitate: education services, treatment services, anger management programs.

All of these programs exist within prisons, including the Federal prisons, because we do care how people perform when they are released.

And so, corrections is still very much the heart and soul of what we do.

But even if it wasn't, punishment nonetheless has to be proportionate, and recognize that it can be excessive.

And what this Court has said is that when you're looking at children, to equate the failings of a child and an adult would be cruel.

It would be unfair to -- given our knowledge and understanding of what developmental science has taught us and what we know about kids.

Justice Anthony Kennedy: Well, again, it seems you're just forcing us into a -- a bipolar position.

We're either going to say that you can't prevail at all or that everyone under 18 is -- cannot get life without parole.

I don't see this middle course--

Mr. Stevenson: Yes.

Justice Anthony Kennedy: --which you seem to have abandoned, and you can't tell me how a judge would apply it if we -- if we chose not to abandon it.

Mr. Stevenson: Well, I -- I don't intend to abandon it, Justice Kennedy.

I mean, obviously, I'm arguing for this categorical ban, but I think the Court could obviously do something else.

We think that there is a basis for concluding, unquestionably, that a child under the age of 15 should not be exposed to life without parole based on this Court's precedents and on the data that's presented.

The Court could set a categorical line there and, at the same time, make a determination that subjecting any child under the age of 18 to life without parole where there is no ability to consider age is fundamentally at odds with what this Court has now constitutionally recognized in both Roper and Graham.

Justice Ruth Bader Ginsburg: Mr. Stevenson, may I ask you a case -- a question specifically about the Miller case?

There were two boys involved in this horrendous crime.

The older one took a plea and got life with parole.

Was the plea offered to Miller?

Mr. Stevenson: No plea was offered to Miller.

The -- what tends to happen, and there was some evidence of this that was developed earlier, is that the question was who was going to give a statement first, who was the most cooperative, whose lawyer is most effective at accomplishing that.

There were some complaints.

There's a postconviction pending now that makes some allegations about what the lawyer didn't do to facilitate a plea.

But, no, there was no offer of life with parole made to Evan Miller.

And one of the difficulties, of course, in these cases is that, you know, the younger you are, the more vulnerable you are, the less experienced you are, and the less capable you are of managing these dynamics in the criminal justice system that sometimes can be very outcome-determinative.

Chief Justice John G. Roberts: Any idea how many juveniles subject to a sentence of life without parole do plead to a lesser sentence?

Mr. Stevenson: Well, no, it's very hard to determine, mostly because states don't keep data--

Chief Justice John G. Roberts: Right.

Mr. Stevenson: --on the issue.

Chief Justice John G. Roberts: Is there any reason, just -- I realize it's speculation, but wouldn't you think prosecutors would view that as a particularly attractive offer to someone who's young in the sense that they may regard the sentence as extraordinary themselves, that it may be particularly attractive to someone who's young in a way that it wouldn't be a 40-year-old, a -- an offer of 25 years may not be as attractive as it is to a 15-year-old?

Mr. Stevenson: Well, they might.

And I would concede, Your Honor, that this population is kind of less equipped to make determinations about whether to take a plea or whether to not take a plea than an adult.

Chief Justice John G. Roberts: It might be also a basis for -- to question the statistics you put forward about how often--

Mr. Stevenson: Yes.

Chief Justice John G. Roberts: --this sentence is actually imposed.

In other words, the evolving standards of decency you suggest -- the prosecutors in the state may not be immune to that evolution, either.

Mr. Stevenson: They may not be, Your Honor, but we haven't found sort of -- at least in this population, any evidence that they are capable of protecting children who, we believe at least, should be protected.

And one of the interesting things at least looking at this cohort of 79, a great number of them have older codefendants.

Both of the kids in the cases before the Court today have older codefendants who got sentences that were less than life without parole.

In the Kuntrell Jackson case--

Chief Justice John G. Roberts: Well, but those statistics aren't very helpful because we have no idea in the particular cases as to whether or not perhaps the older offender was less -- less guilty than the 16-, 17-, 15-year-old.

Mr. Stevenson: --That -- that's right.

Although in some of these cases when you read the opinions, you do see the evidence of the shooter not getting the life without parole sentence and the accomplice getting it.

And I guess my point would be is that--

Justice Sonia Sotomayor: That happened in Jackson.

Mr. Stevenson: --Yes, it did.

Yes, it did.

And my point would be that it -- this younger population is going to be disadvantaged in managing this aspect of the process that I think is quite important when the Court is trying to consider whether there should be a categorical ban or something less than a categorical ban.

And, Justice Kennedy, I don't mean to suggest that the Court cannot, consistent with its precedents, make a categorical ban under 17.

But I also don't mean to suggest that if the Court can't do that, that there aren't ways of reconciling the precedents, drawing a line at 15 and striking down mandatory life without parole.

I would urge, for the reasons that we've stated, that in these circumstances it's better to have a sentence where you can make a judgment about rehabilitation and public safety later in life.

We're not arguing that the State has to give away the authority to incarcerate someone even for the rest of their life -- life without parole, which is available in this State, Alabama, would facilitate that, but creates a meaningful possibility of release that this Court has ordered to be constitutionally necessary in Graham v. Florida.

I see my white light is on.

I'll reserve the rest of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, Mr. Stevenson.

Mr. Neiman.

ORAL ARGUMENT OF JOHN C. NEIMAN, JR., ON BEHALF OF THE RESPONDENT

Mr. Neiman Jr.: Thank you, Mr. Chief Justice, and may it please the Court:

Imposing life without parole sentences on aggravated murder offenders like Evan Miller is in line with the national consensus, is morally justified, and is consistent with legitimate penological goals.

I'd like to touch on all three of those points at some juncture today if I can, but I'd like to start if I can with the conversation Mr. Stevenson was having with a few of the Justices about the national consensus issue in this case and more particularly what we can infer about the judgment of legislatures and ultimately the people based on the statutes we have in this case and the very different set of circumstances we're looking at here then the circumstances the Court was looking at in Graham.

Exhibit A on that front is the fact that out of the 39 States or jurisdictions that allow this--

sentence, as Mr. Stevens has indicated -- or Mr. Stevenson has indicated, a good chunk of them, 27 in all, make the sentence the minimum sentence under the statute.

That's an important fact both because it tells us a little bit about the retributive goals that the legislatures were trying to achieve through these statutes, but it also--

Justice Anthony Kennedy: Life without parole is the minimum?

Mr. Neiman Jr.: --Life without parole is the minimum sentence for anyone who commits an aggravated murder or at least certain kinds of aggravated murders in 27 of those jurisdictions.

Justice Anthony Kennedy: That's also -- that's also the maximum because there could be no death penalty.

Mr. Neiman Jr.: For a juvenile, yes, Justice Kennedy, that's correct.

And effectively the message that the legislatures are sending is that with respect to aggravated murders, the worst of the worst kinds of murders, there are effectively two sentences.

There is either the death penalty or there is some sort of mitigating circumstance.

The person is at least going to serve life without parole in order to--

Justice Stephen G. Breyer: Of the numbers, the 79 to 82 -- I guess there's some disagreement whether it's 82 or 79.

Regardless, in your opinion, or maybe it's in the briefs, I just can't remember it, of those, say, 79, how many are there for reasons of mandatory sentence where they would not -- no one could consider the individualized nature of the crime or the criminal?

Mr. Neiman Jr.: --We don't have precise statistics, sir.

I should say I--

Justice Stephen G. Breyer: What's your estimate?

Mr. Neiman Jr.: --I can't vouch to the statistics on that point.

Justice Stephen G. Breyer: That's all right.

What's your estimate?

Mr. Neiman Jr.: My answer is I don't know, in terms of how many are mandatory and how many are not.

Mr. Stevenson--

Justice Stephen G. Breyer: Well, how many come from the States that have this mandatory system?

That shouldn't be too hard to find out.

Mr. Neiman Jr.: --Well, overall, Mr. Stevenson cited about 8 who were sentenced pursuant to non-mandatory schemes of the 79 to 82.

Justice Stephen G. Breyer: Non-mandatory.

So--

Mr. Neiman Jr.: Correct.

Justice Stephen G. Breyer: --So, you think it's almost -- it's probably percent.

Mr. Neiman Jr.: According to Mr. Stevenson's statistics, it's about 90 percent of the cohort that comes from the mandatory jurisdiction.

Justice Stephen G. Breyer: And that's -- all right.

It's about 70 or 71, and I remember reading a statistic somewhere where they managed to count up the number of possibilities, i.e., serious murders committed by those under 15 over 50 years or some long number of years, and it was somewhere in the 70,000s, what was it?

Or 20,000s?

What was it?

Mr. Neiman Jr.: Your Honor, the statistics I have seen that Mr. Stevenson cited in his reply brief had 7500--

Justice Stephen G. Breyer: Seventy-five hundred?

Mr. Neiman Jr.: --as the number of arrests of persons under the age of 15 for committing homicide or non-negligent manslaughter.

Justice Stephen G. Breyer: I'll read it.

Mr. Neiman Jr.: But that--

Justice Stephen G. Breyer: It's about 1 percent.

Mr. Neiman Jr.: --It--

Justice Stephen G. Breyer: One percent.

If I carry that number around in my mind, that 1 percent of those who might have obtained this terrible penalty, 1 percent are actually given it?

Mr. Neiman Jr.: --Your Honor, as Graham indicated, that denominator is crucial.

But the 7500 number cannot be the appropriate denominator for determining whether actual sentencing practices indicate a national consensus against this practice.

The reason why is because that 7500 number is not the number of convictions; it's not the number of opportunities that judges would have had to impose this sentence.

It is the number of arrests.

And it's the number of arrests over the course of 40 years in every jurisdiction, including those that don't impose life without parole at all.

Justice Stephen G. Breyer: I see.

All right.

Justice Sonia Sotomayor: Counsel--

Justice Samuel Alito: It's not even for homicide offenses that would qualify for life imprisonment without parole for an adult.

It's for any non-negligent homicide; isn't that right?

Mr. Neiman Jr.: That's correct, Justice Alito.

And the real denominator here, the one the Court ought to look at when it considers the role that actual sentencing practices play in the analysis, ought to be the number of aggravated murder convictions.

Justice Stephen G. Breyer: All right, but what's the--

Mr. Neiman Jr.: That's a number we don't have.

Justice Stephen G. Breyer: --It must be easier to get to this, I guess, so I'll -- but I want to be sure you do at some point.

And I'm not certain it's a cruel and unusual punishment argument.

It may be more of a due process argument.

But I want to know the justification -- given all those statistics that you've seen and that was in Roper and so forth, procedurally speaking, what is the justification for not giving the defendant any opportunity to point to mitigating features in his lack of development, in his age, in his upbringing, et cetera?

That to me is a difficult question, but before we get to that topic, I'd -- go ahead.

Justice Sonia Sotomayor: --Actually, I do want to ask, and it dovetails with what Justice Breyer is asking, the Edmund/Tison line for adults, which is we can't execute someone who hasn't killed, intended to kill or was reckless in killing.

This is a question more in the Jackson case, because I think it's an issue there.

But although all murder is heinous and regrettable, there are different kinds of murder.

That's why some people are subject to the death penalty and others are not.

And I do see a world of difference between the Miller killing and the Jackson killing, vis-a -- vis, the individual defendants' personal liability.

So, assuming there are different kinds of -- of killings -- of murder, should we be looking at the Edmund/Tison line at all?

Should we be talking about its application to juveniles in a different way?

Edmund/Tison basically, okay, felony murder if you know that there's a gun involved, but should that line be the same for juveniles?

And, if so, then how do you go back to justifying, as Justice Breyer spoke about, the mandatory nature of life imprisonment without parole, given that not every juvenile is equal and not every murder is equal with respect to them?

Mr. Neiman Jr.: Justice Sotomayor, the clearest line the Court could draw on this front would be the line that the Court initially set out in Graham as between homicide and non-homicide offenses.

Perhaps there would be some question about whether an Edmund type felony murder counts as a homicide offense or not, but my suggestion is that it would, at least if the Court is looking for a clear line that wouldn't undermine too much of what the Court set out in Graham in terms of clearly distinguishing between homicide and non-homicide offenders.

Nonetheless, I certainly agree that there are fundamental differences between certain kinds of murders, and I think that judgment is reflected in the legislation we have in at least 27 of these States, where aggravated murder in the very least carries with it a life without parole sentence for any defendant regardless of the mitigating circumstances.

Justice Sonia Sotomayor: That is not an individual legislative determination.

That is -- that is just--

Mr. Neiman Jr.: It is a legislative determination that aggravated murder as a class of offenses is so contrary to society's values, and so contrary to the dignity that we assume that every victim ought to be afforded, that life without parole is the appropriate sentence.

So I think there is an inference to be made there about the legislative judgment, particularly because the sentence is a minimum one.

The three Justice concurrence, you mentioned, Justice Sotomayor, from Harmelin makes this point -- point quite vividly.

In Solem v. Helm, the Court had struck down a sentence under the gross disproportionately analysis, and the Harmelin concurrence indicated that the Court was a little more comfortable doing that, because the sentence in that case was above the minimum, and thus, did not reflect the judgment of the legislature.

But when we are talking about the minimum sentence, it's fair to infer that that is the sentence that the legislature not as a class, in terms of a class of offenses, that would be the minimum appropriate sentence for that particular crime.

Now, Justice Breyer--

Chief Justice John G. Roberts: When you -- it's a little confusing to me, but when you refer to "minimum", I assume that was because of the statutes prior to Graham had death as one of the other options, that that is no longer an option.

So it's -- it's a little awkward to refer to it as minimum when it's also the maximum.

Mr. Neiman Jr.: --That's correct, Mr. Chief Justice.

Chief Justice John G. Roberts: When you have -- when an individual is prosecuted for an aggravated murder that carries this sentence, is it typical to also charge lesser included offenses?

Mr. Neiman Jr.: Yes, Mr. Chief Justice, and--

Chief Justice John G. Roberts: And -- and in general, what is the distinction between exposure to the -- the maximum crime and a lesser included crime?

In other words, what is the difference between aggravated murder and manslaughter?

It typically turns on the state of mind, doesn't it?

Mr. Neiman Jr.: --That's correct, Mr. Chief Justice.

Chief Justice John G. Roberts: So, is there any reason to think that juries in the case where they have the option for lesser included offenses might be concerned in light of the age of the defendant about whether or not the requisite intent was formed?

It seems to me that some of the issues that we have suggested justify a different treatment of juveniles have to do with mental development, and those same issues would be taken into account by a jury in considering which of a list of offenses the juvenile should be convicted of.

Mr. Neiman Jr.: Mr. Chief Justice, it is certainly within the realm of reason and possibility for--

Justice Ruth Bader Ginsburg: Was it -- was it a factor in Miller's case?

Was there a lesser -- lesser offense that was charged?

Mr. Neiman Jr.: --Yes, Justice Ginsburg, there were lesser included charges of at least felony murder which has a very different intent type element to it.

But Miller, at least with respect to the charge on capital murder committed in the course of arson which is an intentional murder was found guilty by the jury on that charge.

Justice Ruth Bader Ginsburg: He was -- the -- there was also a felony murder charge in the Miller case?

Mr. Neiman Jr.: Yes, Justice Ginsburg, there were two felony murder charges, one as to the robbery in the case and one as to the arson in the case.

Justice Antonin Scalia: So -- so it may not be realistic to speak of mandatory life without parole.

It's only mandatory if the youth is convicted of the highest charge brought, but it remains within the power of the jury, in light of the youth, to convict him of a lesser offense which would not produce mandatory life imprisonment without parole?

Mr. Neiman Jr.: I suppose that's so, Justice Scalia.

Justice Anthony Kennedy: Are juries instructed that life without parole is a necessary consequence of their decision?

I suppose a defense attorney could argue it.

Mr. Neiman Jr.: Justice Kennedy, actually, I think you are right to the extent you are suggesting that juries probably don't -- aren't actually instructed on that point.

In fact, it would probably be reversible error, I suppose--

Justice Anthony Kennedy: I would think so.

Mr. Neiman Jr.: --for a jury to be instructed on that point.

Nonetheless, the judgment that legislatures have reached in terms of setting life without parole as a floor for, you know, any murderer is one that was -- that is reasonable and justified and--

Justice Elena Kagan: Mr. Neiman, I wonder if we can go back to the issue that Justice Breyer left on the table, and this doesn't have much to do with how many States do what, but instead just to say that in the death penalty context, we have insisted on individualized sentencing.

And in Graham, of course, we equated juveniles who were sentenced to life without parole to people who -- to adults who were sentenced to death and said that those two should be treated equivalently.

And I'm wondering whether that doesn't suggest that the rules we have in the death penalty context about individualized sentencing ought to apply to juveniles who are sentenced to life without parole?

Mr. Neiman Jr.: --Justice Kagan--

Justice Elena Kagan: Regardless of how many States do what and how many times this happened, but just, you know, two facts.

We have insisted on this in the death penalty context, and we have equated the death penalty context to juveniles without life -- parole in Graham.

Mr. Neiman Jr.: --Justice Kagan, the answer on that front, I think, is that Harmelin effectively sets a bright line here such a that individualized sentencing is only required in a -- in a death penalty case.

And it does so--

Justice Elena Kagan: But Harmelin is pre-Graham, and in Graham we equated these two things, adults sentenced to death and juveniles sentenced to life without parole.

Mr. Neiman Jr.: --Well, the reason why Harmelin drew that line, and I guess more to the point, the reason why Woodson v. North Carolina and Lockett v. Ohio held that individualized sentencing was required in the death penalty context was not because the sentence happened to be the highest sentence that someone could receive, but because the sentence was death.

And there were certain--

Justice Samuel Alito: In Graham, didn't the Court reject the idea of individualized sentencing in which youth would be taken into account on a case-by-case basis?

Mr. Neiman Jr.: --That's correct, Justice Alito.

The States were here jumping up and down asking for that precise result, and we did not get it.

And the reason why, the result the Court thought was appropriate was rather than allowing the defendant to argue for mitigating circumstances and for the State to respond with aggravating circumstances in one of these cases, the answer was for the juvenile to get a mitigation trump card.

And in one of these sentencing proceedings, the juvenile would be able to say, I'm a juvenile, and that means that I don't get the highest sentence I otherwise would get.

I win the sentencing phase as -- as a matter of law.

Justice Elena Kagan: But the fact that we said that individualized sentencing was not enough in one context does not suggest that individualized sentencing ought not to be the rule in a different context where there is no categorical bar.

Mr. Neiman Jr.: Justice Kagan, the response on that front, I think, is that the rule from Woodson and Lockett requiring individualized sentencing was one that is specifically tailored to the unique aspects of the death penalty, aspects that remain unique, notwithstanding Graham and the rule it imposed with respect to juveniles.

But also Woodson and Lockett -- although I realize the premise of your question is that we should not look at what other States are doing, the premise of Woodson and Lockett was that States had widely rejected mandatory death penalty sentencing, and we know from the legislative record here that States have done quite the contrary when it comes to mandatory life without parole sentencing--

Justice Stephen G. Breyer: So is that -- I have -- I understand your arguments, both sides.

I think I've pretty much gotten the arguments on the question of the individualized sentencing.

You can make an argument that it should be individualized, life without parole up to age 18.

Say 7 through 17, and there is an argument the other way which you are making, okay.

What I want to know is your argument the opposite way on this one.

What's the minimum age, in your opinion, or is there any constitutional minimum at all in respect to which you could give for a murder a child life without parole?

I mean, you could have an instance of a 10-year-old or an 8-year-old.

I mean, is it totally up to the States, or is there a minimum?

And if there is a minimum, what is it in your opinion.

Mr. Neiman Jr.: --Yes, Justice Breyer, I think there is a minimum now.

Justice Stephen G. Breyer: What is it?

Mr. Neiman Jr.: It -- I would be hesitant to commit to a minimum without--

Justice Stephen G. Breyer: Well, do your best.

Mr. Neiman Jr.: --Without further factual development--

Justice Stephen G. Breyer: Do you want to say 12?

Do you want to say 10?

Do you want to say 9?

Because as soon as whatever you say, I'm going to say, 14> ["]?

[Laughter]

Mr. Neiman Jr.: --Okay.

I will say -- I would argue if I were the State up here trying to defend a 12-year-old sentence, I would argue that that was the line.

So a 12 -- well, no -- well, yes.

Someone who's either--

Justice Stephen G. Breyer: Do you see the difficulty?

All right.

So now put yourself in my position.

Justice Antonin Scalia: I was beginning to agree with you about this case, because I thought you were appealing to what the American people think about the line or maybe to the common law, now that common law had a rule of the age of reason.

I think below 12, you couldn't -- at least you couldn't impose the death penalty.

Maybe you couldn't even convict for a felony.

But you just plucked some number out of the air.

Why can't I pluck one out of the air if you pluck one out of the air?

Mr. Neiman Jr.: --Justice Scalia, I was about to give Justice Breyer the arguments that I would make if I were the State in those circumstances about why that's the line.

Reason number one is national consensus.

Justice Samuel Alito: If we look to objective indicia, as all of the cases in this line have, what is the lowest age as to which you can say there is any indication of a societal consensus that this is okay?

Would it be 14?

Mr. Neiman Jr.: Well--

Justice Samuel Alito: How many States allow it for a 13-year-old or a 12-year-old?

Mr. Neiman Jr.: --The number of States that allow it for a 12-year-old are somewhere around -- well, I suppose that number is close to 10 or so.

So that's one reason I would draw the line around 12 or so.

If you look at, for example, the table--

Justice Samuel Alito: 10 states will allow it for a 12-year-old.

How many would allow it for a 13-year-old?

Do you happen to know?

Mr. Neiman Jr.: --At that point, we are getting up to much more substantial numbers.

I guess when we get up to 14, we are somewhere in the realm of 30 or more.

Justice Ruth Bader Ginsburg: If you take into account, when the -- the child is in the juvenile system initially, has to be moved to the adult system.

Is the judgment -- is there any cutoff on the transfer?

Or can a child be transferred to the adult system at any age?

Mr. Neiman Jr.: Well, that I think is the appropriate line in terms of thinking about what the minimum is here.

The answer depends on the jurisdiction.

In Alabama, 14 is the minimum.

But that number is, compared to a lot of other jurisdictions, a little high.

Justice Ruth Bader Ginsburg: So if you are under 14, you can't be transferred out of the juvenile system?

Mr. Neiman Jr.: That's correct.

In Alabama, if you are under 14, you can't be transferred out.

Now, many other States, at age 13, you can be transferred in -- you can be transferred into the adult system which is why there are few 13-year-olds serving this sentence but--

Justice Ruth Bader Ginsburg: If he were only 13, he would get out when?

When he was 21?

Mr. Neiman Jr.: --In Alabama, the juvenile justice system's jurisdiction terminates at 21, yes.

Justice Stephen G. Breyer: That's why he is arguing that the legislatures don't focus on it.

If you do a public opinion poll, or just ask me, for example, or ask anyone, you say the question is: Should -- at what age should juveniles be able to be transferred out of the juvenile system into the adult system?

You might get one answer.

Maybe 14, maybe 15, maybe 12.

But if you put the question: At what age should they be receiving a mandatory life without parole, the answer might be different.

And his point is they never ask that question.

They ask the first question; not the second.

And that disturbs me enough to think that I can't think the answer to this question I asked you just relies on public opinion polls or even just the number of States.

I am not sure about it.

But that's why I want to hear your response, because it sounds like we are arguing between whether it should be 13, 12, or 14, in terms of an absolute cutoff.

So how do I approach that?

I'm asking you for help on that one.

I know you have a side in this.

But I say, well, we are talking about 14, and we have all this scientific literature and so forth.

Mr. Neiman Jr.: Justice Breyer, the reason why it's fair to infer that legislatures would have concluded that a 14-year-old, for example, in Alabama would be subject to a mandatory life without parole sentence is precisely because it's mandatory.

Surely the legislatures understood that when they were transferring persons who committed crimes like aggravated murder that were well within the heartland of the crimes for which the transfer statutes were intended, those offenders would be subject to the minimum sentences at least.

It's quite another thing to say, well, the legislature might have enacted a statute providing for transfer for a 14-year-old; and for a non-homicide crime, they might have assumed that the person would get less than the maximum in terms of life without parole.

But surely the legislators understood that those offenders would at least get the minimum.

And the reason the line is more safely drawn at 13 or 12, it's because if you look at, for example, the tables from the Department of Justice reports that both sides and the amici have cited listing the transfer ages, by and large, the number seems to be cut off at 12 or so.

And 12 would be on the very bottom of the range; and if I were a defense attorney, I would be arguing much harder for a line at 13 than 12.

I imagine if I were a defense attorney, I'd be arguing for an even higher line than that.

But the point is that if we are going to judge this in terms of objective indicia of what society has decided, that seems to be the line that society has drawn.

That line--

Justice Anthony Kennedy: In the Petitioner's brief, the idea of deterrence kind of drops by the way side.

Have there been any studies that show that there is a deterrence value?

I remember in Roper, there was actually discussion among the young people before they committed the crime as to whether or not they could get the penalty.

It was actually right there in the record.

Does the State rely on the deterrence component of the punishment here?

Mr. Neiman Jr.: --Justice Kennedy, we think that deterrence is in the mix, but it's certainly not the primary goal that these statutes serve when--

Justice Anthony Kennedy: Is it retribution?

Mr. Neiman Jr.: --Retribution, Justice Kennedy, would be the primary goal, bringing society's retributive force to bear on those who commit the worst sort of crimes.

Justice Anthony Kennedy: Retribution, of course, is related to personal culpability.

We said that in Tison, and that loops back into the minor problem.

Mr. Neiman Jr.: That's exactly right, Justice Kennedy, but I think one point on which Mr. Miller and the State fundamentally disagree here is it what we can conclude about a juvenile's culpability when the juvenile has committed aggravated murder.

The reason why Graham came out as it did, the reason why life without parole was not permissible, was because Graham himself had not committed murder.

The Court there said that meant that Graham's culpability was twice diminished, once because he was a juvenile and once because he had not committed murder.

Well, here we have the hypothetical from Graham where the one level of diminishment is gone.

And Miller has -- Miller is entitled to a one-level diminishment because of his juvenile status, but he is not entitled to that second level of diminishment which he is what he is seeking here.

Justice Anthony Kennedy: Are you aware of any statistics that give us some quantitative sense as to how many juveniles after years and years of prison show significant rehabilitation?

Do we know anything about that?

Mr. Neiman Jr.: Justice Kennedy, I know of no statistics on that particular front.

I imagine that some vignettes could be told about success stories and some vignettes could be told about stories that were not success stories.

Justice Antonin Scalia: Do you have any reason to think that juveniles are any better than anyone else as far as learning from prison is concerned?

I mean, recidivism is a big problem, isn't it?

People who have been to prison go out and commit the same crimes again, don't they?

Mr. Neiman Jr.: That's exactly right, Justice Scalia.

Justice Antonin Scalia: Is there any reason to think that juveniles are any different?

Mr. Neiman Jr.: Justice Scalia, I haven't seen any studies that would suggest that juveniles do better, particularly when they are subjected to the sorts of crimes that I think everyone would have -- or the sorts of offenses, let me say, that I think everyone would agree the Constitution would have to permit a sentence of say 40 years minimum or the like.

So I just don't think -- I think society -- society's primary goal here or the Government's primary goal here is expressing the retributive judgment about the wrongfulness of murder and why it's different from, not homicide, but I think governments are quite legitimate and quite reasonable when they also say that they don't want to roll the dice on convicted murderers.

Society acts with particular revulsion when a convicted murderer commits a crime again.

And even if -- and even if that difference in terms of recidivism is no different, or even if the possibility for recidivism is no different, the fact that the person committed a murder once and might commit a murder again is reason enough for legislatures to be hesitant to allow for parole in these circumstances.

With respect to the penological purposes, there's also an important purpose here with respect to the unique factors and the unique circumstances that murder victims and their families face.

I think a lot of people hear about life-without-parole sentences, and if they impose them on political grounds or policy-based grounds, one of their sort of pragmatic responses is, well, what's the cost to all this?

Why not just let these guys get their parole hearings, give them that hope, and likely they won't get parole anyway?

And there's really no cost to society at least in allowing that process to occur, but the cost is to the victims and their families who have to endure what are often very painful hearings and parole hearings.

And when those come up on a frequent basis, that sort of re-traumatization process is something that governments can legitimately take into account when they decide that for aggravated murder -- not for other crimes but for aggravated murder -- that a life-without-parole sentence is an appropriate sentence.

On the moral culpability point, there would be some anomalies created by the rule that Miller is seeking here.

Miller's asking the Court to effectively hold him in the same place in terms of his moral culpability as the defendant in Graham.

In other words, Graham can only get life -- life with parole because of his reduced moral culpability.

And Miller is saying he should only get life without parole because of his reduced culpability.

So that would mean one of two things: either the Eighth Amendment would put a murderer on the same moral level as someone who committed a non-homicide crime as in Graham; or Graham himself would be back in this Court or a court of another jurisdiction arguing that because Graham held that Graham himself had categorically less culpability than someone like Miller, then Graham himself is entitled to a lesser punishment than the one that Miller, in fact, received.

Justice Elena Kagan: When you look at those two cases and you look at the individuals, the child's actions in the two cases, they really are remarkably similar.

They're sort of -- of a piece.

Don't you agree?

I mean, how is it that the child's actions in this case were any different from that in Graham?

Mr. Neiman Jr.: Justice Kagan, I think that Miller's actions were dramatically different from Graham's actions; in part because Miller intended to kill this victim, and killed the victim in a rather gruesome way.

So there's not an element of luck here in terms of the fact that, oh, well, Graham was simply lucky that he didn't commit--

Justice Ruth Bader Ginsburg: That's in -- in the Jackson case.

In the Jackson case, the crime was very similar to--

Justice Elena Kagan: I'm sorry.

Justice Ginsburg is, of course, right.

Mr. Neiman Jr.: --Well, I defer to my colleague from Arkansas in terms of the distinctions between Jackson and Graham, but certainly with respect to Miller's crime, his moral culpability is greater, and the law should recognize that.

Justice Anthony Kennedy: If the judge were to determine under a -- a rule that the sentence can't be mandatory whether or not life should be imposed, what would be the sorts of factors that he would look at, or do you think that those are just too ineffable, too imprecise to be considered?

Mr. Neiman Jr.: Well, Justice Kennedy, I think it certainly would be possible to have a regime under which a judge considered mitigating circumstances in a case like this.

Many jurisdictions have reasonably opted for that route rather than the one that Alabama and 26 other jurisdictions have.

Justice Anthony Kennedy: They're just the standard sorts of mitigating circumstances that we see in capital cases and things?

Mr. Neiman Jr.: Absolutely.

I think that's exactly what would happen.

You would have arguments about certain murders being worse than others.

And Mr. Miller would have an opportunity to argue about other mitigating circumstances relating to his background and the like, as he's argued in his reply brief here.

But at the same time, it's reasonable for legislatures to conclude that they're going to draw a line in the sand with respect to aggravated murder, such that -- as a floor in terms of the appropriate punishment, the defendant is going to get at the very least life without parole, a punishment that's no doubt severe but one that is less severe than the impact that the crime has had on society.

And for those reasons, we'd ask the Court to affirm.

Chief Justice John G. Roberts: Thank you, Mr. Neiman.

Mr. Stevenson, you have four minutes remaining.

REBUTTAL ARGUMENT OF BRYAN A. STEVENSON ON BEHALF OF THE PETITIONER

Mr. Stevenson: Thank you, Mr. Chief Justice.

I just want to make clear that the rule we seek would not require States to impose the same sentence on juveniles convicted of homicides from juveniles convicted of non-homicides.

The States would be free to do that if they chose to, but they could certainly create a regime where it's life with parole where there are different ages for eligibility.

In fact, the State of Nevada makes you eligible for parole after 15 years if the crime is a non-homicide, 20 years if it's a homicide.

The States would still have a great deal of flexibility to create, consistent with this Court's rule, a regime that makes these distinctions.

Justice Kennedy, I did want to point -- direct your attention to two amicus briefs that I think respond to two of the questions you've raised.

There is an amicus brief submitted by criminologists in this case, and it looks specifically at the question of deterrence.

And what they've found is life without parole has not had any measurable deterrent effect.

The States that don't put juveniles -- don't subject children to life without parole have actually experienced the same level of decrease in violent crime and homicide as the States that do.

And in fact, in some of those jurisdictions, the decrease is even more significant.

I also want to address your question, Justice Scalia.

There is -- there are some studies that have established that juveniles are more likely or less likely to recidivate after an intervention than adults.

Generally speaking, homicide offenders are categorically less likely to recidivate than many non-homicide offenders.

Drug offenders and property crime offenders are much more likely to recidivate than -- than homicide offenders.

And so there's a lot to support that a judgment rooted in these penological concerns would be well-supported here.

I also want to return, Justice Breyer, to your question.

Mr. Neiman has -- argued that we can read into these statutes a commitment to imposing life without parole at a particular age, and that age is the age of transfer.

I just want to highlight that the two States with the largest populations of juveniles serving life without parole by a huge margin are Pennsylvania and Michigan, neither of which has a minimum age.

That means in those States, a child of any age can be subject to a mandatory sentence of life without parole.

It's simply not true -- true that we can read into those statutes in those jurisdictions any kind of conscious commitment to thinking about age.

The other point I want to make--

Justice Samuel Alito: Do you think the legislators in Pennsylvania and Michigan don't understand what their laws provide?

Mr. Stevenson: --I -- I think that they haven't thought about it.

Yes, I do think that.

I mean, for example -- this goes to the next point I was about to make -- my colleague keeps talking about aggravated murder.

In the State of Pennsylvania, it's not just aggravated murder that subjects you to a mandatory life without parole; if you're convicted of second-degree murder -- no intent -- diminished -- it's still mandatory life without parole.

We have 14-year-old children -- and again, that's the largest cohort in our group -- in the State of Pennsylvania convicted of clearly unintentional killings that have been subject to mandatory life without parole.

South Dakota does the same thing.

I think, where there is no minimum age and where you have that kind of regime, I cannot -- I don't think we can conclude that they've thought about, yes, it's appropriate--

Chief Justice John G. Roberts: What if they -- what if they do?

I mean, what if, after our decision or even after the argument, States go back and say, look, the decision is based on the fact that they don't think we know our law, that we haven't thought about it, so let's have a hearing about it, and then we vote that yes, there should be -- or no, there should not be a minimum age.

We think at 16, whatever age they do.

Then does the constitutional rule change?

Mr. Stevenson: --Yes.

I--

Chief Justice John G. Roberts: Once we get 30 States saying, look, we've thought about it and this is our answer, then whether the Eighth Amendment prohibits it or not changes?

Mr. Stevenson: --No, I -- I don't think it changes, because there is an age at which this Court is obligated under the Eighth Amendment to say a sentence of this sort, a permanent judgment that life-long incarceration is -- is required--

Chief Justice John G. Roberts: Right.

But one of the things we take into account is societal consensus, and you say we should ignore the 30 -- whatever it is -- States that allow this because they didn't really think about it.

So I'm postulating let's make -- let's see if they have thought about it.

Mr. Stevenson: --Yes.

Well, in -- in that regard, Justice -- Mr. Chief Justice, I think that we do have 13 States that have thought about it, that have expressly looked at this question of what the minimum age should be.

And in 12 of those 13 States that have set the age above 14, most of those States have set the age at 18.

So if that's the Court's lens, then I think that would support the kind of rule that we're seeking here--

Justice Antonin Scalia: What if, instead of striking down the laws in these States, why don't we just require the State legislatures to think about it, all right?

And -- and then see how many think about it, and -- and come up with, you know, something that agrees with you or doesn't agree with you.

Mr. Stevenson: --Well, I think that's in part--

Justice Antonin Scalia: Wouldn't that be more democratic somehow?

Mr. Stevenson: --It might be more democratic, but I don't think it would be consistent with the constitutional obligation that this Court has to protect people who are vulnerable from excessive punishment.

And this is a cohort that we contend is the most vulnerable and should be shielded from this excessive punishment.

Chief Justice John G. Roberts: Thank you, Mr. Stevenson, Mr. Neiman.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: In Case Number 10-9646, Miller versus Alabama and the related case, 10-9647, Jackson versus Hobbs, Justice Kagan has the opinion.

Justice Elena Kagan: In each of these two cases, a 14-year old was convicted of murder.

Petitioner Kuntrell Jackson was convicted on a felony murder theory.

He accompanies two other boys to a video store to commit a robbery, and one of those boys shot the store clerk.

Petitioner Evan Miller was convicted of murder in the course of arson.

He and a friend beat Miller's neighbor with a bat and then set fire to his trailer after an evening of drinking and drug use with the victim.

Both boys were sentenced to life imprisonment without any possibility of parole under statutes that made that sentence mandatory.

We hold today that mandatory sentences of life without the possibility of parole for juveniles violate the Eighth Amendment's prohibition of cruel and unusual of punishment.

That clause of the Eighth Amendment guarantees individuals the right to be free from excessive sanctions and that right flows from what we have called a basic perceptive justice.

The punishment for crime should be graduated and proportioned to both the offender and the offense.

Two strands of precedent applying this principle lead to our holding today.

The first line of cases has emphasized children's lesser culpability and greater capacity for change in holding that certain sentences may not constitutionally be imposed on them.

In Roper v. Simmons, we held that the Eighth Amendment bars capital punishment for juveniles, and in Graham v. Florida, we concluded that the Amendment also prohibits a sentence of life without parole for a juvenile committed of -- convicted of a nonhomicide offense.

Those cases demonstrate that the differences between children and adults diminish the justifications for imposing the harshest sentences on juveniles even when they commit truly terrible crimes.

And most fundamentally, those cases make clear that youth matters in determining the appropriateness of certain penalties, that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.

Our decision in Graham also likened life without parole for juveniles to the death penalty itself, thus evoking a second line of our cases.

In those decisions, we have required sentencing authorities to consider the characteristics of the defendant and the details of his offense before imposing the death penalty.

Those cases too repeatedly emphasized the importance of considering the mitigating qualities of youth and maturity, impulsiveness, failure to appreciate risks and consequences sometimes terrible yet inescapable family circumstances and the way all of those factors may relate to the nature of the particular crime.

Here, the confluence of these lines of precedent leads to the conclusion that mandatory life without parole for juveniles violates the Eighth Amendment.

The States contend that because 29 jurisdictions make life without parole mandatory for some juveniles convicted of murder, the practice must be constitutional, we disagree.

Although we looked to such numbers in considering categorical bars to a punishment, in this case, we do not erect such a bar.

We do not ban life without parole for juveniles.

We only require that a sentencer consider all relevant circumstances before imposing it.

In similar situations, this Court has not counted laws in the way the States here propose.

Further, the number of States that impose mandatory life without parole is actually lower than the number we considered in Graham allowing life without parole for nonhomicide crimes.

There, 39 jurisdictions authorized the sentence that we held unconstitutional.

We explained in Graham and the explanation holds just as through here, that simply tallying the number of States that impose such a sentence on children presents a distorted view.

Most jurisdictions have never passed a law specifically addressing juvenile life without parole.

Instead, those sentences result from two separate provisions passed at separate times; one that simply allows juveniles to be transferred to adult court and another, that imposes life without parole on anyone convicted there.

So we cannot conclude that any given legislature has endorsed this penalty.

A mandatory sentence of life without possibility of parole for juveniles precludes a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it.

Under those schemes, every juvenile receives the same sentence as every other, the 17-year old and the 14-year old and for that matter, the 10-year old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one and each juvenile, including these two 14-year olds, receives the same sentence as the vast majority of adults committing identical homicide offenses.

Preventing judges and juries in that way from thinking about all of the differences between children and adults and among particular children violates the Eighth Amendment.

The judgment in both cases is reversed and remanded. Justice Breyer has filed a concurring opinion, in which Justice Sotomayor joins.

The Chief Justice has filed a dissenting opinion in which Justices Scalia, Thomas and Alito join.

Justice Thomas has filed a dissenting opinion, in which Justice Scalia joins.

Justice Alito has filed a dissenting opinion, in which Justice Scalia joins.

Print this transcript Transcript: 

Justice Samuel Alito: The Court today holds that neither Congress nor the state legislatures may identify any category of murderers under the age of 18 who must be sentenced to life imprisonment.

The decision thus goes far beyond the two carefully selected 14-year old petitioners whose cases are before us.

The Court could've limited its holding to minors under the age of 15 or for that matter, to minors under the age of 16 or 17 but it has not done so.

Think of the worst possible 17-year old murderer, perhaps a 17-year old who previously was convicted of several murders was tried in family court and has resisted any attempt at rehabilitation or think of a 17-year old or 17 and a half year old, perhaps, who goes to school and guns down a dozen or more teachers and students.

The opinion of the Court delicately refers to all murderers under the magic age of 18 as children and holds that every single one of these children must be given a chance to persuade a judge to impose a lesser sentence.

What is the Court's basis for doing this?

The Court says that it is simply enforcing the Eighth Amendment -- Eighth Amendment's prohibition against cruel and unusual punishment.

And following our prior decisions, the Court says that the Eighth Amendment embodies “the evolving standards of decency that marked the progress of a maturing society”.

This mellifluous phrase embodies a particular philosophy of history, namely, that civilization is progressing inexorably toward ever higher standards of decency.

That philosophy is debatable and it is something of a mystery how it ever became part of our fundamental law, but the standard, as originally understood, had at least one virtue.

It called on judges to look to something other than their own personal views.

The Court emphasized again and again that it could not hold that a punishment is cruel and unusual just because the justices personally hold that view.

No, it was necessary to find what the Court called “objective indicia of society standards”.

So where can these objective indicia be found?

The Court toyed with the idea of looking to public opinion polls.

It occasionally surveyed the law of certain other highly evolved countries, but for the most part, what the Court did was to tally up the -- the positions taken by the legislatures of the 50 States.

If a particular punishment for a particular crime was challenged, the Court looked to see whether there was a strong consensus against imposing that punishment for that offense.

Thus, in Coker versus Georgia decided in 1976, the Court held that the Eighth Amendment prohibits the death sentence for the rape of an adult woman, and the Court noted that Georgia was the only State that allowed that punishment for that crime.

98% of the States took the opposing view.

As the years went by, however, the evidence of objective indicia got weaker and weaker and by the time when Graham versus Florida was decided by this Court two years ago, the search for objective indicia had become something of a farce.

In Graham, both Congress and the legislatures of 39 States permitted a minor convicted of certain non-homicide offenses to be sentenced to life imprisonment without parole, but the Court nevertheless held that that punishment is contrary to the Eighth Amendment.

22% of the States was now enough to constitute a consensus.

In today's case, as you just heard, a mere 29 state legislatures have proscribed the mandatory term for some sub 18-year old murderers, so the Court says, "Look, 29 is less than 39 so that must mean that there is a consensus in our society that a term of life for any murderer under the age of 18 is cruel and unusual.”

The Court is using some very strange dictionary in which a distinct minority of the States is enough to constitute a consensus.

The Court then says something even more remarkable, and you heard that argument today, it suggests that the legislatures of at least some of those 29 States do not actually realize what the law says in their own States.

And this is because in order to understand that, you would have to look at two separate laws.

One law says that certain minors may be tried as adults.

Another law says that offenders committed -- convicted of certain types of murder must be sentenced to life imprisonment.

So maybe the state legislatures simply can't put two and two together.

Of course, if this is the real problem, then the Court should be willing to overrule its decision in this case if enough state legislatures respond by passing resolutions saying, “You know what, we're really not that stupid, we really can't put two and two together, we know what our state law provides, and we think that for certain minors who commit murder, the only appropriate sentence is life.”

Do not expect such resolutions to cause the Court to change course.

Why, because the Court has now moved well beyond objective indicia of the standards of the American people.

The decision in this case is not based on those standards.

It is based on a vision of a different society and we vision of a more evolved, more mature society.

Determining what is the right punishment for a particular offense and a particular offender involves balancing of interest and one of those interests is the interest of potential future victims.

A law requiring a sentence of life without parole for certain murderers represents a judgment by the people's elected representatives that these murderers are simply too risky to be released.

Maybe these murderers, if imprisoned for some years, will change.

Maybe they will mature, maybe they we -- they will be rehabilitated but maybe they won't.

58% of the States have come to the conclusion that for certain murderers under the age of 18, this risk is one that society should not have to take.

The Court now says that the people can't make that decision unless a judge says otherwise every murderer under the age of 18 is eligible for release and if upon release, they -- they kill again, well, that is a chance that society just has to take.

Nothing in the Constitution gives us the right to make that decision.

The Constitution gives this Court and other federal courts great power and responsibility, but we have no license to impose our vision of the future on our 300 million fellow citizens.