In 2005, the Supreme Court held in Roper v. Simmons that the Eighth and Fourteenth Amendments to the U.S. Constitution bar the application of the death penalty to offenders who were under the age of 18 when their crimes were committed. Since then, the decision’s reasoning has become the cornerstone of the efforts of those who oppose life without parole for juvenile offenders and has reinvigorated their legal crusade to put an end to the practice.

The text and history of the Eighth Amendment, however, provide little support for the idea that life without parole for juvenile offenders constitutes prohibited “cruel and unusual” punishment. Even departing from the text and employing a Roper-style analysis is unavailing; the factors that the Court considered in that case all mitigate in favor of life without parole’s constitutionality, even as applied to juvenile offenders.

The Original Meaning of the Eighth Amendment
The meaning of the Eighth Amendment’s prohibition on “cruel and unusual punishments,” as incorporated against the states through the Fourteenth Amendment, has been the subject of much disagreement in the literature and in the courts. Its text derives from the English Bill of Rights of 1689, which was well known to legislatures in the American colonies, and later those of the states, and to the Framers of the Constitution.

Under the English Bill of Rights, the text merely banned punishments that had not been authorized by Parliament or legal precedent. In the colonies, however, it took on a broader meaning, encompassing as well “cruel methods of punishment that are not regularly or customarily employed” and are “design[ed] to inflict pain for pain’s sake,” as had previously been prevalent in Britain and were contemporaneously employed in “less enlightened countries.” The absence of such a prohibition from the Constitution as drafted in 1787 was a point of contention at several ratifying conventions, and the Eighth Amendment’s inclusion in the Bill of Rights was a direct response to these concerns.

Understood in this light, the Eighth Amendment’s prohibition extends to torturous methods of punishment like “pillorying, disemboweling, decapitation, and drawing and quartering.” The Supreme Court’s earliest jurisprudence applying the amendment adopted this view. Thus, the Court upheld execution by firing squad and by electrocution, ruling that neither embodied the “something inhuman and barbarous” that the Amendment forbids. In the death penalty context, “cruel and unusual” was long seen as encompassing “only such modes of execution as compound the simple infliction of death with added cruelties or indignities.”

Applying that basic formulation to life without parole demonstrates the Eighth Amendment’s impotence in the instant policy debate. It is wholly inapplicable. Imprisonment of juveniles has a long historical pedigree, well predating this nation’s founding and extending to the present time. Yet there is no suggestion that the duration of incarceration, as opposed to the conditions in which it is carried out, could be “inhuman and barbarous.”

Further, life without parole, unlike a “cruel and unusual” punishment, is not designed to inflict torture as a means of enhancing the punishment; it simply lacks “the evil that the Eighth Amendment targets…intentional infliction of gratuitous pain.” Without any aspect of “unnecessary cruelty,” the Eighth Amendment is simply unavailing.

While the reasoning of courts in the present era may not track this understanding, the effect remains the same: The courts simply refuse to second-guess the punishments that legislatures prescribe, at least not on Eighth Amendment grounds. Only very rarely is that appropriate deference upset.

Life Without Parole is a Proportionate Punishment for Serious Crimes
Yet a majority of the Supreme Court has declined to limit its interpretation to the Eighth Amendment’s original meaning. In these cases, the Court has held that the Eighth Amendment also prohibits punishments that it has declared to be disproportionate or excessive. Though initially this inquiry was grounded, at least rhetorically, on the comparison of punishments for different statutory offenses—for example, that it was cruel and unusual that punishment for a misrepresentation on a form exceed that available for treason, rebellion, and most homicides —greater theoretical complexity quickly emerged.

The Supreme Court’s present formulation of the standard takes two forms. One is a “narrow proportionality principle,” applicable in non-capital cases, designed to further judicial economy and deference to the political branches, and buttressed by a more searching but still “objective” analysis of comparative proportionality. The other, so far applicable only to capital punishment, was developed in Atkins and Roper and employs three factors, each one a wide-ranging inquiry.

The “narrow” principle is derived from the Court’s fractured holding in Harmelin v. Michigan. The Eighth Amendment, wrote Justice Anthony Kennedy in a concurrence that the lower courts have taken as controlling, “does not require strict proportionality between crime and sentence,” but rather “forbids only extreme sentences that are grossly disproportionate to the crime.” This threshold inquiry, a simple comparison of the crime (not the criminal) and the punishment, is as far as most courts need go; a more searching proportionality analysis is “appropriate only in the rare case” in which comparison “leads to an inference of gross disproportionality.”

In Harmelin, the Court upheld a sentence of life without parole for the crime of possession of a large amount of cocaine. Because this crime “threatened to cause grave harm to society,” the state legislature “could with reason conclude” that it was “momentous enough to warrant the deterrence and retribution of a life sentence without parole”—a conclusion buttressed by the laws of other states and prior guidance by the Court on proportionality.

This appropriately deferential inquiry, focused on the relationship between the crime and the punishment and explicitly rejecting the contention that the Eighth Amendment “mandate[s] adoption of any one penological theory” (such as rehabilitation), affords no room for consideration of the offender’s age or maturity. Indeed, a majority of the Court held that there is no constitutional right, outside of capital cases, for any mitigating factors to be considered in sentencing.

Only in the rare cases where an inference of disproportionality arises should courts look beyond that relationship, considering three “objective factors”: again, the “gravity of the offense and the harshness of the penalty”; sentences imposed on other criminals within the same jurisdiction; and “sentences imposed for commission of the same crime in other jurisdictions.” Once again, this analysis, focused on “the harm caused or threatened to the victim or society” in assessing the proportionality of the sentence, allows no room for consideration of mitigating factors, such as age, except as may be inherent in assessing the offender’s mens rea, or criminal intent.

The Court reaffirmed the Harmelin approach in Ewing v. California, a challenge to California’s three-strikes law by a repeat offender imprisoned for 25 years to life after shoplifting three golf clubs. Nothing in the Eight Amendment, the plurality opinion explained, prohibits the California legislature from “mak[ing] a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime.” It was enough that the state “had a reasonable basis for believing that [the law] advances the goals of its criminal justice system in any substantial way”—in other words, that its justification was not a pretext.

Proportionality analysis as it exists today is no barrier to the imposition of life-without-parole sentences on juvenile offenders so long as the sentence is not enacted for pretextual reasons and is not grossly disproportionate to the crime. There is no evidence or even accusation of pretext, and because the sentence is employed sparingly, in response to only the most grievous conduct, no serious claim can be made that its application is so disproportionate as to preclude its use altogether. Under current law, which enforces a strict separation between capital and non-capital Eighth Amendment law, this would be the end of the analysis.

“Evolving Standards of Decency” Require Life Without Parole for the Worst Juvenile Offenders
Faced with the insusceptibility of non-capital proportionality analysis to direct consideration of an offender’s age, opponents of life without parole for juvenile offenders attempt to extend the Court’s capital jurisprudence, particularly Roper, to non-capital cases; but even this more giving standard (which the Court, in any case, seems ill disposed to apply outside of capital cases ) would be unavailing. The Court in Roper actually relies on the existence of the sentence of life without parole for juvenile offenders to reach its result.

Roper employs a three-factor test to determine whether a punishment is constitutionally proportional. The first factor is “objective indicia” of “evolving standards of decency,” particularly evidence of a national consensus against the challenged punishment. This is primarily a numerical inquiry, though the relevant types of numbers have varied from case to case.

Roper, similar to Atkins before it, focused on three sets of numbers: the number of states allowing or prohibiting the practice; the frequency of the practice in each state (to knock out some states that allow it but use it infrequently); and the recent trend among states that had changed their practices. Thus, in Roper, though 20 states, including some of the most populous, allowed the juvenile death penalty and 12 of the remaining 30 had banned the death penalty altogether, the Court put greater weight on the fact that only three had used it in the previous decade. The Court also found significant a “consistency of direction” in states banning the juvenile death penalty; that is, several had abolished it in recent years, and none that previously prohibited it had reversed course. These numbers—and primarily the “consistency of direction”—demonstrated a “national consensus” that “today our society views juveniles…as categorically less culpable than the average criminal,” at least as regards the death penalty.

The second factor—and one that is especially resistant to quantitative or logical analysis—is the “exercise of our own independent judgment” with respect to the proportionality of the challenged punishment. In this inquiry, death is different. As the Court put it, “the Eighth Amendment applies to it [the death penalty] with special force.” Death was to be reserved for the worst of the worst, a group that cannot include juvenile offenders because they lack maturity and responsibility, are more vulnerable or susceptible to negative influences and outside pressures, and, in terms of character, are both more transitory than and “not as well formed” as adults. Thus, a juvenile’s “irresponsible conduct is not as morally reprehensible as that of an adult.”

From this, the Court concludes that subjecting juvenile offenders to the death penalty does not proportionally further the state’s penological justifications: retribution and deterrence. Retribution is undermined because juveniles’ ultimate moral culpability is diminished, making the exercise of society’s greatest punishment a disproportionate response, and deterrence is uncertain “because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” Further, the marginal deterrent effect would be no more than “residual,” given the availability of “life imprisonment without the possibility of parole,” which the Court described as “itself a severe sanction, in particular for a young person.”

It is worth emphasizing, then, that the Roper court relies on the practice of life without parole for juvenile offenders to conclude that the death penalty may be a poor deterrent and so is disproportionate.
Third, the Court puts great weight on international law and the practices of foreign countries, an approach sometimes called “transnationalism.” These sources are “instructive for its interpretation” of the Eighth Amendment, though not “controlling.” In Roper, the Court specifically considered “the overwhelming weight of international opinion against the juvenile death penalty,” as well as the trend among foreign countries. Seemingly most persuasive to the Court was the fact “that the United States now stands alone in a world that has turned its face against the juvenile death penalty.”

On the basis of these three amorphous inquiries, the Court set aside the death sentence in the case before it, as well as the application of all state laws allowing similar punishment.

Since that decision, “human rights” organizations and juvenile-criminal advocates have turned their sights to life without parole for juvenile offenders, arguing that, based on Roper’s reasoning, it should be next on the Court’s Eighth Amendment chopping block. In their speeches, reports, and briefs, they claim that this is the next logical step in the evolution of the law and that the death penalty and life without parole, which they frequently refer to as a “death sentence,” are perfectly analogous.

Nothing in Roper, however, supports those pat conclusions. Quite the opposite: Roper undercuts their case. Rhetorical comparisons aside, all three of the factors that mitigated against the juvenile death penalty in Roper support continued application of life without parole for juvenile offenders.

First, “objective indicia” demonstrate a “national consensus” in support of life without parole for juvenile offenders. The raw numbers are overwhelming: 43 states, the federal government, and the District of Columbia allow life without parole for juvenile offenders; only seven states forbid it. Of those 44 (the 43 states and D.C.), only five could be “knocked out” because in practice they employ the sentence only rarely or not at all.

By this initial measure, then, 86 percent of states, containing over 90 percent of the national population, have and use life without parole for juvenile offenders. Further, in 26 of those states, life without parole is the mandatory sentence for anyone—adult or juvenile—convicted of first-degree murder, evincing the states’ comfort in applying this sentence to the most serious offenders.

Data on the trend in state laws point in the same direction. Since the 1980s, states have gotten tough on juvenile crime, passing many laws allowing for the automatic transfer of juvenile offenders from the juvenile justice system into regular criminal courts. Only 14 states had such laws in place in 1979, but by 2003, the number had reached 31, with an additional 14 states allowing prosecutors to decide whether to file charges in juvenile or criminal court. At the same time, many states have reduced the age at which juvenile court jurisdiction ends and have expanded the scope, specified in age and by offense, of automatic transfer statutes. The result is that a larger proportion of juvenile offenders than ever before are now subject to adult courts and adult punishment, including life without parole, sometimes as a mandatory sentence.
The unsurprising result of this legislative activity is that more juveniles are receiving sentences of life without parole. Even opponents of life sentences for juvenile offenders acknowledge that use of this sentencing tool is on the rise. A 2008 University of San Francisco report, for example, estimates that “the rate at which states sentence minors to life without parole remains at least three times higher than it was 15 years ago.” The same report states that “the sentence was rarely imposed until the 1990s,” providing a strong indication of the strength of the trend in favor of life sentences for juvenile offenders.

Against this trend stand two states: Colorado, which changed its parole statute in 2006 to allow those who are sentenced to life for offenses committed while under the age of 18 to seek parole after serving 40 years, and Montana, which in 2007 abrogated restrictions on parole eligibility for a half-dozen classes of offenders, including juveniles. Meanwhile, at least six state legislatures, as well as the U.S. Congress, have considered but declined to pass legislation to eliminate or restrict the sentence.

So there is a national consensus on life without parole for juvenile offenders. The same objective indicia considered in Roper show that this consensus is overwhelmingly in favor of it.

Roper’s second factor, “the Court’s own determination in the exercise of its independent judgment,” would be difficult to apply were it not for the fact that the Court has already undertaken the analysis. While its findings on the culpability of juveniles could be seen as applying against life sentences, the Court was clear that its analysis applies only to capital sentencing.

This makes logical sense: The Court simply concluded that since juveniles could not possibly be within the class of “the worst offenders,” sentencing them to death would necessarily violate its requirement that death be limited to the narrow category of offenders whose “extreme culpability makes them the most deserving of execution.” Juveniles cannot be among the worst, reasoned the Court, because the death penalty’s marginal deterrent effect is vanishingly small relative to “life imprisonment without the possibility of parole…itself a severe sanction, in particular for a young person.” Thus, the Court’s determination of its “independent judgment” in Roper rests on the continued availability of life without parole for juvenile offenders.

Third, the international “unanimity” in which the Court found solace in Roper simply does not exist for life-without-parole sentences. The sentence is available in at least 11 countries, including Australia, and most of those countries share America’s common-law heritage. Further, a multitude of countries allow sentences of long durations for juvenile offenders, which in some instances may be the practical equivalent of life without parole. Other countries, meanwhile, have agreed to prohibit the sentence but have not done so in practice.

Thus, the “weight of international opinion” in common-law countries is mixed and far lighter overall than in the case of the death penalty. And as the Court acknowledges, even very weighty evidence of foreign practices does not control U.S. law and can provide only “significant confirmation” of the Court’s judgments under U.S. law.

The two primary factors in Roper—national consensus and the Court’s own judgment—preclude the same result as Roper in the life-without-parole context, assuming that the Court is even willing to take the unprecedented step of expanding the reach of its death jurisprudence. It is far more likely that the Court would hew to its “narrow proportionality” line, never moving beyond the initial inquiry: viz., whether the penalty is grossly disproportionate to the crime.

Any other result would require the Court to radically revise the entirety of its Eighth Amendment jurisprudence as concerns both capital and non-capital offenses, throwing the entire nation’s criminal justice system into chaos. Even a more activist Court that was less divided over the question in Roper would balk at that prospect.

Charles D. Stimson is Senior Legal Fellow and Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.