Miller v. Alabama , 132 S. Ct. 2455 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MILLER v. ALABAMA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
ALABAMA
No. 10–9646. Argued March 20, 2012—Decided June 25, 2012*
In each of these cases, a 14-year-old was convicted of murder and sen-
tenced to a mandatory term of life imprisonment without the possibil-
ity of parole. In No. 10−9647, petitioner Jackson accompanied two
other boys to a video store to commit a robbery; on the way to the
store, he learned that one of the boys was carrying a shotgun. Jack-
son stayed outside the store for most of the robbery, but after he en-
tered, one of his co-conspirators shot and killed the store clerk. Ar-
kansas charged Jackson as an adult with capital felony murder and
aggravated robbery, and a jury convicted him of both crimes. The
trial court imposed a statutorily mandated sentence of life imprison-
ment without the possibility of parole. Jackson filed a state habeas
petition, arguing that a mandatory life-without-parole term for a 14-
year-old violates the Eighth Amendment. Disagreeing, the court
granted the State’s motion to dismiss. The Arkansas Supreme Court
affirmed.
In No. 10−9646, petitioner Miller, along with a friend, beat Miller’s
neighbor and set fire to his trailer after an evening of drinking and
drug use. The neighbor died. Miller was initially charged as a juve-
nile, but his case was removed to adult court, where he was charged
with murder in the course of arson. A jury found Miller guilty, and
the trial court imposed a statutorily mandated punishment of life
without parole. The Alabama Court of Criminal Appeals affirmed,
holding that Miller’s sentence was not overly harsh when compared
to his crime, and that its mandatory nature was permissible under
——————
* Together with No. 10–9647, Jackson v. Hobbs, Director, Arkansas
Department of Correction, on certiorari to the Supreme Court of Arkan-
sas.
2 MILLER v. ALABAMA
Syllabus
the Eighth Amendment.
Held: The Eighth Amendment forbids a sentencing scheme that man-
dates life in prison without possibility of parole for juvenile homicide
offenders. Pp. 6−27.
(a) The Eighth Amendment’s prohibition of cruel and unusual pun-
ishment “guarantees individuals the right not to be subjected to ex-
cessive sanctions.” Roper v. Simmons, 543 U. S. 551, 560. That right
“flows from the basic ‘precept of justice that punishment for crime
should be graduated and proportioned’ ” to both the offender and the
offense. Ibid.Two strands of precedent reflecting the concern with proportionate
punishment come together here. The first has adopted categorical
bans on sentencing practices based on mismatches between the cul-
pability of a class of offenders and the severity of a penalty. See, e.g.,
Kennedy v. Louisiana, 554 U. S. 407. Several cases in this group
have specially focused on juvenile offenders, because of their lesser
culpability. Thus, Roper v. Simmons held that the Eighth Amend-
ment bars capital punishment for children, and Graham v. Florida,
560 U. S. ___, concluded that the Amendment prohibits a sentence of
life without the possibility of parole for a juvenile convicted of a non-
homicide offense. Graham further likened life without parole for ju-
veniles to the death penalty, thereby evoking a second line of cases.
In those decisions, this Court has required sentencing authorities to
consider the characteristics of a defendant and the details of his of-
fense before sentencing him to death. See, e.g., Woodson v. North
Carolina, 428 U. S. 280 (plurality opinion). Here, the confluence of
these two lines of precedent leads to the conclusion that mandatory
life without parole for juveniles violates the Eighth Amendment.
As to the first set of cases: Roper and Graham establish that chil-
dren are constitutionally different from adults for sentencing purpos-
es. Their “ ‘lack of maturity’ ” and “ ‘underdeveloped sense of respon-
sibility’ ” lead to recklessness, impulsivity, and heedless risk-taking.
Roper, 543 U. S., at 569. They “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 because a child’s character is not as “well
formed” as an adult’s, his traits are “less fixed” and his actions are
less likely to be “evidence of irretrievabl[e] deprav[ity].” Id., at 570.
Roper and Graham emphasized that the distinctive attributes of
youth diminish the penological justifications for imposing the harsh-
est sentences on juvenile offenders, even when they commit terrible
crimes.
While Graham’s flat ban on life without parole was for nonhomi-
Cite as: 567 U. S. ____ (2012) 3
Syllabus
cide crimes, nothing that Graham said about children is crime-
specific. Thus, its reasoning implicates any life-without-parole sen-
tence for a juvenile, even as its categorical bar relates only to non-
homicide offenses. Most fundamentally, Graham insists that youth
matters in determining the appropriateness of a lifetime of incarcera-
tion without the possibility of parole. The mandatory penalty
schemes at issue here, however, prevent the sentencer from consider-
ing youth and from assessing whether the law’s harshest term of im-
prisonment proportionately punishes a juvenile offender. This con-
travenes 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.
Graham also likened life-without-parole sentences for juveniles to
the death penalty. That decision recognized that life-without-parole
sentences “share some characteristics with death sentences that are
shared by no other sentences.” 560 U. S., at ___. And it treated life
without parole for juveniles like this Court’s cases treat the death
penalty, imposing a categorical bar on its imposition for nonhomicide
offenses. By likening life-without-parole sentences for juveniles to
the death penalty, Graham makes relevant this Court’s cases de-
manding individualized sentencing in capital cases. In particular,
those cases have emphasized that sentencers must be able to consid-
er the mitigating qualities of youth. In light of Graham’s reasoning,
these decisions also show the flaws of imposing mandatory life-
without-parole sentences on juvenile homicide offenders. Pp. 6−17.
(b) The counterarguments of Alabama and Arkansas are unpersua-
sive. Pp. 18–27.
(1) The States first contend that Harmelin v. Michigan, 501
U. S. 957, forecloses a holding that mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment. Harmelin de-
clined to extend the individualized sentencing requirement to non-
capital cases “because of the qualitative difference between death and
all other penalties.” Id., at 1006 (KENNEDY, J., concurring in part and
concurring in judgment). But Harmelin had nothing to do with chil-
dren, and did not purport to apply to juvenile offenders. Indeed,
since Harmelin, this Court has held on multiple occasions that sen-
tencing practices that are permissible for adults may not be so for
children. See Roper, 543 U. S. 551; Graham, 560 U. S ___.
The States next contend that mandatory life-without-parole terms
for juveniles cannot be unconstitutional because 29 jurisdictions im-
pose them on at least some children convicted of murder. In consid-
ering categorical bars to the death penalty and life without parole,
this Court asks as part of the analysis whether legislative enact-
ments and actual sentencing practices show a national consensus
4 MILLER v. ALABAMA
Syllabus
against a sentence for a particular class of offenders. But where, as
here, this Court does not categorically bar a penalty, but instead re-
quires only that a sentencer follow a certain process, this Court has
not scrutinized or relied on legislative enactments in the same way.
See, e.g., Sumner v. Schuman, 483 U. S. 66.
In any event, the “objective indicia of society’s standards,” Graham,
560 U. S., at ___, that the States offer do not distinguish these cases
from others holding that a sentencing practice violates the Eighth
Amendment. Fewer States impose mandatory life-without-parole
sentences on juvenile homicide offenders than authorized the penalty
(life-without-parole for nonhomicide offenders) that this Court invali-
dated in Graham. And as Graham and Thompson v. Oklahoma, 487
U. S. 815, explain, simply counting legislative enactments can pre-
sent a distorted view. In those cases, as here, the relevant penalty
applied to juveniles based on two separate provisions: One allowed
the transfer of certain juvenile offenders to adult court, while another
set out penalties for any and all individuals tried there. In those cir-
cumstances, this Court reasoned, it was impossible to say whether a
legislature had endorsed a given penalty for children (or would do so
if presented with the choice). The same is true here. Pp. 18–25.
(2) The States next argue that courts and prosecutors suffi-
ciently consider a juvenile defendant’s age, as well as his background
and the circumstances of his crime, when deciding whether to try him
as an adult. But this argument ignores that many States use manda-
tory transfer systems. In addition, some lodge the decision in the
hands of the prosecutors, rather than courts. And even where judges
have transfer-stage discretion, it has limited utility, because the deci-
sionmaker typically will have only partial information about the child
or the circumstances of his offense. Finally, because of the limited
sentencing options in some juvenile courts, the transfer decision may
present a choice between a light sentence as a juvenile and standard
sentencing as an adult. It cannot substitute for discretion at post-
trial sentencing. Pp. 25−27.
No. 10−9646, 63 So. 3d 676, and No. 10−9647, 2011 Ark. 49, ___ S. W.
3d ___, reversed and remanded.
KAGAN, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. BREYER, J., filed a con-
curring opinion, in which SOTOMAYOR, J., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
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, Wash-
ington, 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
_________________
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 KAGAN delivered the opinion of the Court.
The two 14-year-old offenders in these cases were convict-
ed of murder and sentenced to life imprisonment without
the possibility of parole. In neither case did the sentenc-
ing 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. ___,
2 MILLER v. ALABAMA
Opinion of the Court
___ (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 Amend-
ment’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 commit-
ted certain serious offenses. See Ark. Code Ann. §9–27–
318(c)(2) (1998). The prosecutor here exercised that au-
thority 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 Jack-
son’s juvenile arrest history (shoplifting and several inci-
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
dents 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 (hereinaf-
ter 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 pa-
role”).1 Jackson did not challenge the sentence on appeal,
and the Arkansas Supreme Court affirmed the convic-
tions. 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 with-
out 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 nonhomi-
cide 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 con-
texts: “death-penalty cases involving a juvenile and life-
imprisonment-without-parole cases for nonhomicide of-
——————
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.
4 MILLER v. ALABAMA
Opinion of the Court
fenses 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 Jack-
son’s mandatory sentence ran afoul of Graham’s admoni-
tion 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 Gra-
ham, 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 at-
tempted 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
——————
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 Jack-
son’s sentence as mandatory. We abide by that interpretation of state
law. See, e.g., Mullaney v. Wilbur, 421 U. S. 684, 690–691 (1975).
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
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 even-
tually 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 re-
moval 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 memo-
randum).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 mini-
——————
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 proce-
dural due process, it is, in effect, too little, too late”).
6 MILLER v. ALABAMA
Opinion of the Court
mum 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 permissi-
ble 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 un-
usual 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 consid-
ered 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
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
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). Sev-
eral 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 nonhomi-
cide 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 charac-
teristics 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) (plurality opinion). Here, the conflu-
ence of these two lines of precedent leads to the conclusion
that mandatory life-without-parole sentences for juveniles
violate the Eighth Amendment.4
——————
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
8 MILLER v. ALABAMA
Opinion of the Court
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 juve-
niles 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 vulner-
able . . . 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 sci-
ence as well. Id., at 569. In Roper, we cited studies
showing that “‘[o]nly a relatively small proportion of adoles-
cents’ ” who engage in illegal activity “ ‘develop entrenched
patterns of problem behavior.’ ” Id., at 570 (quoting Stein-
berg & Scott, Less Guilty by Reason of Adolescence: De-
velopmental Immaturity, Diminished Responsibility, and
the Juvenile Death Penalty, 58 Am. Psychologist 1009,
——————
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.
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
1014 (2003)). And in Graham, we noted that “develop-
ments 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, pro-
clivity 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 devel-
opment 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 at-
tributes 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 deter-
rence do the work in this context, because “ ‘the same
characteristics that render juveniles less culpable than
adults’ ”—their immaturity, recklessness, and impetuos-
ity—make them less likely to consider potential punish-
——————
5 The evidence presented to us in these cases indicates that the sci-
ence 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 in-
creasingly 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)).
10 MILLER v. ALABAMA
Opinion of the Court
ment. 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 Work-
man 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 distin-
guish 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 en-
vironmental vulnerabilities—is crime-specific. Those
features are evident in the same way, and to the same de-
gree, 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 incar-
ceration without the possibility of parole. In the circum-
stances 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 charac-
teristics of youth, and the way they weaken rationales for
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
punishment, can render a life-without-parole sentence
disproportionate. Cf. id., at ___ (slip op., at 20–23) (gener-
ally 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 Amend-
ment,” 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. Al-
though rejecting a categorical bar on life-without-parole
sentences for juveniles, he acknowledged “Roper’s conclu-
sion 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 propor-
tionality. 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 pun-
ishment was unconstitutionally excessive”).6
But the mandatory penalty schemes at issue here pre-
vent 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
——————
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.
12 MILLER v. ALABAMA
Opinion of the Court
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). Im-
prisoning 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, 300–301 (1983)). And this
lengthiest possible incarceration is an “especially harsh
punishment for a juvenile,” because he will almost inevi-
tably 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 offend-
ers immune from a noncapital sentence using the categori-
cal 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 punish-
ment,” 560 U. S., at ___ (ROBERTS, C. J., concurring in
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
judgment) (slip op., at 5)—makes relevant here a second
line of our precedents, demanding individualized sentenc-
ing when imposing the death penalty. In Woodson, 428
U. S. 280, we held that a statute mandating a death sen-
tence for first-degree murder violated the Eighth Amend-
ment. 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. Subse-
quent 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 fac-
tors, 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, 74–
76 (1987); Eddings v. Oklahoma, 455 U. S. 104, 110–112
(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 “mitigat-
ing 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, ir-
responsibility, “impetuousness[,] and recklessness.” John-
son, 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.
14 MILLER v. ALABAMA
Opinion of the Court
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 sen-
tences 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 sen-
tence 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 ma-
jority 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 sentenc-
——————
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.
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
ing 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 conse-
quences. It prevents taking into account the family and
home environment that surrounds him—and from which
he cannot usually extricate himself—no matter how bru-
tal 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 Jack-
son’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., at90–92, 194 S. W. 3d, at 759–760; supra, at 2. To be sure,
Jackson learned on the way to the video store that his
16 MILLER v. ALABAMA
Opinion of the Court
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 sen-
tencer 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 alco-
holic 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 crimi-
nal mischief.” No. CR–03–0915, at 6 (unpublished memo-
randum). 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
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
to guarantee eventual freedom,” but must provide “some
meaningful opportunity to obtain release based on demon-
strated 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 con-
sider 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 of-
fender 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 coun-
sel against irrevocably sentencing them to a lifetime in
prison.8
——————
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 murder-
ing 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 in
a crowded mall”). Our holding requires factfinders to attend to exactly
such circumstances—to take into account the differences among de-
18 MILLER v. ALABAMA
Opinion of the Court
III
Alabama and Arkansas offer two kinds of arguments
against requiring individualized consideration before sen-
tencing a juvenile to life imprisonment without possi-
bility 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 cir-
cumstances 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 pen-
alty, 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, invali-
dating 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 hold-
——————
fendants and crimes. By contrast, the sentencing schemes that the
dissents find permissible altogether preclude considering these factors.
Cite as: 567 U. S. ____ (2012) 19
Opinion of the Court
ing 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 nonhom-
icide offenses—except, once again, for children. See Gra-
ham, 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 recogni-
tion’ 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 con-
flicts with Harmelin.
Alabama and Arkansas (along with THE CHIEF JUS-
TICE 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 “na-
tional 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 juris-
20 MILLER v. ALABAMA
Opinion of the Court
dictions (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 sen-
tencer 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 sen-
tencing 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
——————
9 The States note that 26 States and the Federal Government make
life without parole the mandatory (or mandatory minimum) punish-
ment 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.
Cite as: 567 U. S. ____ (2012) 21
Opinion of the Court
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., at110–117 (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
——————
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 mandatory
life-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
22 MILLER v. ALABAMA
Opinion of the Court
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 (plu-
rality opinion). So we are breaking no new ground in
these cases.11
Graham and Thompson provide special guidance, be-
cause they considered the same kind of statutes we do and
——————
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 at
http://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, 295–296 (1976) (plurality
opinion) (relying on the infrequency with which juries imposed the
death penalty when given discretion to hold that its mandatory imposi-
tion 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.
Cite as: 567 U. S. ____ (2012) 23
Opinion of the Court
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
——————
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 provi-
sions—by definition, before they knew or could know how many juve-
nile life-without-parole sentences would result.
24 MILLER v. ALABAMA
Opinion of the Court
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 mandat-
ing life without parole for children, more than half do so
by virtue of generally applicable penalty provisions, im-
posing 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 apply-
ing 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
——————
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).
Cite as: 567 U. S. ____ (2012) 25
Opinion of the Court
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 Ar-
kansas 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 deci-
sion 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 considera-
tions for decisionmaking.” Dept. of Justice, Office of Juve-
nile Justice and Delinquency Prevention, P. Griffin, S.
Addie, B. Adams, & K. Firestine, Trying Juveniles as
——————
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).
26 MILLER v. ALABAMA
Opinion of the Court
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 sen-
tence; whatever she said in mitigation, the mandatory
life-without-parole prison term would kick in. The key mo-
ment 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 trans-
fer 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
Cite as: 567 U. S. ____ (2012) 27
Opinion of the Court
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 appro-
priate. 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, regard-
less 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 pun-
ishment. 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.
Cite as: 567 U. S. ____ (2012) 1
BREYER, J., concurring
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 possibil-
ity 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. (em-
phasis added). For one thing, “compared to adults, juve-
niles have a lack of maturity and an underdeveloped sense
2 MILLER v. ALABAMA
BREYER, J., concurring
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 dimin-
ishes the “moral culpability” that attaches to the crime in
question, making those that do not intend to kill “categori-
cally less deserving of the most serious forms of punish-
ment than are murderers.” 560 U. S., at ___ (slip op., at
18) (citing Kennedy v. Louisiana, 554 U. S. 407, 434–435
(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 Gra-
ham 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-
Cite as: 567 U. S. ____ (2012) 3
BREYER, J., concurring
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.
Steiker, 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 permissi-
ble 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).
4 MILLER v. ALABAMA
BREYER, J., concurring
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 dan-
gerous 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 Frank-
furter cautioned, “Legal theories and their phrasing in
other cases readily lead to fallacious reasoning if uncrit-
ically transferred to a determination of a State’s duty to-
ward 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 pres-
ent 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 some-
thing 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 of-
fense, 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
Cite as: 567 U. S. ____ (2012) 5
BREYER, J., concurring
not), nor did he need to have intent to kill or even “ex-
treme indifference.” As long as one of the teenage accom-
plices 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 Amend-
ment 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 Amend-
ment prohibits the imposition of life without parole upon a
juvenile in those circumstances as well. Ante, at 17.
Cite as: 567 U. S. ____ (2012) 1
ROBERTS, C. J., dissenting
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 con-
victed of murder presents grave and challenging ques-
tions of morality and social policy. Our role, however, is to
apply the law, not to answer such questions. The perti-
nent law here is the Eighth Amendment to the Constitu-
tion, which prohibits “cruel and unusual punishments.”
Today, the Court invokes that Amendment to ban a pun-
ishment that the Court does not itself characterize as un-
usual, and that could not plausibly be described as such.
I therefore dissent.
The parties agree that nearly 2,500 prisoners are pres-
ently serving life sentences without the possibility of pa-
role for murders they committed before the age of 18.
Brief for Petitioner in No. 10–9647, p. 62, n. 80 (Jackson
2 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
Brief ); Brief for Respondent in No. 10–9646, p. 30 (Ala-
bama 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 deter-
mining 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 “un-
usual.” 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); inter-
nal 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
Cite as: 567 U. S. ____ (2012) 3
ROBERTS, C. J., dissenting
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 re-
quires 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 legis-
latures 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 Punish-
ment, 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, 78, 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 manda-
tory 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 prac-
tice 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 uncon-
stitutional, whereas the punishment it bans today is
mandated in 10 fewer. Ante, at 21. But Graham went to
4 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
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 statis-
tics 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 im-
pose it, Graham concluded that there was a national
consensus against life without parole for juvenile nonhom-
icide crimes. Id., at ___ (slip op., at 13–16).
Here the number of mandatory life without parole sen-
tences 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 consen-
sus 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
——————
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).
Cite as: 567 U. S. ____ (2012) 5
ROBERTS, C. J., dissenting
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 legisla-
tures. 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 gener-
ally mandating that those convicted of murder be impris-
oned 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
——————
2 The Court’s reference to discretionary sentencing practices is a dis-
traction. See ante, at 21–22, n. 10. The premise of the Court’s decision
is that mandatory sentences are categorically different from discretion-
ary ones. So under the Court’s own logic, whether discretionary sen-
tences are common or uncommon has nothing to do with whether
mandatory sentences are unusual. In any event, if analysis of discre-
tionary 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.
6 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
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 leg-
islature was not fully aware that a teenager could re-
ceive 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 over-
sight. Indeed, in amending its laws in response to Gra-
ham one legislature made especially clear that it does
intend juveniles who commit first-degree murder to re-
ceive 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 un-
usual. It instead claims that precedent “leads to” today’s
——————
3 The
Court claims that I “take issue with some or all of these prece-
dents” and “seek to relitigate” them. Ante, at 7–8, n. 4. Not so: apply-
ing this Court’s cases exactly as they stand, I do not believe they
support the Court’s decision in this case.
Cite as: 567 U. S. ____ (2012) 7
ROBERTS, C. J., dissenting
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 deci-
sion 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 prece-
dent 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 re-
sponsible, 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 differ-
ent 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 non-
homicide 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 an-
other is to say that they are different and should be
treated differently. In other words, the two are in different
8 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
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 com-
pared. 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 ex-
pressly 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 (dissent-
ing opinion). To claim that Roper actually “leads to” re-
voking 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
Cite as: 567 U. S. ____ (2012) 9
ROBERTS, C. J., dissenting
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 with-
out parole sentence is not mandatory, “we think appropri-
ate 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 with-
out 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 substi-
tute, and does not even try. After all, the Court tells us,
“none of what [Graham] said about children . . . is crime-
specific.” Ante, at 10. The principle behind today’s deci-
sion 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
10 MILLER v. ALABAMA
ROBERTS, C. J., dissenting
Amendment that bars only “unusual” punishments re-
quires 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 mur-
derer, 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 kill-
ers, 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.
Cite as: 567 U. S. ____ (2012) 1
THOMAS, J., dissenting
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 pun-
ishments for specified classes of offenders. The second
requires individualized sentencing in the capital punish-
ment 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
2 MILLER v. ALABAMA
THOMAS, J., dissenting
constitutional warrant, I respectfully dissent.1
I
The Court first relies on its cases “adopt[ing] categorical
bans on sentencing practices based on mismatches be-
tween the culpability of a class of offenders and the severity
of a penalty.” Ante, at 6–7. Of these categorical propor-
tionality 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 socio-
logical 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 penal-
ties 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
——————
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.
Cite as: 567 U. S. ____ (2012) 3
THOMAS, J., dissenting
bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” As I have
previously explained, “the Cruel and Unusual Punish-
ments 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. Cali-
fornia, 538 U. S. 11, 32 (2003) (THOMAS, J., concurring in
judgment); see generally Harmelin v. Michigan, 501 U. S.
957, 975–985 (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
——————
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 commit-
ted 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, 609, n. 1 (2005) (SCALIA, J., dissenting).
Further, mandatory death sentences were common at that time. See
Harmelin v. Michigan, 501 U. S. 957, 994–995 (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.
4 MILLER v. ALABAMA
THOMAS, J., dissenting
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 “prohib-
it[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 capi-
tal sentencing schemes have no basis in the original un-
derstanding 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 manda-
tory 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 pen-
alty. See generally 408 U. S. 238. In response to Furman,
many States passed new laws that made the death pen-
alty mandatory following conviction of specified crimes,
thereby eliminating the offending discretion. See Gregg
v. Georgia, 428 U. S. 153, 180–181 (1976) (joint opinion
Cite as: 567 U. S. ____ (2012) 5
THOMAS, J., dissenting
of Stewart, Powell, and Stevens, JJ.). The Court invali-
dated 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) (inter-
nal 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 Gard-
ner 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 legisla-
ture.” United States v. Grayson, 438 U. S. 41, 45 (1978).
Capital sentences, to which the Court analogizes, were
——————
3 The Court later extended Woodson, requiring that capital defend-
ants be permitted to present, and sentencers in capital cases be permit-
ted to consider, any relevant mitigating evidence, including the age of
the defendant. See, e.g., Lockett v. Ohio, 438 U. S. 586, 597–608 (1978)
(plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, 110–112
(1982); Skipper v. South Carolina, 476 U. S. 1, 4–5 (1986); Johnson v.
Texas, 509 U. S. 350, 361–368 (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, 488–500 (1993)
(THOMAS, J., concurring).
6 MILLER v. ALABAMA
THOMAS, J., dissenting
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., at994–995; see also Woodson, supra, at 289 (plurality opin-
ion) (“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 discre-
tion and treat[ed] all defendants equally.” Graham v.
Collins, 506 U. S. 461, 487 (1993) (THOMAS, J., concur-
ring). 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 estab-
lishes 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 capi-
tal 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 pen-
alty context. In Harmelin, the defendant was convicted of
Cite as: 567 U. S. ____ (2012) 7
THOMAS, J., dissenting
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 Pun-
ishments 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 sim-
ply 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 penal-
ties.” 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 re-
quiring individualized sentencing had been drawn at cap-
ital 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).
8 MILLER v. ALABAMA
THOMAS, J., dissenting
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 Har-
melin’s clear distinction between capital and noncapital
cases and to apply the former to noncapital juvenile of-
fenders.4 The Court’s decision to do so is even less sup-
portable 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 incur-
sions 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 sentenc-
ing 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 prac-
tices” to conclude that there was a national consensus
against life-without-parole sentences for juvenile nonhom-
icide 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
——————
4 In
support of its decision not to apply Harmelin to juvenile offend-
ers, 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 usurp-
ing authority that rightfully belongs to the people by imposing a consti-
tutional rule where none exists.
Cite as: 567 U. S. ____ (2012) 9
THOMAS, J., dissenting
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 consen-
sus of today to shaping the societal consensus of tomorrow.
* * *
Today’s decision invalidates a constitutionally permissi-
ble 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.
Cite as: 567 U. S. ____ (2012) 1
ALITO, J., dissenting
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 teach-
ers 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 prohi-
bition 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)
2 MILLER v. ALABAMA
ALITO, J., dissenting
(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,
560–561 (2005); Atkins v. Virginia, 536 U. S. 304, 311–312
(2002); Hudson v. McMillian, 503 U. S. 1, 8 (1992); Ford v.
Wainwright, 477 U. S. 399, 406 (1986); Rhodes v. Chap-
man, 452 U. S. 337, 346 (1981); Estelle v. Gamble, 429
U. S. 97, 102 (1976). Both the provenance and philosoph-
ical 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 unaccount­
able 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”). In­
stead, the Court looked for objective indicia of our society’s
moral standards and the trajectory of our moral “evolu­
tion.” 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, 796, n. 22 (1982); Thompson v. Oklahoma, 487 U. S.
815, 830–831 (1988); Coker, 433 U. S., at 596, n. 10 (plu­
rality opinion).
In the main, however, the staple of this inquiry was the
tallying of the positions taken by state legislatures. Thus,
Cite as: 567 U. S. ____ (2012) 3
ALITO, J., dissenting
in Coker, which held that the Eighth Amendment prohib­
its the imposition of the death penalty for the rape of an
adult woman, the Court noted that only one State permit­
ted 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 character­
ized 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 consen­
sus 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 prob­
lem 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. Never­
theless, 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. Hold­
4 MILLER v. ALABAMA
ALITO, J., dissenting
ing that the Eighth Amendment prohibits capital punish­
ment for the brutal rape of a 12-year-old girl, the Court
disregarded a nascent legislative trend in favor of permit-
ting 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 be­
cause 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 con­
sensus, 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
Cite as: 567 U. S. ____ (2012) 5
ALITO, J., dissenting
are concerned with the imposition of a term of imprison­
ment on offenders who kill. The two (carefully selected)
cases before us concern very young defendants, and de­
spite 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 Christopher Simmons, who committed
a brutal thrill-killing just seven 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 incred­
ibly brutal. Many of these murderers are at least as ma­
ture 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 man­
datory. See Ante, at 20–21, and nn. 9–10. The majority of
this Court now overrules these legislative judgments.2
——————
1 Between 2002 and 2010, 17-year-olds committed an average com­
bined total of 424 murders and nonnegligent homicides per year. See
Dept. of Justice, Bureau of Justice Statistics, §4, Arrests, Age of per­
sons 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
6 MILLER v. ALABAMA
ALITO, J., dissenting
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 Gra-
ham 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 Amend­
ment 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
——————
rejected what it called the “outmoded rehabilitation model” for federal
criminal sentencing. S. Rep. No. 98–225, p. 38 (1983). According to
the 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 ‘shame­
ful’ 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)).
Cite as: 567 U. S. ____ (2012) 7
ALITO, J., dissenting
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 imprison­
ment that is appropriate for a particular offense and a
particular offender inevitably involves a balancing of in­
terests. 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 legisla­
ture, which presumably reflects the views of the elec­
torate, is taking the position that the risk that these
offenders will kill again outweighs any countervailing
consideration, including reduced culpability due to imma­
turity or the possibility of rehabilitation. When the major­
ity 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 murder­
ers, 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.