Miller v. Alabama

(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., at

90–92, 194 S. W. 3d, at 759–760; supra, at 2. To be sure,

Jackson learned on the way to the video store that his

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., at

110–117 (similar). We see no difference here.

In any event, the “objective indicia” that the States offer

do not distinguish these cases from others holding that

a sentencing practice violates the Eighth Amendment. In

Graham, we prohibited life-without-parole terms for

juveniles committing nonhomicide offenses even though

39 jurisdictions permitted that sentence. See 560 U. S.,

at ___ (slip op., at 11). That is 10 more than impose life

without parole on juveniles on a mandatory basis.10 And

——————

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., at

994–995; 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.