Does “Cruel and Unusual” Have to Be Unusual?
In Miller v. Alabama, the Supreme Court voted 5-4 that the Eighth Amendment prohibits a sentencing scheme that mandates life in prison without parole for juvenile homicide offenders. Despite Justice Kagan’s protestations, the Court was not eliminating an outlying vestige of once common, brutal punishment, but instead a practice that was common. The holding suggests the Court may be willing to take a more activist role in monitoring state criminal justice systems.