Harvard Law & Policy Review

eighth amendment

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Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity

By Beth Caldwell*

Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive—one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.

Read the full essay here.

*Associate Professor, Southwestern Law School.

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SCOTUS Invites Death Row to BYOE (Bring Your Own Executioner)

By Charles McGonigal

The death penalty is the government’s deepest moral quagmire. An execution is irrevocable and heavily resembles the crimes that it punishes. To make peace with this decision, society deploys resources to try to avoid executing innocents (due process, defense counsel, mandatory appeals) and to distinguish it from homicide. One of the most important differentiators has been to make the execution as humane as possible, embodied in the Eighth Amendment’s prohibition of cruel and unusual punishment. Until Glossip v. Gross.

In 2008’s Baze v. Rees, the Supreme Court allowed a specific three-drug protocol that put the victim into a coma before administering the killing drugs. The likelihood that the protocol would prevent suffering was very high, indeed high enough to satisfy the Eighth Amendment. The Court held that petitioners challenging such a satisfactory method had to offer a means of further increasing that likelihood. However, market pressures later caused the supplier of the anesthetic sodium thiopental—the first drug of the protocol—to stop providing it for executions, so some states (including Oklahoma) switched their protocols to use the sedative midazolam, which is not FDA-approved for sole use as an anesthetic. While midazolam does help patients fall asleep, the patients are usually awakened by significant trauma like incisions or burning chemicals designed to stop the heart.

Glossip v. Gross challenged Oklahoma’s execution protocol on the grounds that midazolam would not sufficiently prevent the executed from suffering during the execution. The prisoners’ suit was dismissed both on the merits and because they had not proposed an alternative. The Supreme Court affirmed both bases. Specifically, the risk of midazolam causing the victim to suffer was found to be not substantial “compared to a known and available alternative method of execution.” Rather than applying the alternative-method rule only to methods meeting the Eighth Amendment standard, the state’s right to execute now supersedes the Eighth Amendment, so death row inmates bear the burden of finding and proving non-cruel execution methods.

Capital punishment is constitutionally allowable (although Justice Breyer’s dissent offers compelling reasons to revisit that assessment), but not mandated. The government is not compelled to kill prisoners, and no individuals have ever been compelled to specifically assist or provide resources. Constitutional limitations control all government actions, including executions – those limitations should not be restricted to accommodate a particular action. But the Supreme Court holds that the state must be able to execute prisoners, and if society denies it the resources to satisfy the Eighth Amendment, cruel punishments may become usual.

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Guerrilla War Against the Eighth Amendment: The Supreme Court Battles Over Off-Label Drug Lethal Injections

By Rose Carmen Goldberg*

A series of botched executions over the past several years has engendered increasing criticism of lethal injection. These high-profile miscarriages have involved prolonged visible suffering, including violent spasms and outcries about intolerable pain. Death row inmates are turning to courts for protection from painful deaths like these.

Last month the Supreme Court heard oral arguments in its first lethal injection case since 2008, Glossip v. Gross. The challenge, originally brought by four death row inmates, claims that Oklahoma’s lethal injection protocol is unconstitutional. Specifically, the inmates argue that the use of a drug called midazolam violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it is not an effective anesthetic. [Read more…] about Guerrilla War Against the Eighth Amendment: The Supreme Court Battles Over Off-Label Drug Lethal Injections