Ian P. Farrell
In March, the Supreme Court heard oral arguments in Miller v. Alabama and Arkansas v. Jackson. Both cases involved fourteen-year-old defendants convicted of capital murder and given the mandatory sentence of life without the possibility of parole, after being transferred out of the juvenile system and tried as adults. The issue before the Court in each case is whether this sentence of life without the possibility of parole, when imposed upon a juvenile convicted of homicide, violates the Eighth Amendment’s Cruel and Unusual Punishment Clause.
The Supreme Court has confirmed its methodological framework for determining whether to impose a categorical rule prohibiting a punishment practice in a series of decisions over the past decade. This methodology has been subjected to criticism, several of which are evident in its application to Miller and Jackson. In this short article, I will focus on one of these problems: the Court’s use of “objective indicia” to measure the contemporary moral standards that inform the application of “cruel and unusual.” It is not my purpose here to predict the outcome of the cases, nor to suggest what the outcome ought to be. Rather, my purpose is to describe one of the difficulties in employing the Court’s “objective indicia” analysis, a method that remains troubling regardless of whether it produces a preferred outcome in any particular case.
I. The Court’s methodology
In determining whether the punishment practices in Miller and Jackson violate the Cruel and Unusual Punishment Clause, the Court will employ a now-settled methodology. This methodology consists of two separate inquiries. First, the Court addresses whether the punishments are cruel and unusual in light of “the evolving standards of decency that mark the progress of a maturing society.” In order to avoid subordinating society’s standards to the Justices’ own subjective views, the Court considers objective indicia—most notably, the extent to which legislatures prohibit or allow the relevant practice—when ascertaining whether a community consensus has formed against the practice. Second, the Court applies its own “independent judgment” as to whether the punishment is excessive, taking into account whether the challenged sentencing practice serves legitimate penological goals.
The Court has recently made clear that the second step is necessary – that “[c]ommunity consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual.” The Court has been less than clear, however, about how these two inquiries fit together. The opinions do not state, for instance, how the Court should rule in a case where the objective indicia show no moral consensus against a punishment practice, but the punishment is excessive in the Court’s independent judgment (or vice versa). Indeed, I am aware of no case in which the answers to these two questions diverge. That is, whenever the Court has applied both objective-indicia and independent-judgment analysis, it has reached the same conclusion on each issue: either both analyses indicate that the punishment practice violates the Eighth Amendment, or both indicate that it does not. This observation is telling in itself. We are entitled to be surprised that the Court’s independent judgment and society’s moral consensus simply coincide in every case. The consistent convergence of the two inquiries suggests an inference, at least, that the Court’s determinations of social standards, purportedly based on objective indicia, are in reality informed by the Justices’ subjective moral views – which is, of course, the precise mischief that objective indicia analysis is meant to avoid.
II. Objective indicia in Miller and Jackson
The malleability of legislative data as a barometer of community standards is on display in Miller and Jackson. The statistics referred to in the briefs, and debated in oral arguments, include:
1. Seventy-three children aged fourteen or younger are currently sentenced to life without parole, almost all of whom were subjected to mandatory sentences;
2. Eighteen states have imposed life without parole on children fourteen or younger;
3. Life without parole is available for children aged fourteen or younger in 36 states (in the majority of states, due to the combination of juvenile transfer and mandatory punishment for crimes by adults);
4. 3,632 children aged fourteen or younger have been arrested for homicide nationwide since 1990.
These factors do not compel a particular conclusion, either individually or cumulatively. Plausible arguments could be made that each of the factors is consistent with (or even indicates) both the existence and non-existence of a community consensus against the punishment practice. For example, the fact that only about two percent of children arrested for homicide have been sentenced to life without parole could cut either way: it could indicate society’s unwillingness to impose such a severe punishment on offenders so young, or it could indicate that the system is appropriately reserving this severe punishment to the tiny minority of juveniles who deserve it.
My focus in this article, though, is the number of states that allow juvenile life without parole. At first blush, the fact that 36 states allow the practice could be interpreted as conclusive evidence that there is no national consensus against juvenile life without parole. But compelling arguments can be made to the contrary. First, even though thirty-six states allow life without parole for juveniles, only eighteen states have actually imposed the penalty. It is not immediately obvious which of these facts is the more accurate measure of community values. (Like the rarity of juvenile life without parole sentences generally, the fact that states have not invoked the sentence may indicate either moral disapproval, or simply that no juveniles in that state deserved the punishment.)
Secondly, and more importantly for this article, in the majority of states that allow life without parole for juveniles, the punishment is available as a consequence of the concurrent application of two separate legal rules: the availability of transfer from the juvenile system, and mandatory sentences for adults. These statutory schemes do not contain an express provision directing that life without parole may be imposed on juveniles. So it may be argued, as the Court did in Graham, 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.”
And there’s the rub, for all objective indicia analysis. The analysis presumes that reliable inferences about community consensus can be drawn from the fact that, for instance, a practice is permitted or precluded in various states. But as the juvenile death penalty shows, this involves drawing a very long bow. Inferring the intent, motivation or moral attitude of a legislature from what’s permitted by legislation is difficult enough. The difficulty is compounded when, as in the Eighth Amendment context, we are drawing inferences about community moral norms from the content of statutory schemes. This is especially true when the practice under consideration has not been expressly addressed by the legislature, as is the case in Miller and Jackson, or a fortiori when a legislature has simply not enacted legislation about the practice. There are many reasons—other than a community consensus against a punishment practice—why a state might not allow a practice. A state may not allow the death penalty for defendants convicted of raping a child, for instance, despite a community consensus in favor of the punishment, if the legislature believes such a law would be struck down as unconstitutional. The potential multiplicity of motivating reasons for enacting—or not enacting—legislation renders problematic the use of legislation as a purportedly objective indicium of community views.
The Court’s “objective indicia” analysis allows Justices enormous room in framing and interpreting the applicable data. The malleability of the indicia is magnified in cases – like Miller and Jackson – where the link between what is legally allowed and what the community approves, or disapproves, of is especially tenuous. This wide interpretive wiggle-room provides the possibility that the Justices are massaging the objective indicia to support their own, subjective views – a possibly strengthened by the fact that the Court has always concluded that the community consensus and their own independent judgment are, in fact, one and the same.
 Assistant Professor, The University of Denver, Sturm College of Law. I am grateful to Amanda Walck for her invaluable research assistance, to Justin Marceau and Robin Walker Sterling for their helpful comments and suggestions, and to Jeremy Liles and Justin Jenkins for their excellent editorial work.
 No. 10-9646 (U.S. argued Mar. 20, 2012).
 No. 10-9647 (U.S. argued Mar. 20, 2012).
 Petition for Writ of Certiorari at 6–7, Miller, No. 10-9646 (U.S. argued Mar. 20, 2012) (hereinafter Miller Petition); Petition for Writ of Certiorari at 5–6, Jackson, No. 10-9647 (U.S. argued Mar. 20, 2012) (hereinafter Jackson Petition). See also Brief of Respondent in Opposition to Writ of Certiorari at 2–3, Jackson, No. 10-9647 (U.S. argued Mar. 20, 2012). In both cases, more than one person was involved in the crimes. In Jackson—but not in Miller—the defendant was convicted of felony murder due to his participation in a robbery during which the victim was killed.
 The Court ruled two years ago that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham v. Florida, 130 S. Ct. 2011, 2034 (2010) Miller and Jackson raise an issue that Graham left unresolved, namely whether the Constitution also prohibits the imposition of life without parole on a juvenile offender who did commit homicide. Jackson Petition, supra note 4, at 2.
 See, eg., Graham v. Florida, 130 S. Ct. 2011 (2010); Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding the death penalty unconstitutional for the crime of raping a child); Roper v. Simmons, 543 U.S. 551 (2005) (holding the death penalty unconstitutional for minors); Atkins v. Virginia, 536 U.S. 304 (2002) (holding the death penalty unconstitutional for defendants who were mentally ill at the time of commission of the crime); see also Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty unconstitutional for the crime of raping an adult woman). See also Alison Siegler & Barry Sullivan, “‘Death is Different’ No Longer”: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences, 2010 Sup. Ct. Rev. 327 (2010) (discussing the consequences of the Court applying its “categorical” analysis in a non-death penalty case, for the first time, in Graham).
 See, e.g., Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N.C. L. Rev. 1089, 1089 (2006) (declaring that “the use of state legislation creates doctrinal chaos”); YoungJae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev. 677, 684 (2005) (describing the Court’s approach to the Eighth Amendment as “ineffectual and incoherent”); and Tom Stacy, Cleaning up the Eighth Amendment Mess, 14 Wm. & Mary Bill Rts. J. 475, 475 (describing Eighth Amendment doctrine as a “mess”).
 Trop v. Dulles, 356 U.S. 86, 101 (1958).
 Coker, 433 U.S. at 591–92 (“These Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum extent possible.”).
 Kennedy, 554 U.S. at 421 (“In these cases the Court has been guided by objective indicia of society’s standards, as expressed in [inter alia] objective standards.”).
 Graham, 130 S. Ct. at 2026 (stating that the judicial exercise of independent judgment involves considering “whether the challenged sentencing practice serves legitimate penological goals.”).
 Id. (internal quotations omitted).
 This conclusion is based on analysis of all the Supreme Court decisions that addressed both the objective indicia of community standards and the Justice’s independent judgment. See, e.g., Kennedy, 554 U.S. at 421 (“Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”); Roper v. Simmons, 543 U.S. 551, 575 (2005) (“Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only punishment in the world that continues to give official sanction to the juvenile death penalty.”); Coker, 433 U.S. at 597 (concluding that “the legislative rejection of capital punishment for rape strongly confirms our own judgment).
 See Miller Petition, supra note 4, at 3–4. In addition, only twenty-one children aged fourteen or younger have been sentenced, like Jackson, to life without parole “for homicide offenses where the state did not establish intent to kill”. Jackson Petition, supra note 4, at 21.
 Note that all that is required for a punishment to be consistent with the Eighth Amendment is an absence of a consensus against the practice; there need not be a consensus in favor of the practice. If there is not a consensus either way, the punishment practice is constitutional.
 Graham, 130 S. Ct. at 16.
 See Kennedy, 554 U.S. at 426-27 (acknowledging, but rejecting, the argument that some states may have declined to make child rape a capital crime because of a belief that it would be unconstitutional under Coker).
 As an aside, the relative difficulty of inferring motivation from a lack of legislative action was central to the recent Ninth Circuit decision holding unconstitutional California’s Proposition 8, which eliminated the right of same-sex couples to marry. See Perry v. Brown, 671 F.3d 1052, 1085 (2012), (arguing that an inference of animus may be more easily made when the state acts to withdraw a right from a group, than when it does not act to provide the right to that group).