Ohio State Journal of Criminal Law
In Miller v. Alabama1 and Jackson v. Hobbs2 the Supreme Court reaffirmed its conclusions in two earlier cases, Roper v. Simmons3 and Graham v. Florida,4 that “children are constitutionally different from adults for purposes of sentencing”5 in ways that justify greater Eighth Amendment protection from severe sentences. Miller and Jackson (hereafter referred to for most purposes as Miller) also reaffirmed the Court’s conclusion in Graham that, although “death is different” for purposes of Eighth Amendment law, some of the substantive and analytic principles previously applied only in death penalty cases can also be applied to the most severe prison sentence, life without possibility of parole [LWOP].6 Thus, Graham held that at least some LWOP sentences can be invalidated using the categorical (all-cases-of-this-type) approach that the Court had previously applied only in death penalty cases.7 Before Graham, all challenges to prison sentences were as-applied-to-these-facts, and the standards, first announced in Solem v. Helm8 and later modified in Harmelin v. Michigan9 and Ewing v. California,10 were almost impossible for defendants to meet.
Richard Frase, What's "Different" (Enough) in Eighth Amendment Law?, 11 Ohio St. J. Crim. L. 9 (2013), available at https://scholarship.law.umn.edu/faculty_articles/460.