SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 1, FALL 2015
Evading Miller
Robert S. Chang,(fn*) David A. Perez,(fn**) Luke M. Rona,(fn***) and Christopher M. Schafbuch(fn****)
CONTENTS
INTRODUCTION ....................................................................................... 86
II. WHAT MILLER SAYS ........................................................................... 88
III. AN INCOHERENT PATCHWORK OF MILLER IMPLEMENTATION ......... 91
A. A Patchwork of Retroactivity ...................................................... 92
B. Discretionary Life Without Parole ............................................. 95
C. Miller and the "100 Year" Sentence .......................................... 98
D. Sentencing Juvenile Offenders Under Miller ........................... 101
IV. GEOGRAPHIC ANOMALIES AND RACIAL INEQUALITIES EXPOSED BY EXAMINING STATES' POST-MILLER JURISPRUDENCE ................... 104
CONCLUSION ......................................................................................... 105
INTRODUCTION
Miller v. Alabama(fn1) appeared to strengthen constitutional protections for juvenile sentencing that the United States Supreme Court recognized in Roper v. Simmons(fn2) and Graham v. Florida.(fn3) In Roper, the Court held that executing a person for a crime committed as a juvenile is unconstitutional under the Eighth Amendment.(fn4) In Graham, the Court held that sentencing a person to life without parole for a nonhomicide offense committed as a juvenile is unconstitutional under the Eighth Amendment.(fn5) In Miller, the Court held that a mandatory sentence of life without parole for a homicide offense committed by a juvenile is also unconstitutional under the Eighth Amendment.(fn6)
When Miller was decided, "nearly 2,500 prisoners [were] presently serving life sentences without the possibility of parole for murders they committed before the age of 18,"(fn7) with over 2,000 of them sentenced under a mandatory sentencing scheme.(fn8) But with no explicit pronouncement regarding retroactivity, states were left to determine whether Miller applied to persons whose sentences were already final by the time Miller was decided.(fn9) States that considered Miller retroactive then had to determine how those persons should be resentenced. There was also a prospective problem: aside from knowing that certain mandatory sentencing schemes were unconstitutional, states were left to apply the Court's observations regarding the differences between youth and adults for purposes of sentencing.
In the three years since Miller, states have responded with a variety of approaches; some state legislatures responded proactively, while others let their courts decide.(fn10) Some states have been faithful to the premise that juveniles should be sentenced differently from adults, while others have resisted it. The result is a patchwork of sentencing regimes that has benefited some juveniles, but has left thousands of others languishing in prison with no meaningful change to their sentences.(fn11) Commentator Mary Berkheiser notes: "The worst of it is that those who were sentenced to die in prison when they were as young as fourteen may yet be recondemned to live out that sentence."(fn12)
That thousands remain in prison with no relief for crimes committed as juveniles-even following Miller-is due in part to the Court's failure to explicitly make a pronouncement regarding retroactivity, as well as the lack of clarity regarding what protections are constitutionally required when juvenile offenders are sentenced, and when those protections apply. Without clear guidance, it is unsurprising that the states primarily responsible for sentencing juvenile offenders to life without parole have found ways to circumvent the premise animating Miller: that juvenile offenders should receive an individualized assessment of their biological traits and environmental influences when being sentenced to the law's harshest penalties.
Part I sets forth the holding in Miller. Part II describes the incoherent patchwork that has resulted in the three years since Miller as states implement and resist Miller's mandate. Part III describes troubling disparities that exist with regard to youth subjected to the "law's most severe punishments"(fn13) based on geography and race. The Article concludes by observing that sentencing courts have yet to fully appreciate and implement what is constitutionally required to adequately account for the differences between youth and adults.
II. WHAT MILLER SAYS
In order to understand Miller v. Alabama, it is necessary to appreciate its predecessor cases. The Court's decisions in Roper and Graham paved the way for Miller, and the cumulative impact of the three cases establishes that youth are different-not just biologically, but also legally.
In Roper, the Court concluded that sentencing youth to capital punishment constitutes cruel and unusual punishment.(fn14) In reaching this decision, the Court highlighted how "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions."(fn15) The same "signature qualities" that make youth less culpable- "impetuousness and recklessness"-also render youth more capable of reform.(fn16) Accordingly, the Court held that the death penalty was "disproportionate punishment for offenders under 18," and therefore unconstitutional.(fn17) Roper categorically bars capital punishment for juvenile offenders.
In Graham, the Court held that sentencing youth to life without parole for nonhomicide offenses constitutes cruel and unusual punishment.(fn18) In doing so, the Court relied once more on the biological differences between youth and adults, stating that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds."(fn19) The Court noted how "parts of the brain involved in behavior control continue to mature through late adolescence."(fn20) These biological differences in brain development render youth more immature, more likely to engage in risky behavior, and more vulnerable to external influences like peer pressure.(fn21) The Court reiterated that because youth brains are still developing well into late adolescence, their personality traits are more transient and more "capable of change than are [those of] adults."(fn22) These youth-inherent traits led the Court to categorically bar sentences of life without parole for juvenile nonhomicide offenders.
Miller extended the Court's reasoning in Roper and Graham to invalidate state penalty schemes mandating life without parole sentences for youth convicted of a homicide offense.(fn23) However, the Court did not categorically bar such sentences, as it did in Roper and Graham.(fn24)
Miller involved a direct appeal by Evan Miller, who was 14 years old at the time of his crime.(fn25) A companion case decided at the same time, Jackson v. Hobbs, involved a collateral challenge by Kuntrell Jackson, who was also 14 years old at the time of his crime. Evan Miller was charged and convicted of murder in the course of arson; Kuntrell Jackson was charged and convicted of capital felony murder and aggravated robbery.(fn26) Both the Alabama(fn27) and Arkansas(fn28) statutes under which Miller and Jackson were sentenced carried mandatory sentences of life imprisonment without the possibility of parole.(fn29) The Court ruled that such statutes were unconstitutional. It further made clear that mandatory sentencing schemes that treat children the same as adults fail to account for the central considerations underlying Graham and Roper-that children have "diminished culpability and greater prospects for reform."(fn30) Recognizing the "mitigating qualities of youth," the Court emphasized that sentencing courts must consider a juvenile's "mental and emotional development."(fn31)
In addition to finding it improper to treat children the same as adults, the Court further noted that mandatory sentencing schemes preclude sentencers from considering differences between juvenile offenders. Instead, such schemes treat identically "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."(fn32) Mandatory sentencing regimes prevent individualized assessments because "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."(fn33) Under mandatory sentencing regimes, the result is that "every juvenile will receive the same sentence as every other."(fn34)
In ordering sentencing courts to consider the "characteristics and circumstances attendant to [youth]," the Court stated that "appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon."(fn35) Before imposing such a serious penalty, a sentencer would have to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."(fn36)
In sum, the Court's decisions in Roper, Graham, and Miller "teach that in imposing a State's harshest penalties, a sentencer misses too much if he treats every...
