Mandating discretion: juvenile sentencing schemes after Miller v. Alabama.

AuthorBreen, Jennifer S.


Miller v. Alabama established that "children are different" and it required profound changes in the way states adjudicate juveniles within the criminal justice system. (1) This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing. This holding demands individualized consideration of a child's age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: "[C]hildren are constitutionally different from adults for purposes of sentencing." (2)

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process. These states are outliers and defy both the national consensus on juvenile adjudication and the Court's mandate in Miller. This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing.


In Miller v. Alabama, the United States Supreme Court held for the first time that "children are different" and, therefore, require "individualized consideration" of their age before sentencing. (3) The Court's narrow holding was that the Eighth Amendment bars mandatory sentences of life without parole for persons under the age of eighteen at the time of their crimes. (4)

Miller was one of four recent cases that demonstrate increased sensitivity to how the unique attributes of youth affect juveniles' interaction with the criminal justice system and invoke either the Fifth or Eighth Amendments. In the cases addressing the Eighth Amendment, the Court held that states must take account of the fact that juveniles' culpability and potential for rehabilitation is categorically different than adults. As a result, the Court held in each case that the standard penological justifications for punishment simply do not make sense when applied to juveniles. In the lone Fifth Amendment case, the Court acknowledged juveniles' unique vulnerabilities to situations beyond their control and accordingly demanded greater procedural protections for juvenile defendants. In each of the cases, the Court broke new ground in providing more robust procedural and substantive protections for juveniles.

The Miller decision changes juvenile sentencing in ways that are different in kind from these earlier precedents. In Miller, the Court established a special right for children, namely, individualized consideration of their age in crafting a sentence. The Court embraced the principle that children are different, and therefore worthy of special treatment at sentencing. The Court's reasoning relies on its "death is different" jurisprudence regarding the death penalty, yet even that line of cases has limited application to the holding of Miller because the vulnerabilities of childhood provide the only distinction between Miller and other relevant case law on sentencing. Put another way, Miller creates a set of rights for juveniles based on the young age of the offender, whereas the Court's "death is different" jurisprudence establishes rights based on the offense. Neither the sentence imposed nor its relationship to the crime charged (the traditional components of a proportionality analysis) marked this case as deserving of special treatment. (5) Yet the defendants in Miller did receive special treatment from the Court, for the simple yet profound reason that they are children, a distinction that now has new and broad significance for applications of the Eighth Amendment.

We believe that Miller establishes a new right for juvenile defendants; namely, that youth be taken into consideration as a factor in individualized sentencing. We argue further that a number of states currently employ sentencing schemes that are manifestly unconstitutional after Miller because they fail to take account of youth at any stage in the juvenile's adjudication. These state schemes, we argue, are unconstitutional under even a more narrow reading of the Miller holding than the one this Article offers.

This Article will proceed in several parts. Section I will establish the context of Miller, first by explaining how juvenile transfer into adult criminal court affects the children transferred, and then by providing an overview of recent Supreme Court case law addressing juveniles in the criminal justice system. (6) Section II explains why, after Miller, children are entitled to their own special category of analysis under the Eighth Amendment. Section III explores the current and future impact of Miller. Part A applies the Court's "objective indicia" approach to two types of sentencing schemes (including a comprehensive list of specific statutes) that are national outliers, contrary to the national consensus, and out of step with the Court's holding in Miller. Part B discusses several approaches that could replace these constitutionally insufficient approaches to juvenile sentencing. Finally, Part C suggests several reforms that might increase reliability in the adjudication process and thereby diminish the risk of arbitrary sentences imposed upon juvenile offenders.

There has been much debate regarding the significance of Miller and some of that debate will be addressed below. Miller presents a robust challenge to current systems of juvenile justice, with significant implications for children across the nation.


    Miller v. Alabama is the product of the intersection of a criminal justice system that regularly treats children as adults and a series of Supreme Court decisions challenging that practice. Accordingly, we preface our discussion of the significance of Miller with background on both how juveniles end up in adult court facing adult sentences and the key cases that preceded Miller.

    1. The Nuts and Bolts of Juvenile Transfer and Sentencing

      As an initial matter, children charged with criminal conduct are generally treated differently than adults. They are tried in specialized courts and provided protections that recognize the vulnerabilities of youth. They are also sentenced with a different set of interests in mind: juvenile courts recognize youth's greater capacity for rehabilitation and greater vulnerability to their circumstances. Thus, when crafting remedial action, juvenile courts are generally afforded much greater discretion than adult courts.

      1. The Recent History of Juvenile Sentencing

        This approach to juvenile justice is a legacy of Progressive Era reforms that embraced the idea that the goal of juvenile justice is rehabilitation, not punishment. (7) This Progressive Era version of the "children are different" approach to juvenile justice included an additional key difference between adult and juvenile justice: the procedural protections given to adults were not required for juvenile dispositions. (8) In this era, the basic procedural protections of our adversarial criminal justice system played no role in a system focused on how best to treat the child in need of help and rehabilitation. Perversely, the lack of procedural protections given to juveniles was intended to promote the rehabilitative, rather than punitive, goals of juvenile justice. (9)

        This approach to juvenile justice changed with the Supreme Court's decision in In re Gault, which reshaped the contours of juvenile adjudication. The Court held that juveniles are entitled to the basic requirements of due process. (10) Due process in a juvenile disposition required written notice of the basis of delinquency allegations, confrontation of witnesses against the juvenile, and advisement of the right to counsel and of their privilege against self-incrimination. (11) These due process requirements provided important basic procedural protections for adjudicated youth. But as the formerly stark procedural distinctions between juvenile and adult adjudications began to fade, the Court largely left states unsupervised in their reform efforts, even as many states dramatically shifted the purpose of juvenile justice from rehabilitation to punishment and sentenced juveniles to ever-harsher punishments. (12)

      2. Transfers from Juvenile Adjudication to Adult Courts with Adult Sentences

        Since In re Gault, states have enacted laws specifying the circumstances and methods by which juveniles may--or in many cases, must--be moved into adult court for trial and sentencing. (13) Once transferred to adult court, the juveniles are largely treated as adults. Many of these transfer provisions have been around for years, but the 1990s witnessed a boom in juvenile transfer as legislatures responded to an increase in juvenile crime with an expansion of the crimes and categories of juvenile offenders eligible for trial and sentencing in adult criminal court. (14) Between 1992 and 1999, "forty-nine states and the District of Columbia enacted or expanded their transfer provisions, meaning that state legislatures increasingly moved juvenile offenders into criminal court based on age and/or the seriousness of the offense charged." (15) As a result, tens of thousands of children each year are processed in adult criminal courts. (16) There have been further legislative changes to juvenile sentencing...

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