2016] THE MILLER REVOLUTION 1789
recent decision in Miller v. Alabama, where the Court held that the Eighth
Amendment prohibits mandatory life without parole (“LWOP”) sentences for
juveniles—even those convicted of homicide.3 Following Roper v. Simmons4
and Graham v. Florida,5 Miller was the last of three recent Supreme Court cases
dealing with juvenile sentencing.6 Together these cases—which I refer to as
the Miller trilogy—stand for the proposition that children are constitutionally
different for sentencing purposes, and state practices must reflect that fact.
This Article maintains that Miller was a revolutionary decision and that it
portends a tremendous shift in juvenile justice policy and practice.7 Some
scholars and advocates have begun to recognize the outer limits of the Miller
decision and have articulated expansive readings of the Miller trilogy. For
example, Professor Will Berry has argued that Miller’s call for individualized
sentencing for juveniles should apply to all instances where the defendant
faces a death-in-custody sentence.8 Professor Barry Feld has called for
legislation that would respond to Graham and Miller by imposing a categorical
“Youth Discount” at sentencing.9 Many have called for a re-examination of
juvenile justice practices across the board in the wake of Miller.10 The premise
of these arguments—that the language, logic, and science of the Miller
decision demand a capacious reading—is sound.
CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008) (questioning whether the Supreme
Court can bring about meaningful social change); Brian K. Landsberg, Enforcing Desegregation: A
Case Study of Federal District Court Power and Social Change in M acon County Alabama, 48 LAW & SOC’Y
REV. 867 (2014) (suggesting that despite judicial constraints courts can generate social reform);
Mark Tushnet, Some Legacies of Brown v. Board of Education, 90 VA. L. REV. 1693 (2004)
(suggesting that the Court can articulate powerful principles of social reform despite constraints
imposed on the judicial branch).
3. Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).
4. Roper v. Simmons, 543 U.S. 551 (2005).
5. Graham v. Florida, 560 U.S. 48 (2010).
6. The Court also dealt with the retroactivity of Miller in its recent decision, Montgomery v.
Louisiana, but I refer to the Miller trilogy in this Article as the three cases that dealt with
constitutional sentences for juveniles on the merits. See Montgomery v. Louisiana, 136 S. Ct. 718,
736 (2016) (holding that Miller is retroactively applicable).
7. In the wake of Miller, courts and scholars have grappled with the often-messy questions
of implementation: Is Miller retroactive? Are life sentences or de facto life sentences also within
the purview of Graham and Miller? How do states that long ago abolished parole afford juveniles
relief under Graham and Miller? These questions are vitally important, and I have weighed in on
some of them in prior works. See generally Cara H. Drinan, Graham on the Ground, 87 WASH. L.
REV. 51 (2012); Cara H. Drinan, Misconstruing Graham & Miller, 91 WASH. U. L. REV. 785
(2014). They are not, however, the focus of this Article.
8. William W. Berry III, The Mandate of Miller, AM. CRIM. L. REV., Spring 2014, at 345.
9. Barry C. Feld, Adolescent Criminal Responsibility, Proportionality, and Sentencing Policy:
Roper, Graham, Miller/Jackson, and the Youth Discount, 31 LAW & INEQ. 263, 264 (2013).
10. See, e.g., Elizabet h S. Scott, “Children are Different”: Constitutional Values and Justice Policy,
11 OHIO ST. J. CRIM. L. 71, 73 (2013); see also id. at 75 (argu ing tha t “[t]he recent Supreme Court
opinions reinforce [a] developmental approach [to youth crime regulation] and elevat e its
stature to one grounded in constitutional principle”).