The Miller Revolution

Author:Cara H. Drinan
Position::Professor of Law, Columbus School of Law, The Catholic University of America
Pages:1787-1832
SUMMARY

In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences. Scholars have addressed discrete components of these recent decisions, from their Eighth Amendment methodology to their effect upon state legislation. In this Article, I draw upon that scholarship to make a broader... (see full summary)

 
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A2_DRINAN (DO NOT DELETE) 7/4/2016 4:16 PM
1787
The Miller Revolution
Cara H. Drinan*
ABSTRACT: In a series of cases culminating in Miller v. Alabama, the
United States Supreme Court has limited the extent to which juveniles may be
exposed to the harshest criminal sentences. Scholars have addressed discrete
components of these recent decisions, from their Eighth Amendment
methodology to their effect upon state legislation. In this Article, I draw upon
that scholarship to make a broader claim: the Miller trilogy has revolutionized
juvenile justice. While we have begun to see only the most inchoate signs of
this revolution in practice, this Article endeavors to describe what this
revolution may look like both in the immediate term and in years to come. Part
II demonstrates how the United States went from being the leader in
progressive juvenile justice to being an international outlier in the severity of
its juvenile sentencing. Part III examines the Miller decision, as well as its
immediate predecessor cases, and explains why Miller demands a capacious
reading. Part IV explores the post-Miller revolution in juvenile justice.
Specifically, Part IV makes the case for two immediate groundbreaking
corollaries that flow from Miller: (1) the creation of procedural safeguards
for juveniles facing life without parole (“LWOP”) comparable to those
recommended for adults facing the death penalty; and (2) the elimination of
mandatory minimums for juveniles altogether. Part IV also identifies ways in
which juvenile justice advocates can leverage the moral leadership of the
Miller Court to seek future reform in three key areas: juvenile transfer laws;
presumptive sentencing guidelines as they apply to children; and juvenile
conditions of confinement.
Professor of Law, Columbus School of Law, The Catholic University of America. Many
people provided feedback on this Article, and I am grateful for their comments and suggestions .
In particular, I thank the participants in the Wisconsin Law Review Symposium, the faculty of the
Florida State Law School, where I workshopped this Article, as well as the f ollowing individuals:
Nancy Hoeffel, Lea Johnston, Andrew Ferguson, and Megan La Belle. Megan Chester and Homer
Richards provided valuable research assistance.
A2_DRINAN (DO NOT DELETE) 7/4/2016 4:16 PM
1788 IOWA LAW REVIEW [Vol. 101:1787
I. INTRODUCTION ........................................................................... 1788
II. THE ARC OF AMERICAN JUVENILE JUSTICE: FROM PROGRESSIVE
LEADER TO INTERNATIONAL OUTLIER........................................ 1790
A. GENERAL OVERVIEW OF JUVENILE JUSTICE ............................... 1791
B. JUVENILE TRANSFER LAW: KIDS IN ADULT COURT ................... 1792
C. DETERMINATE SENTENCING SCHEMES: A PARALLEL TREND .... 1794
III. THE MILLER TRILOGY ................................................................. 1795
A. THE MILLER TRILOGY: ROPER, GRAHAM & MILLER ............ 1795
B. COURTS SHOULD READ MILLER CAPACIOUSLY ....................... 1799
IV. THE MILLER REVOLUTION UNDERWAY AND ON THE HORIZON .. 1803
A. THE MILLER REVOLUTION UNDERWAY .................................. 1804
1. Miller Suggests a Wiggins Requirement for Juveniles
Facing LWOP ............................................................... 1804
i. Procedural Safeguards in the Death Penalty
Context .................................................................... 1805
ii. The Miller Court Treated LWOP Like a
Death Sentence for Kids ............................................ 1808
iii. Wiggins/Atkins/Ake for Kids ................................ 1810
2. Miller Signals the End to Juvenile Mandatory
Minimums .................................................................... 1816
i. The Spectrum of State Responses ............................... 1816
ii. Miller Precludes Mandatory Minimums
for Juveniles ............................................................. 1819
B. THE MILLER REVOLUTION ON THE HORIZON ......................... 1824
1. Juvenile Transfer Laws ................................................ 1825
2. Presumptive Sentencing Guidelines for Children .... 1826
3. Juvenile Conditions of Confinement ......................... 1828
V. CONCLUSION .............................................................................. 1831
I. INTRODUCTION
A juvenile justice revolution in America is underway. After decades of
increasingly punitive treatment of juveniles in our criminal justice system,1 the
tide is turning. Legislatures, courts and executive actors are reconsidering the
propriety of criminal laws as they apply to children in fundamental ways. In
one way or another,2 this revolution can be linked to the Supreme Court’s
1. See infra Part II.
2. There is great debat e over whether the Supreme Court can generate social change or
whether it responds to social change once it is underway. That debate is not the focus of my
Article. For a discussion of those issues see generally GERALD N. ROSENBERG, THE HOLLOW HOPE:
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 & SOCY
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”).

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