The Miller Trilogy and the Persistence of Extreme Juvenile Sentences

THE MILLER TRILOGY AND THE PERSISTENCE OF EXTREME

JUVENILE SENTENCES

Cara H. Drinan*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1659

I. THE MILLER TRILOGY AND ENSUING REFORMS . . . . . . . . . . . . . . . . . . . 1660

II. TRANSFER LAWS AND MANDATORY SENTENCING AS THE PERFECT STORM

FOR KIDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1663

A. Transfer Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1664

B. Mandatory Minimums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1665

C. The Perfect Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1666

III. THE CASE FOR STRIKING DOWN TRANSFER LAWS AND MANDATORY

SENTENCING OF MINORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1667

A. Transfer Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1667

1. Some Precedent for Successful Challenges to Juvenile

Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1668

2. The Majority Approach Is Outdated. . . . . . . . . . . . . . . . . 1670

3. New Challenge Rooted in the Eighth Amendment . . . . . . 1672

B. Mandatory Minimums as Applied to Youth . . . . . . . . . . . . . . . 1678

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1682

INTRODUCTION

In a series of Eighth Amendment cases referred to as the Miller trilogy,

1

the

Supreme Court signif‌icantly limited the extent to which minors may be exposed to

extreme sentences.

2

Specif‌ically, in this line of cases the Court abolished capital

punishment for minors and narrowed the instances when minors may be sentenced

to life without parole. Only minors convicted of homicide who are found to be “in-

corrigible” may now be subject to a death-in-custody sentence. In limiting extreme

sentences for youth in these ways, the Supreme Court relied upon the social and

medical science that demonstrates youth are simultaneously less culpable for their

acts and more amenable to rehabilitation than adults.

While the Miller trilogy has set in motion many signif‌icant juvenile justice

reforms, youth in America are still exposed to extreme sentences—sentences that

are disproportionate given the nature of the juvenile brain.

3

Two mechanisms

* Professor of Law, The Catholic University of America. © 2021, Cara H. Drinan.

1. This term refers to Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and

Miller v. Alabama, 567 U.S. 460 (2012).

2. See infra Part I.

3. In the wake of the Miller trilogy, it is also true that far too many minors continue to be exposed to life or

virtual life sentences. See generally Cara H. Drinan, The Future of Juvenile Life-Without-Parole Sentences, in

THE EIGHTH AMENDMENT AND ITS FUTURE IN A NEW AGE OF PUNISHMENT (Meghan J. Ryan & William W.

1659

operate to maintain this status quo.

4

First, automatic transfer provisions allow chil-

dren to be charged, tried, and convicted in criminal court as if they were adults.

This legal f‌iction f‌lies in the face of the science on which the Miller trilogy was

predicated. Second, once in adult court, youth are subject to mandatory sentencing

schemes that were drafted with adults in mind. Again, this automatic sentencing

without regard for the mitigating qualities of youth ignores the logic of the Miller

trilogy. Indeed, some courts have recognized the disconnect between the Supreme

Court’s declaration that “kids are different”

5

for sentencing purposes and the

ongoing use of automatic transfer provisions and mandatory sentencing schemes

for youth.

6

For the most part, though, courts view correction of these laws as purely

a legislative prerogative. In this Article, I argue that, in fact, there is a clear path

for courts to f‌ind both automatic transfer laws and mandatory minimums as applied

to youth unlawful after Miller.

This Article proceeds in three parts. Part I provides a brief overview of the Miller

trilogy and the reforms that this line of cases has set in motion over the last ten years.

Part II then discusses how the combination of automatic transfer provisions and man-

datory sentencing schemes operates to expose youth to extreme sentences notwith-

standing the Court’s recent case law holding that children are not “miniature adults.”

7

In Part III, I make the case that each of these mechanisms—transfer laws and manda-

tory minimums as applied to youth—are unconstitutional after Miller. Finally, by

way of conclusion, I address two recurring criticisms of this thesis.

I. THE MILLER TRILOGY AND ENSUING REFORMS

In the past, I have written extensively about the Miller trilogy cases, their meth-

odology, and their import.

8

Here, I address them brief‌ly only for purposes of con-

text. In 2005, the Supreme Court began to limit the states’ ability to impose on

Berry III eds., 2020) (exploring how the Miller trilogy has impacted juvenile life without parole sentencing but

not completely eliminated life and virtual life sentences for juveniles). In this Article, I am not focused on

juvenile life without parole (“JLWOP”) or its equivalent, but rather the more routine—but no less devastating—

instances when youth are subject to decade(s)-long sentences on a mandatory basis.

4. See infra Part II.

5. See Perry L. Moriearty, Miller v. Alabama and the Retroactivity of Proportionality Rules, 17 U. PA. J.

CONST. L. 929, 949 (2015) (stating that, with the Roper decision, “[t]he Court’s modern ‘kids are different’

jurisprudence was born”).

6. See infra Part III.

7. J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011) (holding that a child’s age is relevant to whether the

child was “in custody” and therefore entitled to Miranda protections).

8. See generally CARA H. DRINAN, THE WAR ON KIDS: HOW AMERICAN JUVENILE JUSTICE LOST ITS WAY 84–

96 (2017) (discussing Miller trilogy and subsequent promising legislative and judicial developments); Cara H.

Drinan, The Miller Revolution, 101 IOWA L. REV. 1787 (2016) [hereinafter Drinan, The Miller Revolution]

(discussing revolutionary changes to juvenile justice policy that are possible post-Miller); Cara H. Drinan,

Misconstruing Graham & Miller, 91 WASH. U. L. REV. 785 (2014) (discussing how state actors have failed to

comply with sentencing requirements imposed by the Graham and Miller rulings); Cara H. Drinan, Graham on

the Ground, 87 WASH. L. REV. 51 (2012) (discussing implications of Graham for inmates as well as criminal

justice reform more broadly).

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