Miller v. Alabama appeared to strengthen constitutional protections for juvenile sentencing that the United States Supreme Court recognized in Roper v. Simmons and Graham v. Florida. In Roper, the Court held that executing a person for a crime committed as a juvenile is unconstitutional under the Eighth Amendment. 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. 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. 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,” with over 2,000 of them sentenced under a mandatory sentencing scheme. 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. 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. 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. 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.” 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.
Robert S. Chang, David A. Perez, Luke M. Rona, and Christopher M. Schafbuch, Evading Miller, 39 SEATTLE U. L. REV. 85 (2015).