The Miller Revolution

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 following individuals: Nancy Hoeffel, Lea Johnston, Andrew Ferguson, and Megan La Belle. Megan Chester and Homer Richards provided valuable research assistance. 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. G ENERAL O VERVIEW OF J UVENILE J USTICE ............................... 1791 B. J UVENILE T RANSFER L AW : K IDS IN A DULT C OURT ................... 1792 C. D ETERMINATE S ENTENCING S CHEMES : A P ARALLEL T REND .... 1794 III. THE M ILLER TRILOGY ................................................................. 1795 A. T HE MILLER T RILOGY : ROPER, GRAHAM & MILLER ............ 1795 B. C OURTS S HOULD R EAD MILLER C APACIOUSLY ....................... 1799 IV. THE M ILLER REVOLUTION UNDERWAY AND ON THE HORIZON .. 1803 A. T HE MILLER R EVOLUTION U NDERWAY .................................. 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. T HE MILLER R EVOLUTION ON THE H ORIZON ......................... 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 debate 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. Simmons 4 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 Macon 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. , Elizabeth S. Scott, “Children are Different”: Constitutional Values and Justice Policy , 11 OHIO ST. J. CRIM. L. 71, 73 (2013); see also id. at 75 (arguing that “[t]he recent Supreme Court opinions reinforce [a] developmental approach [to youth crime regulation] and elevate its stature to one grounded in constitutional principle”). 1790 IOWA LAW REVIEW [Vol. 101:1787 In this Article, I build upon these arguments and identify truly revolutionary changes in juvenile justice policy and practice that are possible post- Miller . Some of these changes are already underway. For example, one state supreme court has banned mandatory sentences for juveniles across the board—an unthinkable action even as recently as the late 20th century. 11 Other changes are nascent and demand greater exploration so that they can be pursued in the years to come, including repealing mandatory juvenile transfer laws and overhauling juvenile conditions of confinement. This Article proceeds in three Parts. Part II demonstrates how this nation went from being the leader in progressive juvenile justice to being an international outlier in the severity of its juvenile sentencing. In answering this question, Part II traces the development of mandatory juvenile sentences in this country and identifies two forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes. Part III examines the Miller decision and the cases immediately preceding it at a granular level and explains why Miller demands a...