Giving Juveniles Another Chance: The Present and Potential Retroactive Impact of Miller v. Alabama

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In June 2012, the U.S. Supreme Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles convicted of murder are unconstitutional.  Writing for the majority in a 5-4 decision, Justice Kagan explained that imposing such mandatory sentences on adolescents, who tend to have “diminished culpability and greater prospects for reform,”⁶1 constitutes cruel and unusual punishment.

The ruling struck down compulsory sentencing statutes in 29 states.  More importantly, it leaves more than 2,500 inmates across the country perplexed as to what the decision means for them.

The Court’s decision follows several recent judgments lessening the severity of juvenile punishment.  These rulings have established that “children are constitutionally different from adults for purposes of sentencing.” ⁷  In 2005, the Court held in Roper v. Simmons that it constitutes cruel and unusual punishment to impose the death penalty for crimes committed when the perpetrator was under the age of 18.  In Graham v. Florida, decided in 2010, the Court ruled that sentencing juveniles to life in prison without the possibility of parole for non-homicide offenses similarly violates the Eighth Amendment’s protection from cruel and unusual punishment.

Though these decisions laid the foundation for the Court’s latest ruling, the holding in Miller is much narrower.  The previous cases forbid certain punishments under any circumstances, whereas Miller merely prohibits a mandatory sentence of life without parole.  In other words, states can still impose life-without-parole sentences upon juvenile murderers, but they must meet new procedural requirements of individualized sentencing, which will incorporate consideration of the mitigating qualities of youth.

The Miller decision not only necessitates legislative reform within states that currently have such mandatory sentences for juveniles, but also calls into question the fate of thousands of prisoners across the country sentenced by prior statutes now ruled unconstitutional.

In Pennsylvania, for example, anyone indicted for murder is automatically charged as an adult, and a first- or second-degree murder conviction would have previously imposed a mandatory life-without-parole sentence.  Pennsylvania is one of the 29 states that will have to modify its juvenile sentencing structure, and currently has an estimated 500 juvenile “lifers” in its prison system.  This represents one-fifth of such juveniles nationwide.

According to Pennsylvania juvenile advocates, most of the state’s 500 juvenile lifers filed for reconsideration of their sentences following the Miller decision in June.  On September 12, Pennsylvania’s Supreme Court justices heard advisory arguments concerning how the state should respond to the appeals.  Although the court has not yet resolved the issue, and is unlikely to do so for months, the arguments shed light on both sides of the controversy.

Pennsylvania prosecutors maintain that the high court should simply do nothing.  After all, the Miller decision did not ban life imprisonment, only a mandatory sentence of life imprisonment.  Others, including leaders from conservative think tank The Heritage Foundation, likewise contend that the Court’s holding was merely a procedural change and would therefore not apply retroactively. ⁸

On the other hand, juvenile advocates argue that the Miller decision constitutes a substantive change in the law that necessitates retroactive application.  Erwin Chemerinsky, a Distinguished Professor of Law and expert in constitutional law, agrees with this conclusion.  Chemerinsky recently opined in an American Bar Association journal article that the holding that the government cannot constitutionally impose a punishment is a “substantive change in the law that puts matters outside the scope of government’s power.” ⁹  Accordingly, Chemerinksy claims the holding should apply retroactively.

In support of this argument, advocates point to the unfairness of imprisoning adolescents for life based merely on the unfortunate timing of their trial.  A prime example is the case of Joseph Frisina, who was charged with shooting his stepfather in 1977, at the age of 16.  Frisina is now 51 and serving his life sentence at a Pennsylvania correctional institute.

Much of the analysis in Miller and the preceding juvenile sentencing decisions drew from empirical data on juvenile brain development.  Citing Roper, Justice Kagan wrote, “psychology and brain science continue to show fundamental differences between juvenile and adult minds” making their actions “less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” ¹⁰  This reflects the spirit of the Court’s ruling, giving juveniles an opportunity for redemption—a chance to reenter society following rehabilitation.

It is hard to reconcile a decision that deems it cruel and unusual punishment to mandatorily sentence juveniles to life without parole based on their lack of development with a refusal to apply the decision retroactively.  As Jon Powell, Professor of Law and Director of the Juvenile Justice Project at Campbell University School of Law said, “Juveniles can still be good citizens within prison, but what we really want from our justice system is for it to return productive citizens back into our communities.”