Life After Miller: Retroactive Sentencing and the Rare Juvenile

Photo Credit: Associated Press, apnews.com

Written by: Kimberly Fasking
Member, American Journal of Trial Advocacy

In 2006, Evan Miller was convicted of a crime he had committed just three years prior, at the age of fourteen.[1] He and a friend had robbed, beaten, and killed his mother’s drug dealer after an evening drinking and smoking marijuana with the victim.[2] Miller was convicted of murder, and he was sentenced to life without the possibility of parole, the mandatory sentence in the state of Alabama at the time for such an offense.[3] Miller’s case made its way up to the Supreme Court of the United States, which had recently been indirectly effectuating progressively more merciful sentencing for juvenile offenders by holding that certain sentences were unconstitutional violations of the Eighth Amendment.[4] In 2005, the Court held that capital punishment for juveniles was unconstitutional and in 2010 held as unconstitutional life without parole for juveniles who committed offenses that did not involve homicide.[5] In Miller’s case, the Court ultimately held that mandatory sentences for juveniles of life without parole, for any offense, violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[6] 

The “Rare” Juvenile

Although the Court held that sentencing of juveniles to life without parole was not unconstitutional in all cases, it identified a number of individual factors that should be evaluated during the sentencing process in order to appropriately sentence each juvenile and keep life without parole sentences rare.[7] The Court stated that “the right not to be subjected to excessive sanctions[8] . . . flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ to both the offender and the offense.”[9] In an effort to tailor sentences appropriately to juveniles, the Court stated that courts should recognize that “juveniles have diminished culpability and greater prospects for reform,” and therefore “they are less deserving of the most severe punishments.”[10] The Court further held that, although a life sentence without parole could potentially be appropriately applied to juvenile offenders in homicide cases, the cases where such a sentence would be appropriate were certainly rare, and there were several “Miller factors,” as they came to be known, which a judge would be required to take into account before imposing such a sentence on a juvenile.[11] These factors include age of the offender, his role in the crime, and his background and upbringing.[12] In Evan Miller’s case, these factors could have included his mother’s drug use, the beatings he endured at the hands of his stepfather, his stints in and out of foster care, and his multiple suicide attempts which began at age six.[13] 

Retroactive Application and Resentencing

At the time of the decision in Miller, twenty-nine states had laws which mandated life without parole for juveniles convicted of murder.[14] There were more than 2,500 inmates across the country sentenced under these guidelines, 79 of whom were 14 or younger at the time of their sentencing.[15] In 2015, the Alabama Supreme Court held in a 7-2 decision in Ex Parte Williams[16] that Miller did not have to be applied retroactively.[17] The court reasoned that the new rule announced in Miller was procedural and not substantive, and that because only substantive rules must be applied retroactively, juveniles sentenced prior to Miller were not entitled to resentencing.[18] The Supreme Court of the United States later overturned that decision in Montgomery v. Louisiana,[19] holding that “courts must give retroactive effect to . . . substantive rules of constitutional law”[20] such as “rules prohibiting a certain category of punishment of a class of defendants because of their status or offense.”[21] The Court further held that Miller “announced a substantive rule of constitutional law, which, like other substantive rules, is retroactive because it ‘necessarily carr[ies] a significant risk that a defendant faces a punishment that the law cannot impose upon him.’”[22] Juveniles serving mandatory life sentences must either be granted a resentencing hearing which includes evaluation of the “Miller factors” or be allowed to be eligible for parole.[23] Since the Court clarified in Montgomery that Miller should be applied retroactively, there is a backlog of offenders languishing under their unconstitutional sentences while courts and legislatures decide how to proceed.[24] Some juvenile offenders have had their sentences converted due to statute changes or resentencing hearings, while others must petition for and await their hearings.[25] 

Moving Forward

While the court in Miller reiterated that sentencing should distinguish between those juveniles who are simply immature and make bad decisions from “the rare juvenile offender whose crime reflects irreparable corruption,” progress in adjusting sentences has varied widely among the states.[26] For instance, Arkansas enacted a new law which banned life without parole sentences altogether for juveniles.[27] Alabama instituted a new sentencing option for juveniles which offered parole after thirty years, but a sentence of life without parole is still available.[28] Iowa’s Governor commuted all juvenile life without parole sentences to sixty years without parole and no credit for time served, but these sentences were also unconstitutional, as they amounted to defacto life without parole sentences for certain offenders.[29] Although parole is technically available in Missouri, the parole board has denied parole to 20 of 23 juvenile offenders.[30] In Louisiana, despite the prohibition on life without parole being a mandatory sentence, over eighty percent of juvenile offenders convicted of homicide have been sentenced to life without parole– a clear contradiction to the Miller court’s holding that the “appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.”[31] It appears that, until the Supreme Court finds a sentence of life without parole unconstitutional in all instances for every juvenile, states will have the discretion to define “uncommon” and “rare” as they please, and some will continue to throw away the proverbial key on their young people forever.


[1] Beth Schwartzapfel, Was Evan Miller “The Rare Juvenile” Who Deserved Life Without Parole?, The Marshall Project, (Mar. 12, 2017, 10:00 PM), https://www.themarshallproject.org/2017/03/12/was-evan-miller-the-rare-juvenile-who-deserved-life-without-parole.

[2] Id.

[3] Kent Faulk, Evan Miller, The Alabama Inmate Whose Case Became Precedent for Juvenile Sentencing, Set for Hearing, AL.com, Mar. 11, 2017, http://www.al.com/news/birmingham/index.ssf/2017/03/evan_miller_the_alabama_inmate.html.

[4] Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting capital punishment for juveniles); Graham v. Florida, 560 U.S. 48 (2010) (prohibiting life without parole for juveniles who did not commit homicide).

[5] Graham, 560 U.S. at 82.

[6] Gretchen Gavett and Sarah Childress, Supreme Court Bans Mandatory Life Terms for Kids: What it Means, PBS, June 25, 2012, https://www.pbs.org/wgbh/frontline/article/supreme-court-bans-mandatory-life-terms-for-kids-what-it-means/.

[7] Kristina E. Music Biro, et. al., Life sentence as constituting cruel and unusual punishment—Life without parole for juveniles, 21A Am. Jur. 2d Crim. Law § 878 (2018).

[8] Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting Roper, 543 U.S. at 560).

[9] Id. (quoting Weems v. United States, 217 U.S. 349, 367 (1910)).

[10] Id. at 471.

[11] Schwartzapfel, supra note 1.

[12] Sara E. Fiorillo, Note, Mitigating after Miller: Legislative Considerations and Remedies for the Future of Juvenile Sentencing, 93 B.U. L. Rev. 2095, 2107 (2013); see, e.g., Ex parte Henderson, 144 So.3d 1262, 1284 (Ala. 2013).

[13] Schwartzapfel, supra note 1.

[14] Supreme Court Rules Against Mandatory Life without Parole for Children, ACLU (June 25, 2012), https://www.aclu.org/news/supreme-court-rules-against-mandatory-life-without-parole-children?redirect=criminal-law-reform/supreme-court-rules-against-mandatory-life-without-parole-children.

[15] Gavett, supra note 6.

[16] 183 So.3d 220, 222 (Ala. 2015).

[17] Id. at 221.

[18] Id. at 230-31.

[19] 136 S.Ct. 718, 724 (2016).

[20] Id. at 723.

[21] Id. (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)).

[22] Id.  at 724 (quoting Schriro v Summerlin, 542 U.S. 348, 352 (2004)).

[23] Id.

[24] Juvenile Life without Parole Sentences in the United States, Juvenile Sentencing Project, Quinnipiac School of Law, https://www.juvenilelwop.org/wp-content/uploads/June%202017%20Snapshot%20of%20JLWOP%20Sentences_01.pdf, June 28, 2017.

[25] Id.

[26] Miller, 567 U.S. at 479-80 (quoting Roper, 543 U.S. at 573).

[27] 50-state examination, Locked Up for Life, Associated Press,  https://www.ap.org/explore/locked-up-for-life/50-states, July 31, 2017.

[28] Alabama grapples with new juvenile sentencing rule, Associated Press, https://www.montgomeryadvertiser.com/story/news/2017/07/31/alabama-grapples-new-sentencing/524455001/, July 31, 2017, 7:56 AM.

[29] State v. Zarate, 2018 Iowa Sup. Lexis 23, *5-6.

[30] Sharon Cohen and Adam Geller, Parole for young lifers inconsistent across US, Associated Press, https://apnews.com/a592b421f7604e2b88a170b5b438235f, July 31, 2017.

[31] Marsha Levick, 5 Years After Miller v. Alabama, Looking to the States for Justice, https://www.huffingtonpost.com/entry/five-years-after-miller-v-alabama-looking-to-the_us_59554ec3e4b0326c0a8d0ec3, 6/29/17, 3:05 PM ET; Miller v. Alabama, 567 U.S. 460, 479 (2012).

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