Life After Miller: Retroactive Sentencing and the Rare Juvenile

Photo Credit: Associated Press,

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),

[2] Id.

[3] Kent Faulk, Evan Miller, The Alabama Inmate Whose Case Became Precedent for Juvenile Sentencing, Set for Hearing,, Mar. 11, 2017,

[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,

[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),

[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,, 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,, July 31, 2017.

[28] Alabama grapples with new juvenile sentencing rule, Associated Press,, 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,, July 31, 2017.

[31] Marsha Levick, 5 Years After Miller v. Alabama, Looking to the States for Justice,, 6/29/17, 3:05 PM ET; Miller v. Alabama, 567 U.S. 460, 479 (2012).


Photo Credit:

By: Nick Jackson

Associate Editor, American Journal of Trial Advocacy


In January 2019, Brett Kavanaugh, a newly confirmed justice on the Supreme Court of the United States, delivered his first opinion, one that was unanimously confirmed by the Court.[1] In Henry Schein, Inc. v. Archer and White Sales, Inc.,[2] the Court overturned the Fifth Circuit’s interpretation of the Federal Arbitration Act, stating “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.”[3] In recent years, arbitration agreements have become a controversial aspect of the American legal system.[4] Accordingly, many individuals have brought forth challenges to contest unfavorable arbitration results.[5] One of the most criticized aspects of arbitration deals with forced arbitration agreements.[6] However, the controversial nature of arbitration agreements has failed to limit their use in industries where the use of arbitration is increasing such as the credit card, banking, insurance, and mobile phones services industries.[7]

Recently, the popularity of arbitration has expanded rapidly.[8] This increase in popularity is largely due to “the judiciary’s modern favorable attitude toward enforcement of arbitration clauses.”[9] However, many legal scholars have criticized the role of arbitration in the American legal system by stating, “the Supreme Court [has] engaged in improper judicial activism by misinterpreting the Federal Arbitration Act of 1926 to create a national rule of arbitration clause enforceability that outstripped any reasonable view of the intent of the enacting Congress.”[10] Controversial nature aside, arbitration agreements have seen a great deal of bi-partisan support from both the conservative wing and the liberal wing of the Supreme Court.[11] The bi-partisan support of arbitration agreements was further solidified when the Court unanimously upheld the Federal Arbitration Act in Henry Schein, Inc. v. Archer and White Sales, Inc.[12]


Archer & White Sales, Inc., filed a lawsuit against Henry Schein, Inc. alleging antitrust violations and seeking both money damages and injunctive relief.[13] However, both parties had previously agreed to a contract providing for “arbitration of any dispute arising under or related to the agreement, except for, among other things, actions seeking injunctive relief.”[14] At the district level, Schein asked the district court to refer the case to arbitration; however, Archer & White argued that the Federal Arbitration Act did not apply because it sought injunctive relief.[15] The district court agreed, holding that Schein’s argument for arbitration was “wholly groundless.”[16] Accordingly, the district court denied Schein’s motion to compel arbitration and the Fifth Circuit ultimately affirmed.[17]


 In deciding Schein, the Court rejected the Fifth Circuit’s “wholly groundless” argument by first recognizing that under the Federal Arbitration Act, arbitration is a contract and, thus, courts must enforce arbitration contracts according to their terms.[18] Accordingly, the Court held the parties to a contract “may agree to have an arbitrator decide not only the merits of a particular dispute, but also ‘gateway questions of arbitrability.’”[19] Thus, “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.”[20]

In challenging the Federal Arbitration Act, Archer & White brought forth four separate arguments which the Court rejected.[21] First, Archer & White contended that portions of the Federal Arbitration Act should be interpreted as stating that courts must always resolve questions of arbitrability.[22] However, following prior precedent, the Court rejected this argument.[23] Second, Archer & White contended the Federal Arbitration Act provides for “back-end judicial review” if an arbitrator has exceeded his or her powers; however, Archer & White sought “front-end review” and, thus, the Court denied to “redesign the Act.”[24] Third, Archer & White contended it would be a waste of resources to hire an arbitrator that ignores the Federal Arbitration Act’s ‘wholly groundless” exception; however, the Court held no such exception exists, stating “[t]his Court may not engraft its own exceptions onto the statutory text.”[25] Lastly, the Court rejected Archer & White’s argument that the exception is necessary to “deter frivolous motions to compel arbitration” by stating arbitrators are already capable of efficiently disposing of frivolous cases and that such motions have not caused issues in circuits not recognizing a “wholly groundless” exception.[26]


Controversial nature aside, the Court’s ruling in Schein further solidifies the Federal Arbitration Act and its implications. The bi-partisan support of arbitration agreements was further solidified in this unanimous decision and it further demonstrates that arbitration will likely be a major component of the American legal system for years to come.

[1] Adam Liptak, In His First Supreme Court Opinion, Justice Brett Kavanaugh Favors Arbitration, N.Y. Times(Jan. 8, 2019)

[2] 139 S. Ct. 524 (2019).

[3] Schein, 139 S. 526.

[4] See Gregg Bertram, Employment Arbitration: Controversy Unleashed, Pac. ADR Consulting (June, 6, 2018) (“It is no secret that arbitration has in general become a controversial alternative dispute resolution (ADR) process.”).

[5] Id.

[6] Id.

[7] Jason Cheung, Business use of Arbitration Clauses, LegalMatch (May, 2, 2018)

[8] Symposium, Keeping Arbitrations from Becoming Kangaroo Courts, 8 Nev. L. J. 251, 251 (2007).

[9] Id.

[10] Id.

[11] Stephen J. Ware, The Centrist Case for Enforcing Adhesive Arbitration Agreements, 23 Harv. Negot. L. Rev. 29, 32 (2017).

[12] 139 S. Ct. 524 (2019).

[13] Schein, 139 S. Ct. at 526.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Schein, 139 S. Ct. at 526. (internal quotations omitted).

[20] Id.

[21] Id.

[22] Id.

[23] Id.; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

[24] Id.

[25] Schein, 139 S. Ct. at 526.

[26] Id.