For the better part of a decade, life without the possibility of parole (“LWOP”) has been the United States’ harshest constitutional penalty for juvenile crimes. Recently, the Supreme Court has begun to subject juvenile LWOP sentences to significant Eighth Amendment scrutiny. In Graham v. Florida, the Court held that imposing LWOP for juvenile acts not amounting to homicide violates the Cruel and Unusual Punishments Clause. Juveniles, Justice Kennedy explained, “are less deserving of the most severe punishments” because the realities of childhood and lack of maturity in adolescence make them categorically less culpable than adults for the same conduct.
Notwithstanding its seemingly universal language about juvenile culpability, Graham’s insistence on distinguishing between homicide and non-homicide crimes meant that, by the summer of 2012, there were still roughly 2,500 prisoners in the United States serving LWOP for homicides they committed as juveniles. Miller v. Alabama, decided in June 2012, gave some of these prisoners a measure of hope. In Miller, the Court announced “children are different” and, consequently, the Eighth Amendment prohibits mandatory LWOP for juvenile homicide offenders. Writing for a 5–4 majority, Justice Kagan drew a direct analogy between juvenile LWOP and the death penalty. Justice Kagan concluded that juvenile LWOP sentences, like death sentences, may not be imposed without an individualized sentencing determination.
In the wake of Miller and Graham, some commentators have suggested that we now live under a “new” Eighth Amendment, one where judicial scrutiny has finally slipped the shackles of the “death is different” doctrine and where proportionality could have serious teeth in non-capital cases. Certainly, these cases give cause for some optimism. Prior to Graham, the Supreme Court had never categorically invalidated a sentence other than death under the Cruel and Unusual Punishments Clause. In just over two years, the Court did it twice.
At the same time, Miller’s reasoning should give pause to those seeking to eradicate juvenile LWOP entirely and to bring the United States in line with international standards of juvenile justice. Like Graham, Miller presented a chance for the Court to unveil the blanket prohibition on juvenile LWOP many advocates seek. And, again, it became a chance not taken. Instead, the Miller Court stepped away from the traditional Eighth Amendment decency analysis, entirely neglected the international community, and lashed juvenile LWOP to the death-penalty mast. In so doing, the Court signaled that a comprehensive Eighth Amendment bar against all juvenile LWOP sentences is still a long way off.
This Note attempts to situate Miller within the Court’s recent juvenile sentencing jurisprudence and predict its trajectory. Part II tells a condensed story of United States juvenile sentencing law and traces its customary decency analysis through the Court’s recent decisions. Part III surveys the Miller decision and analyzes its reasoning. Part IV explores Miller’s wholesale omission of international law and opinion, arguing that the Court could have (and perhaps should have) relied upon an emerging jus cogens norm against juvenile LWOP to strike down all such sentences. Finally, Part V discusses the possible ramifications of Miller’s holding and reasoning for efforts to abolish juvenile LWOP. This Note reluctantly concludes that advocates may want to devote less time and energy to the constitutional litigation that has served them so well up to this point.