Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases

17 Pages Posted: 24 Jan 2013

See all articles by Craig S. Lerner

Craig S. Lerner

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2012


In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held unconstitutional roughly 2,000 life-without-parole (LWOP) sentences, which had been imposed on juveniles by twenty-eight states and the federal government. The Miller Court held that the Eighth Amendment permits the imposition of LWOP on juveniles, but only after what it airily calls an “individualized sentencing.” Justice Kagan, writing for the majority, presents the decision as a modest one, and as an exercise of the judicial craft she is successful in deflecting some of the criticisms of the dissenting Justices, and in portraying the majority opinion as following ineluctably from precedent, principally Graham v. Florida, 130 S. Ct. 2011 (2010). Yet Graham suffers from the faulty premises that juveniles who commit heinous crimes are typical juveniles, and that they are categorically less culpable than young adult offenders. The Miller Court adopts and then compounds these errors. The Essay questions whether LWOP, as opposed to other harsh sentences, and juveniles, as opposed to young adult offenders, are really so distinct as to merit special constitutional treatment. The Essay also draws attention to some of the potential areas of uncertainty after Miller: the ambiguity as to what qualifies as “individualized sentencing”; the possible expansion of Miller’s exemption from mandatory sentencing to offenders who are not juveniles; and unresolved questions about the constitutionality of long prison sentences that are the practical equivalent of LWOP.

Keywords: Life without parole, LWOP, JLWOP, Eighth Amendment, Constitution, cruel, unusual, juvenile, minor, parole, sentencing, punishment, homicide, felony murder, brain, Miller v. Alabama, Graham v. Florida, Jackson v. Hobbs, Roper v. Simmons, Atkins v. Virginia

JEL Classification: K14

Suggested Citation

Lerner, Craig S., Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases (2012). George Mason Law Review, Vol. 20, No. 1, Fall 2012, pp. 25-40, George Mason Law & Economics Research Paper No. 13-07, Available at SSRN:

Craig S. Lerner (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics