Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama

Frank O. Bowman III

University of Missouri School of Law

Missouri Law Review, Vol. 78, 2013
University of Missouri School of Law Legal Studies Research Paper No. 2014-05

This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, U.S., 132 S.Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).

Miller and Graham v. Florida, U.S., 130 S.Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.

This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.

Number of Pages in PDF File: 28

Keywords: Juvenile sentencing, juvenile life without parole, LWOP, juvenile LWOP, criminal sentencing, Miller v. Alabama, Graham v. Florida, eighth amendment, cruel and unusual punishment

JEL Classification: K14, K42, K10

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Date posted: January 4, 2014 ; Last revised: January 22, 2014

Suggested Citation

Bowman III, Frank O., Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama. Missouri Law Review, Vol. 78, 2013; University of Missouri School of Law Legal Studies Research Paper No. 2014-05. Available at SSRN: https://ssrn.com/abstract=2372364

Contact Information

Frank O. Bowman III (Contact Author)
University of Missouri School of Law ( email )
Missouri Avenue & Conley Avenue
Columbia, MO 65211
United States
573-882-2749 (Phone)

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