Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama

27 Pages Posted: 19 Mar 2015

See all articles by Jennifer Breen

Jennifer Breen

Cornell University - Law School

John R. Mills

Phillips Black Project

Date Written: March 17, 2015


Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system. This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing. This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”

After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process. These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller. This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing.

Suggested Citation

Breen, Jennifer and Mills, John R., Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama (March 17, 2015). American Criminal Law Review, Vol. 52, No. 2, 2015. Available at SSRN:

Jennifer Breen

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

John R. Mills (Contact Author)

Phillips Black Project ( email )

United States


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