Miller v. Alabama and the Retroactivity of Proportionality Rules

62 Pages Posted: 10 Apr 2015 Last revised: 11 Apr 2015

See all articles by Perry L. Moriearty

Perry L. Moriearty

University of Minnesota - Twin Cities - School of Law

Date Written: April 7, 2015


In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors. What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided. In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not. The Supreme Court is all but certain to decide the issue in the near future.

I make two primary arguments in this Article. The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.” The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee. As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality. I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of justice may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded. Proportionality rules should therefore be afforded something close to a presumption of retroactivity.

Keywords: juvenile, criminal, retroactivity, proportionality, Miller v. Alabama, Teague v. Lane, law, justice, sentencing

JEL Classification: K14

Suggested Citation

Moriearty, Perry Lane, Miller v. Alabama and the Retroactivity of Proportionality Rules (April 7, 2015). University of Pennsylvania Journal of Constitutional Law, Vol. 17, No. 4, 2015, Available at SSRN:

Perry Lane Moriearty (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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