Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity

9 Pages Posted: 26 Jul 2015

Date Written: July 24, 2015


Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.

Keywords: Miller v. Alabama; retroactive; juvenile; LWOP; criminal sentencing

Suggested Citation

Caldwell, Beth C., Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity (July 24, 2015). Harvard Law & Policy Review, Vol. 9, 2015; Southwestern Law School Research Paper No. 2015-17. Available at SSRN:

Beth C. Caldwell (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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