The Retroactivity Roadmap

13 Pages Posted: 31 Oct 2015 Last revised: 3 Aug 2017

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: October 26, 2015


In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment. Three years later, the question remains whether the holding in Miller applies retroactively. As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural. Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective. This term, the Court will take up that question in Montgomery v. Louisiana.

This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics. This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content. As a result, Miller should apply retroactively. Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges. Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.

Keywords: LWOP, retroactivity, Miller, Montgomery, juveniles, parole, Eighth Amendment

Suggested Citation

Berry, William W., The Retroactivity Roadmap (October 26, 2015). 10 NYU Journal of Law & Liberty 179 (2016) (Symposium), Available at SSRN:

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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