Resurrecting Arbitrariness

55 Pages Posted: 18 Oct 2021

See all articles by Kathryn Miller

Kathryn Miller

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: October 14, 2021


What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it shut.

Rather than restrict the discretion of a judge to throw away the key in sentencing child defendants, the Court in Jones increased that discretion. It recast Miller as a purely procedural decision that only required a barebones “consideration” of a defendant’s “youth and attendant circumstances” to fulfill its mandate of individualized sentencing. Jones further held that judges need not engage in any formal factfinding before sentencing a child to die in prison, which renders these sentences nearly unreviewable. This article argues that, through these two jurisprudential moves, Jones created conditions that will maximize arbitrary and racially discriminatory sentencing outcomes nation-wide, resembling the unconstitutional death sentences of the mid-twentieth century.

This article is the first to comprehensively analyze Jones, contending that the decision represents an embrace of unfettered discretion in the sentencing of children facing life without parole. Given the Supreme Court’s gutting of the Eighth Amendment, I contend that state solutions are the way forward. I pro-pose that states join the national trend of abandoning life without parole sentences for children. Short of abolishing the sentence, I offer three procedural interventions. First, states should enact “genuine narrowing” requirements that establish criteria designed to limit eligibility for life without parole sentences for children to the theoretical “worst of the worst.” While inspired by the narrowing requirement in capital sentencing, “genuine narrowing” relies on meaningful and concrete criteria that seek to achieve the mandate of Miller that such sentences be uncommon. Second, states should require jury sentencing, which ensures that sentences will be imposed by multiple, and typically more diverse, voices than what currently occurs with judicial sentencing. Third, states should go beyond merely telling sentencers to take youth into ac-count in their sentencing decisions, but should instead inform them that the characteristics of youth are “mitigating as a matter of law,” and when pre-sent, must weigh against an imposition of life without parole.

Keywords: jones v. mississippi, eighth amendment, discretion, children, jlwop, miller v. alabama, children are different, jury sentencing, mitigation as a matter of law, narrowing requirement, individualized sentencing, arbitrariness, racial discrimination, life without parole, capital punishment, death is di

Suggested Citation

Miller, Kathryn, Resurrecting Arbitrariness (October 14, 2021). Cornell Law Review, Forthcoming, Available at SSRN:

Kathryn Miller (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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