Cruel and Unusual Before and After 2012: Miller v. Alabama Must Apply Retroactively

Tracy A. Rhodes

In Miller v. Alabama, the United States Supreme Court declared that mandatory juvenile life without parole (“JLWOP”) sentencing schemes violated the Eighth Amendment's ban on cruel and unusual punishment. These schemes prohibited any discretion in sentencing and required “that each juvenile die in prison,” regardless of whether a defendant's “youth and its attendant characteristics, along with the nature of his crime,” made a less severe sentence more suitable. In the three years since Miller, state and federal courts have come to different conclusions about whether the Miller Court's ruling applies retroactively in the twenty-nine jurisdictions where mandatory JLWOP sentences were imposed. Approximately 2,500 juveniles had been sentenced under such schemes, and their lives hang in the balance as courts address the issue of retroactivity.

As one state supreme court noted, “[t]he primary point of dissension [regarding retroactivity] is whether the rule announced in Miller is substantive” or procedural. Retroactive application of Miller turns on this substantive/procedural dichotomy: if the rule is substantive, it must apply retroactively, but if the rule is procedural, it can only apply prospectively. Because Miller created a substantive rule, courts considering challenges to mandatory JLWOP sentences should apply Miller retroactively to prevent the injustices of upholding unconstitutional sentences previously imposed upon juveniles.