Litton, Paul, Missouri Law Review
In June 2012, the Supreme Court of the United States decided Miller v. Alabama, holding that the Eighth Amendment prohibits mandatory sentences of life without parole (LWOP) for juveniles, regardless of the crime committed.* 1 Miller represents the fifth time since 2002 that the Supreme Court invoked the Eighth Amendment to bar a punishment for a class of offenders based on cither offender characteristics or the particular crime. (2) Three of those five decisions pertain to juveniles, prohibiting the death penalty, (3) LWOP for non-homicide offenders, (4) and mandatory LWOP. (5) The Miller opinion raises many important matters: practical issues for lower courts in the twenty-nine affected jurisdictions that had authorized mandatory LWOP for juveniles; challenges for attorneys representing juveniles charged with homicide; moral and policy questions for legislators who should reform their states' juvenile justice systems; and questions regarding the future of the Supreme Court's Eighth Amendment jurisprudence.
In March 2013, the Missouri Law Review brought together an outstanding group of scholars and attorneys to address sentencing law issues stemming from Miller. Our first panel explored constitutional questions, ranging from the desirability of the opinion itself to its potential implications for individualized adult sentencing. A common theme of these presentations was the Court's methodology in conducting Eighth Amendment proportionality analyses, with specific focus on the role of "objective indicia" of evolving standards. Presenters on our second panel, who are all involved in post-Miller litigation, focused on relevant practical issues facing state courts and legislatures, including here in Missouri: Are lower courts applying Miller retroactively? What challenges will defense attorneys face in trying to demonstrate that their clients are capable of reform? (6) What alternatives to juvenile LWOP are acceptable? Our third and final panel's charge was broader, discussing policy considerations for juvenile justice reform more generally.
Part II of this Foreword briefly addresses one open constitutional question in the wake of Miller: in light of its rationale, is juvenile LWOP--whether mandatory or the result of an individualized sentencing process--constitutionally permissible? I argue that the Miller opinion itself is incoherent insofar as it permits juvenile LWOP as a constitutionally viable sentence. Part III provides a short synopsis of the controversy among Justices regarding the proper methodology for Eighth Amendment proportionality analyses. Then, with particular attention to the authors' different takes on Miller's implications for methodology, Part III provides a guide to the symposium contributions focusing on the Eighth Amendment. Parts IV and V will then briefly summarize our symposium contributions focusing on sentencing policy more generally and on Missouri's juvenile justice system.
II. THE PERPLEXING RATIONALE OF MILLER V. ALABAMA AND THE FUTURE OF JUVENILE LWOP
The Supreme Court justified its holding by invoking two strands of precedent interpreting the Eighth Amendment's ban on excessive punishments. The first strand prohibits certain "sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty." (7) Two decisions specifically place limits on juvenile sentencing: Roper v. Simmons prohibits the death penalty for juveniles, (8) and Graham v. Florida forbids LWOP sentences for juvenile, non-homicide offenders. (9) Those opinions recognize that children are "constitutionally different from adults" because of their "diminished culpability and greater prospects for reform." (10)
The Court summoned a second strand of precedent based on its view that juvenile LWOP is "akin to the death penalty." (11) By comparing juvenile LWOP to execution, the Court invoked its capital jurisprudence, which prohibits mandatory death sentences. …