Juvenile Sentencing: Approaches After Miller

By: Kristin Godsey, L’18

In Miller v. Alabama, the Supreme Court held that mandatory life without parole sentences are unconstitutional for juvenile offenders because they violate the 8th Amendment.[1] Miller involved two cases where a fourteen-year-old was sentenced to a mandatory term of life without parole.[2] Both sentencing schemes at issue did not allow judges or juries to consider youthful factors and impose a lesser sentence.[3] Mandatory sentencing schemes, the Court noted, prevent the sentencer from assessing whether the punishment is proportional in comparison to the juvenile’s individual characteristics.[4] To remedy this problem, the Court mandated that a sentencer must consider the offender’s youth and attendant characteristics before imposing life without parole.[5]

Since Miller, the U.S. Juvenile Justice system has struggled with how to deal with juveniles at sentencing. Listed below are three approaches that states can implement in order to comply with the Supreme Court’s holding in Miller.[6]

1. ABA Approach

First, in 2008, the American Bar Association recommended that the government implement sentencing laws that followed three principles:

  • Sentences for youthful offenders should generally be less punitive than sentences for those age 18 and older who have committed comparable offenses;
  • Sentences for youthful offenders should recognize key mitigating considerations particularly relevant to their youthful status, including those found by the United States Supreme Court in Roper v. Simmons, as well as the seriousness of the offense and the delinquent and criminal history of the offender; and
  • Youthful offenders should generally be eligible for parole or other early release consideration at a reasonable point during their sentence; and, if denied, should be reconsidered for parole or early release periodically thereafter.[7]

Several states have implemented policies that are in line with these principles post-Miller. After Miller, at least twenty-six states have changed their laws for juvenile offenders convicted of homicide.[8] The new laws provide mandatory minimums from chance of parole after fifteen years to forty years.[9] However, thirty-two states still allow life without parole for juveniles.[10]United Nations Convention on the Rights of the Child

2. United Nations Convention on the Rights of the Child

Another solution, on a much larger scale, would be for the United States to fully adopt the United Nations Convention on the Rights of the Child (hereinafter “CRC”).[11] Although the United States is the only country in the world that sentences juvenile offenders to life without parole, it is progressively influenced by the CRC.[12] As of 2014, the U.S. and Somalia were the the only countries that had not yet ratified the convention.[13] The CRC expressly prohibits juvenile life without parole and requires due process protections for juveniles who commit crimes.[14] Further, the CRC states that juveniles should only be incarcerated with adults if it is “in the child’s best interest.”[15] In addition, incarceration should only be used as a last resort and for the shortest appropriate period of time.[16] Adopting the CRC would eliminate all life sentences without parole and de facto life sentences without parole.[17]

3. California Approach

Lastly, in 2014, California adopted a bill that would be more consistent with the CRC.[18] Cal. Penal Code § 2905 (hereinafter “Bill”) defines a “youthful offender” as someone under twenty-two years old committed to the Department of Corrections and Rehabilitation.[19] The Bill created a Youth Offender Institutional Classification Committee that helps youthful offenders be eligible for rehabilitative programming and lower security facilities.[20] This program was created to remedy the problem caused by juveniles being placed in adult prisons which deprived them of many educational, vocational, and rehabilitative opportunities.[21] It also helped the problem of youth being exposed to higher levels of violence.[22] According to some experts, juveniles petitioning for release under California’s Youth Offender Parole Hearings are twelve percent more likely to be released than at regular parole hearings.[23] This shows that the Youthful Offender Program provides for more realistic opportunities for release than programs in other states.[24] In addition, Missouri has a blended sentencing model which houses juvenile offenders in their own facility designed to offer rehabilitative opportunities.[25]

In conclusion, States have a variety of options when it comes to rethinking its approach to juvenile sentencing. By adopting one or more of the approaches above, States can comply with the principles set forth in Miller and provide juvenile offenders with the Eighth Amendment protections they deserve.[26]


[1] U.S. Const. amend. VIII; Miller v. Alabama, 132 S.Ct. 2455, 2464 (2012).

[2] Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012).

[3] Id.

[4] Id.

[5] Id. at 2471.

[6] Id. at 2460.

[7] Robert G. Schwartz, Age-Appropriate Charging and Sentencing, 27 Crim. Just. 49-54 (2012).

[8] Josh Rovner, Juvenile Life Without Parole: An Overview, The Sentencing Project, 4, http://www.sentencingproject.org/wp-content/uploads/2015/12/Juvenile-Life-Without-Parole.pdf (March 2017).

[9] Id.

[10] Id.

[11] Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 14 JIJIS 1 (2014).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 2.

[18] Id.

[19] Cal. Penal Code § 2905(a) (2016).

[20] Cal. Penal Code § 2905(b)-(d) (2016); See also Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 14 JIJIS 1, 7 (2014).

[21] Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 14 JIJIS 1, 7 (2014).

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Miller v. Alabama, 132 S.Ct. 2455, 2455 (2012).