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Tuesday, August 12, 2014

Drinan on The Miller Revolution

Drinan caraCara H. Drinan (Catholic University of America (CUA)) has posted The Miller Revolution on SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles – even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago. 



This article proceeds in three parts. Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes. Part II is the heart of the article. It examines the Miller decision, as well as its immediate predecessor cases, at a granular level. Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date. Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others. In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty. Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller. Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.

http://lawprofessors.typepad.com/crimprof_blog/2014/08/drinan-on-the-miller-revolution.html

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