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10 Harv. L & Pol'y Rev. Online S1 (2015-2016)

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                     Miller v. Alabama as a
                 Watershed Procedural Rule:
                 The Case for Retroactivity


                              Beth Caldwell*

                              INTRODUCTION

     Three years ago, in Miller v. Alabama, the Supreme Court ruled that
sentencing juveniles to life without parole (LWOP) under mandatory
sentencing schemes amounts to cruel and unusual punishment in violation of
the Eighth Amendment. 1 Under Miller, courts considering sentencing
juveniles-people under the age of eighteen when they committed a crime-
to LWOP must: (1) have a choice between imposing LWOP or some other
sentence; and (2) consider mitigating information relating to the offender's
age.2
     Over the past few years, courts have reached conflicting conclusions
regarding whether the rule the Supreme Court pronounced in Miller applies
retroactively to the cases of over 2,000 prisoners whose convictions were
final when the case was decided. The Supreme Court granted certiorari in
Montgomery v. Louisiana and is now poised to decide whether Miller must
apply retroactively.4
     The issue has primarily been framed as a question of whether the Miller
rule is substantive, and therefore retroactive, or procedural, and therefore not
retroactive. Twelve state supreme courts have held Miller to apply
retroactively; ten of them reached this conclusion on the grounds that Miller
created a new substantive rule.' The five states that have determined Miller

     * Associate Professor, Southwestern Law School.
     'Miller v. Alabama, 132 S. Ct. 2455 (2012).
     2 See id. at 2469 (holding the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders); id. at 2475
(requiring courts to consider mitigating evidence prior to imposing LWOP on a juvenile
offender).
     I Id. at 2477 (Roberts, C.J., dissenting) (The Court accepts that over 2,000 of those
prisoners [juveniles serving LWOP] received that sentence because it was mandated by a
legislature.).
     4 Montgomery v. Louisiana, 135 S. Ct. 1546 (2015) (granting petition for writ of
certiorari).
     5 New substantive rules generally apply retroactively. Schriro v. Summerlin, 542 U.S.
348, 352 (2004) (emphasis in original). The following states have concluded Miller is
retroactive because it is substantive: Florida, Illinois, Iowa, Mississippi, Massachusetts,
Nebraska, New Hampshire, South Carolina, Texas, and Wyoming. See Falcon v. State, 162
So. 3d 954 (Fla. 2015); People v. Davis, 6 N.E.3d 709 (Ill. 2014); State v. Ragland, 836
N.W.2d 107 (Iowa 2013); Diatchenko v. Dist. Attorney for Suffolk Dist., 1 N.E.3d 270 (Mass.
2013); Jones v. State, 122 So. 3d 698 (Miss. 2013); State v. Mantich, 842 N.W.2d 716 (Neb.

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