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June 20, 2014

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 at 08:18 AM | Permalink


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As I have suggested before, we should think of correctional planning as a two track process. First, hold the offender accountable. Secondly, manage that person's risk of committing another crime. Track one is based on facts that do not change once established. Track two is based on facts that do change over time; e.g., age, etc. A person's accountability should be proportional to the nature and magnitude of that person's criminal offense. What is done to control a person's risk should be proportional to the probability of recidivism.

As to track one, accountability increases incrementally with age until it reaches 100 percent at about age 21.

As to track two, Juveniles and adults have different risk characteristics, but should be treated the same as to risk tolerance.

These two tracks should be considered separately; a tandem decision-making process. The most restrictive should control at any given point in time.

Posted by: Tom McGee | Jun 20, 2014 1:15:24 PM

Extending principles of Miller v Alabama to all adolescent teenagers 18 and 19 year olds

My brother is an inmate incarcerated in California and currently serving a LWOP sentence. He was a teenager (19 years old) when the crime was committed and has been in prison for 21 years. The U.S. Supreme Courts ruling in Miller v. Alabama was a judicial blessing for those serving LWOP who were 17 years old or younger when their crimes were committed. The enactment of SB 9 by California Governor Jerry Brown was a ray of hope to JLWOP inmates. However, I can't help feel saddened for other adolescent teenagers, 18 and 19 years old, like my brother who have all the scientific neurological hallmarks of the underlying principles articulated in the trio of U.S. Supreme Court cases; Roper, Graham and Miller. Specifically, youth, adolescence, teenagers, immaturity, given to risky and impulsive behavior to say the least. My question is: will any organizations, lawyers, legal scholars, or anyone with a voice to be heard and influential take up the cause to extend the principles of Miller v. Alabama to all adolescent teenagers, 18 and 19 years old, who are neurologically and scientifically, similarly situated as the class of persons (17 and under) identified in Miller v Alabama? PLEASE DO NOT FORGET ABOUT THEM. Thank you....Tennille

Posted by: Tennille Wright | Jun 28, 2014 1:40:34 AM

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