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Academic highlight: Drinan on the implementation of Graham and Miller


Legal scholars spend lots of time parsing Supreme Court opinions, but rarely stop to consider whether the Court’s decisions are implemented as intended.  In a recent essay, Cara Drinan takes a hard look at state practices in the wake of the Supreme Court’s blockbuster decisions in Graham v. Florida and Miller v. Alabama.  In Graham, the Court held that the Eighth Amendment prohibits courts from sentencing a juvenile to life without parole for non-homicide offenses, and in Miller the Court declared that even juveniles convicted of homicide must receive an individualized sentencing hearing at which their youth and other mitigating factors are taken into account before than can be sentenced to life without parole.  Drinan’s essay examines the states’ reactions to these decisions and concludes that many states continue to sentence juveniles to thirty or more years in jail, even for non-homicide offenses, and mostly without the sort of individualized assessment the Court concluded was constitutionally required.

Graham and Miller required state legislatures to take pro-active steps to end mandatory sentences of life without parole for juvenile offenders.  State prosecutors and judges must also play an important role in implementing those decisions by adjusting sentencing procedures to take into account the youth of the offender.  After examining state practices in the wake of Graham and Miller, Drinan found that there has been “great resistance” to the Court’s decisions that has prevented them from having their intended affect.

Drinan’s research reveals that only eleven states have enacted new laws in response to these decisions, and that many of the states with the largest number of juveniles serving life without parole have yet to act.  Moreover, even those that have amended their laws have adopted an “anemic” reading of the Court’s precedents.  For example, Pennsylvania — the state with the largest number of juveniles sentenced to life without parole — has amended its law to provide that a juvenile convicted of first-degree murder may be sentenced either to life without parole or a minimum of thirty-five years to life.  Louisiana, which also has a large number of juveniles serving life without parole, revised its law to require juveniles convicted of murder to serve a mandatory minimum of thirty-five years before parole eligibility.  Florida is considering a bill that would impose a fifty-year mandatory minimum sentence for juveniles convicted of homicide before parole could be considered.  Iowa’s Governor Terry Brandstad used his clemency power to reduce the life sentences of the state’s thirty-eight juvenile homicide offenders, but he then put in place sixty-year sentences with no credit for time served.  (The Iowa Supreme Court subsequently held that he exceeded his executive clemency power.)  Drinan concludes that these “de facto life sentences” violate the spirit, if not the letter, of the Supreme Court’s decisions.  (But she also notes that the Supreme Court denied certiorari on a case challenging state practices on that ground.)

Drinan suggests that if state legislatures do not act, governors should appoint “Miller Commissions,” whose charge will be to identify a range of appropriate sentences for all inmates affected by Graham and Miller, and to recommend a new sentence for each inmate in light of the factors discussed in Miller.  Only then does she believe that states will be in compliance with the Court’s mandate in those cases.


Recommended Citation: Amanda Frost, Academic highlight: Drinan on the implementation of Graham and Miller, SCOTUSblog (Apr. 9, 2014, 12:48 PM),