Mary Berkheiser


With its narrow ruling, Miller has taken the Eighth Amendment kids are different jurisprudence on a deleterious detour that could lead Miller and Jackson and others like them to a certain dead end. Where Miller went wrong is the subject of this paper. It begins with Graham and the significance of the Court’s ruling that the Eighth Amendment categorically precludes imposition of a sentence of life without parole on a juvenile nonhomicide offender. Next, this paper turns to the Supreme Court’s decision in Miller, parsing the Court’s reliance on precedent and the reasoning that led it to adopt a ruling that stops short of a categorical ban on life without parole for all juvenile homicide offenders. This paper then launches a critique of Miller, arguing that it is both unprincipled and unsound because of its failure to rule categorically that the Eighth Amendment prohibits the imposition of life without parole on a juvenile regardless of the crime. This paper concludes by offering as an explanation for the Court’s limited ruling the judicial minimalism that characterizes the Roberts Court and by explaining how minimalism fails the criminal justice system in this case.