Nancy Gertner


In Miller v. Alabama, the Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. The decision raises a host of important questions that the University of Missouri School of Law’s recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? Does it suggest a new constitutional procedural right to individualized sentencing for terms of imprisonment just as the Court has required for the death penalty – even casting doubt on mandatory sentences in other areas? Or is it a limited extension of the Court’s “death is different” jurisprudence to what some have called the “living death sentence,” excluding one generic offender category and raising the possibility that other generic offender categories may also be excluded as they have been in death penalty jurisprudence? Or even if it applies “only” to juvenile mandatory life sentences, what are its implications for other areas involving juveniles and the criminal justice system? I offer tentative answers to these questions; others may disagree with this proposition.

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