{"id":3553,"date":"2022-09-01T22:21:00","date_gmt":"2022-09-01T22:21:00","guid":{"rendered":"https:\/\/live-cornell-law-review.pantheonsite.io\/?p=3553"},"modified":"2022-09-01T22:21:00","modified_gmt":"2022-09-01T22:21:00","slug":"resurrecting-arbitrariness","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/2022\/09\/01\/resurrecting-arbitrariness\/","title":{"rendered":"Resurrecting Arbitrariness"},"content":{"rendered":"\n

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012\u2019s Miller v. Alabama<\/em>, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller<\/em> held that this extreme sentence was constitutional only for the worst offenders\u2014the \u201cpermanently incorrigible.\u201d By embracing individualized sentencing, Miller<\/em> and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller<\/em> opened the door to sentencing reform, the Court\u2019s recent decision in Jones v. Mississippi<\/em> appeared to slam it shut. <\/p>\n\n\n\n

Rather than restrict the discretion of a judge to throw away the key in sentencing child defendants, the Court in Jones increased that discretion. It recast Miller<\/em> as a purely procedural decision that only required a barebones \u201cconsideration\u201d of a defendant\u2019s \u201cyouth and attendant characteristics\u201d to fulfill its mandate of individualized sentencing. Jones<\/em> further held that judges need not engage in any formal factfinding before sentencing a child to die in prison, which renders these sentences nearly unreviewable. This Article argues that, through these two jurisprudential moves, Jones<\/em> created conditions that will maximize arbitrary and racially discriminatory sentencing outcomes nationwide, resembling the unconstitutional death sentences of the mid-twentieth century.<\/p>\n\n\n\n

This Article is the first to comprehensively analyze Jones<\/em>, contending that the decision represents an embrace of unfettered discretion in the sentencing of children facing life without parole. Given the Supreme Court\u2019s gutting of the Eighth Amendment, I contend that state solutions are the way forward. I propose that states join the national trend of abandoning life without parole sentences for children. Short of abolishing the sentence, I offer three procedural interventions.<\/p>\n\n\n\n

First, states should enact \u201cgenuine narrowing\u201d requirements that establish criteria designed to limit eligibility for life without parole sentences for children to the theoretical \u201cworst of the worst.\u201d While inspired by the narrowing requirement in capital sentencing, \u201cgenuine narrowing\u201d relies on meaningful and concrete criteria that seek to achieve the mandate of Miller<\/em> that such sentences be uncommon. Second, states should require jury sentencing, which ensures that sentences will be imposed by multiple, and typically more diverse, voices than what currently occurs with judicial sentencing. Third, states should go beyond merely telling sentencers to take youth into account in their sentencing decisions, but should instead inform them that the characteristics of youth are \u201cmitigating as a matter of law,\u201d and when present, must weigh against an imposition of life without parole.<\/p>\n\n\n\n

To read this Article, please click here: Resurrecting Arbitrariness<\/a><\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012\u2019s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders\u2014the \u201cpermanently…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[14,23,89,48,53],"tags":[],"class_list":["post-3553","post","type-post","status-publish","format-standard","hentry","category-articles","category-current-clr-print-vol","category-issue-5-print-volume-107","category-print","category-print-volume-107"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/3553","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/comments?post=3553"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/3553\/revisions"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/media?parent=3553"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/categories?post=3553"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/tags?post=3553"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}