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Debate on Miller v. Alabama Retroactivity

The New York Times's Room for Debate feature has this debate on retroactivity of Miller v. Alabama, with yours truly holding up one side versus four others.  Our pieces were limited to 300 words.

Update:  Rereading William Baude's piece after seeing his comment to the original post, perhaps I should say there were three on the other side and one neutral.

Update 2:  Will has a post on the debate at the Volokh Conspiracy.


Versus? It sounds like you and I agree both about Teague retroactivity and about executive clemency.

Welcome, and thanks for your comment.

The overall tone of your piece seems to be sympathetic to the murderers. Perhaps it was a bit of an overstatement to count you on the other side, but you seem to be implying that state courts should apply Miller retroactively and that this would be a desirable result. That would be a "yes" answer to the question presented.

Will --

I'm happy to see that you're reading the blog. Kent is as sharp an analyst as you'll find. I'm the resident combination culture critic and bomb thrower. Recently I've been taking after the movement to end mandatory minimums and, with them, the last vestige, post-Booker, of law-driven sentencing.

As to the current controversy: Left to your own devices, do you think it's good policy to give retroactive effect to Miller?

Bill/Kent --

I'm a VERY long-time reader! Coverage of the criminal procedure docket is usually incredibly one-sided and you guys are an antidote to that. (That said, as a drug war skeptic, I confess that I am also a mandatory minimum skeptic; but I like to hear both sides.)

As for the non-legal question on Miller retroactivity, I'd favor individualized reconsideration by the executive, I think. Though in a perfect world that might be better done through the clemency process than the state habeas process. I did not think Roper v. Simmons was good policy, but I don't have as strong a view about Miller.

Will --

Determinate sentencing had two pillars: Mandatory guidelines and statutory mandatory minimums. Mandatory guidelines went bye-bye with Booker. If mandatory minimums go as well, that's the end of determinate sentencing, and we're back to the bad old days of the Sixties and Seventies, with luck of the draw sentencing and unbridled judicial "discretion."

Do you think that's a good idea?

No. I think we should probably have mandatory guidelines, with facts found by juries.

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