Juvenile Sentencing Rule Before SCOTUS May Hit Snag

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By Kimberly Robinson

Oct. 13 — The U.S. Supreme Court may fail to decide a question it has now twice agreed to hear regarding juveniles sentenced to life in prison with no chance for parole.

Henry Montgomery—who has spent more than 50 years in jail for a murder he committed when he was a high schooler—asked the high court to make its 2012 decision prohibiting mandatory life without parole sentences for juvenile offenders retroactive.

Montgomery was sentenced before that rule was announced in Miller v. Alabama, 80 U.S.L.W. 4560, 2012 BL 157303 (U.S. 2012).

The issue has proven elusive for the justices, who originally agreed to take it up last year in Toca v. Louisiana, dismissed, 83 U.S.L.W. 3647, 2015 BL 26722 (U.S. Feb. 3, 2015) (No. 14-6381).

That case, however, was dismissed before oral argument when the defendant agreed to a plea deal that secured his immediate release from prison.

But a jurisdictional hiccup may derail the court's latest attempt to decide the retroactivity question too.

Several justices expressed serious doubts that they could reach that issue here, as they spent half of the extended 75-minute oral argument discussing whether there was federal jurisdiction in this state case seeking a new sentence.

At Chief Justice John G. Roberts Jr.'s suggestion, the parties did eventually get to the merits of the case.

On that question, the justices were undecided over whether the Miller rule was just procedural—and therefore didn't have to be applied retroactively—or substantive.

Off the Table?

Although new criminal rules announced by the Supreme Court are generally not applied retroactively, the court established two exceptions in Teague v. Lane, 489 U.S. 288 (1989).

The parties here focused mainly on the first Teague exception—that a new “substantive” criminal rule must be given retroactive effect.

The Justice Department's Michael R. Dreeben—arguing on behalf of the U.S. as amicus curiae in support of the prisoner—said that the rule announced in Miller was substantive because it expanded the sentences that were available to juvenile offenders.

Before Miller, states could automatically sentence a juvenile offender to life without parole; after, the state had to consider other options, Dreeben said.

But Miller didn't take the life without parole sentence totally off the table, S. Kyle Duncan of Duncan PLLC, Washington, said on behalf of the state.

Montgomery is not facing a sentence that could no longer be imposed on him, Duncan said, so the Miller rule isn't substantive. Instead, it's only procedural because it tells the court how it must impose the sentence, he argued.

Justice Elena Kagan acknowledged that there was an undeniable procedural element to Miller's holding. It told courts that they had to look at the mitigating factors of youth, she explained.

But there was “something else” in Miller too, she said.

The Miller rule is substantive because it recognized that mandatory life without parole sentences for juvenile offenders pose a “significant risk” of a disproportionate sentence, Dreeben said.

As Justice Stephen G. Breyer put it, Miller “is filled with paragraph after paragraph about how a mandatory requirement for life without parole fails to take account of all the characteristics or many characteristics” inherent in youth.

But Duncan countered that the state has an interest in the finality of its judgments. That finality interest should only yield when it's determined that the state doesn't have the power to impose a particular sentence.

That's not the case here, Duncan said, emphasizing that Montgomery could still receive a life without parole sentence if resentenced—just not a mandatory one.

How Many Affected?

Justice Ruth Bader Ginsburg wondered how many people would benefit from a rule requiring resentencing. Are there any states that have already said that Miller is retroactive, she asked?

Dreeben said that a slim majority of states have held that Miller does apply retroactively. “I think it's maybe 10 to 7 or 10 to 8,” he said.

Dreeben noted that the federal government has also applied Miller retroactively, although that only affected about 10 prisoners.

But almost all of those 10 prisoners received a more favorable sentence upon resentencing, Dreeben said.

When asked if he knew how many prisoners remained in state prisons under mandatory life without parole sentences, Dreeben said he didn't know. He noted that at the time of Miller, the court said there were about 2,000 prisoners serving such sentences.

Even though the majority of states to consider the issue have decided that Miller applies retroactively, Dreeben still thought the number of prisoners affected by a favorable ruling here would be significant. “Michigan has not applied it retroactively, and it has a very large population of juveniles who are in the Miller class,” he said.

But Duncan said there was a practical problem with resentencing all of these prisoners.

Sentencing is a fact-intensive effort that looks at the circumstances at the time of the crime, he said. Applying that standard 50 years later—as in this case—could prove challenging, Duncan suggested.

Justice Anthony M. Kennedy didn't seem to think that was much of a problem. You could just make every affected prisoner eligible for parole, he said.

Guided or Bound?

The court, however, may not be able to get to that issue, as several justices were skeptical that it had jurisdiction to decide it.

The first signal that the justices were having serious doubts about their jurisdiction in this case was when they appointed Richard D. Bernstein, of Willkie Farr & Gallagher LLP, Washington, to argue against jurisdiction in a March 30 order. That's because both parties argued that the court did have jurisdiction.

But Bernstein said jurisdiction was lacking here because this was a challenge in state court seeking a new sentence.

The state court here chose to be guided by federal precedent—namely, Teague—in answering the retroactivity question, but it wasn't bound by it, Bernstein said.

Federal Public Defender Mark D. Plaisance, of Thibodaux, La., representing Montgomery, said that the state court may well have thought that it wasn't bound by federal law, but it rested its entire decision exclusively on federal law. That's enough to give rise to a federal question, he said.

So could the state court change its mind on remand and say that it no longer wants to follow federal law, Justice Samuel A. Alito Jr. wanted to know.

No, Plaisance responded, the state is now bound to follow federal law.

Both Alito and Justice Antonin Scalia scoffed at that idea.

“They changed their mind,” Scalia said. If “we send it back and they look at it and say, oh, if that's what Teague means, we're not going to follow Teague, what stops them from doing that?” Scalia asked. “And doesn't that make us look foolish?”

Even Dreeben—arguing on the same side as Plaisance—agreed the state court wasn't bound by federal law. Once “enlightened” by this court's determination of federal retroactivity law, the state court could, of course, change its mind, he said.

Now or Later?

Even if the court doesn't reach the retroactivity question here, it's not like the court will never get to decide it, Bernstein said.

He said the court could certainly address the issue in a federal habeas case, as opposed to the state case before the justices here.

“The issue is whether to decide the question of Miller's retroactivity in this case or in a federal habeas case such as Johnson v. Manis, No. 15-1, on this court's docket,” Bernstein said.

But Duncan—who admitted that the jurisdictional question put the state in an “odd position”—urged the court to weigh in now. “It's going to weigh in sooner or later either on a federal habeas court or state court.”

That “doesn't make much sense,” Scalia said. “Let's get in there quickly, whether we have jurisdiction or not. You're not saying that, are you?”

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Transcript at http://src.bna.com/y9.