Juvenile Life Sentences Continue to Divide Justices

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Jessica DaSilva

Oct. 31 — The issue of life sentences without parole for juveniles continues to divide the U.S. Supreme Court.

A competing concurrence and dissent Oct. 31 indicate discord in the court’s application of Montgomery v. Louisiana, which said the court’s ruling in Miller v. Alabama that such sentences are unconstitutional should apply retroactively ( Tatum v. Arizona , U.S., No. 15-8850, 10/31/16 ).

The concurring opinion especially indicates that the juvenile sentencing decision is a substantive ruling that can’t be satisfied with a judicial checklist, said Marsha Levick, deputy director and chief counsel at the Juvenile Law Center. Levick served as lead counsel in the Miller ( Miller v. Alabama , 2012 BL 157303, U.S., No. 10-09646, 6/25/12 ; Montgomery v. Louisiana , 2016 BL 18591, U.S., No. 14-280, 1/25/16 ).

While the issue of juvenile sentencing is far from over, Levick said it is unlikely the high court will hear another case on the topic until it becomes clearer whether state courts will consistently apply Miller.

Improper Avenue

Justice Sonia Sotomayor wrote the concurrence in one case in which the court granted review, vacated the decision and remanded it, stating that the decision and four others from the lower courts did not properly weigh age as a mitigating factor because the judges merely stated the defendants’ ages without further discussion.

However, Justice Samuel A. Alito Jr., with Justice Clarence Thomas joining, stated that a grant, vacate, and remand of these cases is the improper avenue for overturning the opinion because it is essentially asking the courts to reapply precedent they already applied.

“It is possible that what the majority wants is for the lower courts to reconsider the application of Miller to the cases at issue, but if that is the Court’s aim, it is misusing the GVR vehicle,” Alito wrote.

“In short, the Arizona courts have already evaluated these sentences under Miller, and their conclusions are eminently reasonable,” he wrote. “It is not clear why this Court is insisting on a do-over, or why it expects the results to be any different the second time around.”

‘A Different Type of Sentencing Hearing.'

However, Alito’s understanding misstates the court’s rulings in Miller and Montgomery by reducing age to a “performic consideration,” Levick said.

"[The concurrence] makes it unambiguous that the substantive part of Miller is a specific directive about who going forward can receive a sentence of life without parole,” she said.

Levick said the opinion makes it clear that judges can’t just state the defendant’s age for the record, but must make two specific findings: First, that the juveniles in question do not fit into the category of offenders “whose crime reflects unfortunate yet transient immaturity,” Levick said, quoting Miller.

Second, judges must find the juveniles’ "crimes reflects irreparable corruption,” she said, once again quoting Miller.

“That’s a very substantive finding,” Levick said. “It’s an explicit finding the court has to make that’s different than in capital case. It’s a very different type of sentencing hearing.”

Looking Ahead

While the decisions leave more legal questions unanswered, Levick said it might be a while before the high court weighs in again on sentencing juveniles to life without parole. Part of that could be the reduced number of justices on the court, she said.

Yet a bigger reason is likely a desire to see how state courts are applying Miller, she added. It’s still unclear as to whether state courts actually disagree on how to apply Miller, meaning a chance still exists that courts could consistently interpret Miller.

Alternatively, state legislatures could also amend laws to reflect similar sentiments when sentencing juveniles, she explained.

“Most of the sentencing reform is ahead of us,” Levick said.

The Arizona Attorney General’s Office declined to comment for this story, according to an e-mail from spokeswoman Mia Garcia.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text of the orders list is available at http://src.bna.com/jNs.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.