Should a Modern Science-Based Understanding of the Juvenile Mind Apply to the Already Convicted?

Baton Rouge, 1963. Henry Montgomery, a 17-year-old African-American youth with a diminished IQ “somewhere in the 70’s” played hooky from school. When a white police officer confronted him, Montgomery panicked and killed the officer. The teen was convicted and sentenced to mandatory life without parole. Louisiana law did not require a hearing prior to Montgomery’s sentencing. As such, neither judge nor jury considered the teen’s age, immaturity, recklessness, low IQ, low self-control, low discipline, diminished ability to make judgments, lack of parental relationships, and panic when dealing with police—prior to sentencing Montgomery to life without parole.

Washington D.C., 2012. The U.S. Supreme Court issued Miller v. Alabama, 132 S. Ct. 2455 (2012). There, the Court held that “mandatory life without parole for those under the age of 18 at the time of their crime violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’” Id. at 2460. According to Petitioner Montgomery’s Brief, the Miller decision gave him hope that his mandatory life sentence might be reconsidered. Montgomery, an inmate at the infamous “Angola” prison (the Louisiana State Penitentiary), is now 69 years old. He has served over 50 years.

In Montgomery v. Louisiana, the Court granted certiorari to answer two questions—the second of which the Court added on its own accord:

• Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison; and
• Whether the U.S. Supreme Court has jurisdiction to determine whether the Louisiana Supreme Court correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.

The Eighth Amendment and Punishment of Juvenile Offenders

The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Court has previously considered the Eighth Amendment’s applicability to juvenile offenders. In that respect, this post focuses on the juvenile-offender trifecta of Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 132 S. Ct. 2455 (2012).

In Roper, the Court addressed whether the Eighth and Fourteenth Amendments permitted execution of a juvenile offender between the ages of 15 and 18 who committed a capital crime. See 543 U.S. at 555. Justice Kennedy, writing for the Court, referenced the immaturity, impetuousness, and irresponsibility of youth as compared to an adult. Id. at 569. Moreover, “a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. at 570. Consequently, the justifications for applying the death penalty to a juvenile are as diminished as the juvenile’s culpability. Id. at 571. The Eighth and Fourteenth Amendments “forbid” a death penalty sentence against juvenile offenders, see id. at 578, even those offenders guilty of murder.

Next up is Graham, which prohibited imposition of a life without parole sentence on juvenile offenders convicted of a nonhomicide crime. See 560 U.S. at 82. Like it did in Roper, the Court recognized the differences between the juvenile and adult minds. It noted that no recent psychological or brain science data justified reconsidering Roper’s observations regarding the juvenile mind. Id. at 68. In fact, it was just the opposite, with data indicating that juvenile minds are more capable of change and reformation than adult minds. Id. As in Roper, the Graham Court reasoned that the “penological justifications” for a sentence of life without parole—which is “the second most severe penalty permitted by law,” see Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)—are diminished for juvenile offenders. Id. at 70, 71. In the absence of legitimate penological justifications, a life without parole sentence is “by its nature disproportionate to the offense.” Graham, 560 U.S. at 71.

Next came Miller, which featured two consolidated cases involving juvenile offenders who were sentenced to life without parole for their participation in murder. The juvenile offenders—both of whom were 14-years-old at the time of their crimes—were convicted and sentenced in States—Alabama and Arkansas—that required a sentence of life without parole regardless of the offender’s age or other mitigating factors.

The Miller Court held that mandatory penalty schemes—those that prohibited juries from considering mitigating factors for juvenile offenders prior to the imposition of a life without parole sentence—violated the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Juveniles are not miniature adults, Miller reasoned, and they should not be treated as such. Instead, juveniles are “constitutionally different than adults,” in large part due to the differences inherent in youth. Justice Kagan, writing for the Miller Court, identified “three significant gaps between juveniles and adults” as evidenced by “developments in psychology and brain science:”

• Lack of maturity accompanied by an underdeveloped sense of responsibility, leading to reckless, impulsive, risk-taking behavior;
• Susceptibility to outside influences, peer pressure, or a detrimental environment over which they have no control; and
• An as-yet concrete, malleable mind that is still open to positive change or rehabilitation.

To be sure, the Miller Court did not proscribe a sentence of life without parole altogether. Instead, Miller held that mandatory penalty schemes in homicide cases that barred the jury’s consideration of mitigating factors, including the offender’s youth, violated the Eighth Amendment. Individualized sentencing requirements applied to juvenile offenders.

In each of these cases—Roper, Graham, and Miller—the Court honed in on the characteristics of the juvenile mind. But what about the juvenile mind before the Roper-Graham-Miller trifecta, like Henry Montgomery’s?

Teague Exceptions

Teague v. Lane will play a prominent role in determining whether Miller will be applied retroactively to Petitioner Montgomery’s claim. Teague gave the Court the opportunity to “clarify how the question of retroactivity should be resolved for cases on collateral review.” Teague, 489 U.S. 288, 300 (1989). In the Teague plurality opinion, Justice O’Connor (joined by Justices Rehnquist, Scalia and Kennedy), wrote that retroactivity of a new constitutional rule is a threshold question.

Often, it is difficult to determine when the Court announces a new rule; but a good rule of thumb is that the Court “announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Id. at 301.

The Teague Court further explained that, even if the constitutional rule is “new,” that rule will not be applied retroactively in a collateral challenge to a conviction unless:

First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.

Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692, 693 (1971) (internal citation and quotation marks omitted)).

The parties in Montgomery have briefed the Miller retroactivity issue based on Teague’s analysis: Whether Miller articulated a new (1) substantive rule or (2) a “watershed” rule of criminal procedure.

A substantive rule (as opposed to a procedural rule) includes “decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s Power to punish.” See Schriro v. Summerlin, 542 U.S. 348, 351-352 (citations omitted). On the other hand, a “watershed rule” or criminal procedure must “be necessary to prevent an impermissibly large risk” of inaccuracy in a criminal proceeding, and second, “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Whorton v. Bockting, 549 U.S. 406, 418 (2007) (internal citations omitted).

Whether the Court Has Jurisdiction

Before reaching the merits of the Miller retroactivity issue, the Court may wish to drill down on the question of whether the Court has jurisdiction to review the Louisiana Supreme Court’s decision in the first place. The Court was uncertain enough about its jurisdictional authority to hear the Montgomery case that it appointed an amicus curiae—a friend of the Court—to argue against jurisdiction.

The amicus argued that the Court lacked Article III authority to hear the case because the Louisiana Supreme Court was not obligated under federal law to apply Teague’s retroactivity analysis.

As the amicus explains, Article III jurisdiction was not manufactured simply because the Louisiana Supreme Court opted to apply Teague to the Petitioner’s case. With that said, the United States’ brief presents a strong argument in favor of jurisdiction. As the United States’ brief explains, the Louisiana Supreme Court relied exclusively on Teague when it concluded that Miller did not apply retroactively to this case. And even if the Louisiana Supreme Court previously acknowledged that it was not bound by Teague, the U.S. Supreme Court still has the power to review a state court’s decision where federal law is embedded, incorporated, or interwoven in the decision such that the state court interpreted federal law.

Additionally, Petitioner and Respondent agree that the Court has jurisdiction. The Louisiana Supreme Court relied on Teague when it determined that Miller was not retroactive. In fact, the Louisiana Supreme Court has relied on Teague for twenty years. Because of that court’s reliance on Teague, instead of a state law retroactivity standard, the parties argue that the Court has jurisdiction and is therefore not in danger of issuing an advisory opinion.

Whether Miller Applies Retroactively

The other issue in Montgomery is whether Miller applies retroactively. That is, does Miller’s proscription against mandatory life without parole sentences for juvenile offenders apply retroactively on collateral review to people like Henry Montgomery who were condemned as juveniles to die in prison? Petitioner argues that Miller applies retroactively because Miller announced a new constitutional rule that was either a substantive rule or, in the alternative, was a “watershed” rule of criminal procedure.

Miller’s new substantive rules include: (a) altering the range of available sentencing options for juveniles, (b) requiring individualized sentencing for juveniles facing life without parole, and (c) requiring the sentencer to consider youth-oriented facts before sentencing a juvenile to life without parole. If life without parole is “akin to the death penalty,” see Miller, 132 S. Ct. at 2466, then individualized sentencing is as “constitutionally indispensable,” in a life without parole case as it is in a death penalty case.

Petitioner Montgomery argues, in the alternative, that Miller announced a “watershed” rule of criminal procedure in that it marked “a foundational shift in our understanding of the appropriate, proportionate, and constitutional sentencing for juvenile homicide offenders.” See Brief of Petitioner, at 10. Importantly, the science and research of youth development was non-existent when Petitioner Montgomery was sentenced.

Respondent, the State of Louisiana, argues that Miller does not apply retroactively because it is a non-watershed procedural rule and the decision does not articulate a new substantive rule. Neither Teague exception applies here because Miller did not ban outright life-without-parole sentences for juvenile murderers; instead, it merely proscribed a mandatory sentencing process that prohibits consideration of the potentially mitigating youthful characteristics of juvenile offenders. Additionally, Miller did not announce a rule of “profound and sweeping change,” or a rule that altered the bedrock of criminal procedure; it merely announced a sentencing procedure. Finally, the State of Louisiana points out that, to date, the Fourth, Fifth, Eighth, and Eleventh Circuits have refused to apply Miller retroactively, based upon those circuits interpretation of Teague.

This post was originally published at Hamilton and Griffin on Rights.