Will the Supreme Court Make Its Ban on Juvenile LWOP Retroactive?

On October 13, the Supreme Court heard argument in the case of Montgomery v. Louisiana. The case raises the dual questions of whether the Court’s previous decision in Miller v. Alabamaadopts a new substantive rule, which then must be applied retroactively on collateral review to people sentenced to life without the possibility of parole as juveniles; and “whether the Supreme Court has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.”

In Miller the Court had held that the sentencing juvenile offenders to life without the possibility of parole offended the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court concluded that imposing a mandatory life sentence on a juvenile ignored the patently obvious fact (which the Court had previously noted in Roper) that kids are fundamentally different than adults. Justice Kagan, writing for the majority, reiterated the Roper Court’s observation that among “the hallmark” characteristics of adolescence are “immaturity, impetuosity, and failure to appreciate risks and consequences.” These traits, the Court reasoned, must be taken into account when assessing the defendant’s culpability, future dangerousness, and odds of rehabilitation.

Its second question notwithstanding, Montgomery asks the Court to consider both whether the rejection of mandatory life sentences for juveniles was a substantive, as opposed to a procedural, rule and whether, as such, it should be applied retroactively.

The Appellant, Henry Montgomery, was originally tried in 1963. He was 17 years old. He was convicted of murdering Sherriff Deputy Charles Hunt. Hunt was white. Montgomery is black. Montgomery was tried under Louisiana’s unified capital trial scheme. In real terms this meant that there was no sentencing phase to the trial. Once Montgomery was convicted, he was sentenced. He had no opportunity to present mitigating evidence regarding his youth or other factors that a court today might consider in assessing sentence. He received a death sentence. In 1966, his original death sentence was overturned and in 1969 Montgomery was retried under the same unified capital scheme. He was once again convicted, but this time the jury returned a verdict of guilty without capital sentence. So he was sentenced to life without parole.

Fast forward to 2012. The Supreme Court follows its ground breaking decision in Roper (in which it held that offenders cannot be sentenced to death for crimes committed as juveniles) with Miller, in which the Court concluded that sentencing juveniles to life without parole violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Inevitably the Henry Montgomerys of the world had to wonder: if the sentence was cruel and unusual for Miller, wasn’t it also cruel and unusual for him?

But for Henry Montgomery the question was deceptively complicated —as questions of retroactivity often are. For Montgomery, his quest to overturn his sentence based on the Supreme Court’s decision in Miller tread on the thorny ground of whether or not the decision in Miller was a “new” rule. If it was a new rule, it could apply retroactively if it fell within what are known as the Teague exceptions. Teague was a 1989 decision involving a habeas petitioner who sought to apply the Court’s ruling in Batson retroactively. The Court said no, reasoning that individuals may not seek to enforce new rules retroactively through collateral attack (in Teague’s case through federal habeas) or to apply old rules in such a novel way that they create a new rule. But the Teague Court carved out two exceptions. First, if the rule was “substantive,” i.e. it places “private individual conduct beyond the power of the criminal law-making authority to proscribe,” then it applied retroactively on collateral review. The second exception applies if the new rule constitutes a “watershed rule” of criminal procedure. To qualify as a watershed rule, the ruling must address an issue “implicit in the concept of ordered liberty” or one that affected a “bedrock procedural element” of a conviction. In Teague, the Court concluded that in order to qualify as “watershed” the new rule must “undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction ....” In subsequent cases the Supreme Court has noted that this class of watershed rules that trigger retroactive application under the second Teague exception is “extremely narrow.” In fact, it is so narrow, that the Court has commented that it is “unlikely that any [has] yet to emerge.”

Montgomery argues that the decision in Miller is covered under both exceptions. First, it is a substantive rule change that fundamentally alters the nation’s Eighth Amendment jurisprudence, and as such, sets a category of sentences beyond the power of the government to apply to a particular class of offenders (juveniles). But second, a failure to apply Miller retroactively would fundamentally undermine fairness by concluding that the timing of the sentence, as opposed to the juvenile’s status, controls the constitutional analysis. Offenders who enter the system after Miller enjoy its protections, the Henry Montgomerys among us do not.

As large as these questions are, the oral argument quickly dissolved into a debate about whether or not the Court had jurisdiction to hear the matter at all (the second question in the cert. petition). For those observers who found Teague retroactivity debates somewhat less than stimulating, this jurisdictional discussion undoubtedly ranked up there with watching paint dry and was likely beat out by the drying paint. The question is important, though in this case, both parties conceded jurisdiction and the Court appointed a separate lawyer to represent the argument against jurisdiction. The amount of time the Court spent on this question at oral argument raises the possibility that the Court will “punt” on the underlying question of retroactivity by concluding that it lacks jurisdiction. If the Court does this, long term questions of when the Court could exercise jurisdiction over these retroactivity questions will linger.

When it did finally reach the retroactivity question, the Court seemed divided. Justices noted that many states have already begun providing resentencing or parole hearings for juveniles who were sentenced to life without parole prior to Miller. These hearings seek to consider the offender’s youth as the Court instructed was relevant in Miller and have, in the majority of cases, resulted in lower sentences. The attorney for Louisiana noted that these rehearings are not without problems—as witnesses may have died or memories may have failed. Nonetheless, Justice Kagan—who authored the majority opinion in Miller—noted that regardless of the mechanism that brings about the “range” of sentencing options, the creation of a sentencing scheme that allows for a range of sentences for juvenile offenders—as opposed to imposing a life without parole sentence—is what Miller was about, and that is a substantive change. As such, it must be applied retroactively under Teague. We will have to wait and see if the rest of the Court agrees.