What Montgomery v. Louisiana Portends for Future Juvenile Sentencing

In January of this year, the U.S. Supreme Court held in Montgomery v. Louisiana that Miller v. Alabama, a 2012 case prohibiting mandatory life sentences without the possibility of parole (mandatory “LWOP”) for juvenile offenders, must be applied retroactively on state collateral review. This meant that a 69-year-old man who brought a state collateral attack on his automatic LWOP sentence about 50 years after he was convicted and sentenced was constitutionally entitled to the benefits of a case decided just a few years ago. Especially now that Justice Scalia has passed away, this decision could spell the end of life without parole for juveniles (mandatory or not), and this possibility arises from Justice Kennedy’s unusual characterization of Miller as a substantive rather than a procedural decision. This column will consider the changing meaning of Miller and what it might portend for the future of juvenile sentencing.

Miller v. Alabama

To understand the moves that the Court makes in Montgomery, it is necessary first to appreciate what the Supreme Court held in Miller. Prior to Miller, the Court had issued two decisions limiting the types of sentences for which juvenile offenders would be eligible. In the first, Roper v. Simmons, the Court held that the Eighth Amendment ban against cruel and unusual punishments prohibits juvenile offenders from being sentenced to death, no matter how serious their crimes, in part because juvenile offenders are categorically less culpable and more capable of later change than adults. Then, in Graham v. Florida, the Court held further that the Eighth Amendment prohibits the imposition of LWOP on non-homicide juvenile offenders, for some of the same reasons that motivated the Court’s decision regarding the death penalty. Both of these decisions found that to impose the prohibited penalty (death for any juvenile offender and LWOP for a non-homicide juvenile offender) would violate the proportionality principle of the Eighth Amendment.

Miller to some extent resembles Roper and Graham. In Miller, the Court held that the Eighth Amendment bars mandatory sentences of LWOP for juvenile offenders. The case is similar to the earlier two in that once again, the Court was using the Eighth Amendment to try to protect juvenile offenders from the harshest of sentences, whether death or LWOP. The difference in Miller, however, is that a juvenile offender (by the process of elimination, one who has been convicted of a homicide offense) may still be sentenced to life without parole, but such a sentence may take place—if at all—only after the sentencer has had the opportunity to take the offender’s youth into account in deciding on the sentence. Accordingly, a law requiring LWOP upon conviction of a juvenile for a homicide would violate the Eighth Amendment, but a considered decision by a judge to impose LWOP on a juvenile after the opportunity to consider the offender’s youth could conform to the dictates of the Eighth Amendment. We will see shortly why this difference could conceivably have mattered in deciding Montgomery.

More Than One Question in Montgomery

Montgomery posed two questions. One was whether the Court had jurisdiction to review a collateral state court’s decision not to apply Miller v. Alabama retroactively. The second was whether, if the Court indeed had such jurisdiction, the state court made the correct decision when it refused to apply Miller retroactively to overturn Montgomery’s sentence.

On the first question, the Justices held that the Court did indeed have jurisdiction to rule on whether the state collateral courts correctly decided Montgomery’s petition, in denying his request that the state courts apply Miller retroactively to his nearly-50-year-old conviction and find that he should not have been automatically sentenced to LWOP. The Court’s jurisdiction rested on an exception to the non-retroactivity of new rules.

In Teague v. Lane, the Supreme Court held that as a general matter, new rules announced by the Supreme Court should not be applied retroactively to cases in which the convictions had already become final (by concluding any direct appellate review) by the time of the announcement. This non-retroactivity-on-habeas rule was understood to be a matter of federal habeas law rather than constitutional law. The Court announced two exceptions to the rule, however, one of which is relevant for our purposes. This first exception held that if the new rule represented a substantive rule of constitutional law, then it should be applied retroactively during federal collateral review. Over time, this first exception came to mean that a new rule would apply even after a petitioner’s conviction had become final if either (a) the new rule announced that some primary conduct could not be subjected to criminal punishment at all or (b) the new rule announced that some class of offenders could not be subjected to a particular penalty, due either to the offenses they committed or to something about the status of the offenders.

In Montgomery, the Court found that even though the general Teague rule of non-retroactivity was just an interpretation of the federal habeas statute (and thus non-binding on state courts), the first Teague exception was not simply about the federal statute but about the Constitution itself. Therefore, a state court providing collateral review to a petitioner would not have the option of ignoring a new rule that fell within the first Teague exception, because the Constitution requires that petitioners be able to benefit from the announcement of a new substantive constitutional rule that either protects primary conduct from criminal punishment or protects a class of offenders from particular penalties due to the nature of the offense or of the offenders. Since Montgomery was arguably claiming the benefit of the first Teague exception as applied to a state court providing collateral review, the Supreme Court was acting within its proper authority in reviewing Montgomery’s claims to see whether they had merit. The question that (properly) faced the Court was thus: Did Miller fall within the first Teague exception and thus supply Montgomery with a valid basis for challenging as erroneous the state collateral ruling denying him relief?

Substance vs. Procedure

Once the Court determined that it had jurisdiction to decide the case because Teagues’s first exception was a matter of constitutional requirement rather than the mere application of federal habeas law, the Court had to decide what sort of ruling the Court had issued in Miller when it held that mandatory LWOP for juveniles was unconstitutional. One approach would be to say that Miller was a procedural case and therefore did not announce a new rule of substantive constitutional rule. How so? The case did not bar courts from imposing a sentence of life without parole on juveniles (in the way that Graham did for non-homicide juvenile offenders). It simply required that the sentencer have the opportunity to consider youth as a mitigating factor. As I read Miller, this means that the Eighth Amendment required a procedure whereby the judge could consider an offender’s youth in deciding whether or not to sentence him to LWOP. The mandatory nature of the sentence was accordingly unconstitutional because it deprived the defendant of this procedure, not because it imposed a sentence substantively ruled out by the precedents. Justice Scalia took this same view of the Miller right and thus—for this and many other reasons—dissented from the majority’s opinion.

Justice Kennedy, however, writing for a majority of the Court, regarded Miller as a substantive rule and placed it in the same line of cases as Roper and Graham (which held, recall, respectively, that the death penalty was off-limits for juvenile offenders and that LWOP was off-limits for non-homicide juvenile offenders). Justice Kennedy interpreted Miller not simply as a case about the opportunity to consider an offender’s youth on the way to making a decision about whether to sentence the offender to LWOP. Justice Kennedy instead viewed Miller as holding that almost no juvenile offenders are incorrigible enough to be eligible for a sentence of LWOP. In other words, a majority looked at Miller as a substantive holding ruling out LWOP for almost all of the juvenile offenders that might come before a sentencing judge. Viewed this way, Miller almost—but not quite—prohibits the imposition of LWOP on juvenile offenders. As such, it is (at least arguably) a substantive ruling.

This is certainly an interesting way of reading Miller, and I am favorably inclined towards it, if somewhat skeptical. For Justice Kennedy, to put the best face on the decision, LWOP is practically prohibited for juvenile offenders but there might be some small number of incorrigible criminals under 18 who would, after a close look by a sentencing judge, perhaps prove eligible for LWOP. Such an exceptionally small (and perhaps nonexistent) group, however, is almost not worth considering in characterizing the decision in Miller and, in keeping with that view, Miller essentially places a category of offenders—juveniles—beyond the power of the government to sentence to LWOP.

The Remedy

Justice Scalia suggested in his dissent that it would be burdensome to have to provide new sentencing hearings for everyone who was sentenced to mandatory LWOP as a juvenile offender prior to the Court’s decision in Miller. Justice Scalia painted the unappealing prospect of having to re-sentence Henry Montgomery himself, now close to 70, for a crime he committed when he was 17, having to take the perspective of what he was like as a 17-year-old and whether life without parole would be appropriate, given what we knew about him then (rather than the accumulated knowledge that we have about him now, about 50 years later).  But Justice Kennedy proposed a far less burdensome remedy for Montgomery and people like him. He suggested that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them,” adding later that “[e]xtending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions.”

As Justice Scalia observed with sarcasm, “[t]his whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.  The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment … [because ruling out the death penalty for juveniles was in part justified by the availability of the harsh enough alternative sentence of life without parole].”

I do not think that Justice Scalia was quite right. Certainly, for future cases, judges may consider youth in making a decision to sentence a juvenile offender to LWOP, and the decision to impose such a sentence would then not violate Miller. On the other hand, it does seem in Montgomery that the majority was just about ready to say that no juvenile should be sentenced to LWOP. What it did say was that “Miller did bar life without parole…for all but the rarest of juvenile offenders, those who crimes reflect permanent incorrigibility.” It would not surprise me, given the way in which a majority of the Court spoke of LWOP for juveniles, if this sentence were to soon become unconstitutional across the board. And following Justice Scalia’s death, this move may prove an easier one to make, without the need for the gymnastics deployed in Montgomery, a decision that re-characterized what was essentially a procedural case (about the opportunity to present mitigating evidence of youth) into a substantive rule (that almost no juveniles may be sentenced to life without parole). Though appealing to me (as an opponent of very harsh sentences), the ruling in Montgomery is, at the moment, somewhat disingenuous.