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Miller v. Alabama: Implications for North Carolina

June 28th, 2012
By Jamie Markham

My previous post summarized Miller v. Alabama, the Supreme Court’s recent case holding that a sentencing regime in which life without parole (LWOP) is mandatory for a murder committed by a defendant under age 18 violates the Constitution’s prohibition on cruel and unusual punishment. This post picks up where the previous one left off, discussing some of the legal and practical implications of the ruling in North Carolina.

Without question, Miller matters in North Carolina. Life without parole is the only statutorily permissible sentence for anyone convicted of first-degree murder who was under age 18 at the time of the crime. G.S. 14-17. Sixteen- and seventeen-year-olds are, of course, always considered adults under our law, and children 13 years old or older are mandatorily transferred to adult court when alleged to have committed first-degree murder. G.S. 7B-2200. According to some of the advocacy outlets that track these things, 44 North Carolina inmates are serving life without parole for crimes committed before they turned 18 (DAC has now provided a list showing 88 such inmates). A recent high-profile defendant is illustrative: Laurence Lovette was mandatorily sentenced to life without parole for the murder of Eve Carson, a crime committed when he was 17. He is also charged with the killing of Duke graduate student Abhijit Mahato. Undoubtedly other young defendants have murder charges pending in the trial division. More about each of those classes of inmates and defendants in a moment.

Miller is only an issue for life sentences imposed under Structured Sentencing. Any life sentences imposed under the Fair Sentencing Act or prior law are eligible for parole under the law that existed at that time, and so they do not run afoul of Miller. Thus, only life sentences imposed on defendants under age 18 for offenses committed on or after October 1, 1994 are implicated. There may be some argument that life sentences imposed under the first few years of Structured Sentencing can survive Miller: from 1994 to 1998, G.S. 15A-1380.5 included a provision for judicial review of LWOP sentences after 25 years. After that review the judge is required to make a clemency recommendation to the executive branch. If the governor takes no action on the case the judge reviews it again every two years and makes a similar recommendation. The review provision was repealed in 1998 but continues to apply to offenses that occurred before December 1, 1998. S.L. 1998-212. But the prospect of clemency is not the same as eligibility for parole, and I think it is doubtful that the review procedure satisfies the “meaningful opportunity to obtain release” that was important to the Court in Graham v. Florida (details here) and, by implication, Miller.

So, we have a problem. Structured Sentencing runs afoul of Miller by requiring life without parole for defendants convicted of first-degree murders that occurred before they turned 18. The law does not allow for the sentencing judge to consider the ways in which “youth matters.” Slip op. at 10. There would be no reason to consider them—life without parole is the only sentence available on the grid. So it needs to be fixed, one way or another. (For what it’s worth, a few laws also need to be fixed to comply with Graham, as discussed in the 2010 blog post linked above. But those were mostly academic observations with respect to LWOP for nonhomicide offenses. Here, there are actual defendants who already fall and are continuing to fall in the Miller bucket.)

There are several ways the law could be fixed.

The legislature could abolish life without parole for defendants under age 18 at the time of their crime. That would be Miller-compliant and then some, as the Court did not create a categorical rule against the punishment. Of course, if you do away with that punishment, you have to put something in its place. One option would be to create a term-of-years sentence applicable to Class A offenses committed by defendants under age 18. It could probably be pretty lengthy, but at some point even a term-of-years sentence would likely be deemed the functional equivalent of a life sentence, and thus equally off limits under Miller. That’s an issue that has already percolated in the aftermath of Graham, where Florida’s appellate courts have deemed a 70-year sentence for a juvenile nonhomicide crime permissible, Gridine v. State, __ Fla. App. __ (2011 WL 6849649, Dec. 30, 2011), but consecutive sentences totaling 80 years impermissible as the functional equivalent of LWOP, Floyd v. State, 87 So. 3d 45 (Fla. App. 2012).

Another option would be to retain the life sentence but to reintroduce the possibility of parole for defendants under 18 at the time of their crime. Though Structured Sentencing did away with parole, the Post-Release Supervision and Parole Commission is still in place to handle older cases, impaired driving paroles, and post-release supervisees. Whatever parole review was put in place would need to come at a “meaningful” time, which could either be set by statute or determined by the sentencing judge.

If the legislature wanted to retain the possibility of sentencing a juvenile defendant to life without parole, it would need to create a Miller-compliant individualized sentencing regime for doing so. That regime could be similar to our capital punishment procedure under Article 100 of G.S. Chapter 15A—which itself responded to the Supreme Court’s proscription on mandatory capital punishment in Woodson v. North Carolina, 428 U.S. 280 (1976), although it doesn’t need to be exactly like that.

What it must include under Miller is an opportunity for the sentencer to consider the offender’s “age and the wealth of characteristics and circumstances attendant to it.” Recall from yesterday’s post the Court’s principal reasons why children are constitutionally different from adults:

  • First, they have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking;
  • Second, children are more vulnerable to negative influences and outside pressures, including from their family and peers; they have limited control over their own environment and lack the ability to extricate themselves from crime-producing settings; and
  • Third, a child’s character is not as well formed as an adult’s, making his or her actions less likely to be evidence of irretrievable depravity. Slip op. at 8.

Again, the Court said in Miller that LWOP was not entirely off the table, but the sentencing authority may only impose it after taking into account those ways in which children are different—their lessened culpability and greater capacity for change—and “how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 17. It would seem that any statute responding to Miller must require the judge to consider those three categories of differences (among others, possibly) before imposing LWOP. If, after due consideration, the court still thought LWOP was appropriate, then the sentence could be imposed. If not, there would need to be a statutory alternative available, presumably along the lines of the alternatives set out above (that is, a term of years sentence or a sentence of life with the possibility of parole). Whatever the precise procedure, it seems clear that it needs to be a careful review—the Court explicitly stated in Miller that LWOP for juveniles will be “uncommon” under a constitutionally sufficient regime.

That process of “consideration” potentially raises some tricky questions. A judge’s consideration of the absence of mitigation is susceptible to reframing as a requirement for findings in aggravation. Is a judge only allowed to impose LWOP after finding that the defendant was, for example, (1) mature for his age, or (2) particularly in control of his environment, or (3) especially immune to peer pressure; or (4) already possessed of a lengthy record indicating a particularly acute need for incapacitation? If so, must those findings be made by a jury? See Ring v. Arizona, 536 U.S. 584 (2002) (requiring, under Apprendi, that a jury must find any aggravating factors necessary to impose the death penalty). Maybe not—Miller appears to require only consideration of mitigation and the availability of an alternative sentence—although the wording of any potential statutory fix will be important.

Next, there is the question of retroactivity. To whom does the rule in Miller apply? Who is eligible for relief as a constitutional matter, and who should benefit from any statutory fix? I won’t delve into a comprehensive retroactivity analysis—Jessie Smith has a very helpful paper doing that here—but hardest question is whether Miller applies to defendants whose cases are already final. Generally, a new rule of federal law would apply retroactively if it is a substantive (that is, not procedural) rule. The Supreme Court has told us that substantive rules include, among others, those that alter the class of persons that a law may punish. Schriro v. Summerlin, 542 U.S. 348 (2004). As such, when the Court has, over the years, categorically proscribed the death penalty for certain classes of offenders (like juveniles in Roper v. Simmons, 543 U.S. 551 (2005)) there has been little question that the new prohibition applies retroactively. Miller is different in that it does not categorically prohibit LWOP for juveniles, but rather requires a particular procedure before it may be imposed. In that sense, there is an argument that the rule is procedural and therefore not applicable to defendants whose convictions are final, unless it is deemed a watershed rule of procedure, which is unlikely. On the other hand, some have flagged the Court’s application of the Miller rule to its companion case Jackson v. Hobbs—a case that arose from the denial of Kuntrell Jackson’s habeas petition by the Arkansas Supreme Court after his case was final on appeal—as the only indication you need that the new rule applies retroactively.

There is no doubt that Miller applies to pending cases in the trial division. I am told that a legislative fix for Miller may be in the works right now, so my short-term advice is to wait for at least a couple of weeks before sentencing a young defendant for first-degree murder. If no fix emerges before the end of the session, then courts may be called upon to fashion their own Miller-compliant remedy, reminiscent of the special verdict forms used by courts for aggravating factors during the “Blakely gap” time period—the time between the Supreme Court’s decision in Blakely v. Washington and the legislature’s enactment of a statutory fix. We’ll cross that bridge if we need to.

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2 Responses to “Miller v. Alabama: Implications for North Carolina”

  1. Jamie Markham says:

    Senate Bill 635 includes a proposed Miller fix, creating an alternative sentence of life with the possibility of parole after 25 years for defendants under 18 convicted of first-degree murder. A judge could impose that alternative sentence after considering mitigating factors related to the defendant’s youth. It would also require that parole-eligible sentence for young defendants convicted under a felony murder theory.

  2. Hal Pell says:

    The Division of Adult Corrections has a list of 88 inmates that are serving life without parole. Three of these had been sentenced to death, but the sentences were changed when the US SCT held that those who committed first degree murder while under 18 could not be executed.

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