On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it.
About a half a century ago, defendant Montgomery was convicted for murdering a sheriff’s deputy and received the death penalty. The defendant was 17 years old at the time of his crime. In 1966, his conviction and sentence were overturned by the Louisiana Supreme Court. He was tried again in 1969 and again was convicted. This time the defendant received a mandatory sentence of life without the possibility of parole. Under state law then in effect, the sentence was automatic after the jury’s determination of guilt; no consideration could be, or was, given to the defendant’s age or other characteristics. His conviction and sentence were upheld on appeal. In 2012, well after the defendant’s conviction became final, Miller was decided. The defendant filed a motion in state court, seeking relief under Miller. After this avenue proved unsuccessful, he filed a petition for writ of certiorari, which the Court granted. Two questions are before the Court:
(1) Did Miller announce a new substantive rule that applies retroactively to cases on collateral review under the analysis in Teague v. Lane, 489 U.S. 288 (1989)?
(2) Does the Court have jurisdiction to decide whether the Louisiana high court correctly refused to give retroactive effect to Miller?
The defendant wants the Court to answer both questions in the affirmative. While the State of Louisiana agrees that the Court has jurisdiction to address the question, it asserts that Miller does not operate retroactively. A host of amicus briefs were filed, including one by Court appointed amicus counsel, arguing against jurisdiction, and one by the United States, in support of Montgomery.
Under the Teague anti-retroactivity doctrine, new constitutional rules do not operate retroactively unless they are substantive or are watershed rules of criminal procedure. Neither side argues about this basic law. The dispute in Montgomery is about whether the Miller rule falls within either of Teague’s two exceptions.
Defendant Montgomery argues that Miller is a substantive rule and as such it applies retroactively under Teague. The defendant asserts that the Miller rule is substantive “because it prohibits a ‘category of punishment’ (mandatory life without parole) for a ‘class of defendants’ (juveniles).” (Petitioner’s Br. at 16). In the defendant’s view, Miller is substantive because it “requires that juveniles be afforded an expanded range of sentencing options by prohibiting mandatory life without parole punishments.” (Id. at 17). Additionally, he argues, the Miller rule is substantive because it establishes a substantive right to individualized sentencing for juvenile homicide offenders facing life without parole. (Id. at 19). The defendant continues, contending that Miller’s “requirement that sentencers consider a range of factors before imposing a sentence of life without parole on a juvenile further establishes that the … rule is substantive.” (Id. at 23). As a fall-back position, the defendant argues that if Miller is not substantive, it applies retroactively because it is a watershed rule of criminal procedure: “[A]ssuming arguendo the rule is procedural, Miller is a watershed rule of criminal procedure that applies retroactively as it marks a foundational shift in our understanding of appropriate, proportionate, and constitutional sentencing for juvenile homicide offenders.” (Id. at 10; see also id. at 28-30).
The State of Louisiana responds, arguing that as a new procedural rule, Miller does not apply retroactively: “Because Miller only requires a sentencing procedure and does not deny the government power to impose a category of punishment, Miller does not qualify as a substantive rule ….” (Respondent’s Br. at 5). According to Louisiana, substantive rules “either categorically de-criminalize primary conduct or categorically preclude a particular punishment,” (id. at 32-33), and Miller does neither. Louisiana continues, arguing that Miller is not a watershed rule of criminal procedure and that furthermore, the court should not consider this issue because it is not included in the question presented. (Id. at 42). On the watershed rule point, the State notes that the Court has never found any rule to be retroactive under this exception. (Id.).
That’s the set up for the retroactivity issue. I said above that the Court’s decision in this case might finally resolve that question. I hedged because another issue in the case is whether the Court has jurisdiction to decide the retroactivity issue at all. If the Court decides that question in the negative, it won’t get to the retroactivity issue.
Watch the blog or follow me on Twitter, @ProfJessieSmith, for updates about Montgomery.