My colleagues here have previously blogged about the impact of Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015), and my predecessor Alyson Grine created a handy chart summarizing North Carolina cases on the matter, found here. Rodriguez of course held that a traffic stop may not be extended beyond the time necessary to accomplish the purpose of the stop, absent reasonable suspicion or consent, and effectively overruled prior case law in NC allowing de minimis extensions of such stops. In December, the Court of Appeals issued a new, unanimous decision applying this rule in State v. Miller, ___ N.C. App. ____ (Dec. 20, 2016), temp. stay allowed, ___ N.C. ___ (Jan. 4, 2017). I found it noteworthy for the role that the officer’s body-camera footage played, as well as for the fact that the court applied plain error review to grant the defendant a new trial. Continue reading
Tag Archives: miller
Last week, the North Carolina Court of Appeals reversed a defendant’s conviction under G.S. 90-95(d1)(1)(c), which makes it unlawful to “[p]ossess a pseudoephedrine product if [a] person has a prior conviction for the possession or manufacture of methamphetamine.” The court ruled that the defendant’s “due process rights under the United States Constitution were violated by his conviction of a strict liability offense criminalizing otherwise innocuous and lawful behavior without providing him notice that a previously lawful act had been transformed into a felony for the subset of convicted felons to which he belonged.” In other words, the defendant’s apparent ignorance of the law excused his violation of it. Continue reading →
It’s the first Monday in October, which means it’s the first day of the Supreme Court’s 2015 Term. Read on to learn about the criminal law cases that the Court will consider. Continue reading →
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. Continue reading →
North Carolina’s appellate courts have recently issued two important opinions on the use of drug dogs, and the United States Supreme Court has granted certiorari in another drug dog case. This post summarizes these recent developments. Continue reading →
Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.
That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.
In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.
A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.
The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.
The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.
And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”
Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim. Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).
Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.
Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided continues to be a thorny one for the nation’s courts. Miller held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than eighteen years old at the time of their crimes is unconstitutional. Miller of course applies to all cases that were pending when it was decided as well as to all future cases. The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was handed down. And that’s not just a theoretical question. After Miller was decided many defendants with old convictions filed post-conviction motions, challenging their sentences under the Eighth Amendment. See, e.g., Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (2013) (when Miller was decided–thirty years after the defendant’s conviction became final–the defendant filed a post-conviction motion challenging his sentence).
In a nutshell, here’s how the retroactivity issue plays out. In the federal courts, the question of retroactivity is decided under what’s called the Teague test (so named for the seminal U.S. Supreme Court case). Under the Teague test, new constitutional rules are presumed to apply prospectively only, unless one of two exceptions applies. First, if the rule is substantive, it applies retroactively. And second, if the rule is procedural and it constitutes a watershed rule of criminal procedure, it applies retroactively. The United States Supreme Court had never held any rule to be a watershed rule of criminal procedure. As a result, the focus of retroactivity analysis typically is on whether a rule is substantive or procedural. Teague doesn’t limit the authority of the state courts to give broader effect to new federal rules in their own post-conviction proceedings than is required by the Teague test. Danforth v. Minnesota, 552 U.S. 264 (2008). Put simply, the states are free to adopt their own more permissive rules regarding the retroactive application of new federal constitutional rules. North Carolina, like many states, however, applies the Teague test to determine whether new federal constitutional rules apply retroactively in state post-conviction proceedings. This is admittedly a brief summary of a complicated area of the law. If you want more detail about retroactivity in general, I’ve provided it in a paper here—with many case citations.
So back to Miller. The question of Miller’s retroactive application to convictions that became final before it was decided has split the nation’s high courts. To date, three state supreme courts have held that Miller is not retroactive. They include:
- Com. v. Cunningham, 81 A.3d 1 (Pa. 2013).
- Chambers v. State, 831 N.W.2d 311 (Minn. 2013).
- State v. Tate, 130 So. 3d 829 (La. 2013), reh’g denied (Jan. 27, 2014).
Each of these cases applies the same reasoning: Under Teague, Miller is a procedural rule that doesn’t qualify as a watershed rule of criminal procedure. See also In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (holding, in the context of deciding whether the petitioner should be granted permission to file a successive post-conviction petition, that Miller is a procedural rule; admittedly a different analysis but one with very clear Teague overtones).
On the other side are five high court decisions, all finding that Miller is a new substantive rule. They include:
- People v. Davis, __ Ill.__ (Mar. 20, 2014) (available online here).
- State v. Mantich, 287 Neb. 320 (2014).
- Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655, 675 (2013).
- State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013).
- Jones v. State, 122 So. 3d 698 (Miss. 2013), reh’g denied (Sept. 26, 2013).
Additionally, a number of state intermediate appellate courts and lower federal courts have decided the issue. By the looks of it, the issue may be ripe for consideration by the U.S. Supreme Court.
Earlier in the week, the court of appeals decided State v. Lovette, the appeal of one of the defendants convicted of killing UNC student body president Eve Carson. The case has been covered widely in the media, including the Daily Tar Heel. The court of appeals found no error in Laurence Lovette’s convictions for first-degree murder, first-degree kidnapping, and armed robbery, but granted a motion for appropriate relief (MAR) challenging his sentence for the murder in light of Miller v. Alabama, 132 S. Ct. 2455 (2012).
When Lovette was convicted and sentenced in late 2011, the only permissible North Carolina sentence for a person under 18 convicted of first-degree murder was life without parole. That is the sentence that Lovette—17 years old at the time of his crime—received. In mid-2012, after Lovette was sentenced but while his case was on appeal, the Supreme Court decided Miller, holding that a sentencing regime that makes life without parole mandatory for a murder committed by defendant under age 18 is cruel and unusual punishment. I summarized Miller here and discussed the case’s implications for North Carolina here. I noted in the second post that Miller raised real issues for North Carolina, as 88 inmates—including Lovette—were then serving mandatory life without parole sentences for crimes committed before they turned 18. (As of yesterday, that number stood at 92 inmates.)
Lovette’s case was pending on direct review when Miller was decided, so the rule from the case clearly applies to him. See Griffith v. Kentucky, 479 U.S. 314 (1987).The State conceded the issue and the court of appeals remanded for a Miller-compliant resentencing.
What procedure will apply when the case comes back to superior court? The General Assembly responded to Miller quickly, passing a fix bill (SB 635) mere days after the case came down. The governor signed the bill into law on July 12, 2012, effective immediately for any sentencing hearing held on or after that date. S.L. 2012-148. The law was also made applicable to any resentencing hearing required by law for a defendant under age 18 at the time of his or her offense, id. sec. 3, and so it will apply in Lovette’s case.
The revised law (originally codified in G.S. 15A-1476 through -1479 but moved to G.S. 15A-1340.19A through -1340.19D by the Revisor of Statutes) enacted a new sentencing regime for first-degree murder defendants under age 18 at the time of the offense. The new procedure seeks to comply with Miller by creating an alternative to life without parole that judges may use after considering the defendant’s “age and the wealth of characteristics and circumstances attendant to it.” Miller, 132 S.Ct. at 2467. Here are the details.
If the sole basis for a youthful defendant’s first-degree murder conviction is the felony murder rule, the court must sentence the offender to life imprisonment with the possibility of parole after 25 years. G.S. 15A-1340.19B(a)(1). That provision appears to give effect to Justice Breyer’s concurring opinion in Miller, in which he noted that a prior case prohibited a sentence of life without parole for a defendant who “did not kill or intend to kill.” See Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (citing Graham v. Florida, 130 S. Ct. 2011 (2010), discussed here).
If a youthful defendant is convicted of first-degree murder under any theory other than felony murder, then the court must hold a hearing to determine whether the defendant will be sentenced to life without parole or life with the possibility of parole after 25 years. At the hearing, conducted by the trial judge as soon as practicable after the guilty verdict is returned, the court may consider evidence on “any matter the court deems relevant to sentencing.” G.S. 15A-1340.19B(b). The law invites the defendant to submit mitigating circumstances to the court related to the defendant’s age, immaturity, exposure to familial or peer pressure, and other potential mitigators. G.S. 15A-1340.19B(c). The parties then get to argue for or against a sentence of life imprisonment without parole, with the defendant entitled to the last argument. G.S. 15A-1340.19B(d).
At the conclusion of the hearing the court (not the jury) determines whether, based on all the circumstances of the offense and the offender, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole. The latest version of the felony active sentence judgment form (AOC-CR-601) includes check-boxes for each option. The judgment must “include findings on the absence or presence of any mitigating factors and such other findings as the court deems appropriate to include in the order.” G.S. 15A-1340.19C. The requisite findings could be entered on form AOC-CR-618. The law studiously avoids the word “aggravating”; it does not literally require the court to make factual findings to justify the harsher sentence of life without parole, and thus appears to steer clear of any Blakely concerns.
Lovette was convicted of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule, so the resentencing court must hold a hearing like the one described above. After considering any mitigating factors presented and the circumstances of the case, the court will decide whether to again sentence the defendant to life without parole, or whether to give a sentence of life with the possibility of parole after 25 years.
How would each sentence play out in practice?
If the judge again ordered a sentence of life without parole, then Lovette would spend the rest of his life in prison. A sentence to life without parole under today’s law is a natural life sentence.
If the judge ordered imprisonment with the possibility of parole after 25 years, things are a little less clear. This new form of punishment is the first parole-eligible life sentence from the Structured Sentencing era, and it’s not obvious under our existing statutes how it would interact with Lovette’s other sentences. If cases from the Fair Sentencing era can be any guide (and I think they can), the prison system would treat any consecutive sentences ordered by the court as a single term of imprisonment, with the overall parole eligibility likewise determined by summing the minimum terms of the individual sentences. See Robbins v. Freeman, 127 N.C. App. 162 (1997) (holding that the prison system must treat consecutive sentences as a single term of imprisonment under G.S. 15A-1354(b), and disapproving of the Parole Commission’s then-existing practice of “paper paroling” prisoners from one sentence to another); Price v. Beck, 153 N.C. App. 763 (2002) (calculating overall parole eligibility for a defendant with a term-of-years kidnapping sentence consecutive to a Fair Sentencing life sentence with parole eligibility after 20 years by aggregating the parole-eligibility periods of each offense).
Assuming the rules from those cases apply today, if Lovette received a sentence of life imprisonment with the possibility of parole after 25 years and consecutive sentences for first-degree kidnapping (for which he received a 100–129 month sentence initially) and armed robbery (77–102 months), he would be eligible for parole after serving 25 years for the murder plus at least 177 months (about 15 years) for the other crimes. Thus, the first opportunity for parole consideration would come after about 40 years. There does not appear to be any statutory or regulatory basis for awarding earned time credit toward the 25-year parole eligibility period, so it seems that it would be served “flat,” reduced only by the defendant’s credit for time already served. G.S. 15-196.1; -196.3.
If he were actually paroled, new G.S. 15A-1340.19D provides that his term of parole would be five years, subject to the conditions set out in Article 85 of Chapter 15A. If the Post-Release Supervision and Parole Commission never paroled him, he would remain imprisoned for his natural life. G.S. 15A-1340.19D.
Because Lovette’s case was on direct appeal when Miller was decided, the court of appeals did not have to engage in a complicated retroactivity analysis to determine whether the rule from the case (and the related statutory fix procedure) applied to him. That will not be the case for many of the other 91 defendants in serving mandatory life without parole for murders committed before they turned 18. I discussed the retroactivity issue briefly here, including a mention of Jessie Smith’s helpful bulletin. The effective date for the new statutory procedure does not resolve the question, because it simply says that this is the procedure to be used for resentencings “required by law.”
It will, of course, be interesting to see what happens in Lovette’s case on remand. On the one hand, the Supreme Court said in Miller that, in light of “children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.” 132 S. Ct. at 2469. On the other hand, there are many people who think this is no ordinary case.
Most people were disappointed that the Supreme Court did not release the health care ruling on Monday. I, on the other hand, was excited to read Miller v. Alabama, a case with important sentencing ramifications for many states, including North Carolina. In Miller, the Court held 5–4 that the Eighth Amendment forbids a sentencing scheme that mandates life without parole (LWOP) for a defendant less than 18 years of age at the time of his or her crime, even when the crime of conviction is murder.
Miller was decided in tandem with another case, Jackson v. Hobbs. Both defendants were 14 years old at the time of their offense. To summarize the facts of each case briefly, Evan Miller and another boy killed a neighbor by repeatedly striking him over the head with a baseball bat and then lighting his trailer on fire. The other case, which originated out of Arkansas, involved the botched robbery of a video store by Kuntrell Jackson and two other boys, one of whom had a sawed-off shotgun. When the store clerk refused to give the boys any money and threatened to call the police, the boy with the gun shot and killed her. Both defendants were charged as adults as a matter of prosecutorial discretion. Miller was convicted of murder in the course of arson; Jackson was convicted of felony murder and aggravated robbery. In both Alabama and Arkansas, the only permissible sentence for a young person convicted of those crimes was life without parole, and that is the sentence each boy received. Both defendants argued on appeal that the sentence was cruel and unusual punishment under the Eighth Amendment.
The Supreme Court agreed (mostly), with Justice Kagan writing for a five-Justice majority. Justice Breyer wrote a concurring opinion. Four Justices dissented.
The Court drew from two distinct strands of precedent to decide that sentencing schemes that require life in prison without parole for juvenile offenders convicted of murder—without any opportunity for the sentencer to consider a lesser punishment—violate the Eighth Amendment. The first strand of cases adopted categorical bans on certain sentencing practices for certain types of offenders. It includes Thompson v. Oklahoma, 487 U.S. 815 (1988) (barring capital punishment for defendants under the age of 16); Atkins v. Virginia, 536 U.S. 304 (2002) (barring capital punishment mentally retarded defendants); Roper v. Simmons, 543 U.S. 551 (2005) (barring capital punishment for defendants under 18); Kennedy v. Louisiana, 554 U.S. 407 (2008) (barring capital punishment for nonhomicide crimes against individuals); and, most recently, Graham v. Florida, 560 U.S. __ (2010) (barring a sentence of life without parole for nonhomicide crimes committed by defendants under 18, discussed here). The second strand of cases prohibited sentencing schemes that include mandatory imposition of capital punishment for certain crimes, requiring individualized consideration of the particular defendant before the death penalty may be imposed. Woodson v. North Carolina, 428 U.S. 280 (1976).
A theme that emerges from the first strand of cases is that young defendants are different from adults. The things that make them different turn out to be important for thinking about how to fix North Carolina’s laws in light of this case, so I want to set them out in bullet points.
- First, because of their lack of maturity, children are reckless, impulsive, and risk-taking;
- Second, children are vulnerable to negative influences (i.e., peer pressure) and have limited control over their environment; and
- Third, a child’s character is not fully formed, so he or she is less likely to be deemed beyond rehabilitation based on a crime committed at an early age.
In light of those characteristics—which the Court said are increasingly well-documented as a matter of “brain science”—Justice Kagan wrote that the traditional purposes of sentencing don’t work the same when applied to young defendants. As such, when a sentencing authority isn’t permitted to even consider a defendant’s youth before imposing a sentence as serious as life without parole, the punishment is cruel and unusual.
Miller and Jackson argued for a categorical prohibition (like Roper and Graham) on LWOP for youthful defendants, or at least for defendants as young as 14, but what the Court gave them was really more Woodson-like. Woodson struck North Carolina’s capital punishment system in the 1970s because it made the death penalty mandatory for any defendant convicted of first-degree murder. The Woodson Court said that a system that gave no significance to the character of the defendant or the circumstances of the offense could not pass constitutional muster. In Miller the Court adopted a similar approach, holding that LWOP is a permissible punishment (i.e., it is not categorically barred, as was reported in some media outlets), but only after the sentencer has taken into account the “offender’s age and the wealth of circumstances attendant to it.” Slip op. at 14. Even though the Court expressly declined to consider the categorical ban requested by the defendants, it said that once states adopted appropriate non-mandatory sentencing regimes consistent with its ruling in Miller, “occasions for sentencing juveniles to [LWOP] will be uncommon.” Id. at 17. Jurisdictions are thus on notice that the individualized consideration of youth required by Miller is no mere formality.
Chief Justice Roberts authored the principal dissent, joined by Justices Scalia, Thomas, Alito. He said that the majority’s holding was a departure from Eighth Amendment precedent in that the sentences at issue could not really be characterized as “unusual”; the parties all agreed that over 2,000 prisoners were serving mandatory LWOP sentences for murders committed before they turned 18. In the past, Eighth Amendment jurisprudence called for consideration of “objective indicia of society’s standards as expressed in legislative enactments and state practice.” Here, 28 states and the federal government have mandatory LWOP for certain homicides. He took issue with the majority’s claim that the prevalence of LWOP sentences was largely the by-product of an unintended confluence of two distinct legislative enactments: mandatory (or effectively mandatory) transfers from juvenile to adult court and mandatory sentencing laws for adults. Maybe he could buy such legislative inattentiveness in Graham, where the number of juvenile LWOP sentences for nonhomicide crimes actually imposed was very low (123 prisoners) notwithstanding the fact that 39 states allowed the punishment. After wondering whether the Court should “ever assume a legislature is so ignorant of its own laws that it does not understand that two of them interact with each other,” the Chief Justice said that at a minimum a sentence being served by over 2,000 prisoners should not be characterized as a “collateral consequence of legislative ignorance.” He concluded by describing the progression from Roper to Graham to Miller as a “classic bait and switch,” and anticipated that the Court’s limitation on LWOP in Miller could evolve into a categorical prohibition before too long.
Justice Thomas and Justice Alito also wrote separate dissents. Justice Thomas questioned the majority’s blending of the two lines of cases described above—in addition to questioning each one separately as a matter of consistency with the original understanding of the Cruel and Unusual Punishments Clause. Justice Alito wrote critically of the Court’s inconsistency when tallying state laws as an objective measure of society’s standards.
Justice Breyer, joined by Justice Sotomayor, concurred in the majority opinion in full but wrote separately to note that Jackson’s case is different from Miller’s. Because Jackson did not pull the trigger himself and was convicted under a felony murder theory, there was no express determination that he killed or intended to kill the victim. As such, Justice Breyer noted that on remand LWOP might be prohibited under Graham. 560 U.S. at __ (categorically prohibiting LWOP for juvenile defendants who “did not kill or intend to kill”).
Much has already been written about Miller. Professor Tamar Birckhead at UNC Law School has written about the case on her new Juvenile Justice Blog and Sentencing Law and Policy has extensive and helpful coverage. Without question the case presents some difficult issues for North Carolina. Statutes will need to be amended to make them Miller-compliant, and pending cases (and probably even some decided cases) will need to take the opinion into account. My next post will set out my thoughts about where we go from here.
The court of appeals issued its decision yesterday in a case called State v. Miller. It answers a question I get asked a lot: Can an active sentence be served in noncontinous periods? The answer: No, it can’t—at least not as a true active sentence.
In Miller, the defendant received a 30-day suspended sentence in district court. The defendant violated his probation, prompting the district court to enter a modification order requiring 30 days of special probation confinement (a 30-day split) to be served on 15 consecutive weekends as an intermediate sanction. (I’ll address the propriety of this condition in a minute.) The modification order said probation would be terminated “upon completion of the active sentence.”
Mr. Miller apparently served those weekends for two or three months but then violated his probation again. This time, the district court entered a judgment and commitment upon revocation of probation, activating Miller’s 30-day sentence (with credit for 16 days—time that had presumably been served over eight weekends as part of his 30-day “split”).
Miller appealed the revocation to the superior court, which likewise concluded that he had violated probation and activated his 30-day sentence. At the superior court hearing, Miller asked the court to order that the activated sentence be served in non-continuous periods, from Monday evening to Wednesday evening each week. The trial court refused, saying that it lacked statutory authority to do so—notwithstanding defense counsel’s argument that it “happens all the time in district court.”
Miller appealed to the court of appeals, arguing that the trial court was mistaken in its belief that it couldn’t order the remainder of his active sentence to be served two days per week for seven weeks. The court of appeals disagreed with the defendant, saying there is no statutory authority to impose an active sentence over noncontinuous periods of time—even if the sheriff has a “policy” allowing sentences to be served that way. The court was unpersuaded by the defendant’s argument that the reference in G.S. 15A-1353 to orders of commitment for “term or terms of imprisonment” authorizes an sentence to be served over multiple intervals of time. That provision, the court said, refers to active sentences for defendants convicted of multiple crimes, not noncontinuous periods of imprisonment for a single conviction.
The rule from Miller is clear: a trial judge lacks authority to allow a defendant to serve an active sentence on nonconsecutive days. If a court wants an active term of imprisonment to be served in noncontinuous periods, the best it could do is something sort of like what the district court did when it modified Mr. Miller’s probation in the first place: add special probation as an intermediate sanction and then terminate probation when the days of confinement have been served. The catch, however, is that the court may not order special probation confinement for a duration equal to the underlying suspended sentence (an issue not addressed in the Miller case itself). Special probation added in response to a probation violation under G.S. 15A-1344(e) is bound by the same maximum as special probation ordered at sentencing under G.S. 15A-1351(a): periods of confinement may not exceed one-fourth the maximum sentence of imprisonment imposed for the offense. So, the most the district court could have ordered as special probation in Miller’s case was 7 days, not 30.