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June 10, 2014

Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity

This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):

Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world.  Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say.  The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....

Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners.  "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....

In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole.  Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment.  Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....

The ruling caused confusion, however.  While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.

In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.

Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole.  "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.

The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court.  Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling."  Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive.  Six states have gone the other way.

Such a split cannot stand for long, said Emily Keller of the Law Center.  Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief.  That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.

Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."

More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong.  "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.

As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively.  But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania.  I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.

June 10, 2014 at 12:12 PM | Permalink


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I cannot understand what benefit the Supremes think they will get by waiting until the Circuits start applying AEDPA deference and federal habeas standards. I can understand the Bickel argument that the Supremes should wait while the State courts sort out the retroactivity issues, but what further benefit would accrue from the federal courts spending a couple years litigating certificates of appealability and the horrible maze of AEDPA procedural hurdles?

AEDPA habeas procedure and the required procedural cluster produce a lot of heat but a negligible amount of light, certainly not enough to illuminate anything worthwhile. So the Supremes are cowards, not noble Bickelian abstainers, if they wait for the federal habeas process before addressing retroactivity.

Posted by: Paul | Jun 10, 2014 10:26:49 PM

Of course, the assumption is that a circuit split does develop.

The U.S. Supreme Court has not yet ruled that Miller is retroactive. That puts a big obstacle in the way of most juvenile lwops who will have already lost one federal habeas petition and can't file another petition unless the Supreme Court rules that Miller is retroactive. Additionally, it is debatable whether Miller meets the Teague standard for retroactivity in federal court, Some state courts might find Miller retroactive under a broader pre-Teague standard that some states use, but many will not. Deferential AEDPA review would seem to bar federal habeas relief for those juveniles from states that use a narrow interpretation of Teague.

The only reason for the US Supreme Court to intervene is if 5 Justices (in reality Justice Kennedy) wants to apply Miller retroactively. If Justice Kennedy is satisfied with Miller only applying to cases that were not yet final at the time of Miller (or letting the states decide), there is no need yet, and may never be a need, for the Supreme Court to take up this issue.

Posted by: tmm | Jun 11, 2014 10:40:08 AM

Agree with Paul that what this situation needs like a proverbial hole in its (anthropomorphosized) head is to be filtered through a AEDPA deference/procedural default lens. But perhaps the good professor is including federal cases/2255s under the general heading of "habeas." I could see the Court preferring to wait for one of the old federal cases to filter up via 2255. Of course most of those are coming in as second/successive petitions, which raises a whole other set of distracting procedural doctrines and standards of review. They should just take the issue on direct review from a state supreme court.

Posted by: anon | Jul 14, 2014 3:04:55 AM

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