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September 14, 2015

Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case

In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana.  Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?

Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.

Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day).  As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.

Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case.  Here are the basics via Lyle Denniston's SCOTUSblog report:

The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors.  The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.

In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen.  In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided.   Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question. 

Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes.  The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions.  The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.

The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question.  The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.

September 14, 2015 at 06:03 PM | Permalink

Comments

Is it really accurate to say that Miller all but eliminated LWOP for juveniles? Perhaps that will be the shake-out after more cases but it certainly is not the sense I have now.

Posted by: Soronel Haetir | Sep 14, 2015 11:23:29 PM

I agree, Soronel, that this phrasing about Miller in Lyle's reporting is not accurate. I suspect we will get only a handful of Juve LWOP sentences after Miller in the years ahead, but that is hardly the elimination of the punishment.

Posted by: Doug B. | Sep 15, 2015 9:32:28 AM

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