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May 23, 2016

SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death

Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases.  But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana.  The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:

The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery.  The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.

Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed.  In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole.  It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.  In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.

Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:

Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same).  There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).

The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.)  Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.”  Roper, 543 U.S., at 571.  As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).

May 23, 2016 at 09:55 AM | Permalink


While sending these cases back may reflect normal practice (giving the lower courts a chance to address the merits of the remaining arguments after Montgomery resolved retroactivity), these opinions also indicate why these cases justify an exception. In particularly, the oncurences demonstrate that four of the justices have different readings on Miller and Montgomery.

Two -- Alito and Thomas -- believe that Miller & Montgomery merely require that the jury had the capacity to consider the youthfulness of the offender as a mitigating factor. Since that was already a mitigating factor when these offenders faced death and the jury felt that the maximum penalty was warranted, Alito and Thomas see no reasonable likelihood that the same jury would not have imposed life without if their choice had been between life without and life with.

Two -- Sotomayor and Ginsburg -- believe that Miller & Montgomery requires a more specific-type of consideration of youth. In their view, youth is not just one type of mitigating factor. For a juvenile offender, it is such an overwhelming mitigating factor, that the sentencer needs to make specific findings to overcome a presumption that life without parole is inappropriate. Since the death penalty instructions at the time of the original trial did not accurately state this presumption and the requisite findings, the old jury verdicts may not be relevant.

For the states, which of these views is correct matters. Is it enough for the sentencer to make a finding that life without parole is appropriate or do sentencers need to go further and make a specific finding that the offense demonstrates "irreparable corruption" and and "irretrievably depraved character"? (Both of which are rather vague standards that could prove to be problematic in states that use jury sentencing.) In short, once more, lower courts are left to read the tea leaves and (inevitably) screw up trials waiting for clarity from the modern day equivalent of the Oracle of Delphi.

Posted by: tmm | May 23, 2016 3:12:12 PM

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