Sentencing Law and Policy

Nebraska legislature sends "Miller fix" bill to governor

As reported in this local article, headlined "Lawmakers pass new sentencing limits for juveniles," a bill responsive to new Eighth Amendment doctrine which modifies the sentencing options for young killers has been passed by Nebraska's legislature.  Here are the details:

With the bill (LB44), juveniles could be sentenced to a minimum 40 years to life, with eligibility for parole after 20 years. Judges could continue to use discretion on life sentences for young people who commit first-degree murder.  And they could sentence a youth to more than the minimum.

The bill grew out of the state's need to act on a June U.S. Supreme Court ruling that indicated states must provide some meaningful opportunity for release based upon demonstrated maturity and rehabilitation.  The courts would have to consider mitigating factors in sentencing, such as age, maturity and home environment, including previous abuse of the juvenile.

LB44 passed final reading Thursday on a 38-1 vote.  Lincoln Sen. Danielle Conrad was the lone vote against it. "I just felt like the mandatory minimums were too extensive, particularly when we are talking about juveniles," she said.

But there are good aspects of the bill, Conrad said.  "And I appreciate the hard work and compromise that the committee and the sponsors and other members diligently worked on."...

The bill doesn't address retroactive action for those inmates who committed their crimes as juveniles and are serving life sentences.  Judiciary Committee Chairman Brad Ashford has said the courts would have to address that.  If signed by the governor, those men and women serving mandatory life sentences could file requests to have their sentences reviewed.

I have plans this summer to write an article explaining why I think, both as a matter of law and as a matter of policy, all significant changes to sentencing rules and procedures ought to be presumptively retroactive rather than presumptively non-retroactive (subject to constitutional limits/problems). Consequently, I think court should presume retroactivity in a setting like this one when it appears a legislature has opted not to address whether a new sentencing statute should be retroactive and has punted the issue to the courts to fill in this legislative gap.

Mizzou Supreme Court hears arguments concerning Miller's impact

As reported in this local article, headlined "MO Sup Court hears cases of two St. Louis juveniles sentenced to life without parole," the top court in the Show Me State is trying to figure out how it must adjust its sentencing system in the wake of last year's Miller ruling by the US Supreme Court.  Here are the basics of what is now before the Supreme Court of Missouri:

Two St. Louis cases were among the first to go before the state's high court Tuesday as it tries to decide what should be done with dozens of juvenile murder convicts who were sentenced to mandatory terms of life without parole before the U.S. Supreme Court declared it unconstitutional....

One of those is the high-profile case of Ledale Nathan Jr., who was 16 when he and an accomplice stormed into a home in the LaSalle Park neighborhood of St. Louis, burglarized it and shot the family members inside. One woman was killed and two others, a city firefighter and police officer, were wounded.

In Missouri, first-degree murder carries only two sentencing options: life without parole, or death (which the U.S. Supreme Court had already ruled could not apply to juveniles).  But in the June 2012 Miller v. Alabama decision, the U.S. Supreme Court determined that while juveniles can be sentenced to life without parole, it cannot be automatic and must only be done after the judge or jury has the opportunity to hear mitigating circumstances that include the defendant's age and a range of other factors.

The state legislature is expected to ultimately decide how to change the statutory range of punishment to comport with the court ruling, clearing things up for cases going forward. But in the meantime, the state supreme court is being asked to consider what the Miller decision means for the older cases — both those on direct appeal, and those that have exhausted their state court remedies.

There are 84 cases in Missouri in which a person is currently serving life without parole for an offense committed as a juvenile, according to the last count by the Missouri Department of Corrections.  Of those cases, 46 of the offenders were age 17 at the time of the crime, 25 were age 16, 11 were age 15, and two were age 14.

Of the three cases argued on Tuesday, two were being heard on direct appeal, one being the Nathan case.  The state, represented by Attorney General Kris Koster's office, conceded that the two cases should get a new sentencing hearing, but argued the only options should be life — which amounts to 30 years in Missouri — or life without parole.

"Allowing life and life without parole achieves as close as the court can get without adding words or redrafting the statute," argued Assistant Attorney General Evan Buchheim, in the Nathan case. Buchheim said until the legislature decide on anything different, "we've got to work with what we've got."

But Nathan's attorney, Jessica Hathaway, and the American Civil Liberties Union, which argued as a friend of the court, contended that route would go beyond the court's authority by rewriting the statute.  They argued instead for a sentencing range that applies for second degree murder, or a Class A felony, which is ten to 30 years (life)....

Similar arguments were made in the other case being heard on direct appeal, the St. Louis case of Laron Hart, convicted of the fatally shooting of a man and robbery of a woman at gunpoint in January 2010, when he was 17.  In the third case involves the 1995 conviction of a McDonald County woman, Sheena Eastburn, as an accomplice in the shooting death of her husband.  The state has argued Miller does not apply to her case because she has exhausted her appeals, among other procedural issues.

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

Nebraska legislature debating "Miller fix" sentencing proposals

As reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller.  Here are the basics:

Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.

They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....

A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.

With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.

The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.

On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.

Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.

Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.

Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix.  I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.

Florida still trying to figure out its Miller fix

As reported in this local article, headlined "Lawmakers differ on how to fix juvenile sentencing laws," Florida is still not yet sure how it will change its laws to comply with the Supreme Court's ruling last year in Miller.   Here are the basics:

[W]ith the 2013 legislative session at its midpoint, it’s unclear if legislation will be passed fixing the problem. It’s also unclear if the legislation will allow judges to sentence minors to lesser sentences, or if some form of parole will return to Florida for the first time in a generation.

“It is something that needs to be fixed,” said state Sen. Darren Soto, D-Orlando, who has introduced one of the several bills that would amend Florida’s sentencing laws. “But there doesn’t seem to be much will to get anything done.”...

Florida law now mandates anyone convicted of first-degree murder gets life in prison without the possibility of parole, if they are not sentenced to death. There are no exceptions for people younger than 18....

State Sen. Rob Bradley, R-Fleming Island, has introduced a bill that would allow judges to sentence minors to less than life in prison. It requires any minor convicted of first-degree murder to go through a sentencing hearing where both sides would argue what the sentence should be.

Issues like a defendant’s background, remorse, education and family history could be introduced for a judge to consider. The family of the victim would also be allowed to testify. Parole was eliminated for anyone convicted after 1994, and Bradley’s bill still prohibits it.

“I am not comfortable with a hearing occurring every five years or so where a family shows up and argues about why the defendant who killed their loved one should stay in jail,” he said. “A parole-like system is not in the best interests of Florida.”

Soto’s bill does the opposite. Life sentences are still required, but juvenile defendants will be up for parole 15 to 25 years after the sentencing occurred. “I do think they need to go to jail for a long time,” Soto said. “But children that age do deserve an opportunity to get out.”

When they’re up for parole, whether they’ve educated themselves in prison and what their family life was like beforehand will be considered, Soto said. Soto’s legislation also permits parole for juveniles who get life sentences for lesser offenses like second-degree murder. Those people would be up for parole after 15 years while first-degree murderers would have to wait 25 years.

J.D. Moorehead, a professor at Florida Coastal School of Law, said Bradley’s legislation would likely survive a court challenge because it addresses the major concern the Supreme Court had. Soto’s plan to bring back the parole system might be more problematic, although it does make a certain amount of sense to bring back parole for juveniles, Moorehead said.

The most logical step might be to take a hybrid of both bills, give judges the option of life without parole but allow them to impose a lighter sentence, and also let judges decide whether the defendant should be eligible for parole at some point, Moorehead said. “Judges know the people in front of them best,” he said.

Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderers

As reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing,"  Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State.  Here are the basics via this news report:

Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.

That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.

Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.

But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life.  "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts.  "It appears that it also could be a minimum of life.  There is absolutely nothing to guide [the sentencing judge's] discretion."

In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence.  The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.

Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing.  "All they are saying is that there has to be a minimum.  That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out.  He's the poster boy for life in prison."  Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....

Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....

Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty.  Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says.  The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.

The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link.  A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."

Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings.  For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).

How Appealing has a round up of additional press coverage concerning the Batts ruling here.

Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?

The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning.  The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:

An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.

Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.

Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.

In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com.  He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.

Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February.  Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.

Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.

The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said.  "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing.  "It was a despicable, premeditated act.  He should breathe his last breath in prison."

Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.

A few recent related posts:

• "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
• "Constitutional Line Drawing at the Intersection of Childhood and Crime"
• Is Miller an Eighth Amendment "bombshell or baby step"?

Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?

The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:

I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony.  Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children.  The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469.  Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).  These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.

Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell.   Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case.   The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465.  The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76.  As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill.  Id. at 2477.  In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted).  Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

Is Miller an Eighth Amendment "bombshell or baby step"?

I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

"Constitutional Line Drawing at the Intersection of Childhood and Crime"

The title of this post is the title of this intriguing looking new paper now available via SSRN.  Here is the abstract:

Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role.  First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses.  Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes.  Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.

Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood.  The second line is judicially manufactured: the line between homicide and non-homicide offenses.  The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.

Lengthy discussion of Miller in Michigan through lens of one female murderer

This lengthy new AP article, headlined "Sentenced to life at 16, woman hopes for freedom," provides a details account of the implications and application of the Supreme Court's Miller ruling in Michigan (and elsewhere). As the headline suggests, the bulk of the piece is focused on one female offender, but these excerpts highlight some broader part of the story:

There are more than 2,000 Barbara Hernandezes in this country -- men and women sentenced to live and die in prison for murders committed when they were teens.  Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?

The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.  "Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.

Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells.  In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.

That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home. "This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast. "You can't look at who this defendant is. You have to look at what she did."

Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process.  It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago....

More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?

Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing.  But officials in state after state have taken widely varying paths to resolution.

California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation.  In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive.  Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.

In Michigan, the issue is being hashed out on three fronts. In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime.  But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.   "I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.

A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional.  But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case. Without a new law, the issue has also landed in state courts.

When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise.  Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.

But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.  After nearly four hours of arguments, the judges sound stumped. "I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says.  "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"

When he adjourns, the room buzzes with talk about what the court will do.  A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.

"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."

Top Texas criminal court to hear case on Miller retroactivity

Over at Grits for Breakfast, Scott Henson has this helpful post reporting on the recent decision by the top criminal appeals court in Texas to consider the application of Miller in the Lone Start state.  Here is how the post gets started:

The Texas Court of Criminal Appeals this week agreed to hear arguments in Ex Parte Terrell to determine whether the Supreme Court's Miller v. Alabama — a case which banned life without parole (LWOP) sentences for juveniles if lesser options weren't offered — applies retroactively in Texas.   As I understand it, around 28 Texas prisoners convicted of capital murder at age 17 since 2005 find themselves in that category: That's when the Legislature eliminated life without parole for juveniles 16 and under who, when convicted of capital murder, are now eligible for parole after 40 years.

For 17-year olds, though, who are tried as adults, there is presently no legal sentence available under Texas law. A 2005 statute made the death penalty and LWOP the only available sentences for adults convicted of capital murderers, and for purposes of trying to kill them or incarcerate them for life, at least, Texas treats 17 year olds as adults.  Or they were until the Supreme Court said that, for the most extreme sentencing purposes, they belonged in the juvenile category.  The SCOTUS ruling prompted state courts, now including Texas, to reconsider their old juvie LWOP sentences, and the results have been all over the map.  In Texas, this will be a case of first impression.

Intriguing Massachusetts developments in response to SCOTUS Miller ruling

As reported in this local article, Massachusetts Gov. Deval Patrick has today set out "proposed legislation that would eliminate mandatory life sentences without parole for teens under 18 convicted of first-degree murder."  Here is more from the article:

The measure filed by Patrick Monday would also raise the age for juvenile court jurisdiction from 17 to 18 in Massachusetts. Under current state law, teens as young as 14 can be tried as adults for first-degree murder. Conviction on first-degree murder carries an automatic life sentence without parole in Massachusetts.  Patrick’s bill would still allow life sentences without parole for juveniles under certain circumstances....

The U.S. Supreme Court ruled last year that mandatory life sentences without parole for juveniles are unconstitutional.  Because of that Supreme Court case -- Miller v. Alabama -- the change proposed by Patrick to eliminate mandatory life sentences for teens is not a great surprise, several lawyers said....

According to a prepared statement issued by Patrick’s office, “An Act to Reform the Juvenile Justice System in the Commonwealth” will create a fairer justice system for the state’s youth.   “Every violent felon should be held accountable for their actions, even youth.  But in sentencing every felon’s circumstances should be considered, too, and youth itself is a special circumstance,” Patrick said.  “It is time for the Commonwealth’s laws to reflect the value, in accord with the Supreme Court, that young people deserve every opportunity for rehabilitation and reform,” he said.

State Public Safety Secretary Andrea Cabral said, “The governor’s legislation recognizes the importance of providing juveniles with age-appropriate resources for rehabilitation. It builds on established research that proves an adolescent brain affects behavior and judgment, but that rehabilitation is possible.”

“Fair treatment of juveniles requires both holding them accountable for their actions and ensuring the highest degree of public safety in order to keep the Commonwealth’s neighborhoods safe and secure," she said.

This lengthy press release from Gov. Patrick's office provides a lot more detail on the details in the juve justice reforms now being proposed in the Bay State.

"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"

The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:

In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government.  The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.”  The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual?  For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?

These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.”  The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.

Two distinct Illinois appellate panels find Miller retroactive on two distinct grounds

Thanks to a helpful reader, I learned recently that last week was a very big one for juvenile sentencing in Illinois: two different panels of the state's appellate court in the First District concluded that Miller v. Alabama should fully retroactive and therefore applicable to defendants on collateral review. Adding to the intrigue, the two distinct panels embraced two distinct theories in support of Miller retroactivity.

The first panel to rule, in State v. Williams, 2012 IL App (1st) 111145 (Nov. 27, 2012) (available here), explained its holding in these terms:

We hold that the Supreme Court's decision in Miller should be retroactively applied in this case because it is a rule that requires the observance of those procedures that are implicit in the concept of ordered liberty....  [U]nder the proportionate punishment analysis in Miller, defendant was denied a "basic 'precept of justice'" by not receiving any consideration of his age from the circuit court in sentencing....

A new rule of criminal procedure applies retroactively in those instances where it has made a substantial or substantive change in the law....  We find that Miller not only changed procedures, but also made a substantial change in the law in holding under the eighth amendment that the government cannot constitutionally apply a mandatory sentence of life without parole for homicides committed by juveniles.  Life without parole is justified only where the State shows that it is appropriate and fitting regardless of the defendant's age.  We hold that Miller is such a " 'watershed rule[] of criminal procedure.' "

The second panel to rule, in State v. Morfin, 2012 IL App (1st) 103568 (Nov. 30, 2012) (available here), explained its holding in these terms:

We conclude that, pursuant to Teague, Miller v. Alabama is applicable retroactively on collateral review.  Miller creates a new rule of law that was not required by either the precedents on what penalties a minor constitutionally cannot receive (Roper and Graham) or by the cases cited in Miller requiring sentencing discretion for the death penalty.... However, we find that Miller constitutes a new substantive rule.  While it does not forbid a sentence of life imprisonment without parole for a minor, it does require Illinois courts to hold a sentencing hearing for every minor convicted of first degree murder at which a sentence other than natural life imprisonment must be available for consideration.  Miller mandates a sentencing range broader than that provided by statute for minors convicted of first degree murder who could otherwise receive only natural life imprisonment.

Some prior major posts on Miller and its potential retroactive impact:

• Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
• Basic mandatory juve LWOP head-count in light of Miller
• Data and resources to gear up for the coming Miller meshugas
• Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
• Intermediate Florida appeals court decides Miller is not to apply retoractively
• Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief order
• Michigan appeals court decides Miller is not retroactive to final juve murder cases

Reviewing just some of the Miller meshugas in some states

The day after the Supreme Court's Miller ruling in June, I explained in this post why the ruling was making me meshuge, largely because I kept thinking of the Yiddish word meshugas to describe the challenges states and lower courts would be facing as they try to give effect to Miller's Eigth Amendment holding and implications for past, present and future cases.   This new commentary, headlined "The Cautionary Instruction: States scramble to deal with Supreme Court ruling on sentencing of juvenile killers," provides a review of just some of what's been going on in a few states. Here is an excerpt:

The Pennsylvania Supreme Court is the first state high court to test whether the U.S. Supreme Court ruling in Miller v. Alabama, banning the mandatory imposition of life without parole for juvenile killers (JLWOP), is retroactive.... Pennsylvania has also passed S.B. 850 granting future convicted juvenile killers the chance for release after serving between 25 and 35 years, depending on the age of the killer at the time of the crime.

Pennsylvania leads the nation with about 450 offenders serving mandatory life sentences for offenses committed as juveniles.  Yet Pennsylvania is not the only state trying to adapt to the Miller decision.  There are 39 states with mandatory JLWOP and, apparently, 39 different ways to address Miller.

In Iowa, for instance, the governor commuted the life sentences of 38 people convicted of committing murder when they were juveniles.  In July, Governor Terry E. Branstad commuted the sentences but required inmates to serve a minimum of 60 years before being eligible for parole.  An Iowa judge later rebuked Branstad for ignoring the Supreme Court by not providing offenders any meaningful opportunity to obtain release....

In North Carolina, the legislature passed S.B. 635 replacing mandatory life for juveniles with “a minimum of 25 years imprisonment prior to becoming eligible for parole.”

A New Hampshire judge has given a convicted teen killer until January to file an expert witness report in his request for resentencing.  Another offender, who helped kill two Dartmouth College professors as a teenager, has also requested resentencing.

In Florida, at least two state appellate courts have ruled that Miller is not retroactive. Michigan’s attorney general has asked the state Supreme Court to declare that Miller is not retroactive, a decision that could affect over 300 inmates.  Nebraska’s Board of Pardons will consider requests for commutation filed by juvenile lifers.  Proposed legislation in Wyoming provides that juvenile lifers could become eligible for parole after 25 years behind bars.

This commentary is off a bit by saying there are 39 states with mandatory juve LWOP; I think that high state count includes those with discretionary LWOP schemes.  But, as has already proven true in Califortnia and a few other states, Miller is having an impact of some sort in all states with any juvenile offenders serving LWOP under any sentencing schemes.  And this commentary is spot on in highlighting that just about every state is developing its own shaky path for dealng with Miller.  This new AP piece from Connecticut, for example, shows how yet another state is trying to work through these issues. The piece is headlined "Connecticut panel considering early parole for juveniles," and starts this way:

Some ex-offenders on Thursday urged a panel that makes recommendations to the General Assembly to give those convicted of serious crimes as juveniles a second chance at life by offering them an opportunity for an earlier parole.

But in an emotional plea, a Norwich man whose wife and son were murdered by a 15-year-old boy in 1993, told members of the Connecticut Sentencing Commission that such a proposal would ultimately be unfair to the victims. "I'm for giving any kid a second break. But if you give him a break," said John Cluny, referring to his family’s killer, "you bring my 14-year-old son and wife back to life."

The commission, whose membership includes the state’s top prosecutor and public defender, held a hearing at the Legislative Office Building on a series of proposals it is considering recommending to the General Assembly, which convenes in January.

Judge Joseph Shortall, chairman of the commission, said the panel is looking at the issue of giving people who were convicted and sentenced to lengthy prison terms as juveniles a chance at early parole because the U.S. Supreme Court has required the state give these offenders "a meaningful opportunity" sometime during their sentence to seek release, but not necessarily to be released. "We as a commission are required to consider how we can implement that requirement of the Supreme Court," Shortall said.

Controversy over plans by Nebraska parole board to address Miller via commutations

This lengthy local article from Nebraska, headlined "Pardon Board's plan to resentence 27 inmates draws chorus of objections," reports on the controversy in the Cornhusker State over a notable plan to deal with juvenile LWOP sentences rendered unconstitutional by the Supreme Court's recent Miller ruling. Here are the interesting details:

Prosecutors, defense lawyers and even some victims' families are balking at a plan by the Nebraska Pardons Board to give new sentences to 27 inmates who received life sentences as juveniles.

One advocate questions whether the Pardons Board — made up of the governor, attorney general and secretary of state — is trying to do a “run” around a recent U.S. Supreme Court ruling that forbids states from imposing automatic life terms on juveniles, even those convicted of murder. A long-serving defense lawyer says he will most likely seek a court injunction to block the Pardons Board from acting....

The Nebraska Supreme Court has yet to rule on appeals challenging Nebraska's mandatory life sentences for juvenile murderers. The Legislature plans to spend part of next session hammering out an alternative sentencing law for such juveniles.

In July, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 people to life sentences that allow parole only after 60 years in prison. Branstad said he acted to keep the prisoners from being resentenced, possibly to more lenient terms, in the wake of the U.S. Supreme Court ruling.

None of the Nebraska Pardons Board members — Gov. Dave Heineman, Attorney General Jon Bruning and Secretary of State John Gale — granted interviews requested Tuesday by The World-Herald. The board will meet next week to hold hearings on the cases, all but one involving a person convicted of murder. Gale said earlier this month that it was more expedient for the Pardons Board to commute the sentences of the inmates rather than have them reopened in court....

Defense lawyers argue that commuting the sentences to 50 years or more will all but ensure that their clients remain in prison for the rest of their lives. Prosecutors question whether such hearings would accomplish anything — saying they believe prisoners would still have the right to file further court challenges to any term given by the Pardons Board.

Douglas County Public Defender Tom Riley, the lawyer who said he is likely to ask a court to block the Pardons Board hearings, said his office has represented at least a dozen of the affected prisoners. Riley said Bruning indicated to him that after the hearings, the Pardons Board would place the prisoners into one of three categories based on culpability and other factors. He said he was told the prisoners' minimum sentences would be 50 calendar years. Two other attorneys said they heard the same plan. Riley called that the “equivalent of a life sentence.”...

Douglas County Attorney Don Kleine said the Pardons Board's action, “however well-intended, is premature.” Kleine said he wants the hearings delayed until the Nebraska Supreme Court and the Legislature have had a chance to act. He said the Nebraska County Attorneys Association is working with state senators on drafting new sentencing guidelines for juvenile killers.

Both Kleine and Lancaster County Attorney Joe Kelly said the Pardons Board did not contact them before they learned of the board's plan eight days ago. Both were scrambling to contact victims' families. Kleine's office handled 18 of the 27 cases. Kelly's office handled two.

Both prosecutors doubted that the hearings would prevent prisoners from seeking new sentencing hearings before a judge. That might mean victims' families would face the prospect of having to testify at multiple hearings....

The decision to hold hearings came just a few weeks after one of Bruning's assistant attorneys general argued to the Nebraska Supreme Court that the U.S. Supreme Court ruling should not be applied retroactively. That argument has yet to be ruled upon.

Several of the inmates listed on the Pardons Board agenda have not applied for commutation, according to Riley. He said such an application is required under state law. “That's one of the red flags that tells me that this hasn't been thought through very deeply,” he said.

Massachusetts taking slow (and unsteady) approach to responding to Miller

The Boston Globe has this new piece about the Bay State's response to the SCOTUS Miller ruling.  The piece is headlined "Mass. seeks new policy on life sentences Youths must get chance of parole," and it gets started this way:

Massachusetts juveniles ­incarcerated for life without ­parole will probably wait well into 2013 or beyond for a chance at reduced prison time, as lawyers, prosecutors, legislators, and advocates carefully craft a strategy to bring the state into compliance with new federal law outlawing the mandatory sentence.

Massachusetts has not been as quick to act as states such as North Carolina and Iowa, which have implemented new laws since June, when the US Supreme Court banned mandatory life without parole for ­juveniles convicted of murder. While change is expected in Massachusetts, either through the courts or legislation, no clear answers have emerged on how to handle new cases and review past convictions involving killers under 18.

Governor Deval Patrick’s point person on the issue wants life without parole banned entire­ly for juveniles, whether mandatory or not. Middlesex District Attorney ­Gerard T. Leone Jr. wants teenage killers to serve a minimum of 35 years before becoming eligible for parole, while the Massachusetts District Attorneys Association has reached no consensus on a solution.

Meanwhile, the state’s public defenders office has mobilized and trained dozens of ­defense lawyers to work with as many as 80 inmates and ­accused teenage killers in Massa­chusetts who could be ­affected by the ruling.

The 5-4 Supreme Court decision in Miller v. Alabama banned the mandatory sentence, imposed in 29 states, as “cruel and unusual punishment,” but still gives judges discretion to impose life without parole for teenage killers.

Last week, a Middlesex ­Superior Court judge wrote the first decision in the state discussing the consequences of the high court ruling, arguing that the only option available to judges now is to sentence teenage killers to life in prison with the possibility of parole. Legislation would be required, wrote Judge Kathe M. Tuttman, only if the state determines it wants the option to sentence juveniles to life without parole, a process that she said would require legislative guidelines.

Does Miller also render presumptive juve LWOP sentencing unconstitutional?

The question in the title of this post is prompted by this notable new SCOTUSblog post by Lyle Denniston under the headline "A puzzle on juvenile sentencing."  Here are excerpts from Lyle's very lengthy post:

Most of the time, when the Supreme Court sends a case back to a lower court for a further look, the task for the lower court is clear.  But the Justices have left the California courts with little guidance on what to do now with a case involving a teenager convicted for his role in gang-related, drive-by shootings that left three people dead six years ago.  The case involves a youth, seventeen at the time, who received three sentences of life without parole — to run one after the other — plus added prison terms.

Depending upon how California courts react, the case of Michael Angelo Mauricio of Compton, California, might well lead to added protection for minors convicted of murder. The case is Mauricio v. California (docket 11-10139). 

What is at issue in his case is what the Supreme Court meant last month, when it ordered California’s Second District Court of Appeal to reconsider the sentences for Mauricio, focusing on the Court’s decision last Term in Miller v. Alabama (docket 10-9646). The Miller decision barred life-without-parole sentences for minors convicted of murder, but appeared to be limited to cases in which that sentence was mandatory. The puzzlement in Mauricio’s case is that, under California law, life without parole was not mandatory....

Mauricio was convicted ... of three counts of first-degree murder, with special circumstances that led to added punishment.  He was sentenced to three consecutive life-without-parole sentences, plus three consecutive terms of twenty-five years to life. Upholding those sentences, the Second District Court of Appeal last year rejected Mauricio’s legal claim that it was unconstitutional, because of his youth, for the judge to opt for life-without-parole sentences when the judge had the discretion under state law to instead impose twenty-five-to-life sentences.

The appeals court said that, under California law, life without parole was the “presumptive punishment” for murder by a minor in the circumstances involved in Mauricio’s crimes, but that the law also said that, “at the discretion of the court,” the sentence could be twenty-five to life....

The Court majority’s opinion in Miller repeatedly stressed that it was dealing with LWOP as a mandatory matter.... But what did [the Court's] admonitions mean, in the face of a state appeals court ruling that had said explicitly that the sentencing judge had, in fact, taken Mauricio’s youth into account, had examined his role in the murders, and had weighed whether his case deserved the more severe punishment of LWOP? The remand order did not say. Still, the case was sent back to the state court, leaving it to figure out how to react.

Because the Supreme Court in Miller referenced an Eighth Amendment capital sentencing jurisprudence that seems to preclude any presumptive death penalty scheme, I am inclined to believe there are five votes to extend the Miller ruling beyond mandatory sentencing schemes to presumptive sentencing schemes. Of course, the remand in Mauricio is not a holding to this effect, but the remand certainly does hint that Miller is not the end of SCOTUS development of Eighth Amendment limits on severe sentencing systems for juveniles.