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June 25, 2012

Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling

I am surely going to need many more hours (perhaps many more days and weeks) to figure out what all the votes and all the dicta in all the Miller v. Alabama opinions (opinion here, basics here) might mean for the future of Supreme Court Eighth Amendment jurisprudence. But I have already started figuring out some of the very hard questions already sure to be facing lots of lower courts in the wake of Miller ASAP.  Here are just a few that come (too) quickly to mind:

1.  Will all (many? any?) juvenile murderers mandatorily sentenced long ago to LWOP necesarily get the benefit of a resentencing after Miller Arguably, Miller is only a new procedural rule that may not be retroactively applicable in federal habeas due to Teague.  But states can (and should?) decide not to follow Teague and arguments can (and surely will) be made that Miller fits into a Teague exception because in announces the (new?) "substantive" rule that kids are always different for Eighth Amendment purposes.

2.  Will any (many?) juvenile murderers discretionarily sentenced long ago to LWOP possibly get the benefit of a resentencing after MillerMiller only formally prohibits mandatory LWOP for juvenile murderers, but it also make clear that kids are categorically different for sentencing purposes. Arguments can (and surely will) be made that Miller suggests all kids sentenced in the past to LWOP ought to get a new shot at sentencing now that SCOTUS has made clear kids are different.

3.  When and how will juvenile murderers manditorially sentenced to LWOP get resentenced? Are there any special rules for how to consider kids are different? Does the nature of the murder, as well as the defendants age, have to matter? If a state lacks parole, can it give 75-year sentences to these kids at resentencing?

I could go on and on and on, but now I have to run to a meeting. Many more posts and questions are sure to follow!

June 25, 2012 at 12:34 PM | Permalink


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I agree that the second two questions are highly relevant and interesting.

As for the first question, I think that the retroactivity question was actually answered definitively today when the Court announced the new rule *and* applied it in a collateral case (Jackson). In the past, the Court's application of a new rule in a collateral case always has been sufficient to establish that the rule is retroactive under Teague.

Posted by: Anon | Jun 25, 2012 1:11:40 PM

I am not quite sure that is right, Anon, because Jackson came from STATE habeas and involved review of a state ruling coming from the Arkansas Supreme Court, not coming up from a federal habeas route (which is technically the only setting where Teague applies). You may be right that there is precedent for concluding this washes out as a concern in some way, but I am not sure the ruling in Jackson makes this conclusive.

Posted by: Doug B. | Jun 25, 2012 4:38:42 PM

I agree that it would be very surprising if the ruling were not applied retroactively and would also note that this is an 8th Amendment based ruling rather than for example, a 6th Amendment based ruling. The 8th Amendment is at heart a substantive rather than a procedural basis, even though it is muddied somewhat in this case.

I don't think that discretionary LWOP sentencings like Wisconsins get revisited, but there aren't many of those cases out there (probably less than 10%).

Graham's instructions on asking the legislature to come up with something new in a reasonbable period of time probably also applies to Miller. So too does the emerging jurisprudence on when a long term of years sentence amounts to a Juvenile Life Without Parole Sentence in practice, which seems to be coming out to somewhere around parole inavailability for 40 to 70 years, give or take.

Posted by: ohwilleke | Jun 25, 2012 5:15:08 PM

# 3 is a good question.

# 2 is a loser for the defense. I'll bet good money that it gets as much traction with the courts as did Second Amendment rights for previously convicted felons post-Heller.

Posted by: Bill Otis | Jun 25, 2012 7:09:00 PM

I agree that #2 is a loser. The few states have have such cases aren't going to be all that interested and the federal courts would have to be utterly lawless to read this holding (even assuming Teague retroactivity) as providing the sort of clearly articulated rule from the Supreme Court that AEDPA demands.

Posted by: Soronel Haetir | Jun 25, 2012 9:00:32 PM


I haven't researched it exhaustively, but I do think that the cases (starting with Teague, continuing with Penry I, etc.) frame the retroactivity issue as one of "direct review" vs. "collateral review" -- with the dividing line being the traditional concept of "finality" (i.e., initial state review + initial USSC cert). Although it is true that many/most/all of the cases arise in federal habeas, they use the term "collateral review," not "federal habeas."

The thing that makes me think this is right is that Roper arose on collateral review, and I have seen it used as an example of how a case decided on collateral review is automatically retroactive. (Although, Roper would have fit a Teague exception anyway, so it's not necessarily conclusive.)

Posted by: Anon | Jun 26, 2012 1:48:42 PM

The retroactivity question is a hard one. One could try to say that Miller is substantive in the following sense: the opinion is premised on 2 ideas: kids are different and mandatory sentencing schemes are different. In that light, the holding feels substantive: a certain class of offenders (kids) can't be subject to a certain kind of punishment (mandatory LWOP). There's a big wrinkle though: Justice Kagan says that is not what the Court is doing! She writes that the Court is requiring only a certain process before imposing LWOP. That sounds procedural.

Perhaps the better case for retroactivity lies in the point the dissenting Justices make: this opinion really seems to say kids are different. In that sense, it may be new and substantive.

Posted by: Cara Drinan | Jun 26, 2012 3:24:39 PM

I think it is retroactive because most courts have held that Roper v Simmons is retroactive. Those Courts find it is substantive See, e.g. In re Sparks, 657 F.3d 258 (CA 11, 2011). Right now the prosecutors don't seem to be arguing (in the court of public opinion) that the ruling isn't retroactive, but that may change.

Posted by: Stuart Friedman | Jun 26, 2012 7:45:20 PM

Stuart: Roper is clearly retroactive because it is substantive in saying that juve murderers cannot be sentenced to death no matter what process is used. Teague only applies to new procedural rules, and Miller seems like a new procedure rule because it indicates juve murderers can still be sentenced to LWOP, but that needs to be via a discretionary rather than a mandatory sentencing process.

Posted by: Doug B. | Jul 5, 2012 7:36:02 AM

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