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August 10, 2012

Intriguing (and questionable) commentary on what Miller says and means

Via the ABA Journal, I just saw this new commentary authored by Erwin Chemerinsky discussing the Supreme Court's work in the Miller case and its potential impact.  Most of the commentary is a pretty standard discussion of the ruling, but some passages from the commentary struck me as interesting and somewhat questionable.  Here is how the piece starts along with the passages that caught my attention as worthy of some blog debate:

In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.

But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated....

Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.

This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.

This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.

In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile....

[T]here is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile – then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a "watershed" rule of criminal procedure that warranted retroactive application.

Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government's power, the holding should apply retroactively.

I see a whole lot I could nitpick about the analysis of Miller here, but for now I just want to get some reactions in the comments to what Chemerinsky seems to be saying Miller says or suggests.

August 10, 2012 at 12:59 PM | Permalink


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Chemerinsky writes, "In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence."

Our host writes, "...some passages from the commentary struck me as interesting and somewhat questionable."

You win the understandment of the day award, Doug. The correct assessment of Chemerinsky's statement of the Ring holding would be "flat-out wrong."

Ring was about the eligibility circumstance, not the aggravating-mitigating weighing decision.

Posted by: Kent Scheidegger | Aug 10, 2012 1:37:53 PM

I have to agree with Kent here. Ring was essentially the application of Apprendi to capital senteces insofar as the death penalty isn't allowed based solely on a guilty verdict. Aggravating factors must be found. As these factors are necessary to increase the penalty the Sixth Amendment right to a jury, at least as interpreted by the Apprendi Court, a jury must find them. As far as I'm aware the weighing itself is not considered a fact so a judge can do that on his own (see Alabamas judicial override option).

Given that the Court did not require that there be aggravating factors to sentence a juvenile to LWOP, only that the age, maturity, etc. of the juvenile must be taken into account as mitigating factors, the sentencing is sill no more than the weighing of factors. This doesn't implicate Apprendi, Ring, or the Sixth Ammendment in any way. Therefore, no hearing before a jury is necessary. A normal sentencing hearing will suffice.

Now an enterprising defense attorney would surely argue that if any juvenile could get LWOP solely on the basis of conviction that would ignore the premise that juveniles are different and almost by definition lack the ability to form the mens rea of the worst of the worst that deserve this penalty. Therefore, it would hold that there must be some aggravating factors to offset these mitigators outside the crime itself in order to impose LWOP. If aggrevators need to be found a sentencing hearing before a jury must take place to find those aggravators (per Ring). My guess is that it would largely fail, but has enough merit to sway a bleeding heart judge hell bent on essentially creating a right to rehabilitation for juvenile offenders.

Professor Chemerinsky's characterization of Ring is clearly incorrect, but his ultimate conclusion may not be, though it is very unlikely. Stating it as clear that it would happen, however, is misleading.

As to retroactivity I see no basis to call this a substantive rule if Ring wasn't. Ring said a jury hearing was required. This only requires a sentencing hearing where a judge has some discretion (i.e. not mandatory). It certainly can't be said this is a new rule that juveniles are different as that was clear by last term's Graham ruling and Roper in 2005. This is just saying that juveniles need a hearing. That is 100% procedural.

Posted by: Matt | Aug 10, 2012 2:56:29 PM

it is unlikely that miller requires a jury determination to impose lwop. Miller says that juvs need an opportunity to present mitigating evidence to a sentencer with discretion, but nowhere suggests that a sentencer must exercise his discretion in some particular way, or according to some particular set of factors. Nor, of course, must a sentencer make any particular factual findng as a prerequisite to imposing lwop.

Retroactivity is a tougher question; arguably, miller is a substantive rule under penry bc it prohibits the imposition of a particular punishment (mandatory lwop) on account of an offender's status (juv). On that basis, both roper and graham have been treated as substantive rules. In addition, the rationale of miller is that mandatory jlwop results in unreliable sentencing, a concern that all existing mandatory jlwop sentences, whether on direct review or not, would appear to implicate.

Posted by: Jtt | Aug 11, 2012 3:27:39 PM

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