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March 12, 2013

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

March 12, 2013 at 02:23 PM | Permalink


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Wow, who knew? A 17 year old killer of a 4 year old gets to have a chance at freedom? But he already does--the President has the plenary power to pardon anyone--and that was true at conviction. So how, pray tell, is the identity of the person or persons who could throw open the gates to this loathesome killer at all constitutionally relevant?

Love to see Sotomayor answer that one. Would be more comical than her dimwitted response to Senator Kohl on term limits.

Posted by: federalist | Mar 12, 2013 11:28:00 PM

In Miller, the Court struck down mandatory LWOP sentences for juvenile offenders. The issue is whether the sentencer in the first instance has any discretion on the sentence. If s/he doesn't, then the regime is unconstitutional as applied to juveniles. The fact that the president can act later doesn't change the fact that the sentence required to be imposed was LWOP.

Posted by: Anon | Mar 13, 2013 8:11:16 PM

Anon, it's not that easy. The problem is that there is, from a constitutional standpoint, no right to parole. From a constitutional standpoint, it is just of grace. (That was recently affirmed in a per curiam Supreme Court decision.) Thus, we have a constitutional distinction between guy sentenced to life whose release is only possible at the pleasure of a parole board and a guy sentenced to life whose release is only possible at the pleasure of the president. How is this identity of government official based distinction found in the Constitution?

Posted by: federalist | Mar 13, 2013 9:46:48 PM

Traditionally, parole schemes have been based on defined standards and processes and have created at least some limited procedural due process rights (hearings every X years, a right to written reasons for a denial, a requirement that the Board consider particular factors, sometimes even a rebuttable presumption of release after serving Y years). Granted, there is usually a good deal of basically unreviewable discretion retained by the Board, but that discretion has traditionally been *much* more bounded than the discretion of the executive in granting clemency. This is the assumption that the USSC has been operating under since at least Solem v. Helm. Indeed the Helm majority went as far as to state that "Assuming good behavior, [parole] is the normal expectation in the vast majority of cases."

Having said all that, I think federalist's criticisms have some basis. This is because the USSC's assumptions about the regular, standard-based, and relatively predictable nature of parole is (or at least has become) largely a fantasy. Whether or not it was the case when Helm was written, it is certainly true now that many parole schemes grant their Boards such arbitrary and standardless discretion as to equate their actions with simple acts of grace. Indeed, some schemes require the approval of the Governor in order to implement any recommended parole grants -- which really blurs the distinction between parole and clemency. (That was actually the case in the 1970s in Texas, where the Governor denied more than 75% of the parole recommendations from the Board, according to the dissent in Rummel v. Estelle, so maybe the USSC's assumptions were a fantasy from the beginning.) This is of course a state-by-state question. In some states, parole certainly is meaningful and completely distinguishable from clemency on the bases that the USSC has identified in Helm, Graham, etc. But in plenty of other states it is hard to argue there is any meaningful distinction.

So, I accept federalist's premise, to some extent, but not his conclusion. The Court did not hold that any possibility of release -- not matter how arbitrary, how ad hoc, how unlikely -- would suffice under Graham (or as the presumptive alternative sentence that must be considered under Miller). Rather, the Court held that the sentence must carry a "meaningful" possibility of release. And the Court implicitly defined "meaningful," at a minimum, to mean *not* like the ad hoc possibility of clemency, but more like the standard-based, predictable system of parole that exists in the Court's fantasy land of criminal procedure. Whether or not such a rational/standardized system of parole actually exists in a given state does not change the constitutional requirements laid down by the Court. Therefore, the fact that parole is no different than clemency in X state does *not* mean that the constitution is satisfied by the mere availability of clemency. Rather, it means that, in that state, the constitution is not satisfied by the availability of a sub-meaningful process of parole.

Federalist's solution simply nullifies the clear intent of the Graham and Miller courts to require something more meaningful than clemency. The better interpretation is that Graham and Miller have essentially created a limited right to "meaningful" parole consideration for all juveniles who commit non-homicide and for most juveniles who commit murder, excepting those "uncommon" cases where the State can make a persuasive case for imposing LWOP. Many states already provide parole schemes that meet that standard, but in those that don't, defendants will be entitled to a yet-to-be-determined constitutional remedy.

Posted by: anon | Mar 14, 2013 11:41:07 AM

Parole/release is a different, lesser animal from presidential pardons or sentence comuntations. The distinction between a parole board releasing someone on parole - where, presumably, they would have to follow certain conditions or wind up back in prison - and the president pardoning someone or commuting his/her sentence - after which the person is scott free - is huge. SCOTUS has held that even if juveniles are always entitled to the latter, it is cruel & unusual punishment to automatically refuse to make they eligible for the former.

Posted by: Anon | Mar 14, 2013 6:23:45 PM

Anon, your post points up the problem with the Court's "make-it-up-you-go-along" decisionmaking. Yes, parole and clemency are different. So what? Perhaps, you could argue that because, as you point out, parole generally is subject to conditionality and clemency often is not, that parole would be more likely to be granted so therefore, as a practical matter, parole is more likely to be granted etc. etc.

But really, does the Eighth Amendment really parse things like that? Are we really to believe that the Eighth Amendment contemplated these sorts of distinctions for people who happened to kill when they were 17 years old? Assuming arguendo that the 8th Amendment does give a child-murderer the right, when he is sentenced, to some judicial say-so before the key is thrown away (of course, to state this proposition is to refute it---it defies belief that society cannot permanently remove a person from society who has deliberately and permanently removed another from it)--from a constitutional standpoint, what difference does it make who springs the guy (assuming the judge didn't toss away the key). I didn't want to get into different state permutations on parole, but it surpasses silliness to say that governor-alone clemency is unconstitutional, but governor veto over a parole system is ok.

Ah, but your retort, there must be a "meaningful opportunity" for parole. Mmmmkay. Getting beyond the ipse dixit nature of that. Are we really to believe that the 8th Amendment really parses the quantum of opportunity a killer has to get out at some point? Obviously, one can never "earn" parole--so what are courts going to say--someone has to be released--as a matter of Con law.

This is a garbage decision. Lawless and stupid.

Posted by: federalist | Mar 14, 2013 10:10:14 PM


Do you agree with the United States' analysis here? You previously wrote, "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." Does this filing convince you otherwise?

Posted by: Guest | Mar 15, 2013 4:05:14 PM

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