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July 30, 2015

"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"

The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:

Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment.  Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided.  The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule.  The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive.  However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner.  I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature.  The Miller decision has sparked a transformation in juvenile sentencing across the country.  Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles.  Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages.  Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively. 

July 30, 2015 at 05:08 PM | Permalink

Comments

In 2009 very similar case was solved in Georgia (country) on behalf of retroactive with its interesting analyse. Georgian constitutional court stated that parole, probationary sentence or other similar institutions are like sentence's natural satellites, which directly or indirectly impacts on punishment and accordingly, cannot be used retroactive if new law boosts its severity during execution of punishment and in the contrary.

Posted by: Tako | Jul 31, 2015 2:41:43 AM

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