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February 7, 2016

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)

February 7, 2016 at 03:40 PM | Permalink


States, prosecutors, state courts should resist this unadulterated bullshit as much as they possibly can.

Posted by: federalist | Feb 7, 2016 5:55:48 PM

Can you expound, federalist, on what you mean by "resist" and what you mean by "unadulterated bullshit"?

Are you saying state executive and judicial officials should just refuse to comply with the Montgomery ruling that Miller is to be applied retroactivity in state collateral appeals? Or are you saying that they should comply formally with Miller/Montgomery, but then always seek any and every means to re-sentence to an LWOP term any and every juvenile previously sentenced mandatorily to LWOP?

In various settings, you frequently assert/complain that certain rulings/decisions with which you disagree are "lawless." Thus, I am inclined to think that you are not advocating what others might call a "lawless" response to Miller/Montgomery. But at the same time you seems to be describing the SCOTUS-made law here as "unadulterated bullshit" and so maybe you do endorse a kind of lawless action by state officials (such as Kim Davis?) if and whenever they perceive SCOTUS-made law to be "unadulterated bullshit."

Please understand, federalist, I am not trying to bait you here. Rather, I am seriously interested in the legal/practical advice you would give to state prosecutors and judges on the ground in Louisiana, which appears to have as many as 300 cases now impacted by Miller/Montgomery.

Posted by: Doug B. | Feb 8, 2016 1:58:58 PM

First of all, the retroactivity decision is utterly ridiculous. Kennedy & Co. invented, out of whole cloth, this idea that there is some justiciable standard of incorrigibility that somehow can be determined objectively. Or to state it alternatively, only "incorrigible" teens can get LWOP, with incorrigibility somehow a judicially reviewable question:

"it at least did not impose the substantive (and hence judicially reviewable) requirement that the aggravators must outweigh the mitigators; it would suffice that the sentencer thought so. And, fairly read, Miller did the same. Not so with the “incorrigibility” requirement that the Court imposes today to make Miller retroactive."

Silliness on stilts. So what to be done about it? No state should allow its judicial system to be commandeered this way. So make all stuff go through federal courts and don't concede anything. Don't provide for counsel--let them rot.

Make litigation a death slog. Argue that a criminal history post or pre crime proves incorrigibility as a matter of law. Remove parole eligibility for even the slightest of post-crime offenses. Impose draconian conditions on parole.

In other words, do anything and everything to keep these guys in prison.

Posted by: federalist | Feb 8, 2016 6:58:05 PM

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