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October 31, 2016

Miller/Montgomery GVR produces some separate opinion SCOTUS sparring

At the end of this morning's (otherwise uneventful) SCOTUS order list are a pair of separate opinions in Tatum v. Arizona, No. 15-8850, discussing the decision by the full Court to issue this order: "The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Appeals of Arizona, Division Two for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016)."

Justice Sotomayor authored this lengthy concurrence which makes this point at the outset:

The petitioners in these cases were sentenced to life without the possibility of parole for crimes they committed before they turned 18. A grant, vacate, and remand of these cases in light of Montgomerypermits the lower courts to consider whether these petitioners’ sentences comply with the substantive rule governing the imposition of a sentence of life without parole on a juvenile offender.

JUSTICE ALITO questions this course, noting that the judges in these cases considered petitioners’ youth during sentencing. As Montgomery made clear, however, “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates theEighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op.,at 16–17) (internal quotation marks omitted).

On the record before us, none of the sentencing judges addressed the question Miller and Montgomery require a sentencer to ask: whether the petitioner was among the very “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U. S., at ___ (slip op., at 17).

Justice Alito's shorter dissent, to which Justice Sotomayor is responding, was joined by Justice Thomas. It starts this way:

The Court grants review and vacates and remands in this and four other cases in which defendants convicted of committing murders while under the age of 18 were sentenced to life without parole.  The Court grants this relief so that the Arizona courts can reconsider their decisions in light of Montgomery v. Louisiana, 577 U. S. ___ (2016), which we decided last Term.  I expect that the Arizona courts will be as puzzled by this directive as I am.

In Montgomery, the Court held that Miller v. Alabama, 567 U. S. ___ (2012), is retroactive. 577 U. S., at ___ (slip. op., at 20).  That holding has no bearing whatsoever on the decisions that the Court now vacates.  The Arizona cases at issue here were decided after Miller, and in each case the court expressly assumed that Miller was applicable to the sentence that had been imposed.  Therefore, if the Court is taken at its word — that is, it simply wants the Arizona courts to take Montgomery into account — there is nothing for those courts to do.

It is possible that what the majority wants is for the lower courts to reconsider the application of Miller to the cases at issue, but if that is the Court’s aim, it is misusing the GVR vehicle.  We do not GVR so that a lower court can reconsider the application of a precedent that it has already considered.

UPDATE: After having a chance to review these opinion, I think it now fair to assert that the GVRs here are really based on the substantive expansion of Miller's Eighth Amendment rule in Montgomery.  That reality, in turn, allows me to point to my recent  commentary, titled "Montgomery's Messy Trifecta," and say simply "I told ya"!

October 31, 2016 at 10:11 AM | Permalink


So did Montgomery create new law? I thought the issue was simply whether Miller was retroactive.

Posted by: federalist | Oct 31, 2016 10:36:02 AM

In order to shoehorn Miller into the retroactivity framework, Kennedy and the rest of the majority in Montgomery had to expand the scope of Miller to include all (or almost all) juvenile LWOP sentences, whether mandatory or not. The GVRs here are more confirmation that Montgomery was as much a substantive expansion of Miller as it was a pronouncement on retroactivity.

Posted by: IB | Oct 31, 2016 10:52:03 AM

Ipse dixit at its best.

Posted by: federalist | Oct 31, 2016 12:23:23 PM

If the issue is the sentencing court improperly considered Miller, I feel a Per Curiam reversal would have been more appropriate than a GVR. Procedurally, it's the same but it would have made it clear what the issue is. If Montgomery is a substantive expansion of Miller, then a GVR is appropriate, but a substantive expansion shouldn't be something we're uncertain if it occurred.

Posted by: Erik M | Nov 1, 2016 9:47:41 AM

The problem -- more significant perhaps for Montgomery than other cases -- is whether certain language in the opinion is rhetoric, a prediction of likely results, or a holding. Based on the issue presented in Montgomery (whether Miller applied retroactively), many practitioners read the discussion of who might still receive lwop under Miller as rhetoric or a prediction rather than a refinement of the holding in Miller.

I don't know how the post-Miller laws in other states read, I know that the law in my state requires the jury to do the same type of weighing as occurs in a death penalty case to decide if the juvenile merits a sentence of life without parole. The statute does not require an express finding that the defendant is incorrigible. If the majority of the court agrees with Justice Sotomayor about the proper way to read Montgomery, a per curiam stating that would have been useful to tell us that we have to go back to the drawing board so that our statute complies with Montgomery.

Posted by: tmm | Nov 1, 2016 10:30:18 AM

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