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March 5, 2017

Five years after his SCOTUS victory, Evan Miller scheduled to be resentenced

This local article, headlined "Re-sentencing of Evan Miller ordered by US Supreme Court set for March 13," reports on the upcoming resentencing of a defendant's whose surname now represents a big part of modern "kids-are-different" Eighth Amendment jurisprudence.  Here are some of the particulars from the article, which prompts some questions for me:

A sentencing hearing has been scheduled for March 13 in Lawrence County for Evan Miller, whose original sentence on a capital murder conviction was overturned by the U.S. Supreme Court and led to sentencing laws being changed for juveniles nationwide.

The Supreme Court in 2012 ordered that Miller be re-sentenced because the state’s only sentencing option for a juvenile convicted of capital murder was life in prison without the chance of parole.  A state law adopted last year now gives a judge the option of sentencing a juvenile convicted of capital murder to life in prison with the chance of parole after serving at least 30 years in prison.

Miller, now 28, was convicted of capital murder in 2006 for the 2003 killing of Cole C. Cannon in Cannon’s home in a Five Points mobile home park. Miller, who was 14 when the beating death occurred, is an inmate at St. Clair Correctional Facility in Springville.

Cannon’s daughter, Cindy Cheatham, said she thinks next month’s sentence hearing before a jury will be the the last court proceeding for the Cannon family in the case. “Even though there is anticipation, it makes me sort of edgy and emotional,” Cheatham said. “I’m ready for it to be over.  But it will never really be over.”...

When Miller was sentenced in 2006, Circuit Court Judge Philip Reich, who is now retired, sentenced Miller to life in prison without the possibility of parole.  The only sentences allowed by state law at the time for capital murder were the death penalty or life in prison without parole.  Reich could not sentence Miller to death because the Supreme Court in 2005 declared the death penalty for defendants younger than age 18 to be unconstitutional.

The Equal Justice Initiative appealed Miller’s sentence to the Supreme Court, which voted 5-4 that the state must have another sentencing option available for juveniles in a capital case other than life without parole.  The court sent the case back to Lawrence County for re-sentencing.  The new state law that a juvenile can be eligible for parole after 30 years does not preclude a judge from sentencing a juvenile capital murder defendant to life in prison without parole.

My first question after reading this article concerned why it took nearly five years for Evan Miller to have a resentencing, but this local article from last year suggests that resentencing was delayed until the Alabama legislature created a "Miller fix" in its sentencing law.  That "fix" now gives an Alabama judge, as detailed above and more fully in this local article, in this kind of case the discretion to impose LWOP or life with a chance at parole after 30 years.

But when remains unclear to me is why Evan Miller is apparently scheduled to appear before a jury at resentencing.  I suspect this may be because technically he is being resentenced on a capital conviction, but some have suggested in this juve sentencing setting that the Supreme Court's work in  Miller and the follow-up case Montgomery, combined with the Apprendi line of cases, now requires a jury finding of "irreparable corruption" to permit  giving a juve an LWOP sentence.  I would be grateful to hear from anyone in the know about Alabama sentencing procedures about why this article talks about Miller's upcoming sentence hearing being "before a jury."

March 5, 2017 at 08:30 PM | Permalink


From the article:

"After Miller and Montgomery, as many as 2,000 inmates will now be looking to judges or legislators for their chance at parole, Nellis said. Some -- like Henry Montgomery, who was convicted of killing a sheriff's deputy in Louisiana in 1963, when he was 17 -- have been locked away for decades."

That is the real aim of Miller, 2000 rehearings and tribunals, to generate massive lawyer employment.

Yeah, you lawyers, kids are different. They are superior to adults, in every way, including in morality. They commit a tenth the number of serious crimes as adults.

The states should just ignore the Supreme Court. Miller should have been executed on the spot. Look at the picture of this arrogant murderer. He knows he got away with murder, with the aid of the lawyer accomplices on the Supreme Court, paid off with lawyer jobs.

The decisions of the Supreme Court violate Article I Section 1 of the constitution. Each is a crime of insurrection against the constitution, void for illegality, void for rent seeking and self dealing.

Posted by: David Behar | Mar 5, 2017 9:00:15 PM


I found it interesting that in the second article you posted Patterson, a spokeswoman for the Alabama attorney general's office, said "Alabama's Supreme Court has set out standards for addressing claims like Miller's, and the lack of a new law isn't what's holding up his resentencing. But the prosecutor's office didn't explain why it's taken nearly four years to bring Miller back before a judge." It would appear she is referring to Ex Parte Henderson (Alabama Supreme Court, 144 So.3d 1262, September 13, 2013) in which the Court held that "trial courts retained the sentencing discretion necessary to comply with Roper and Miller when sentencing juvenile offenders for capital murder." The Alabama Supreme Court examined the text of Alabama's capital sentencing statute, which juvenile petitioners were arguing mandated a life without parole sentence or death, and concluded that:

"We recognize that a capital offense is defined under our statutory scheme as one punishable by the two harshest criminal sentences available: death and life imprisonment without the possibility of parole. Alabama's statutory scheme goes on to define 18 classes of murders and the circumstances that make those murders subject to the harshest punishments under the law. The juveniles focus their arguments on the fact that the statutory scheme defines a capital offense as an offense punishable by death or life imprisonment without parole, and they argue that this definition requires that their indictments be dismissed because neither punishment is now available for juveniles. Although the death penalty has been categorically banned, a sentence of life imprisonment without the possibility of parole is still possible for a juvenile homicide offender. However, it cannot be automatically imposed as a sentence on a juvenile homicide offender based on the heightened protections established for sentencing juveniles as set out in the Supreme Court's jurisprudence. The juveniles argue that they will not know the punishment they face because a mandatory sentence of life imprisonment without parole is no longer available. It is the mandatory, determined at the outset, imposition of a sentence of life imprisonment without parole when sentencing juveniles that is outside constitutional boundaries. It is not the actual sentence of life imprisonment without parole that was barred in Miller.3 Instead, Miller requires that the sentence be reviewed for the possibility of parole. Miller's Eighth Amendment boundaries when sentencing a juvenile homicide offender now subject that sentence to the possibility of parole. Accordingly, the juveniles have actual notice that, if convicted, they face a sentence of life imprisonment without the possibility of parole as a “ceiling.” The juveniles have notice of the “floor” as well, because Miller requires that a juvenile convicted of capital murder is entitled to have his life sentence reviewed for the possibility of parole. It is well settled that should a statute become invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part that is void. King v. Campbell, 988 So.2d 969 (Ala.2007). Sections 13A–5–58 and –59 evidence the intent of the legislature that Alabama have a valid capital-murder statutory-sentencing scheme as it applies to adults and to juveniles tried as adults. Severing the mandatory nature of a life-without-parole sentence for a juvenile to provide for the ameliorative possibility of parole because of characteristics attendant to youth does not invalidate § 13A–5–39."

After Henderson (and on remand from the U.S. Supreme Court) the Alabama Court of Criminal Appeals (CR-06-0741) reversed Miller's sentence and remanded back to trial court for Miller to be resentenced according to "the procedure established in Henderson." So it does appear that trial court's in Alabama were given the discretion to comply with Miller even before the legislature passed its statutory Miller fix in 2016.

With regards to Miller having his mitigating factors considered by a jury, the Alabama Supreme Court in Henderson wrote that "[s]ection 13A–5–45(a), Ala.Code 1975, provides that if a defendant is convicted of a capital offense, the trial court shall hold a separate sentencing hearing “to determine whether the defendant shall be sentenced to life imprisonment without parole or to death.” The sentencing hearing is conducted before a jury unless the hearing before the jury is waived, and the jury shall issue an advisory verdict of “life imprisonment without parole” or death, depending on its findings of aggravating and mitigating circumstances." However, I am a bit confused because the Miller fix that went into law amends 13A–5–43(e) to read: "If the defendant is found guilty of a capital offense or offenses with which he or she is charged and the defendant establishes to the court by a preponderance of the evidence that he or she was under the age of 18 years at the time of the capital offense or offenses, the sentence shall be either life without the possibility of parole or, in the alternative, life, and the sentence shall be determined by the procedures set forth in the Alabama Rules of Criminal Procedure for judicially imposing sentences within the range set by statute without a jury, rather than as provided in Sections 13A–5–45 to 13A–5–53, inclusive. The judge shall consider all relevant mitigating circumstances."

It would seem that the legislature wanted to place the sentencing hearing before a judge rather than before a jury as 13A-5-45 to 13A-5-53 details the role of the jury in sentencing for a capital case unless a jury sentence is waived by the defendant. ARCrP Rule 26.6(a) states: "Except in death penalty cases and in cases involving offenses committed prior to January 1, 1980, the judge shall impose the sentence in all cases. In death penalty cases and in cases involving offenses committed prior to January 1, 1980, the sentence shall be imposed as provided by law." While Miller's case is a capital offense under Alabama law it would not be a death penalty case because of Roper, so it would seem, at least to my cursory reading, that the legislature intended for a judge to determine sentencing in a juvenile homicide case rather then a jury. I wonder if the question of who sentences/resentences a juvenile offender in a homicide case will end up becoming a new issue requiring resolution by a state's Supreme Court.

Posted by: Sean | Mar 6, 2017 10:57:52 AM

It was to work out a deal , by law Edger can not be resentenced- ex post facto , which is forbidden by federal and state constitutes ... You must apply the law as it was in affect at the time of the commission of the offense ... One only need to look back to when Bobby Frank Cherry was tried and convicted and thereafter sentence ... Four murders , with racially motivates and the use of a t&t sticks , all of which would of gotten him a death sentence in the mid 80's .... And for a those against him getting a lighter sentence ; he can force them to let him out - by Alabama Law , so be thinkful his lawyers and him not pushing for that and beside he was a child , what if you was punished for the many err you made but wasn't caught and even those you was caught for , would one be wrong for wanting to punish you for the remainder of your' life - I did not think you would of suggested ...dont like the law change the policy ...

Posted by: Jah | Mar 19, 2017 6:15:15 AM

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