En banc Third Circuit upholds 65-year juvenile sentence in Grant more than three years after bold panel ruling

In this post way back in April 2018, I noted a remarkable Third Circuit panel opinion in US v. Grant, addressing the application of Eighth Amendment limits on juvenile sentences while vacating  a 65-year federal prison term for a 16-year-old offender.  Among other points, the original split panel opinion in Grant held that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  But six months later, as detailed in this October 2018 post, the active judges voted for rehearing en banc in Grant upon the government's petition and the original opinion and judgment were vacated. 

Now, nearly three years later, the en banc Third Circuit has finally ruled in favor of the government US v. Grant, No. 16-3820 (3d Cir. Aug. 16, 2021) (available here).  Here is how the en banc majority opinion in Grant now starts:

A federal court jury convicted Corey Grant in 1992 of homicide and other crimes that he had committed while he was a juvenile.  The presiding judge sentenced Grant to life imprisonment under the then-mandatory U.S. Sentencing Guidelines.  Parole is unavailable to those convicted of federal crimes, so the sentence effectively condemned Grant to die in prison — with proof of circumstances warranting compassionate release his only hope.

In 2012, the Supreme Court of the United States decided Miller v. Alabama, 567 U.S. 460, which held that the Eighth Amendment permits a life-without-parole (“LWOP”) sentence for a juvenile homicide offender only if the sentencer could have imposed a lesser punishment based on the offender’s youth at the time of the offense.  Later, the Court made Miller retroactive to cases on collateral review.  Montgomery v. Louisiana, 577 U.S. 190 (2016). Because Grant’s LWOP sentence was imposed mandatorily, Miller entitled him to a new sentencing.

At resentencing, the District Judge noted Grant’s minority at the time of his crimes and recognized that youth can impair judgment and thereby mitigate culpability.  The Judge stated that a life sentence for Grant would be too harsh, given his juvenile offender status and individual circumstances, and instead sentenced Grant to a term of 60 years on his homicide-related convictions. Factoring in an undisturbed five-year consecutive sentence, Grant’s total sentence was effectively reduced to 65 years.

Grant now argues that his 65-year sentence violates Miller because it incarcerates him to his life expectancy, thereby amounting to a de facto LWOP sentence. Grant contends that Miller forbids such a sentence for a juvenile homicide offender unless he or she is incorrigible, which Grant is not.  But Miller only entitled Grant to a sentencing hearing at which the District Court had discretion to impose a sentence less than LWOP in view of Grant’s youth at the time of his offenses. And that is what he received. So we will affirm Grant’s 65-year sentence.

In the alternative, Grant maintains that we should remand for yet another sentencing proceeding because vacatur of his LWOP sentence under Miller invalidated his lesser-included concurrent sentence on drug-trafficking counts.  But Grant did not preserve this argument, and the District Court’s failure to extend our sentencing-package doctrine beyond vacated convictions to vacated sentences was not plain error.

This opinion was a long time coming no doubt in part because the en banc court likely was eager to await the Supreme Court's latest pronouncement on the application of Miller. Recall that SCOTUS granted cert in the Malvo case to address the proper retroactive application of Miller way back in March 2019, though only finally spoke on this topic in the replacement Jones v. Alabama case this past April.  Unsurprisingly, this Grant ruling leans heavily on Jones, and seeing how Jones is being applied in this context provides one reason for sentencing fans to check out this new ruling.

But hard-core Eighth Amendment fans will want to make sure they also check out some of the additional opinions, particularly a 15-page concurrence authored by Judge Hardiman and joined by three other judges.  That opinion attacks the Supreme Court's “evolving standards of decency” test for having a history "marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People." And it concludes this way:

The story of the evolving standards of decency test — from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land — has created more problems than it has solved.  Its inscrutable standards require judges to eschew the law as written in favor of moral sentiment.  The only constant is that more and more laws adopted by the People’s representatives have been nullified.  And the People have no practical way to reverse this contrived ratchet.

This Court, relying on a careful review of the Supreme Court’s Eighth Amendment precedents, reaches the right conclusion for the right reason.  But if the Supreme Court continues to apply “the evolving standards of decency” test, I wonder what will be the next stop on this runaway train of elastic constitutionalism?  As Chief Justice Roberts cautioned nine years ago: there is “no discernable end point.”