Five years ago this week, as another term of the United States Supreme Court was coming to an end, I can still recall the daily drill: jump on SCOTUS blog at around 9:45 a.m., watch the banter and countdown to 10 a.m., and then wait anxiously to see if this was the day the Court would issue its ruling in Miller v. Alabama. The ruling would be momentous, win or lose. The case represented the third time in seven years that advocates challenged severe sentences for youth convicted in the criminal justice system as violative of the Eighth Amendment ban on cruel and unusual punishment – here, the sentence of life without parole for youth convicted of murder.
And then, finally, the scroll, as the real-time review and summary of the holding began to appear on my screen.
Another win for kids! – with the Supreme Court expanding its “kids are different” jurisprudence to strike another extreme sentencing scheme for youth. The Court banned mandatory life without parole sentences for youth convicted of homicides committed before their 18th birthday. The Court ruled the sentence was disproportionate for the vast majority of juveniles, whose crimes reflected the transient immaturity of youth. Once again citing research confirming the reduced culpability and impetuosity of youth, the Court banned the sentence for all but the rare and uncommon juvenile who was permanently incorrigible or irretrievably depraved.
As we read and processed the decision, many of us assumed the decision would be applied retroactively. Approximately 2,000 youth nationwide were serving what was now an unconstitutional sentence ― we expected swift and satisfying relief.
We were wrong. While some state supreme courts did indeed find Miller retroactive, the highest courts in Pennsylvania, Michigan and Louisiana – home to roughly 60 percent of all juvenile lifers in the country – did not. Characterizing Miller as establishing only a new a procedural rule that need not be applied retroactively, over 1200 juvenile lifers were left with no immediate path to relief. It would take another four years, until 2016, before the Supreme Court would hold, in Montgomery v. Louisiana, that Miller established a new substantive rule of constitutional law that afforded all juvenile lifers the opportunity to be re-sentenced.
Last week, Henry Montgomery, who has been incarcerated since the 1960s in Angola Prison in Louisiana for a murder committed when he was 17, was re-sentenced; he is immediately eligible to seek parole. Henry waited over five decades to obtain this measure of justice. Just recently, Joe Ligon, believed to be the longest serving juvenile lifer in the country, was finally granted eligibility for parole after more than six decades incarcerated in prison in Pennsylvania. Hundreds of other juvenile lifers have been re-sentenced since 2012, dozens are now living back in their communities.
States across the country have also responded to the court’s mandate in Miller, passing new sentencing legislation which established alternative sentencing schemes with parole eligibility, or even eliminating life without parole sentences for juveniles entirely.
But these success stories are matched with still pitched battles about what Miller really means and how best to implement it. While parole eligibility for many youth convicted of homicide is now a realistic possibility, in too many states it comes after still decades in prison – often 30 years or more. Just a fraction of states will permit parole eligibility after 15 or 20 years of incarceration. Distinctions between first and second degree murder (in many states felony murder or accomplice liability) are insufficiently recognized. In Pennsylvania, the legislature set high mandatory minimums ― 25 or 35 years depending on the age of the youth – before even becoming eligible for parole in first degree murder cases. And the actual record on re-sentencings is mixed. While only a small percentage of juvenile lifers have been re-sentenced to life without parole in Pennsylvania, prosecutors in Michigan are seeking life without parole in the vast majority of cases there. And in Louisiana, over 80 percent of youth convicted of homicide since Miller have been sentenced to life without parole.
Legal battles over how these sentencing or re-sentencing hearings should proceed also clutter the landscape. With Miller and Montgomery’s prescription that juvenile life without parole sentences must be rare and uncommon, many courts have now recognized a presumption against juvenile life without parole, and have explicitly placed the burden on the prosecutor to prove permanent incorrigibility beyond a reasonable doubt. The Pennsylvania Supreme Court ruled just this week that these due process requirements must be followed. The Court wrote: “To rebut the presumption, the Commonwealth has the burden to prove, beyond a reasonable doubt, that the juvenile offender is permanently incorrigible and thus is unable to be rehabilitated.” But this view is not unanimous, and many individuals face hearings where the burden is on them to prove they are not eligible for a life without parole sentence.
United States Supreme Court anniversaries come and go. The last 12 years produced an extraordinary number of decisions recognizing the developmental differences between youth and adults and requiring states to conform their sentencing and related justice system practices accordingly. While this term brought no vigil at my computer as the last decisions trickled out, scanning the work of state courts and legislatures continues, and the fight for justice for youth has switched forums for now.