Analysis
June 25, 2012, has stood as a barrier to potential freedom for hundreds of youths who were sentenced before then to life in prison, without a chance of release, for murders they had committed. The Supreme Court several times since then has refused to consider appeals asking that those youths, too, get the benefit of a ruling on that day that such sentences should seldom be imposed.
The Justices have now taken on that retroactivity issue, in Montgomery v. Louisiana. But they also have added a question of whether they even have the authority to decide it. Both issues will be heard at 10 a.m. next Tuesday, with the hearing expanded to seventy-five minutes to allow discussion on the Court’s power to act.
In the 2012 decision in Miller v. Alabama, the Court declared that it would be unconstitutional to have a mandatory sentence of life in prison, without the possibility of parole, for individuals convicted of murders committed before they were eighteen years old. The ruling did not flatly forbid all such sentences, but it did say that they should be uncommon. Unless the Supreme Court says so, a decision like that does not apply retroactively — that is, it does not cover cases in which the conviction had become final before the date of the ruling.
In the case of Henry Montgomery, who was given a mandatory life-without-parole sentence for the 1963 murder of an East Baton Rouge, La., deputy sheriff, when Montgomery was about two weeks past his seventeenth birthday, the Court is not only being asked to apply the Miller decision to prior cases, but it also has been urged by two advocacy institutes at Harvard Law School to call for new legal briefs on whether to ban such sentences in all circumstances involving juveniles. That, of course, would apply to pre-Miller cases, too.
The retroactivity question in a criminal case that is appealed from a state court, as Montgomery’s is, is basically controlled by the Justices’ 1989 decision in Teague v. Lane — a ruling that sought to head off repeated federal court challenges to state court decisions. The Teague decision is highly complex, with some exceptions included within the basic distinctions it draws for retroactivity purposes between Supreme Court rulings that lay down a new rule or apply an old one, and between decisions based on “substantive” law rather than procedure.
The Court said in Teague that a new criminal rule announced by the Court generally does not apply to earlier cases in which the conviction has become final after the first round of lower court review. But a new rule does apply retroactively in two circumstances: first, if it is a substantive rule limiting the kind of conduct that can be treated as criminal or limiting a kind of punishment that can be imposed; or, second, if it is a procedural rule that goes to the basic fairness of a criminal trial.
Thus, the task before the Court in Montgomery is to decide whether the Miller decision laid down a new rule, on life-without-parole sentences for minors, and then whether that rule, if new, was substantive or procedural. Montgomery and the amici supporting him argue that it is both new and substantive, and thus reaches back before June 25, 2012. The state of Louisiana and its supporters argue that, while Miller set out a new rule, it was procedural only, and thus does not apply to any such sentence imposed before then.
Henry Montgomery’s murder conviction became final in December 1970, after the Louisiana Supreme Court denied the challenge to his conviction and life-without-parole sentence — mandatory under state law. After the Miller decision came down, Montgomery, like others in his situation, sought to take advantage of it to undo that sentence with a new challenge in state court.
The state’s highest court turned him down again, having decided in earlier cases that it would apply the Teague v. Lane retroactivity formula, but also having ruled in a prior case that Miller did not apply retroactively because it was a procedural ruling, and did not involve the basic fairness of trial procedures.
In late 2014, the Justices had agreed to settle the retroactivity question, but that case (Toca v. Louisiana) was dismissed after the inmate involved made a new plea deal and was released from prison.
Montgomery became the latest to seek a test of the issue in the Supreme Court. Louisiana, answering the appeal when requested to do so by the Court, conceded that the Justices had the authority to decide the issue and that the lower courts are divided on the question, but it still urged the Justices not to grant review. The Court nevertheless granted review last March.
In doing so, it told the lawyers involved to file briefs and be prepared to argue a second question. Paraphrased, that question is whether the Court has jurisdiction to review the state court’s failure to apply Miller retroactively. Because Louisiana had agreed that the Court did have that authority, the Justices then chose a Washington, D.C., attorney, Richard D. Bernstein, to argue that the Court does not have jurisdiction.
Bernstein will be the first to appear on Tuesday, with fifteen minutes of time at the lectern. He will be followed by Montgomery’s lawyer, Mark D. Plaisance of Thibodaux, La., with fifteen minutes; Michael R. Dreeben, a deputy U.S. Solicitor General supporting Montgomery, with fifteen minutes, and then Louisiana’s lawyer, S. Kyle Duncan of Washington, D.C., with thirty minutes.
Bernstein told the Court in his amicus brief that it has no authority to decide Montgomery’s case because it came up from a state court which has no binding obligation to follow the Teague v. Lane retroactivity formula, and has opted to do so only as “guidance.” Under the Constitution, the brief said, the Court has limited power to review appeals from state courts, and that “does not extend to issues of state law or state court advisory opinions on state law.”
Before the Louisiana Supreme Court began applying the Teague analysis, Bernstein wrote, it had decided in 1992 that inmates who sought further review in state court after their convictions had become final could do so only as allowed under state, not federal, law. Since then, the brief added, the state’s use of the Teague approach has been voluntary. For the Court to have jurisdiction to rule in Montgomery’s case, the filing added, it would have to first rule that states are required to allow inmates pursuing post-conviction review in state court to make retroactivity pleas under Teague. It should not do that, Bernstein contended.
“It is not sufficient,” the brief concluded, “that a state court has used non-binding federal decisions as non-binding guidance for the state court’s application of its own state law.”
Montgomery, Bernstein added, still has the option of filing a new challenge in federal court, under federal habeas law, which does make the Teague approach binding. Bernstein was not asked to take a position on whether the Miller decision should apply retroactively in cases like Montgomery’s.
Montgomery’s brief on the merits argued that the Louisiana Supreme Court turned aside his challenge based entirely on federal law, not state law. The retroactivity analysis applied by the state court was that laid down in Teague, and not on some state law retroactivity formula, that filing said. The Court’s decision in Miller, that brief contended, “establishes a minimum standard for the state sentencing of juveniles under the Eighth and Fourteenth Amendments,” which is a federal question.
The federal government filed an amicus brief making some of the same arguments as Montgomery did on the jurisdiction question. The state court based its ruling against Montgomery “exclusively on federal decisions,” even though it had the option of fashioning its own rule on retroactivity. If, as Montgomery and the federal government argue, the state court was mistaken about the retroactivity of the Miller decision, the Court does have the authority to correct that mistake, the federal brief said.
It went on to warn that the Justices should avoid having to decide a “significant constitutional question,” on whether Teague established a “constitutional floor that a state must observe in its post-conviction review of federal constitutional claims.” Correcting the state court’s “mistaken understanding of federal law” would avoid that question, it added.
Louisiana’s own brief on the merits commented that a ruling that the Court has no jurisdiction over the case would be to its advantage, since Louisiana won on that point in its own state supreme court and “would also prevail in any federal habeas proceeding,” based on a 2013 ruling by the U.S. Court of Appeals for the Fifth Circuit against Miller‘s retroactive application. (Louisiana is in the Fifth Circuit.)
Even so, the state again conceded that the Court has the authority to rule on Montgomery’s case, because the state court ruling “was based solely on the federal Teague framework.” That decision, it added, “is interwoven with federal law.”
If the Court gets beyond the jurisdictional issue — and it will have to find that it does have authority to review the case before going further — it will find the two sides in agreement that the Miller ruling pronounced a new rule, but are otherwise in complete opposition to each other on retroactivity. The federal government has joined in the case in an effort to get what appears to be an expansion of the Teague retroactivity formula, which the state vigorously opposes.
The key point of difference between Montgomery and the state is over whether the Miller decision set down a substantive or procedural rule. Montgomery’s merits brief argued that the ruling had categorical characteristics that make it substantive in nature: it limited the category of punishment (life without parole) for a category of individuals (minors), and those are the kinds of factors that have led to retroactive application of other categorical changes in criminal law.
The state’s merits brief contended that the 2012 decision is procedural in nature, because the Court did not categorically bar life-without-parole sentences for all minors convicted of murder. The Court only mandated that a convicted individual’s age be taken as a “mitigating factor” before a youth could be given such a sentence, it added. Indeed, it said, the Court’s opinion explicitly referred to a duty on sentencing judges to “follow a certain process.”
The federal government took the view that Miller was a substantive decision, because it singled out a category of offenders — minors — and decreed an expansion of “the range of possible sentencing outcomes,” thus opening the possibility of a sentence lower than life without parole The federal brief argued that the key to the Teague analysis is “the fundamental difference between the way a case is adjudicated (procedure) and the possible outcomes of the case (substantive).” A rule expanding the sentencing outcomes, it contended, falls on the substantive side.
The state protested that the government was advocating an expansion of Miller, because its position would enlarge the procedural aspect of that ruling.
The most provocative amicus brief is the one filed by Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute. Taking no position on either issue that the Court will be reviewing, that brief cited “the national turn away from” juvenile life-without-parole sentences (nine states have abandoned it in the past three years and it is “exceedingly rare” everywhere else), and asserted that the Court should take on the basic question of whether to flatly prohibit all such sentences for juveniles under the Eighth Amendment.
That filing suggested that the Court call for new briefs on its proposal, or else grant review of a pending case (another one from Louisiana) that raises that explicit issue.
Among other amici filings, Montgomery has the support of civil rights groups, child advocacy organizations, lawyers for other inmates in Montgomery’s situation, the families of victims of juvenile murderers, former juvenile court judges, criminal law academics, and the American Bar Association.
The state of Louisiana has amici support from sixteen other states, prosecutors’ organizations, a group representing victims of juvenile murderers, and the conservative advocacy group, the Criminal Justice Legal Foundation.
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