Academic highlight: Retroactivity of decisions setting new Eighth Amendment proportionality standards

Legal scholars have a lot to say aboutMontgomery v. Louisiana,a case that could be mistaken for a particularly devious hypothetical on a federal courts exam. At issue is whether the Courts 2012 decision inMiller v. Alabama, which prohibits mandatory sentences of life without parole for inmates convicted of murders that took place while they were under the age of eighteen, applies retroactively in habeas. If the answer is yes, then sixty-nine year-old Henry Montgomery may have a chance to go free for the murder he committed when he was seventeen years old, and the other 2,100 other inmates who were sentenced as juveniles to mandatory life without parole beforeMillerwas decided will also qualify for resentencing. As to be expected, scholars are divided on the issue.

In a recentarticle, Perry Moriearty argued thatMillerwas a substantive change to the law and thus qualifies for one ofTeague v. Lanesexceptions to the general principle that new law is not applied retroactively to cases in habeas. Moriearty argues thatMillerchanged substance and not procedure, both because it altered the sentence a state is permitted to impose and because it required the judge and jury to consider certain facts — specifically, the defendants age at the time of the crime — before imposing a sentence. Moriearty then goes further, asserting thatanySupreme Court decision that limits punishment on the basis of the Eighth Amendments proportionality requirement, asMillerdid, should apply retroactively because it only requires courts to re-open the sentence and not the conviction.

Douglas Berman, an expert in sentencing, agrees. He has submitted anamicusbriefarguing thatMillerfalls within theTeagueexception for substantive changes to the law because it prohibit[s] a certain category of punishment for a class of defendants because of their status. Like Moriearty, Berman argues that sentencing should be treated differently than convictions because the state does not have as great an interest in finality. Although the passage of time between conviction and habeas review may undermine the ability to obtain an accurate result in a new trial, the same cannot be said for sentencing, in which not just the crime but all aspects of the defendants life and behavior are relevant. In fact, Berman contends that the passage of time can actuallyimprovethe accuracy and efficacy of sentencing outcomes because resentencing can take into account information that was not available at the previous sentencing.

In contrast, some commentators contend thatMillerprimarily changed theprocedureby which juveniles convicted of homicide are sentenced, and thus does not qualify for theTeagueexception for substantive changes to the law — an argument also made by Louisiana before the Court.In his articleProportionality and Parole, Richard Bierschbach asserts that cases likeMillerstill allow the imprisonment of juveniles for life, and so they cannot be understood as solely — or even primarily — a purely substantive limit on punishment.” Rather, they should be viewed as establish[ing] a [new] rule of constitutional criminal procedure . . . that links the validity of punishment to the institutional structure of sentencing.Although Bierschbach’s article did not explicitly address theTeaguestandard, it nonetheless is relevant to the debate.If the Court agrees with Bierschbach thatMillerchanged the procedures to be used when sentencing juveniles, and not the ultimate sentence permitted to be imposed on a class of persons, thenMillerwill only apply retroactively if it falls withinTeagues narrower second exception for new watershed procedural rules affecting the fundamental fairness of the proceeding — an exception the Court has never employed in the twenty-six years sinceTeaguewas decided. Alternatively, the Court might accept Moriearty and Bermans arguments that the interest in ensuring a constitutionally sound sentence outweighs the state’s interest in finality — a position also taken by Montgomery himself.

Finally, the case may be dismissed for lack of jurisdiction because it is not clear whether the Louisiana Supreme Court relied on state or federal law when it denied Montgomery habeas relief. Because both parties contend the Court has jurisdiction to hear the case, it has assigned anamicusto address the tricky question of whether the Supreme Court has jurisdiction to review a determination of state law that appears to rely on federal judicial precedent to support the result.

Whatever happens, the Court is likely to issue a decision that will appear in federal courts casebooks for years to come.