WASHINGTON — On Tuesday morning, the Supreme Court is due to hear arguments in one of the potentially biggest criminal law cases of its new term, considering whether a 2012 ruling that ended automatic life sentences for juveniles applies retroactively to those sentenced, in some cases, decades before the court's 2012 decision.
In the case of Henry Montgomery — who was sentenced to life in prison without the possibility of parole automatically when convicted in Louisiana for a murder he committed at 17 — the issue before the court is both direct and tediously complex: Was the Supreme Court's decision to end automatic life without parole sentences for juveniles a substantive decision, which would be retroactive, or a procedural one, which would not be retroactive?
In a friend-of-the-court brief supporting Louisiana, Michigan's lawyers note that the decision could affect many inmates across the country. "While federal prisons hold only 37 such prisoners, more than 2,000 criminals who committed murder while teenagers are currently incarcerated in state prisons," the lawyers wrote on behalf of Michigan and 15 other states.
Also Tuesday, the court will be hearing a case addressing whether Florida’s system of allowing a judge to override the jury’s sentencing recommendation in a death penalty case, which itself need not be unanimous, is constitutional.
The cases are two of several criminal law cases on the court's docket that could, depending on the outcomes, lead to a term that dramatically alters the safeguards in place regarding some of the most severe punishments available under criminal law.
In his brief before the court, Montgomery, sentenced to life in prison without parole more than 40 years ago, argues that the 2012 Supreme Court decision in Miller v. Alabama must be seen as a substantive ruling, which would mean that he — now almost 70 years old — must be re-sentenced.
“The determination that a particular sentence, at least for a particular class of defendants, is ‘cruel and unusual’ is an inherently substantive determination,” Montgomery’s lawyers wrote in their arguments to the court.
Louisiana, on the other hand, focuses on “the fact that Montgomery could receive the same sentence today for the same conduct.” The Supreme Court, in other words, only said that automatic life sentences without parole for those juveniles convicted of murder is prohibited, not an individualized sentence of life without parole for such a juvenile. Because of that, Louisiana argues that the 2012 decision must be seen as a procedural one.
“Because Miller only requires a sentencing procedure and does not deny the government power to impose a category of punishment, Miller does not qualify as a substantive rule under [the Supreme Court’s standards],” the state wrote in its arguments to the court.
The Obama administration has weighed in on behalf of Montgomery in the case, siding with the criminal defendant and arguing that the 2012 decision is “not essentially procedural” because, Solicitor General Donald Verrilli Jr. wrote, “Miller changes not only the process of sentencing, but also the range of sentences that are available.”
Three side issues also could be at play in the case. The first is whether the court has jurisdiction to hear the case, which is an appeal of a decision of the Louisiana Supreme Court, at all. The court raised this question itself and, since all of the parties think the court can hear the case, appointed an outside lawyer to argue that the court does not have jurisdiction.
The second is whether, if the court decides the ruling was procedural, the ruling was a “watershed rule” that nonetheless should apply retroactively. While Montgomery argues that, if necessary, the court should rule that it was, the Obama administration did not join Montgomery in arguing that point.
Finally, and most dramatically, a friend-of-the-court brief submitted by Harvard Law School professor Charles Ogletree and several leading criminal justice scholars argues that the court should take this opportunity not to decide the issues before it but instead, more broadly, ask the parties to brief a bigger question: Whether — more than just automatic sentences of life without parole for juveniles being unconstitutional — all sentences of life without parole for juvenile offenders should be held to be unconstitutional. Although that is an unlikely outcome of Tuesday's hearing, the American Bar Association, which also filed a brief supporting Montgomery, previously took a similar position, arguing after Miller that states should "[e]liminate life without the possibility of release or parole for youthful offenders both prospectively and retroactively."
Although much of the talk last week when the Supreme Court began its new term focused on high-profile cases that have been in the news for months or longer, the heavy focus on criminal law rules in the new term — with all decisions expected to be handed down by the end of next June — could loom large as decisions begin to be handed down.
Already this term, the court is scheduled to hear three issues addressing various questions relating to the procedures surrounding sentencing people to death, including the case being heard Tuesday and a set of cases heard last week involving what instructions juries need to be given by a trial court before deciding whether to impose a death sentence. The third issue, to be heard in November, addresses questions about the use of race by prosecutors when selecting a jury in a capital case. The fact that the court is hearing all three of these issues, in addition to the Montgomery case, means that the court could be taking a closer look this year at sentencing practices associated with some of the most harsh criminal sentences.
Additionally, a case added to the court’s docket when the justices returned to start the new term raises the question of whether a former prosecutor who signed off on an individual’s capital prosecution can later sit as a judge in a case on the state supreme court when it reviews that individual’s case.
Among the highest-profile cases the court has agreed to hear this term are the affirmative action case out of the University of Texas at Austin; the case addressing the future of the court’s “one person, one vote” standard, also out of Texas; and the case challenging public union dues requirements, involving California’s teachers. Two other issues expected to be heard by the court this term involve whether the accommodation for nonprofits with religious objections to the Obamacare contraception mandate is sufficient to protect their religious interests and whether restrictive abortion provider regulations, challenged in cases out of Mississippi and Texas, are constitutional.
The Supreme Court decision in Miller v. Alabama was handed down in 2012, not 2011, as originally stated. While the Supreme Court agreed to hear the case in 2011, it did not decide the case until June 2012.