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Some Further Thoughts on Miller

A few more quick thoughts on the scope of today's decision in Miller v. Alabama.

Many states are already in compliance.  For example, California Penal Code § 190.5(b) provides that the sentence for a juvenile convicted of first-degree murder with special circumstances (our odd term for capital murder) is LWOP or 25-to-life "at the discretion of the court."  In my opinion, this complies with today's decision.

All new U.S. Supreme Court decisions are retroactive to cases pending on direct appeal, as Miller was.  They can be retroactive to cases on state collateral review, as Jackson was.  States can choose to follow the Teague rule or not.  (Danforth v. Minnesota.)

New rules that make a defendant categorically ineligible for a punishment (Atkins, Graham) apply retroactively on federal habeas corpus.  New rules of procedure do not unless they are "watershed" rules, and the Supreme Court has not found a single new rule to be "watershed" since it set up this framework in 1989.

In addition, Congress has provided that a claim rejected on the merits in state court cannot be overturned on federal habeas if it was reasonable under Supreme Court precedent existing at the time.  (28 U.S.C. §2254(d))

So, for cases that were already final on appeal before today, I think there is a strong case for resisting retroactive application.

Regrettably, it appears that the Court has imported its entire, deeply flawed, "individualized sentencing" regime from capital punishment into JLWOP.  Juveniles facing LWOP now have a federal constitutional right a la Lockett to bring in everything including the kitchen sink and then file federal habeas petitions to second-guess the trial judge on the details of the proceeding.

One more reason for the next Congress to remove sentencing-phase claims from federal habeas altogether.


I think there is an Apprendi issue lurking here.

If LWOP is the maximum punishment for the crime as found by the jury's verdict, I don't see how Apprendi enters into the picture.

I'll defer to you, but it seems to me that there are effectively two crimes here since the LWOP decision is required to be based on something. That something "aggravates" what would be JLWP murder into JLWOP murder. In other words, there have to be facts that make it not JLWP. I don't know that judicial discretion gets it done.

Footnote 8 in Kagan's opinion refers to "factfinders." That may be reading too much in.

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