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Supreme Court Takes Up Miller v. Ala. Retroactivity

In Miller v. Alabama, the Supreme Court announced a new constitutional rule that murderers who are 17 years, 364 days old or less at the time of the crime cannot be sentenced to life without parole under a mandatory sentencing system, but they can receive such a sentence if the judge has discretion to consider mitigating circumstances and decides that LWOP is warranted.

Does that decision apply retroactively to require new sentencing proceedings for the under-18 murderers sentenced under mandatory statutes and whose convictions were affirmed in final judgments before the Miller decision?  The Supreme Court of Louisiana said no last year in State v. Tate, 130 So.3d 829.  Applying Teague v. Lane, 489 U.S. 288 (1989), the court said this is a procedural change, not a substantive one, and it does not qualify as a "watershed" ruling on the scale of Gideon v. Wainwright.

Last June, that court applied the Tate precedent to summarily reverse a grant of collateral relief to George Toca.  Today the U.S. Supreme Court took up Toca's case.  Unsatisfied with the way Toca's lawyer wrote the question presented, the Court rewrote them as:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case?
2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?
You're all dying to know how Toca's lawyer wrote the rejected question, aren't you?

George Toca was barely 17 years old when he was arrested in 1984 for the accidental shooting of his best friend.  He has credible evidence that he is actually innocent of this crime.  The victim's family believes he is innocent and wants him released.  Must George Toca die in prison because the Louisiana Supreme Court has found Miller non-retroactive in Louisiana?
Nope, not the way to write it.  Still, the lawyer did succeed in getting certiorari granted.

So what did Toca actually do?  We don't have much to go on here.  The state court ruling is a summary disposition with no facts stated.  The District Attorney's Brief in Opposition says the facts of the crime are irrelevant to the issue and doesn't describe them.  That leaves us with the notoriously unreliable source of the defendant's lawyer.

Apparently Toca accidentally shot his best friend and partner in robbery during a robbery, and he has been in the slammer for 30 years as a result.  That's a pretty good case for clemency, if true.  Personally, I don't think the felony-murder rule should apply to the deaths of co-perpetrators during the felony at all.  That harsh rule should be reserved, at the very least, for the deaths of innocent people.  But that is a policy choice, not a constitutional mandate.

From the victims' families' perspective (generally, not necessarily this case), the question is whether they have to go back for another sentencing after they had been promised the relative finality of life without parole.  In the very worst murders perpetrated by not-quite-18-year-olds, the just sentence was death, but that sentence was barred by state law in many states and by Roper v. Simmons nationwide since 2005.  The Supreme Court noted in Simmons that LWOP was available as an alternative, but the finality that sentence provides is a mirage and the promise is broken if cases are reopened.


It's hard to read Summerlin as not favoring Miller as a procedural rule. See, e.,g :

"[R]ules that regulate only the manner of determining the defendant’s culpability are procedural."

Is the manner in which QP #2 is phrased circumstantial evidence of how (at least four Justices) will answer QP #1 & QP #2? Or am I reading too much into the Court's injecting the word "erroneously" into QP #2?

Kent, did the Court rewrite QP # 2? It was written exactly that way (as QP #1) in the opposition to the cert. petition.

Based upon some quick reading (of case law, scholarly articles and briefs), I suspect that at least five Justices will answer "yes" to both QPs. (But I want to read what Kent has to say before reaching a final opinion.)

Putting aside the legal issues, and simply balancing the equities involved, allowing juves who received a mandatory LWOP sentence an opportunity to argue (albeit in many cases many years after their conviction) that the trial court should exercise its discretion and impose a LWP sentence seems reasonable, despite the fact that finality is compromised. I suspect that in many of these re-sentencing cases the trial court will impose LWOP. But there are some cases (and Tate may be an example) where an LWOP sentence is (in the eyes of all reasonable people) unreasonable.

"simply balancing the equities involved"--since when is that a standard by which a final state court judgment can be ripped open by a federal court? Almost by definition a convicted murderer has no claim to "equity" when it comes to his freedom. (A murderer has his legal rights, no more, no less. I can think of no "equitable" claim this murderer has years after his case became final.

Why in the world should the good people of Louisiana have to spend a penny defending this judgment when it was unquestionably constitutional at the time it became final? Why? Because you think that a settled judgment of a murderer might be unreasonable?

LWOP was put in place because judges and parole boards have shown themselves (generally) to be completely untrustworthy when it comes to violent criminals. Having learned the cruel lesson of many innocent people being killed by revolving door justice, society rightly decided to impose harsh sentences on violent criminals. And society's right to do that was unquestioned until Justice Kennedy decided to get weepy about a bunch of violent criminals.

Now, because the enlightened among us feel like an LWOP sentence may be unreasonable, we're going to make up some right (and let's not forget that Miller created made-up rights) to rip open settled judgments. That's not the Constitution--that's, as you imply, five votes.

Now I get that you said "putting aside the legal issues"--but the "equities" that cut in favor of the state a very very strong. Of course, there's the issue of ripping open settled judgments when victims' families have earned a bit of repose. Then there's the issue of the victimization that, sure as the sun rises in the east, will happen to innocent people. But most importantly, there are vital interests of the people at stake, namely the right to have criminal judgments respected, and not subject to the whims of those who think they're oh-so-enlightened.

There is no basis for overturning this judgment. But that won't stop the lawless Justices on the Court.

By the way, the whole no mandatory juvenile LWOP thing is so ridiculous anyway. Since parole boards have unfettered discretion (from a constitutional standpoint) in deciding whom to release, the only difference between LWOP and LWP from the standpoint of entitlement is nomenclature in states where governors have unfettered clemency power. In states where the governor has unfettered clemency power, these juve cases hold that there is a constitutional right to have a judge decide (at time of sentencing) whether the criminal gets to have something called a parole board (as opposed to a governor) decide whether to let him go, and in states where a governor can overturn a parole board decision, the criminal doesn't even get that. To call this jurisprudence is to bestow dignity over this court-created three-ring circus. Derision is the only normal reaction.

Nice catch, Paul. I didn't notice that one of the substitute questions came from the respondent.

I wouldn't read too much into "claim ... erroneously." Of course the petitioner claims the state court decision was erroneous.

If the petitioner's statement of facts is correct, then I think this is a particularly sympathetic case because, IHMO, this never should have been considered a murder in the first place. A robber who is killed during a robbery is responsible for his own death, and nobody should be prosecuted for it. That has nothing to do with Toca being 17 at the time of the crime, though. It would be the same if he had been 18. This is a matter of state law, though, not a constitutional mandate.

Still, it is ominous that the Court has chosen an apparently sympathetic case to decide the retroactivity of Miller. If Toca wins, the same rule will apply in cases of rape/torture/murder where a 17-year-old really deserved death. The families will have to go back for another sentencing in those cases, and some hand-wringing judge may actually reduce the sentence.

I may be off base, but Miller/Tate strikes me as another Atkins/Hall scenario.

The Court gives states first crack at the issue. They did that in Atkins -- allowing states to determine how to implement the Court's new (Eighth Amendment) substantive rule . And, IMHO, Florida got greedy.

They also did that in Tate -- allowing states an opportunity to design re-sentencing procedures to comport with the new (Eighth Amendment) substantive(?) rule. (I think the states that construe Miller as setting forth a (primarily) substantive rule have the better argument.) Some states took advantage of this opportunity/grace and enacted new laws that allowed for re-sentencing of juves who received mandatory LWOP sentences. But most did not come up with a legislative solution. Rather they left it for their courts to decide. And the states have been all over the place on the retroactivity issue.

It was a lengthy perculation period. And now the Court has to step in to clear the air. The fact that they have chosen the sympathetic Tate case as the vehicle (just like they chose the myopic, wooden, unreasonable rule laid out by Florida in Hall) does not, as Kent states, bode well for the state of Louisiana.

I question whether the "families will have to go back for another sentencing" (as Kent surmises) in all cases. In some cases, the families may have expressed their views as to the appropriate punishment at the initial sentencing procedure, despite the fact that the sentence was mandatory. And I don't see why these victim-impact statements (or new videotaped statements) couldn't be used at the re-sentencing proceeding. (The Confrontation Clause doesn't prohibit their use.) This will minimize any inconvience to the families. Yes, just knowing that discretionary re-sentencing will take place and, thus, there is a possibility that the juve will not, once again, receive LWOP is emotionally upsetting. But, as I stated in my previous comment, in the vast majority of cases the juve will end up with the same punishment -- LWOP.

Perhaps the Court should have decided the retroactivity issue much earlier? That would have removed uncertainity and the unnecesary waste of state resources. The victims' families would also not be put through the emotional roller-coaster that is caused by having the issue perculate only to be definitively decided many years later by the Court.

I'd be interested in hearing the logic of the argument that Miller is retroactive. The Constitution I read doesn't say anything about a requirement to rip open settled judgments that provided sentences that were plainly legal when adopted.

"Some states took advantage of this opportunity/grace and enacted new laws that allowed for re-sentencing of juves who received mandatory LWOP sentences. But most did not come up with a legislative solution."

The Justice-worshipping nature of the quoted material is truly breathtaking. How majestic of the five lawless Justices who made this rule up out of whole cloth to give states the "grace" to come up with a solution. Who says America doesn't have royalty--we have five Justices bestowing grace upon state legislators (who represent millions of people) to do their dirty work.

Putting aside the unseemly "majesty of the Court" idea that permeates paul's post--the premise of the quoted material is utterly wrong. State legislatures could read Teague and say, "Hmmm, doesn't look like this is retroactive." What I suspect, however, is that paul expects states to catch the drift of five Justices who make it up as they go along. Fortunately, our state legislators generally have better things to do than to the Court's dirty work (i.e., rip open the judgments). But now, according to paul, states are going to feel the firm hand of the wise but stern five-headed Caesar because they had the temerity to ignore the opportunity. Yeah, the states are at fault here--if only they'd accepted the majestic wisdom of the good and wise five-headed Caesar.

LWOP was enacted because good citizens rightfully determined that courts and parole boards weren't getting the job done. Now the Court has seen fit to put public safety back in the hands of that untrustworthy bunch. Putting aside the cruelty of forcing victims' families to go through all of this, some of these guys are going to get out. And some are going to hurt people.

And for what? From an intellectual standpoint (I understand the practical effects), a juvenile murderer only has the constitutional entitlement to a chance at convincing a judge or jury that the body with absolute discretion to release or keep him in prison has to be named "Parole Board." And even then, it's not clear that a governor override (unquestionably constitutional) is overturned by Miller.

I can't let the snide comment about Florida pass. Florida, confronted with a bogus SCOTUS decision. (Atkins is only slightly more lawful than Missouri v. Frye and the companion habeas case.) decided to make sure the mischief only went so far. That SCOTUS chose to make a big deal about a guy who scored an 80 on an IQ test isn't Florida's fault.

federalist: I am curious if your contempt for who makes the rules under the Eighth Amendment (and how) also extends to who makes the rules (and how) for the Second Amendment. Can/should I reasonably criticize Heller et al using your same rhetoric/logic:

"[GUN CONTROLL] was enacted because good citizens rightfully determined that [GUN SELLERS AND INDIVIDUALS] weren't getting the job done. Now the Court has seen fit to put public safety back in the hands of that untrustworthy bunch. Putting aside the cruelty of forcing victims' families to go through [THE REGULAR SLAUGHTER OF INNOCENTS THAT GUNS PRODUCE], some of these guys [WITH GUN RIGHTS ALLOWED BY HELLER] are going to get out[and] hurt people."

I am not here really trying to criticize your public safety perspective/attack on Miller as much as trying to point out that similar attacks could (and perhaps should) be lodged against any and all constitutional rulings that limit state powers to do enact/apply (extreme?) laws in the name of public safety. And I am just trying to figure out if your are disdainful of judicial review in ALL constitutional settings or just in the Eighth Amendment setting.

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