Miller v Alabama, Jackson v Hobbs

PHOTO: NOVJL board members and murder victim family members Jody Robinson and Bobbi Jamriska at the Supreme Court, 3-20-12, for the oral arguments in the Miller and Jackson cases.

Miller v. Alabama and Jackson v. Hobbs

June 25, 2012  – In a 5-4 split decision the Supreme Court has struck down life sentences for juvenile killers as violating the 8th amendment ONLY if the sentence is mandatory. The majority opinion does not draw an age line defining “juvenile” but the dissenting opinion says that line is under 18 years of age when the crime was committed.

Read the Supreme Court Opinion in full here.

Read our NOVJL Press Release here.

Read the Alabama Attorney General’s Office Press Release here.

Read important legal analysis on the implementation of the ruling into law.

Read the list of states with mandatory sentencing schemes for juvenile lifers that will fall under the court’s ruling.

See video of a victim press conference in Michigan.

Read our ever increasing coverage of the legal and legislative aftermath of this ruling.

See many on-going decisions, many jurisdictions deciding that the Miller ruling should not be applied retroactively.

Join in the discussion with victims as they share their feelings about this ruling on Facebook and on a blogspot site.

Read about a Florida court ruling declaring that the Miller ruling cannot be retroactively applied.

While NOVJL takes no specific stand on what specific sentences should be – this is the purview of courts and legislatures and victims’ views vary widely – we do know that this ruling will significantly affect victims’ rights, which we do strongly stand for. Undoing a legally final case, in many cases decades old, will negatively impact many murder victims families across the USA, most of whom do not know about this issue, this website, or that there has been a significant well-funded campaign to undo the finalized life sentences given to the teen killers in our loved ones’ murder cases.

Many of us understand and even agree with the high court’s concerns about mandatory sentencing – for any offender or crime. Many of us support added protections for younger offenders. But most of us support the availability of the LWOP sentence for the most heinous offenses and offenders, all of which the Supreme Court did in this ruling.

Our primary concern now is that all victims’ families affected by this ruling are contacted with information and support.

Highlights of the Ruling

1. While striking down all “mandatory” JLWOP sentences for teen killers, retroactive application of this ruling will be legally challenged in many killers’ sentences- this matter will be heavily litigated (see legal analysis below). Cases still under direct appeal will be resentenced, but state legislatures will likely weigh in first, and victims can help shape what state legislatures decide will be the sentencing alternatives. State legislatures can simply make the LWOP sentences OPTIONAL, and then judges can still give them to the offenders. Many will do just that. After the legal tussles shake out, many victims’ families may only have to undergo only ONE additional proceeding with the killer – a new sentencing hearing replacing the mandatory life sentence with what will likely be a virtually equally serious alternative. While any encounter with the offender in a courtroom will be seriously re-traumatizing for victims families, they will have a right in all 50 states and federally to be notified of these proceedings, to be present, and to make a statement about the impact that the crime had on them before the new sentence is given.

2. Most offenders that get a re-sentencing opportunity will receive either an optional life without parole sentence (exact same sentence as they got before) or a lengthy term of years that constitutes a virtual life sentence, changing nothing for all intents and purposes. We are predicting that VERY few teen killers serving life sentences will likely ever be released early from prison.

3. The Supreme Court has now been asked multiple times to categorically ban JLWOP by attorneys for the offenders, and has repeatedly rejected that request. There was not a SINGLE vote on the Supreme Court to find all  life sentences for teen killers unconstitutional. The Supreme Court has stated clearly that life without parole sentences for those rare most serious teen killers are completely constitutional as long as judges can consider the offender’s age as an optional factor in the sentencing process.

Lowlights of the Ruling

1.  Justice Kagan in writing her majority opinion adopts the propaganda-laden word choice of offender advocates in her ruling calling these convicted murderers “children” (the correct legal term is “juvenile”) and uses the offender advocates’ propaganda line: “children sentenced to die in prison.” We believe that Supreme Court Justices should not use advocacy language so propaganda laden, so inaccurate, and so insensitive to victims. The only people in this discussion with death sentences are our murdered loved ones. To call a life sentence a death sentence is reminiscent of George Orwell’s futuristic warning novel 1984 in which language loses all meaning: war means peace, love means hate, and lies mean truth. A life sentence is NOT a death sentence. It is a LIFE sentence. Only a death sentence where the offender is to be executed is a death sentence. The way Justice Kagan uses it, the words mean no more than what is true for us all: that we are living this life under a proverbial “sentence of death” – someday. Many victims’ families have complained of the insensitive lack of distinction between the offender who LIVES on, and our innocent murdered loves ones who suffered horribly and DIED.

Even serving a life sentence, offenders can experience life, love, joy, pleasure, family, relationships, and meaning. They can grow wise, they can educate themselves, they can be helpful to others, they can make a difference, they can be creative, they can make a legacy for their lives, and they can impact others in a positive way. They can choose each day to make good things happen, even from their cells. Many inmates that we admire do just that. They can even express remorse for their crimes and try to be helpful to victims everywhere. They can LIVE. Even from behind bars. They LIVE. The language written in the majority opinion makes no such distinction, and we believe sadly diminishes the Court’s legacy of brilliantly written opinions.

2. There was no recognition in the majority opinion whatsoever that there were dead victims at the heart of this whole huge discussion. Thankfully, Justices authoring the minority dissent actually mentioned the word “victim”. But the majority opinion gave no thought, apparently, to the impact of this decision on victims’ families.

3. Some of us are actually feeling a bit sorry for some of the families of the offenders affected by this ruling – right now they are likely VERY happy – celebrating – feeling hope for the first time since these offenders were convicted of these murders and sent to prison for life. Some are likely even planning the offenders’ homecoming. We know that this is going to end in disappointment for most of them. Most of these offenders will never be released from prison, even after all the legal wrangling that this SCOTUS ruling will allow.

Below we include legal insights from some of the top scholarly attorneys in the nation on this issue of sentencing and constitutionality. We hope to be useful to victims, advocates, and prosecutors and be a conduit of information for the many fights in courts and legislatures that surely lie ahead in the wake of this ruling.

NOVJL member Candy Cheathem, daughter of Cole Cannon, the victim in the Miller v Alabama case, speaks to the press after the oral argument at the Supreme Court, March 20, 2012.

Some news coverage:

NOVJL President on New Orleans talk radio
Victims Family Reacts in Iowa
Fox News
Crime Report
Huffington Post
New York Times
The Boston Globe 
Battle Creek Enquirer
Sacramento Bee
Bloomberg News
George Will’s Column in the Washington Post
Boston Herald “Grieving Dad”
Los Angeles Times
Democracy Now on YouTube
Chicago Tribune
Victim Letter Published giving feelings on ruling
Sentencing Law and Policy Blog
 National Public Radio:  High Court Bars Mandatory Life
Court Strikes Mandatory Life Terms for Juveniles
All Things Considered   Court Bars . . .  Morning Edition

Wire service coverage, more examples

Join the “debate” on SacBee “Head to Head”

Some Legal Views Regarding SCOTUS Ruling

1. Analysis from legal expert Cully Stimson:

Heritage Blog on the 8th Amendment

MILLER. Kagan delivered the opinion for the 5-4 majority, holding that the Eighth Amendment prohibits a sentencing scheme that mandates life without the possibility of parole for juvenile homicide offenders, which was the law in 28 states plus the federal government (although Arkansas contended that Jackson’s sentence was not mandatory, the Court noted that the state courts had treated the sentence as mandatory and chose to abide by the state courts’ interpretation). The Court held that before a life-without-parole sentence can be imposed on a teenage murderer, the sentencer must consider an offender’s youth and other attendant characteristics. The Court likened life-without-parole sentences to the death penalty for teenage murderers. The Court also stated that its precedents had established that teenage offenders are constitutionally different from adults for sentencing purposes because their “lack of maturity” and “underdeveloped sense of responsibility” lead to recklessness, impulsivity, and heedless risk-taking, and that these distinctive attributes diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even those who commit the worst crimes. Breyer, joined by Sotomayor, joined the majority opinion and concurred, arguing that LWOP sentences may be applied only upon the determination that a juvenile “killed or intended to kill” the victim—in other words, the felony-murder doctrine does not apply. The Chief, joined by Scalia, Thomas, and Alito, dissented, arguing that the punishment meted out by the states was not “unusual,” such that the “evolving standards of decency” do not support barring categorical application of LWOP sentences for juveniles. Thomas, joined by Scalia, dissented, arguing that the Court’s reasoning is not consistent with the original meaning of the Eighth Amendment. And Alito, joined by Scalia, filed a separate dissent, arguing that the Court has abandoned any pretense of heeding legislative consensus among the states and that, inevitably, the other shoe will drop and the Court will bar all LWOP sentences for juveniles.  [Ed. Note:  Although we suspect Alito and Scalia may be correct about the Court’s direction, the rulings today do allow states to sentence some juvenile killers to LWOP if they follow the roadmap set forth by the majority.]

2. Analysis from NDAA President, California District Attorney Jan Scully in the press release

District Attorney Jan Scully today responded to the United States Supreme Court decision on murder sentences for juveniles. In Miller v. Alabama, the Court ruled life without parole sentences for juvenile murderers are unconstitutional when the sentence is mandatory.  Scully, who is also the current President of the National District Attorney’s Association, stated:  “The Court’s decision preserved Juvenile Life Without Parole (JLWOP) sentences for murder when imposed within the discretion of the sentencing court. The Supreme Court’s 5-4 decision states that a mandatory sentencing scheme is improper for juveniles, who must be allowed to show mitigating factors based on their age.  In California, life without parole is not mandatory for juveniles, so the decision will have no effect here.  In those states this decision does affect, NDAA will be working closely with prosecutors and victims regarding the issue of retroactivity.” District Attorney Scully went on to say, “The most troubling aspect of Justice Kagan’s opinion is the reference to cold blooded murderers as children, who should be excused because of their age and lack of judgment.  Americans under the age of 18 do not commonly carjack a mother and her two young children and shoot all three in the head, or slaughter their parents and grandparents, or kill a police officer with intent and premeditation, as gang member Jimmy Siackasorn did here in Sacramento.  The sentence of life without parole, for juveniles and adults alike, is only used after careful consideration, in the interest of justice, and on behalf of victims.”

3. Analysis from NDAA Boaard member, Oregon Prosecutor and legal expert Joshua Marquis

For what it’s worth it appears that in Oregon – and similar states where
LWOP is one OPTION but not mandated for Aggravated murder – that our juvenile LWOPs are NOT per se unconstitutional. But I expect the court’s majority logic could be extended to non-murder mandatory sentences (i.e. in Oregon for anyone 15+ certain very serious crimes like Forcible Rape have a minimum mandatory of 8 years. An argument could/will now be made that such a sentence is cruel and unusual under Miller. In 2000 I prosecuted a 16-year old who sexually assaulted and then murdered an 8-year-old girl whom he buried two blocks from the courthouse. I went to trial (he waived jury) and he was convicted of aggravated murder (I had to prove he killed her to cover up the crime of sexual assault, no sure thing, and then at sentencing convince the judge that he was beyond redemption and did NOT deserve the possibility of parole in 2030. The defense called three kinds of doctors but the judge took the higher, harder road and sentenced him to LWOP, which it appears won’t be overturned by this decision.

4. Analysis from legal expert Kent Scheidegger:

California Penal Code § 190.5(b) provides that the sentence for a juvenile
convicted of first-degree murder with special circumstances (our odd term in California for capital murder) is LWOP or 25-to-life “at the discretion of the court.”  In my opinion, this complies with today’s decision. (ED NOTE – so this SCOTUS ruling may not apply to California JLWOP sentences at all.)

All new U.S. Supreme Court decisions are retroactive to cases pending on direct appeal, as Jackson was.  They can be retroactive to cases on state collateral review.  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, we think there is a strong case for resisting retroactive application.

In a case where a juvenile was sentenced to LWOP under a statute that did not give the sentencing judge discretion to impose a lesser sentence, the possibility of resisting a change depends on the stage of review:

Direct Appeal — If the first review of the case is still pending as of today,
the case is going back for resentencing.

First State Collateral Review — If the case is pending on the first state collateral review, much depends on the state’s approach to retroactivity.  If the state chooses to follow the rule of Teague v. Lane, a strong argument can be made, in my opinion, that today’s decision is not retroactive.  Whether the victim can appear and be heard or must depend on the DA or AG to make the argument also depends on state

First Federal Habeas — Victims have a right to be heard.  (18 U.S.C. §3771, subds. (a)(4) & (b)(2)(A))  In my opinion, the claim is barred by the Teague rule.  If the claim was heard and rejected in state court prior to today, it is also barred, in my opinion, by the rule of 28 U.S.C. §2254(d).  If the defendant never made the claim in state court, it should be barred under the procedural default rule.

Successive State Collateral Review — If all of the above reviews have already occurred, the defendant must go back to state court with a successive petition.  States vary widely on the circumstances in which they will allow successive petitions.

Successive Federal Habeas — On a successive federal habeas petition, the court allowed to consider a claim based on a new rule of constitutional law only if it is retroactive and the Supreme Court has already decided it is retroactive.  (28 U.S.C. §2244(b)(2)(A))  It hasn’t, so any such claim should be rejected on this basis, in addition to the grounds noted for a first federal habeas petition.

From Kent’s Crime and Consequences blog:

6-25-12    The initial report from AP this morning said that the Supreme Court had banned life-without-parole for juveniles convicted of murder.  That is wrong.  The Court actually held in Miller v. Alabama that a mandatory sentencing statute for JLWOP is unconstitutional.  In other words, the Court is continuing on the track of applying to life-without-parole for juveniles the same kinds of limitations it has long applied to the death penalty for adults.  First they banned the penalty for crimes less than murder.  Today, they require that the sentencer have discretion to impose it or not.
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 Lockettto 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.

5. Analysis from legal expert Thomas McCarthy, author of the NOVJL amicus brief in these cases:

Unlike Graham, Miller is about procedure (how teenaged murderers are
sentenced–under a discretionary or mandatory scheme).  Thus, the rule of Miller (no mandatory JLWOP sentencing) will not apply on federal habeas review unless Miller is considered a “watershed” rule of criminal
procedure.  Given that Justice Kagan’s majority opinion indicates that today’s ruling is a natural result of two lines of Supreme Court precedent, I think there is a fair argument that Miller is not a “watershed” ruling and should not be applied retroactively to cases on federal habeas review. As Kent notes, whether Miller applies retroactively on state post-habeas review is another question–one that may vary from state to state.

6. Legal Analysis from Prof. Doug Berman

“All juvenile defendants get narrow procedural Eighth Amendment win in Miller”

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders. Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.  In neither case did the sentencing authority have any discretion to impose a different punishment.  State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.   We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”…

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.  By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.  We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students.  But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

“Basic mandatory juve LWOP head-count in light of Miller”

This article by Warren Richey for the Christian Science Monitor reviews the basics of the Supreme Court’s work today in Miller and provides this quick accounting of the number of sentences obviously thrown into question by the ruling:

Currently about 2,500 individuals are serving life without parole prison sentences for crimes committed when they were younger than 18 years old. Of those, roughly 2,000 of the sentences were mandatory.

These numbers sound about right to me (these are the numbers bandied about by the Chief Justice in his dissent), though I would be grateful to see/hear a more precise accounting from anyone in the know.

Interestingly, the two states with the most juvenile offenders who received mandatory LWOP sentences appear to be Pennsylvania (with nearly 450, I believe) and Michigan (with nearly 350, I believe). Neither of these states have typically been on the cutting edge of Eighth Amendment litigation front-lines in recent years, and it will now be very interesting to watch when and how state courts (and lower federal courts) deal with the coming Miller-inspired litigation.

Other states with lots of mandatory juve LWOP defendants worth watching include California, Florida, Louisiana, Missouri and Illinois, all of which have, I believe, at least 100 defendants serving state LWOP sentences for crimes committed when they were younger than 18 years old.  [UPDATE:  Kent rightfully indicates in the comments that California’s LWOP sentences are discretionary (though I have heard them called presumptive, raising another possible litigation front.]  Another two dozen states also have more than a handful defendants serving state LWOP sentences for juve crimes, and it is certainly possible (even likely?) that states with a smaller number of problematic JLWOP cases after Miller will be quicker to hear and resolve new Eighth Amendment claims.

7. Legal Analysis from Professor Mark Osler

There was a bit of a mess after the Supreme Court announced its decision in Miller v. Alabama today.  AP reporter Jesse Holland initially sent out a story simply stating that the court had ruled that life without parole sentences were unconstitutional for juvenile offenders.  The truth was more complex: The Court more narrowly held that what is unconstitutional is a sentencing scheme where the only sentence available to a convicted juvenile offender is life without parole.  Not all states have this kind of mandatory sentencing scheme for murder, but many do.

Still, the Miller decision creates some fascinating outcomes.  For example, Michigan has mandatory sentencing in this kind of case, and the second largest number of juvenile offenders serving LWOP sentences (after Pennsylvania).  That means that over 300 sentences may now be in jeopardy, and the state will have to amend its procedure to allow for a parole eligible sentence in the case of juvenile offenders.  Intriguingly, left untouched is Michigan’s rule of automatic transfer to adult status in murder cases — the second part of that state’s legal mechanism which led to so many juvenile LWOP cases.

Aside from the continuing battle before the Court on the constitutionality of Juvenile LWOP, which now moves to discretionary sentences, tough questions face the states affected by Miller.  Perhaps most importantly, a state like Michigan has hundreds of inmates serving sentences obtained by an unconstitutional process.  If they succeed in getting those sentences overturned, what happens next?  Michigan law does not allow for a sentence other than LWOP.  Presumably, they could be dumped into the regular parole system, or the state could create a special process for these prisoners already deemed to be different than other murderers by fact of their age at the time of the crime.

There is an opportunity in this — an opportunity to create a new kind of meaningful review that takes into account the views of experts in adolescent development and brain science, victims’ family members, prison officials, and those who support the convicted juvenile. I’m hoping that at least some jurisdictions take a fresh look at the process as whole and not only get rid of mandatory transfers, but inject more meaning into the kind of second look that these offenders might receive.

8. Legal Analysis from Bill Otis on the Crime and Consequences Blog:

Lemons  to Lemonade in Miller v. Alabama

                 June 27, 2012  2:10 PM |                 Posted by Bill Otis|5 Comments
            As a matter of Constitutional law, it seems to me that the dissents in Miller had the better of the argument.  But for those worried that Miller is nothing more than the continuation of the slow chipping away of both capital punishment and LWOP, with Justice Kennedy providing the key vote (see Roper and Kennedy v. Louisiana), let me try to provide some cheering up.  Miller is different in one very important way.
The Left had been hoping that Miller would spell the end of LWOP for juveniles.  In fact, that absolutist  position got nary a vote.  To the contrary, Miller did what Roper and Kennedy failed to do, i.e., provide for  —  indeed, demand  —  individual consideration, case-by-case.  To say, as the majority did, that JLWOP will be “uncommon,” is to say that there are cases in which it is warranted.  To have a SCOTUS majority explicitly on board for that position is, in my view, a significant (even if in context disappointing) victory for the prosecution side.
I believe that is what the New York Times was attempting to capture when it quoted me on the outcome:
Nearly as suddenly, violent crime began to ebb across the country. The reasons for the drop-off are vigorously debated, with many liberals denying any link to incarceration rates. But William G. Otis, a top Justice Department official under the first President George Bush who is an adjunct law professor at Georgetown University in Washington, said there was little doubt in his mind that one reason for the decline was that “the people who have been committing these crimes are now in jail.”
Still, he expressed satisfaction with Monday’s ruling because it reduced reliance on mandatory sentencing and gave discretion back to judges who may still decide to put someone away for life.

“It’s a mistake for the system to carve out classes,” he said. “You should look at each case individually.”

Just so that I won’t be misunderstood, my “satisfaction” with the opinion in Miller lay in its rejection of a blanket rule barring LWOP and its embrace of a case-by-case approach, not in its Constitutional holding that a penalty in force in 29 states is cruel and “unusual.”

I take further heart that the case-by-case approach was set forth by Justice Kagan, giving credence to her confirmation hearing testimony that she would not adopt the one-size-fits-all rule for death penalty cases used by Justice Marshall, for whom she clerked.

9. Analysis from the American Bar Association (predominantly Defense Attorneys) From an article by Erwin Chemerinsky, Law Professor from UC Irvine:

“In Miller v. Alabama, the U.S. Supreme Court held in June that it is cruel and unusual punishment to have a mandatory sentence of life without the possibility of parole for homicide crimes committed by juveniles. At first glance, the decision seems to follow from other recent Supreme Court decisions that have limited the punishments imposed on juvenile offenders.

“But in a key respect this case is different: previous cases prohibited the imposition of certain punishments under any circumstances, whereas Miller holds only that there cannot be a mandatory sentence. This distinction is going to matter enormously and raise important issues that are sure to be litigated. . . . .

“The court relied heavily on its recent decisions finding other punishments to violate the Eighth Amendment when imposed on juvenile offenders. In Roper v. Simmons, decided in 2005, the court held that it is cruel and unusual punishment to impose the death penalty for crimes committed by juveniles. In 2010’s Graham v. Florida, the court ruled that it was cruel and unusual punishment to impose a sentence of life in prison without the possibility of parole for homicide crimes committed by juveniles.

“Those cases, however, differ from Miller in a critical respect. The earlier decisions said that the government never can impose certain punishments–the death penalty, life without parole for non-homicide crimes–on juvenile offenders. Miller does not make it unconstitutional in all circumstances for a state to impose a sentence of life without parole for a homicide committed by a juvenile. Rather, it only holds that such a sentence cannot be mandatory.

“This is going to require changes in the criminal justice system and pose difficult issues that must be resolved. First, if prosecutors wish to seek a sentence of life without parole for a homicide crime committed by a juvenile, there will need to be a proceeding to determine if this is warranted.

“This will necessitate a penalty phase after conviction to make this decision. After the Supreme Court held that there cannot be a mandatory death sentence in homicide cases, the practice of the penalty phase developed for a determination of whether capital punishment is warranted based on the facts in each case. The same type of penalty phase will be required when life without parole is sought for a homicide crime committed by a juvenile.

“In Ring v. Arizona, decided in 2002, the Supreme Court held that it is for the jury, not the judge, to decide in the penalty phase whether the aggravating factors sufficiently outweigh the mitigating circumstances to warrant a death sentence. Likewise, it will be for the jury to decide whether to impose a sentence of life without parole for a homicide committed by a juvenile.

“Second, some states will need to change their laws to facilitate trying juveniles for first-degree murder. In Missouri, for example, state law authorizes only two possible sentences for those convicted of this crime: the death penalty or life in prison without parole. Obviously, such laws must be revised to allow for another option.

“Third, there is sure to be litigation over whether Miller applies retroactively. What about those now serving life without parole for homicides committed as juveniles? There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It also would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

“On the other hand, if Miller is seen as just requiring a new procedure–a penalty phase before a sentence of life without parole is imposed for a crime committed by a juvenile–then it is unlikely to be applied retroactively. Procedural changes rarely apply retroactively. In fact, the Supreme Court held that Ring did not apply retroactively. In 2004’s Schriro v. Summerlin, the court concluded that Ring was a procedural change and not a “watershed” rule of criminal procedure that warranted retroactive application.

“Ultimately, this is a question that will need to be resolved by the Supreme Court. My sense is that the Miller court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government’s power, the holding should apply retroactively.

“Finally, it should be noted that this is the latest of many cases, in a number of different contexts, in which the court has recognized that juvenile offenders are different and must be treated differently. Last term, for example, in J.D.B. v. North Carolina, the court held that the determination of whether a suspect is in custody depends on his or her age. The need to treat juvenile suspects and defendants differently from adults is likely to continue to be litigated and require changes in many aspects of the criminal justice system.

“Thus, the holding in Miller is easy to state: There cannot be a mandatory sentence of life without parole for homicides committed by juveniles. But the implications are likely to be complicated and litigated for years to come.”

Juvenile Offender Advocates Asked to Now Act Responsibly Towards Victims

After the ruling we issued a public statement calling on those who have been working so hard for so many years, spending so much money advocating for those who killed our loved ones, to NOW finally turn to our victims families and offer to be of assistance. Many of our cases have been re-opened. We believe those who have been working to assist these teen killers should now help us find and notify those who will be affected this ruling they worked hard in support of. Most victims whose cases are affected by this decision do not know about the ruling. The identities of many of the affected offenders are in the possession of these juvenile justice advocates – we do not have them. With those names we could better work to help find the affected victims families. We have asked for their compassionate support now, as they have so long given the teen killers. We await their response.

NDAA Press Release


National District Attorneys Association Responds to Supreme Court Juvenile LWOP Decision
Alexandria, Virginia – June 25,
2012— The National District Attorneys Association (NDAA), the voice of America’s 39,000 prosecutors, responded to today’s Supreme Court decision on murder sentences for juveniles. In Miller v. Alabama, the Court ruled life without parole sentences for juvenile murderers are unconstitutional when the sentence is mandatory. NDAA President Jan Scully, the district attorney in Sacramento, CA, stated, “The Court’s decision preserved Juvenile Life Without Parole (JLWOP) sentences for murder when imposed within the discretion of the sentencing court. The Supreme Court’s 5-4 decision states that a mandatory sentencing scheme is improper for juveniles, who must be allowed to show mitigating factors based on their age. In those states this decision does affect, NDAA will be working closely with prosecutors and victims regarding the issue of retroactivity.”

Scott Burns, NDAA Executive Director, said, “The most troubling aspect
of Justice Kagan’s opinion is the reference to cold blooded murderers as
children, who should be excused because of their age and lack of judgment. Americans under the age of 18 do not commonly carjack a mother and her two young children and shoot all three in the head, or slaughter their parents and grandparents. The sentence of life without parole, for juveniles and adults alike, is only used after careful consideration, in the interest of justice, and on behalf of victims.”

NDAA, which filed an Amicus Brief in this case, is engaged in a careful analysis of the Court’s ruling and will advise and work with victims, victims’ families and prosecutors to determine a course of action
to ensure that justice is served in each individual case.

Our coverage from Oral Argument in March 2012:

In October 2011 the United States Supreme Court listed two cases of teen killers for consideration of the constitutionality of their sentences. Read more about it on the Crime and Consequences blog.  This is the third time since 2004 that the US Supreme Court has considered major cases involving the sentencing of extremely violent teenagers. See the above “Court and the Law” tab for more on previous rulings and general legal scholarship on the issue. The rulings on Miller and Jackson will come in the last two weeks of June 2012.

See our Press Release on these court cases.

In preparation for what we know will be high media interest, you can find contact information listed here for victims families affected by these Supreme Court cases all over the USA who are willing to talk to reporters.

The cases Miller v Alabama and from Arkansas Jackson v Hobbs were heard March 20, 2012, with a ruling expected in June 2012. NOVJL victim family members were present at the court and talked extensively to the news media, other attorneys, and advocates for the offenders.

The recorded audio and transcripts of the two hearings before the Supreme Court can be obtained here:

Read excellent legal analysis by Cully Stimson, the nation’s leading legal expert in the sentencing of teen killers.

Read the SCOTUS Blog coverage of the Oral Argument.

A ruling on these cases will be studied for some time to come and will impact state legislatures all over the nation. NOVJL calls on everyone involved to make sure that all affected victims families are found and notified of theses discussions in the aftermatch of the ruling.

While at the court we spent much time near the advocates for those who murdered our loved ones. Some were polite and even warm to us, other offender advocates attending the hearing seemed unconcerned with how all this might affect us and victims families like us from across the nation. And advocates for the offenders repeated lies to the media – ie the USA is the only nation that gives this sentence (see Myths and Facts – NOT true), etc. We asked during our press appearances that these advocates stop lying about the numbers of the cases, the brain research, the facts of the crimes, the propaganda photos, etc.

Some victims families were there in support of the plaintiffs and support ending life sentences for teen killers.

Feb 2012 NOVJL filed this amicus brief explaining our concerns about the constitutionality of retroactively undoing duly given life without parole sentences for teen killers, and especially how that retroactivity violates crime victims rights. Both offenders are 14 years old and observers expect the rulings to be limited to those VERY few number of offenders who were that age and received life sentences for their crimes. We are very grateful to the law firm of Wiley Rein for their wonderful work in writing this brief for us.

The line outside the Supreme Court stretched around the block. Most visitors to the Court never made it inside.

Here is some of the news media coverage of oral arguments:,0,2927357.story,0,262259.story

The following is an excellent legal analysis of the Miller and Jackson cases:

Juvenile Life Sentences: Constitutionality of Life Without Parole for Teenage Murderers

By Charles Stimson and Elizabeth Garvey
March 20, 2012

On Tuesday, March 20, the Supreme Court hears oral argument in
two cases involving the constitutionality of sentences of life without parole (LWOP) for teenage murderers. The real issue before the Court is this: Will the Court again “find” or “invent” a heretofore undiscovered constitutional prohibition and thus strike an entire category of sentences for the most violent teenagers, or will it defer to the carefully considered judgment of the vast majority of the states (39) and federal government that have decided to authorize the sentence in appropriate cases?

The Two Cases

In the first case (Miller v. Alabama), Evan Miller was 14 years old when he robbed and repeatedly beat an intoxicated neighbor with a baseball bat then set the man’s trailer on fire and left him to die. The juvenile court, under state law, transferred Miller to adult court based on the nature of the crime, his previous delinquency history, and the fact that he was deemed competent to stand trial. Miller was found guilty of capital murder. Since he was 14 at the time of the crime, Miller was not eligible for capital punishment but rather Alabama’s mandatory minimum sentence of LWOP.

In the second case (Jackson v. Hobbs), Kuntrell Jackson was also 14 when he and two other teenagers attempted to rob a video store. Jackson knew one of his accomplices had a sawed-off shotgun and threatened the female store clerk before one of the other teenagers shot her in the face and killed her. Jackson was tried in adult court, where he was found guilty of capital murder and aggravated robbery and sentenced to LWOP under Arkansas state law.

An “Evolving Standard of Decency”

In petitioning the Supreme Court, both Miller and Jackson argue
that their LWOP sentences amount to cruel and unusual punishment in violation of the Eighth Amendment. These cases present the High Court with yet another opportunity to chip away at the states’ framework for dealing with violent teenagers such as Miller and Jackson.[1]

In Roper v. Simmons (2005), the Court found the death penalty for teenage murderers unconstitutional because those sentences supposedly violated the “cruel and unusual punishment” standard of the Eighth Amendment. Five years later, in Graham v. Florida (2010), the Court banned the use of LWOP sentences for teenagers who committed violent crimes other than murder, citing the same reason.

Over time, the Court has grafted onto “cruel and unusual punishment” a requirement that punishments reflect the “evolving standards of decency that mark the progress of a maturing society.” And the Court has granted to itself the sole duty of deciding those “evolving standards of decency” rather than deferring to society itself, as reflected through elected, accountable representatives of (in this case) 39 states and the U.S. Congress. Advocates for the murderers are hoping that the Court applies the “evolving standards of decency” and finds LWOP sentences for teenage murderers unconstitutional. The states of Alabama and Arkansas, the National District Attorneys Association (NDAA), and victim’s rights organizations are hoping that the Court draws a line for common sense and defers to the considered wisdom and constitutional authority of the states to fashion appropriate sentences for the worst of the worst.

A National Consensus

The vast majority of juveniles who commit crimes are tried in
the juvenile justice system. Every state has a separate juvenile justice system to deal with juvenile crimes. Those systems exist because American society believes that most teen criminals can be rehabilitated—or at least should be given the opportunity to try to reform their ways. That is smart public policy. Thus, there is a national consensus that most juveniles belong in the juvenile justice system.

But there is another national consensus: that a small percentage
of the worst teen offenders—a small percentage of teen murderers—should be waived and/or tried in adult court. And a small percentage of those who are convicted of the worst crimes should be eligible for LWOP.

In general, the Supreme Court looks for trends or a national consensus to determine the progress of American society as it matures. There are strong figures to support the use and constitutionality of LWOP sentences. Currently, 39 jurisdictions allow teenagers 14 years and older to receive LWOP sentences for aggravated murder, and 26 states and the federal government make LWOP the mandatory minimum sentence when a 14-year-old defendant is tried in adult court and convicted of aggravated murder. But LWOP is reserved for the most serious offenders.

As Jackson admits in his brief to the Supreme Court, approximately 79 individuals who committed offenses at age 13 or 14 have been sentenced to LWOP since the imposition of the first LWOP sentence in 1971.

The fact that some 79 teenagers have been deemed deserving of
LWOP in over 40 years is significant; it indicates that the criminal justice system has worked effectively, ensuring that only those teenagers who commit the most heinous aggravated murders receive LWOP sentences. A number of checks within the system have made this possible, from the discretion of juvenile courts to transfer teenagers to adult court or keep them in the juvenile system to prosecutors’ selection of which charges appropriately correspond with the gravity of the crime. Advocates for Miller and Jackson have no meaningful rebuttal to these facts.

Additionally, they argue that there is a “consensus” within the scientific community that teenagers (or “children” as they call them) are “unfinished products” with limited foresight and are generally less culpable for their actions. In other words, they are not mature enough to make rational and intelligent decisions and thus should not be subjected to the sentence of LWOP when tried as adults.

But as the NDAA argues in its amicus brief, constitutional prohibitions should not be based on social science. Whether or not LWOP sentences are appropriate should be left to the state legislatures to determine, since they are accountable to their electorates.

Murder Is Murder

In Graham v. Florida, the Court noted that there is a difference between homicides and non-homicides and thus struck down the sentence of LWOP for teenagers who committed violent non-homicides. Writing for the majority, Justice Anthony Kennedy said:

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.… There is a line between homicide and other serious violent offenses against the individual.… Serious nonhomicide crimes…in terms of moral depravity and of the injury to the person and to the public…cannot be compared to murder in their severity and irrevocability.… Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.[2]

Thus, the Court has previously drawn a line between crimes that
result in death and all others. The Court should preserve this distinction and rule in favor of Alabama, Arkansas, and the 37 other states that currently allow the use of LWOP sentences for teenagers convicted of aggravated murder. As the numbers demonstrate, there is a national consensus that LWOP sentences are appropriate for certain homicides.

Ultimately, though, such policy considerations are better left to state legislators, who are accountable representatives to their constituents, rather than the justices, who should be determining the requirements of law and not bending the Constitution to comport with their policy

Charles Stimson is a Senior Legal Fellow and Elizabeth Garvey is a Legal Policy Analyst in the Center for Legal & Judicial Studies at The Heritage Foundation.

More Aftermath of U.S. Supreme Court on Teen Killer Life Sentences

– Florida court finds Supreme Court ruling can NOT be retroactively applied
Read our coverage and legal analysis:  Supreme Court Says Life Sentences for Teen Killers Constitutional if Sentence is Optional – No More Mandatory Life
 – Covering the flurry of activity happening all over the nation to implement the Supreme Court ruling. Our concern: Victims families must be included
– Victims’ Family Members available to talk to news media in several states
– Join victims who share their feelings at a blogspot site and on Facebook
– Victim’s testify at hearings in Pennsylvania
– Iowa’s Governor pre-empts appeals by juvenile offenders and commutes them all to life with parole, but only after 60 years. We think its a GREAT solution for Iowans everywhere, and victims voices were heard.
– Ridiculous arguments  being used by some Defense Attorneys after Supreme Court ruling are dismissed by courts.
– NOVJL responds to inaccurate characterizations in a CNN Opinion article.
– Indiana Supreme Court affirms life without parole sentence for teen killer using guidelines established by Supreme Court
– More legal experts agree that the ruling should NOT be applied retroactively except to cases still open under direct appeal.