Montgomery v. Louisiana: Baby Steps Toward a More Benevolent Juvenile Justice System -

Montgomery v. Louisiana, 577 U.S. ___ (2016) (Kennedy, J.).
Response by Professor Kami Chavis Simmons
Geo. Wash. L. Rev. Docket (Oct. Term 2015)
Slip Opinion | New York Times | SCOTUSblog

Baby Steps Toward a More Benevolent Juvenile Justice SystemIn Miller v. Alabama,¹ the Supreme Court concluded that mandatory life sentences without the possibility of parole for juveniles violate the Eighth Amendment. Last week, three years after prohibiting mandatory life sentences for juvenile offenders, in Montgomery v. Louisiana,² the Court held that the rule announced in Miller must apply retroactively. In Montgomery v. Louisiana, the Court determined that Miller’s prohibition on mandatory life sentences established a new substantive rule for constitutional rights. This recent ruling means that inmates currently serving mandatory life sentences for offenses they committed while they were children, and whose sentences were considered final at the time Miller was decided, will now have an opportunity for state courts to reconsider their original sentence or to argue for early release at a parole hearing. The Montgomery v. Louisiana decision is the most recent in a line of cases that spare juvenile offenders the harshest penalties our criminal justice system imposes, and vindicates the reasoning in Miller earlier cases that “children are different.”³ This Response, however, cautions that the decision in Montgomery v. Louisiana is only an incremental victory in what promises to be a long battle not only for those juvenile offenders now seeking their liberty, but also for criminal justice advocates seeking to ameliorate harsh punishments for juvenile in other contexts within the justice system. In Miller v. Alabama, the Court declined to issue a categorical ban on the practice of imposing life imprisonment without parole for juveniles, and notwithstanding the retroactivity of the rule in Miller, the decision in Montgomery v. Louisiana does not foreclose the possibility that some juvenile offenders will remain condemned to die in prison. This Response argues that in order to fully vindicate the principle that “children are different,” advocates should use the reasoning of these recent cases to push for greater limitations on the punishments our criminal justice system currently imposes upon juveniles.⁴

Before discussing the potential impact of Montgomery v. Louisiana, it is important to discuss its place in a long line of cases that have limited the ability of courts to mete out the most severe punishments currently available in our criminal system. This line of cases begins with Roper v. Simmons,⁵ a 2005 case in which Court invalidated the death penalty for offenders who were under the age of eighteen when they committed their crimes. In a decision authored by Justice Kennedy, the majority relied heavily on an extensive body of scientific and sociological research demonstrating that juveniles exhibited a diminished ability to make appropriate judgments, difficulty accepting the consequences of their actions, and were especially susceptible to peer pressure. The Court also stated that juveniles, because of where they stood developmentally, had great potential for rehabilitation and their actions are less likely to demonstrate an “irretrievably depraved character” than are the actions of adults.⁶ Justice Kennedy noted in Roper, that “retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity,” and thus, the Court prohibited the imposition of the death penalty for juvenile offenders.⁷

Five years later, in Graham v. Florida,⁸ the Court relied on its reasoning in Roper to hold that it was constitutionally impermissible to sentence juvenile offenders to life in prison without parole for a non-homicide crime. Two years after the Court’s decision in Graham, in Miller v. Alabama, the Court was tasked with determining the constitutionality of mandatory life sentences for juveniles. In Miller, the Court noted that the mandatory penalty schemes at issue in that case “prevent the sentencer from considering youth and from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”⁹ The Court further noted that this failure to consider these characteristics “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”¹⁰ Again relying on its reasoning in Roper that “children are different,” the Court invalidated mandatory life sentences for juvenile offenders.¹¹ Writing for the majority, Justice Kagan said that, “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes” was unconstitutional.¹² It is imperative to note, however, that Miller did not categorically bar juveniles from serving life sentences, but it ruled that a sentencer must “follow a certain process—considering an offender’s youth and attendant characteristics.”¹³ The Miller court explained that a sentencer might encounter an offender that exhibited “irretrievable depravity,” but went on to note that such sentences will be rare.¹⁴

Prior to the Court’s decision in Montgomery v. Louisiana, states were divided as to whether they would apply the rule set forth in Miller and courts reached different conclusions regarding the retroactivity of the Miller’s ban on mandatory life imprisonment for juvenile offenders, and thus the Court granted certiorari in the Montgomery case. In 1963, Petitioner Henry Montgomery, who was 17 years old at the time of the crime, was convicted of murder and sentenced to death for the death of a Louisiana deputy sheriff. The Louisiana Supreme Court reversed Montgomery’s death sentence finding that public prejudice influenced the trial. Montgomery’s retrial resulted in a conviction without capital punishment, a verdict that required the trial court to impose a life sentence without the possibility of parole., a practice that now had been deemed unconstitutional.

However, for Montgomery, who was now in his late sixties, and approximately 2300 other similarly situated inmates, the decision in Miller was an empty victory, because their sentences were considered final at the time of Miller. In Montgomery’s case, the state of Louisiana “will not consider a challenge to disproportionate sentence on collateral review; rather as a general matter, it appears that prisoners must raise Eighth Amendment sentencing challenges on direct review.”¹⁵ The Court previously set forth its retroactivity doctrine in Teague v. Lane¹⁶ and has concluded that when a new substantive rule of constitutional law determines the result of a case, compliance with the Constitution requires states to retroactively apply that rule. However, in Miller v. Alabama, the Court left open the question as to whether the ban on mandatory life sentences for offenders that committed crimes while they were juveniles would apply retroactively to those offenders who remained incarcerated under the invalidated sentencing schemes.

In holding that Miller v. Alabama applied retroactively, the Montgomery Court noted that Miller “did more than require a sentence to consider a juvenile offenders youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.'”¹⁷ Similarly, the Court relied heavily on Miller’s reasoning as to “how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”¹⁸ To remedy Miller violations, a State could re-litigate a sentence in compliance with Miller, or could allow offenders to be considered for parole. The Court was careful to leave open the possibility that the sentence Montgomery received “was a just and proportionate punishment for the crime he committed as a 17-year old boy” but concluded that “[i]n light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside prison walls must be restored.”¹⁹

It is clear that Roper, Graham, Miller, and now Montgomery have transformed substantially how our criminal justice system treats children, but its full impact has yet to be tested. First, whether the offenders impacted by the Court’s ruling in Montgomery v. Louisiana are actually released remains to be seen. Pursuant to the resentencing hearings, defense attorneys will now be permitted to present evidence that could not have been considered prior to Miller and Montgomery. For example, the experience of childhood trauma that many juvenile offenders experience will now be relevant and can be properly considered when fashioning an appropriate sentence. Similarly, any efforts at rehabilitation while in prison may be considered at the parole hearings. Notwithstanding the new body of information these opportunities will provide, they do not necessarily guarantee release. For example, in order to secure parole, parole officials will want to ensure that the offenders have adequate ties to the community. For some offenders, such as Mr. Montgomery, the decades in prison have no doubt severed or substantially weakened these ties. Furthermore, the difficulties that any long-time offender endures during reentry will be magnified for offenders who entered prison as children and may leave as adults carrying with them the vestiges of having grown up in prison.

Second, the decision in Montgomery was far from revolutionary because it was limited by Miller’s failure to categorically ban life imprisonment without parole for juveniles, which still leaves the United States alone in the imposition for such a harsh penalty against children. According to Amnesty International, the group has no knowledge of other countries where children currently are serving life sentences without parole.²⁰ According to a United Nations report, the United States stands alone in its use of the practice, and many international laws such as the International Covenant on Civil and Political Rights, the Convention Against Torture and the U.N. Convention on the Rights of the Child have banned the practice.²¹

Finally, in addition to discussing the relevance of the Montgomery v. Louisiana juvenile justice, it is important to explore what relevance, if any, the case may have in the broader context of efforts to reform the criminal justice system and reduce incarceration. Despite declining crime rates over the past three decades, the prison population in the United States has increased dramatically. The Sentencing Project estimates that nearly 2.2 million people are currently behind bars, making the United States a world leader in incarceration.²² There is vast support across the ideological spectrum that current United States incarceration rates are unsustainable, and in order to ameliorate the numbers of those in prison, critics of the mass incarceration state have decried mandatory minimum sentences and have advocated for alternative punishments where appropriate.²³ Efforts to ameliorate the detrimental impact of mass incarceration can easily begin with efforts to improve the conditions for juvenile offenders who represent the most vulnerable classes of those incarcerated.

Notwithstanding the Court’s declination to ban this punishment, Montgomery v. Louisiana, and the decisions that preceded it, have perhaps set the stage for a future reconsideration of a categorical ban on life sentences for juveniles. According to the Fair Campaign for the Sentencing of Youth, the number of states that have banned life without parole for children has tripled since the Court’s decision in Miller.²⁴ If this trend continues, in the future, the Court might be inclined to use the “evolving standards of decency,” buttressed by these developments, to require a complete prohibition on the practice of imposing life sentences without parole. A future Court might be inclined to extend this reasoning to the context of life without parole in all cases of juvenile offenders.

Similarly, there are several other contexts in which juveniles may sentenced without regard to the numerous characteristics that distinguish them from adults identified in Roper and reiterated in Graham, Miller, and Montgomery. Thus, the principles underlying reasoning in these cases, the proposition that children are different, should extend to prohibit other mandatory penalty enhancements. Currently, it is not unconstitutional to impose mandatory minimum sentences, such as tin instances where offenders might receive for use of a firearm or gang-related offenses, although several states have already banned the practice.

While the Court’s opinion in Montgomery v. Louisiana, is not the watershed moment many criminal justice reformers are awaiting, it is an incremental step toward fully vindicating the principle that children are different. Demonstrating benevolence in the criminal justice should begin with children, a group that represents the most vulnerable of those in the criminal justice system. The potential of redemption however is not limited to juveniles, and fully vindicating the potential for redemption for most will be critical in the next battleground in the fight for criminal justice reform and the push to end mass incarceration.

Kami Chavis Simmons is a Visiting Professor of Law at GW Law and Professor of Law and Director of the Criminal Justice Program at Wake Forest University School of Law. In 2015, she was appointed as a Senior Academic Fellow at the Joint Center for Political And Economic Studies. She has substantial practice experience and writes and teaches in areas related to criminal law, criminal procedure, and criminal justice reform. In 2003, she became an Assistant United States Attorney for the District of Columbia, involving her in a wide range of criminal prosecutions and in arguing and briefing appeals before the District of Columbia Court of Appeals. She was elected to the American Law Institute in 2012 and is a founding member of Law Enforcement Leaders to Reduce Crime and Incarceration.

Miller v. Alabama, No. 10-9646, slip op. (U.S. June 25, 2012).
Montgomery v. Louisiana, No. 1402780, slip op. (U.S. Jan. 25, 2016).
Miller, slip op. at 17 (majority opinion).
Id.
Roper v. Simmons, 543 U.S. 551 (2005).
Id. at 570.
Id. at 571.
Graham v. Florida, 560 U.S. 48 (2010).
Miller, slip op. at 3 (syllabus).
Miller, slip op. at 11 (majority opinion).
Id. at 17.
Id. at 27.
Id. at 20.
Id. at 8.
Montgomery, slip op. at 4 (majority opinion). One report estimates that approximately 2341 inmates were currently serving sentences at the time of the Miller decision. See Beth Schawrtzapfel, Life Without Parole: For Juveniles, 5 Tough Counties, Marshall Project (Sept. 22, 2015, 7:15 AM), https://www.themarshallproject.org/2015/09/22/life-without-parole-for-juveniles-5-tough-counties#.VVMMq2GaM. This same report states that after Miller, nine states abolished life sentences without parole for juveniles and that seventeen states chose to apply Miller retroactively. Given these developments, it is estimated that currently, approximately 1300 juvenile offenders are subject to life without parole. Id.
Teague v. Lane, 489 U.S. 288 (1989).
Montgomery, slip op. at 16 (majority opinion).
Id. at 16 (quoting Miller, slip. op. at 17 (majority opinion)).
Montgomery, slip op. at 22 (majority opinion).
A 2005 report issued by Amnesty International found that “of the 154 countries for which Human Rights Watch was able to obtain data, only three currently have people serving life without parole for crimes they committed as children, and it appears that those three countries combined have only about a dozen such cases.” Amnesty International: Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States (2005).
Natasja Sheriff, UN Expert Slams US as Only Nation to Imprison Kids For Life Without Parole, Al Jazeera Am. (Mar. 9, 2015, 4:06 PM), http://america.aljazeera.com/articles/2015/3/9/un-expert-slams-us-as-only-nation-to-sentence-kids-to-life-without-parole.html.
Incarceration, Sentencing Project, http://www.sentencingproject.org/template/page.cfm?id=107
See Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Cong. 2015; Sentencing Reform Act of 2015, H.R. 3713, 114th Cong. (2015) (supported by a group bi-partisan lawmakers). See also Jack Martinez, Senators Announce Bipartisan Criminal Justice Reform Legislation, Newsweek (Oct. 1, 2015).
See Which States Ban Life Without Parole for Children? Check Out this New Map, Campaign for the Fair Sentencing of Youth (Aug. 25, 2015), http://fairsentencingofyouth.org/2015/08/25/states-that-ban-life-without-parole-lwop-sentences-for-children/.

Recommended Citation
Kami Chavis Simmons, Response, Montgomery v. Louisiana, Geo. Wash. L. Rev. Docket (Feb. 1, 2016), http://www.gwlr.org/montgomery-v-louisiana-baby-steps-toward-a-more-benevolent-juvenile-justice-system.