Life After Miller and Montgomery: Colorado's (revised) Solution for Unconstitutional Juvenile Sentences
| Publication year | 2016 |
| Pages | 31 |
| Citation | Vol. 45 No. 3 Pg. 31 |
Articles
Criminal Law
Life after Miller and Montgomery: Colorado's (Revised) Solution for Unconstitutional Juvenile Sentences
By Kevin E. McReynolds, John T. Lee.
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
In People v. Tate, a divided Colorado Supreme Court began untangling the issues spawned by Miller v. Alabama. Miller held that mandatory life without the possibility of parole sentences are unconstitutional as applied to juveniles. More recently, in Montgomery v. Louisiana, the U.S. Supreme Court clarified that the rule in Miller applies retroactively to all such juvenile offenders. This article discusses Tate, the impact of Montgomery, and what remains uncertain in this rapidly changing area.
Both before 1990 and after 2006, Colorado's sentencing scheme required that juveniles convicted of class 1 felonies receive sentences of life with the possibility of parole after 40 years (LWPP). But between 1990 and 2006, Colorado's statutory sentencing scheme required the imposition of a sentence to life without parole (LWOP) for juveniles who committed class 1 felonies. In 2012, in Miller v. Alabama,[1]the U.S. Supreme Court held that such mandatory LWOP sentences for juveniles are unconstitutional.
This article discusses two issues left open by Miller that have been recently addressed by our state Supreme Court and the U.S. Supreme Court:[2] (1) whether Miller applies retroactively; and (2) what remedy trial courts should craft when resentencing juveniles who have been unconstitutionally sentenced to mandatory LWOP.
The Eighth Amendment: Certain Punishments and Offenders Are Different
The Eighth Amendment prohibits, among other things, "cruel and unusual punishments . . . ."[3] A punishment is "cruel and unusual" when it is "grossly disproportionate to the crime."[4] The U.S. Supreme Court has recognized that there are two ways to establish that a punishment is cruel and unusual.[5] First, a defendant can raise an as-applied challenge alleging, for example, that the length of a term-of-years sentence is disproportionate to the crime committed.[
5
]Second, a defendant can raise a categorical challenge asserting that an entire class of sentences is unconstitutionally disproportionate given the "nature of the offense" or the "characteristics of the offender."[7] Although the former allows a court to invalidate a specific sentence in a given case, the latter empowers a court to invalidate an entire avenue of the legislature's sentencing discretion.More than a hundred years ago, in Weems v. United States, the U.S. Supreme Court created the bedrock for categorical challenges to sentencing schemes when it recognized that the Eighth Amendment is a constitutional provision designed to restrain legislative "power [that] might be tempted to cruelty."[8] In so doing, the Court explained that the purpose of the Eighth Amendment's bar was not limited to prohibiting punishments forbidden at the time the Constitution was adopted, but embodied a principle "capable of wider application than the mischief which gave it birth."[9] Therefore, the Eighth Amendment's prohibition is "progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice."[10]
Subsequently, in Trop v. Dulles,[11]the Court applied the Eighth Amendment to prohibit the legislature's authority to authorize the imposition of a particular kind of sentence. There, the petitioner was convicted of wartime desertion and sentenced to three years' hard labor, forfeiture of pay and allowances, and a dishonorable discharge.[12] In 1952 he applied for a passport and was denied on grounds that he lost his citizenship by reason of the conviction and discharge, based on the Nationality Act of 1940.[13] In declaring the sentence unconstitutional, the Court explained that "[w]hile the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards."[14] Thus, the Court found that the Eighth Amendment "forbids Congress to punish by taking away citizenship,"[15] and for the first time categorically banned an entire strain of punishment.
Since Trop, the Court has employed the categorical analysis to outlaw capital punishment for various categories of defendants and crimes, including mentally disabled defendants[
15
]and those who commit non-homicide crimes.[17] But the Court has used the categorical approach most frequently and most recently in the context of juvenile punishment.In Thompson v. Oklahoma,[18] a plurality of the Court held that executing murderers under age 16 "offend[ed] civilized standards of decency."[19] Thompson, 16 at the time of his crime, helped three older people murder his former brother-in-law.[20] In reversing Thompson's death sentence, the plurality "reviewed the work product of state legislatures and sentencing juries, and . . . carefully considered the reasons why a civilized society may accept or reject the death penalty in certain types of cases."[21] Because the 18 states that had expressly established a minimum age in their death penalty statutes require that the defendant be at least 16 years old at the time of the capital offense, the plurality concluded that the Eighth and Fourteenth Amendments "prohibit the execution of a person who was under 16 years of age at the time of his or her offense."[22] The Court expressly refused the defendant's request that the line be drawn at 18.[23]
Seventeen years after drawing that line in Thompson, the Court moved it to 18 years of age in Roper v. Simmons.[24]In that case, the Court considered "whether it is permissible under the Eighth and Fourteenth Amendments ... to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime."[25] Simmons, 17, told his friends he wanted to murder someone.[
25
]In "chilling, callous terms he talked about his plan, discussing it for the most part with two friends," and "assured his friends they could 'get away with it' because they were minors."[27] Simmons and his friends enacted the plan, tying the victim's "hands and feet together with electrical wire, wrap[ping] her whole face in duct tape and [throwing] her from the bridge, drowning her in the waters below."[28] In extending the holding in Thompson, the Court reinforced that the "prohibition against 'cruel and unusual punishments,' like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design."[29] Recognizing that only six states had executed juveniles since 1989 and that the United States is one of eight countries in the world to execute a juvenile in the previous 15 years, the Court found that an objective consensus existed against allowing the imposition of capital punishment on juveniles.[30] Accordingly, the Court held that the Eighth Amendment forbids the imposition "of the death penalty on offenders who were under the age of 18 when their crimes were committed."[31]In Graham v. Florida,[32] the Court applied the categorical analysis to juveniles sentenced to life without parole for non-homicide offenses, the first time since Trop that the Court used the categorical approach outside of the death penalty context. There, the Court concluded that the Eighth Amendment "prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide."[33] The Court held that a state must give defendants like Graham "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."[34] But the Graham Court left it to the states, "in the first instance, to explore the means and mechanisms for compliance."[35] The Graham majority was careful to limit its holding to juvenile LWOP sentences for non-homicide cases, but the dissenters complained that the majority's reasoning would compel the same result for LWOP sentences imposed for homicides. The dissenters' prediction came true just two years later.
Miller v. Alabama
In Miller v. Alabama, the U.S. Supreme Court consolidated the appeals of Evan James Miller (on direct review) and Kuntrell O'Bryan Jackson (on collateral review), both of whom were convicted of murders at age 14.[
35
]Jackson, along with two others, attempted to rob a store.[37] Jackson was outside the store for part of the robbery, but had entered before one of his co-conspirators shot and killed the clerk.[38] In the companion case, Miller and a friend attempted to steal $300 from a sleeping drug dealer. When the drug dealer woke up, Miller and his friend repeatedly hit him in the head with a baseball bat, with Miller delivering the fatal blow.[39] Both Miller and Jackson received mandatory life sentences without the possibility of parole.[40]In an opinion announced on June 25, 2012, the Court held that Alabama's mandatory LWOP sentencing scheme was categorically unconstitutional as applied to juvenile murderers. As the Court put it, Alabama's mandatory scheme improperly made "youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence," and posed "too great a risk of disproportionate punishment."[41] The majority clarified that its decision did not...
To continue reading
Request your trial