Author:Hoesterey, Alice Reichman

TABLE OF CONTENTS Introduction 151 I. The Road to Montgomery 153 A. Roper and Graham: The Groundwork for Miller 153 B. Miller's Holding 156 C. Montgomery Expands Miller into a Categorical Rule 157 II. Conflicting State Responses to Montgomery 161 A. Procedural Protections Required at Sentencing Proceedings 161 1. Finding of Irreparable Corruption 161 2. Presumption Against Life Without Parole 164 B. When the Protections of Miller and Montgomery Are Triggered 167 1. Application to Discretionary Life Without Parole Sentences 167 2. De Facto Life Without Parole Sentences 169 3. Criminal Offenses Eligible for Life Without Parole 171 III. The Constitutional Mandates of Montgomery 172 A. Courts Must Make a Determination of "Irreparable Corruption" Prior to Sentencing a Juvenile to Life Without Parole 172 B. A Possibility of Release Must Be the Presumptive Sentence 175 C. Both Mandatory and Discretionary Life Without Parole Sentences Must Comply with Montgomery and Miller 177 D. Montgomery Applies to Lengthy Sentences that Are the Equivalent to Life Without Parole 178 E. States Should Narrow the Juvenile Offenses Eligible for Life Without Parole 179 IV. Montgomery Contains the Seeds for the End of Juvenile Life Without Parole 181 A. Montgomery's Deficiencies 181 1. It Is Scientifically Impossible to Reliably Identify Irreparably Corrupt Juveniles 181 2. Sentences Will Be Arbitrary 182 3. Increased Racial Disparities 183 B. A Categorical Ban on Life Without Parole for Juvenile Offenders Is the Only Constitutional Option 185 Conclusion 187 APPENDICES Appendix A. States that Allow LWOP for Juvenile Offenders 189 Appendix B. Irreparable Corruption Determination 190 Appendix C. Discretionary vs. Mandatory Sentences 194 Appendix D. De Facto LWOP Sentences 195 Appendix E. Presumption Against LWOP 198 INTRODUCTION

Since 2005, the United States Supreme Court has issued a series of decisions that have expanded the reach of Eighth Amendment protections and greatly narrowed the punishments available for juveniles convicted of serious offenses. First, the Court held that capital punishment for all juvenile offenders is unconstitutional under the Eighth Amendment. (1) Several years later, the Court held that a sentence of life without parole for juvenile nonhomicide offenders constitutes cruel and unusual punishment, and is thus unconstitutional. (2) Then, in 2012, the Supreme Court in Miller v. Alabama (3) held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles convicted of homicide. (4) In so holding, the Court espoused the rule that "children are different" from adults and that courts must consider youth as a mitigating factor prior to imposing the harshest sentences on juvenile offenders. (5)

Following Miller, state courts were left to determine if the ruling applied retroactively to the over 2000 incarcerated persons (6) serving mandatory life without parole sentences for crimes committed as juveniles. State supreme courts split. Some state courts found that the rule was procedural and consequently not retroactive. (7) Other state courts found that Miller was substantive, and therefore retroactive. (8) As a result of the split, the United States Supreme Court granted certiorari in Montgomery v. Louisiana (9) to determine whether Miller should apply retroactively. (10)

The Montgomery Court found that Miller applied retroactively. (11) However, the Montgomery decision did far more. The Court greatly expanded its more limited holding in Miller, concluding that life without parole is unconstitutionally excessive for the vast majority of juvenile homicide offenders. (12) Montgomery makes clear that more is required of a sentencing court than mere consideration of the mitigating qualities of youth. (13) However, many state sentencing schemes remain noncompliant with the increased sentencing requirements prescribed by Montgomery. (14)

This Article proceeds in four parts. Part I reviews the Supreme Court's Eighth Amendment jurisprudence as it relates to juveniles, providing necessary background to the Montgomery decision. Part I then proceeds to analyze the fundamental holdings of both Miller and Montgomery. Part II examines state responses to Montgomery, outlining five key areas where state court decisions have split in terms of Montgomery's requirements and application, and the reasons for the differing conclusions. These responses are diagramed in further detail in the appendices. Part III analyzes the fundamental holdings of Montgomery and argues that Montgomery established heightened sentencing requirements. This Part evaluates the five areas of state discord, and explains how states should rule on these pressing questions. Part IV demonstrates the deficiencies of the Montgomery decision, and ultimately argues that such shortcomings necessitate a complete categorical ban on life without parole for juvenile offenders.


    1. Roper and Graham: The Groundwork for Miller

      The Supreme Court's 2005 decision in Roper v. Simmons (15) laid the groundwork for Miller and Montgomery by espousing the belief that children are constitutionality different from adults for the purposes of criminal sentencing. (16) The Supreme Court held in Roper that a capital sentence for a juvenile defendant violates the Eighth Amendment's prohibition against "cruel and unusual punishment." (17) Under the doctrine of proportionality, the Eighth Amendment not only prohibits abhorrent punishments, such as torture, but also forbids excessive punishments that are disproportionate to the crime committed. (18) In Roper, the Court concluded that juveniles categorically differ from adults in terms of culpability, thus rendering a death sentence unconstitutionally excessive. (19)

      The Court cited three primary factors to support its conclusion that the death penalty is a disproportionate punishment for juvenile offenders. (20) First, the Roper Court noted that juveniles have a "lack of maturity and an underdeveloped sense of responsibility." (21) Second, the Court explained that juveniles are more susceptible than adults to "negative influences and outside pressures." (22) Third, the Roper Court emphasized that the character and personality traits of juveniles are still developing and are "less fixed." (23) These factors led to the conclusion that juveniles have a diminished degree of moral culpability compared to adult offenders and a greater chance of successful reform. (24) In light of these developmental differences, the Court determined that the rationales for imposing capital sentences on adults--deterrence and retribution--do not adequately justify imposing such sentences on minors. (25) As a result, a death sentence for a minor is disproportionate and, thus, cruel and unusual under the Eighth Amendment.

      The Roper decision is significant in connection with Montgomery and Miller in two primary ways. First, the Supreme Court based its holding in Roper largely on scientific studies showing that juveniles are biologically different from adults in ways that make them less culpable for their actions. (26) These same scientific studies are cited in the Court's subsequent decisions regarding the constitutionality of life without parole for juvenile offenders. (27) The Court gave great weight to these studies and considered them to be an important factor in determining appropriate punishments for youths. (28) Most notably, these very studies trusted by the Court support the assertion that it is impossible to determine when a juvenile is incorrigible. (29)

      Second, the Roper Court determined that even if a juvenile demonstrates a sufficient level of depravity to justify a death sentence, a case-by-case method of individualized sentencing for juveniles would still be insufficient. (30) Individualized sentencing would pose too great a risk that the brutality of a crime would overpower the mitigation of youth, especially given that even juveniles who commit "heinous" crimes may be redeemable. (31) Further, it would likely be impossible for a sentencing court to differentiate such incorrigible juveniles from those whose crimes do not reflect permanent depravity, as even expert psychologists are unable to make such a determination. (32) The Court thus determined that a categorical ban was required because a case-by-case approach would create an unacceptable risk that a juvenile offender would be given the death penalty despite insufficient culpability. (33) This language emphasizing the difficulty of a case-by-case approach will likely be relevant in future litigation addressing whether the Constitution requires a categorical bar on juvenile life without parole. (34)

      Five years after Roper, the Court in Graham v. Florida (35) considered the constitutionality of life in prison without parole for juvenile offenders who commit nonhomicide offenses. (36) Until Graham, the Supreme Court was reluctant to apply the Eighth Amendment's proportionality doctrine outside of the capital context. (37) However, in Graham, the Court analogized the sentence of life without parole for juveniles to a capital sentence for adults. (38) The Court explained that life without parole is the most severe sentence that a juvenile can receive and "guarantees [the juvenile] will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character." (39)

      As in Roper, the Graham Court developed a categorical rule prohibiting life without parole sentences for juvenile nonhomicide offenders. (40) The Court cited the same concerns that motivated the invalidation of the death penalty for juveniles in the life without parole context. (41) The Graham Court cited the precedent of Roper that a juvenile offender "is not as morally reprehensible" as an adult offender. (42) The Court again cited "developments in...

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