Instilling hope: Suggested legislative reform for Missouri regarding juvenile sentencing pursuant to Supreme Court decisions in Miller and Montgomery.

• Author: Wheelwright, Brooke
• Position: NOTE

1. INTRODUCTION

   Hope is the significant factor distinguishing a life without parole sentence ("LWOP") from other sentences. In deciding Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana, the Supreme Court of the United States has introduced the concept of hope into Eighth Amendment jurisprudence, as "[i]t is now impermissible to abandon all hope for a young offender and judge him irredeemable at the outset of his sentence." (1) Offenders now view "the Eighth Amendment['s] prohibition on cruel[ and unusual punishments as]... ground[s] for hope of eventual release." (2) In 2010, the Supreme Court held in Graham that it was unconstitutional to sentence non-homicide juvenile offenders to LWOP. (3) This decision marked the first appearance of hope in Eighth Amendment jurisprudence for juvenile offenders serving life sentences. Then, the Supreme Court held in Miller that it was a violation of the Constitution to impose mandatory LWOP sentences, and that a sentencer must take into account an offender's youth and attendant characteristics before imposing a penalty of LWOP. (4) The Court in Miller stated that the "appropriate occasion[] for sentencing juveniles to this harshest possible penalty will be uncommon." (5) While this decision did not guarantee the hope of release for juveniles with LWOP sentences, it made the possibility of release much more real. And finally, in January 2016, the Court decided in Montgomery that the Miller rule is to apply retroactively to all offenders currently serving mandatory LWOP sentences, giving offenders sentenced before the Miller decision hope as well. (6)

   In fewer than ten years, the Supreme Court has given hope to juveniles with LWOP sentences across the country. However, the introduction of hope into Eighth Amendment jurisprudence has created complications for many states. When it was decided in 2012, the holding in Miller invalidated sentences for juvenile first degree murder offenders in over twenty states; and when Montgomery was decided in 2016, it created the need for even more juvenile sentencing reform across the country.

   Missouri recently passed Senate Bill 590 ("SB 590") in response to these decisions. (7) However, inadequate time, research, and consideration were given to the passage of SB 590, in part because it was rushed through the legislature near the end of the legislative session. As a result, the bill has many shortcomings that must be fixed; this is the primary focus of this Note. Part II of this Note examines the necessary context and background of a handful of Supreme Court decisions pertaining to this issue. Part III discusses the language and likely impact of SB 590. Part III analyzes the issue presented by the Miller decision, highlights how Missouri has failed to adequately address this issue, assesses what other states have done, and suggests what Missouri should do to remedy the shortcomings of SB 590. Part IV discusses the issue of retroactivity presented by the Montgomery decision and offers a suggestion as to what legislative reform Missouri should undertake to accommodate the Montgomery decision. Part V concludes this Note.

2. LEGAL BACKGROUND: LEGAL PRINCIPLES DERIVED FROM SUPREME COURT JURISPRUDENCE

   The Supreme Court based Miller on two principles reflected in prior cases interpreting constitutional issues surrounding juvenile sentencing. The first principle is that children are different from adults because they do not have the equal ability to think, weigh consequences, or resist peer pressure, and, therefore, they are less deserving of harsh punishment. (8) The second principle is that mandatory death sentences are unconstitutional. (9) Understanding the cases that develop these principles will provide clarity to the Court's decision in Miller, a case that has created an issue Missouri must face--the "Miller Issue," as referred to in this Note. Missouri is also faced with the 'Montgomery Issue," a product of the Court's holding in Montgomery that Miller applies retroactively. To understand the 'Montgomery issue," one must start with the Miller issue.

   1. Principle #1: Juveniles Are Different from Adults and, Therefore, Less Deserving of Harsh Punishment

      Since the late twentieth century, the Supreme Court of the United States has consistently supported the notion that juveniles are developmentally different from adults and, therefore, should be treated differently by the justice system.

      In 1988, the Supreme Court held in Thompson that the Eighth Amendment prohibits the execution of a person under sixteen years of age at the time he or she committed the underlying offense. (10) In 2005, the Supreme Court in Roper v. Simmons banned the death penalty for all juveniles when it raised the bar against the death penalty from sixteen to eighteen. (11) In 2009, the Court used this same reasoning in Graham v. Florida to prohibit the imposition of LWOP for juveniles convicted of non-homicide offenses. (12) The Court found that LWOP for non-homicide juvenile offenders was always disproportionate in light of their capacity for change and limited moral culpability. (13)

   2. Principle #2: Mandatory Death Sentences Are Unconstitutional

      Since 1976, the Court has consistently held that it is a violation of the Eighth and Fourteenth Amendments to sentence an individual to death without giving the individual the right to present mitigating evidence, such as the individual's age, character, background, and upbringing, to prove that a lesser sentence is warranted. (14) The Court first faced this issue in Woodson v. North Carolina. (15) In Woodson, the Court held that North Carolina's mandatory death sentence for first degree murder violated the Eighth and Fourteenth Amendments because a mandatory death sentence failed to mitigate against "arbitrary and wanton jury discretion." (16) The Court further explained that not considering an offender's character and the circumstances of the particular offender's crime was inconsistent with "the fundamental respect for humanity underlying the Eighth Amendment." (17)

      In 1987, the Court decided Sumner v. Shuman. (18) In Sumner, the defendant, who was already serving a life sentence without the possibility of parole, was convicted of murdering a fellow prisoner. (19) The defendant was sentenced to death pursuant to a Nevada statute that imposed a mandatory death sentence on defendants convicted of murder while already serving an LWOP sentence. (20) The Court concluded that the individualized capital-sentencing doctrine requires the sentencing authority to consider, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the particular offense. (21)

      Combined, these cases established the principle that mandatory death penalty sentences are unconstitutional.

   3. Application of Legal Principles: Subsequent Supreme Court Jurisprudence

      The previous two sections discussed two important principles set out by the Supreme Court: under Thompson, Roper, and Graham, the Court has repeatedly upheld the notion that juveniles are different and, therefore, less deserving of harsh punishment; under Woodson and Sumner, the Court consistently held that mandatory sentences for the death penalty are unconstitutional. In 2012, the Court used these two principles to reach its decision in Miller v. Alabama. (22) Relatedly, the Court's decision in Montgomery v. Louisiana held that the rule in Miller is to apply retroactively. (23)

      1. Miller v. Alabama

         Evan Miller was fourteen years old when he murdered his neighbor. (24) The trial court held that, due to Miller's "mental maturity" and his prior offenses, he should be tried as an adult. (25) Miller was found guilty of felony murder for committing murder in the course of arson. (26) Felony murder carries a mandatory minimum punishment of life without parole, and Miller was sentenced accordingly. (27) The Alabama Court of Criminal Appeals affirmed, stating that mandatory LWOP was "not overly harsh when compared to the crime." (28) The Supreme Court of Alabama denied review, but the Supreme Court of the United States granted review in 2012. (29)

         In its decision, the Supreme Court held that the Eighth Amendment forbids a mandatory sentencing scheme that requires LWOP for juveniles convicted of murder. (30) Many states--such as Missouri--only have two possible punishments for first degree murder, the death penalty or LWOP. Since juveniles cannot receive the death penalty (per Roper), they are automatically sentenced to LWOP if convicted of first degree murder. In coming to this conclusion, the Court explained that there are two lines of precedent leading to the present conclusion that mandatory LWOP sentences for juveniles violate the Eighth Amendment's Cruel and Unusual Punishment Clause. (31)

         The first line of cases (32) supports the proposition that juveniles must be treated differently under the Constitution. (33) Collectively, these cases banned categorical sentencing practices that mismatch the culpability of the offenders and the severity of the penalty those offenders receive. The second line of cases represents the proposition that no one may be sentenced to death without the right to present mitigating evidence, such as information about the defendant's age, character, background, and upbringing, to prove that a lesser sentence is warranted. (34) Although Woodson and its progeny refer to the death penalty, the Court relied on the conclusion reached in Graham to apply the same arguments to the sentence of LWOP to juveniles. (35) In Graham, the Court "likened life without parole for juveniles to the death penalty itself," and the Court in Miller concluded a sentencing court must consider the juvenile defendant's individual characteristics before issuing "a state's harshest pen-alt[y]." (36)

         Based on these two strands of cases, the Miller Court concluded that a sentencer must take into account an offender's youth and attendant...