An Aggressive Interpretation of Precedent

Today, the U.S. Supreme Court heard oral argument in Jones v. Mississippi, No. 18-1259, its third case in eight years on the subject of life in prison without parole for murderers who kill before their 18th birthdays. (Transcript here; audio here; docket here.)

Most of the discussion involved two precedents: Miller v. Alabama (2012), which held that LWOP for juvenile murderers must be discretionary, not mandatory, and Montgomery v. Louisiana (2016), which held that Miller was fully retroactive and, in the process, announced that Miller categorically exempted from LWOP all juvenile murderers except those “whose crime reflects irreparable corruption,” whatever that means.

The most interesting development in the argument, to my mind, was when Justice Elena Kagan, the author of Miller and a member of the Montgomery majority, characterized Montgomery as “an aggressive reading” of Miller. I would use stronger language, but considering the source “aggressive” is pretty strong. Might the high court backpedal on Montgomery and return to what Miller actually holds?

Here is the full passage, on pages 25-26 of the transcript:

And, Mr. Shapiro, this goes back to a question that Justice Thomas asked you, but let’s assume that you’re right about what Montgomery says. And, as you say, Montgomery said it not one time or two times or three times but, like, something like seven or eight times.

But suppose you think that that’s an aggressive reading of Miller, that there –that although you said, you know, on page 479 Miller says this, that that wasn’t really the thrust of Miller and, in fact, Montgomery, you know, read it quite aggressively and that there’s a gap between the two.

If –if that’s right –I mean, you can first tell me whether you think that’s right, but, if it’s right, which opinion should we look to and why?

The attorneys for Mississippi and for the United States as supporting amicus spent much of the argument trying to harmonize Miller and Montgomery.  CJLF’s brief took a more aggressive tack, to borrow a term, and said that the portion of Montgomery at issue in this case is flatly contradicted by Miller itself and should be abandoned. There might be other arguments for keeping Montgomery‘s core holding that Miller is retroactive on collateral review, but since this is a direct review case the Court need not confront that issue in its decision.

The answer to Justice Kagan’s question is that the Court should look to Miller for the meaning of Miller. The original is the best evidence. Montgomery did not purport to reexamine the Eighth Amendment and modify Miller; it only purported to say what Miller said. To the extent the Montgomery opinion is just wrong, it should be disregarded.

Here is what Miller says Miller says, on page 483 (emphasis added):

Our decision does not categorically bar a penalty for a class of offenders or type of crime …. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.

Here is what Montgomery says Miller says, on page 16 of the slip opinion linked above:

Miller, then, did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole …. [I]t rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.

Montgomery is one of the most dishonest opinions in the modern history of the Supreme Court. It is more than an “aggressive reading” of Miller. It flatly contradicts Miller‘s own statement of its own holding.

Will the Court admit that? Perhaps not. But we take some encouragement from the argument that enough of the justices are aware of the “gap,” as Justice Kagan calls it, to at least partially back away from Montgomery‘s unnecessary and damaging language.

The language is unnecessary because Miller by itself mitigates the harshness that some legislatures may have inadvertently imposed when they enacted mandatory LWOP statutes without separately considering juveniles. The retroactivity of Miller is now water under the bridge, and all future juvenile murder sentencings will have to conform to its actual holding.

The language is damaging because, as the Court correctly recognized in Roper v. Simmons, no one can really say who is “irreparably corrupt” and who is not. Indeed, as noted in the argument, all human beings who are not insane have free will and the ability to reform. Evil people do not reform because they choose not to, not because they can’t.

Just as damaging is the effect on existing judgments. If the Montgomery requirement stands and applies fully retroactively, as Montgomery itself holds, then all juvenile LWOP judgments entered without this nonsensical finding, which is nearly all of them before Montgomery, have to be retried.

Retrial yanks away finality from families of murder victims who believed that their cases were completely over. It is cruelty to people who have already suffered greatly. A separate brief filed by CJLF on behalf of the National Organization of Victims of Juvenile Murderers and Arizona Voice for Crime Victims explains the horrors in some detail. We hope the Court acts with awareness of this.