Dumping a Dishonest Precedent Less Than Honestly — Part I

Last week the U.S. Supreme Court decided the case of Jones v. Mississippi, regarding the constitutional requirements to sentence an under-18 murderer to life in prison without parole (LWOP). The majority opinion claims to “carefully follow[] both Miller [v. Alabama] and Montgomery [v. Louisiana].” The dissent claims “the Court guts” both decisions. Neither statement is completely right. Neither could be, given that Montgomery contradicts both Miller and itself.

About all that is left of Montgomery is its bare holding that Miller is retroactive. That holding will soon be essentially moot, as nearly all the murderers who killed before their 18th birthday who qualify for reconsideration under Miller will either have had a new decision in their cases (see footnote 6 of Jones, last sentence) or have lost their right to seek it by delay. The holding stands like the chimney of a house that burned down, useless but still standing.

There is a certain poetic justice in Montgomery being largely relegated to the dustbin in a less-than-honest decision, as Montgomery itself is among the most dishonest decisions in recent Supreme Court history.

Miller‘s Holding and Dicta

In its 2012 decision in Miller v. Alabama, the Supreme Court announced that the Eighth Amendment had sprung yet another new branch and imposed yet another requirement that was completely unknown at the time of its ratification and contrary to the laws of many states at the time of its announcement. “We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” The word “mandatory” in this context means that the sentencer does not have discretion to impose a lesser punishment such as a term of years or life in prison with possibility of parole.

The Supreme Court has many times stressed the important difference between the holding of a case and comments made along the way in the opinion, known as obiter dicta. “It is to the holdings of our cases, rather than their dicta, that we must attend ….” Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994). At every point in the Miller opinion where it expressly states a holding, it does so in the limited terms of the quote above.

The critical portion comes on pages 479-480 (emphasis added):

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. [Citation.] By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U. S., at 573; Graham, 560 U. S., at 68. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children [sic] are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Notice the word “but” separating the statement of the holding from the comments about uncommonness of life-without-parole (LWOP) sentences for juveniles and the correct observation, quoting an earlier case, that it is difficult to determine if a crime reflects “irreparable corruption.” It is a small word, but meaningful. It would not be there if the two sentences that follow were part and parcel of the statement of the holding that precedes it. “But” signals a shift in meaning, such as a contradiction or an exception to what came before. In this case, it separates the narrow holding of the case from what the Court believes will be the broader practical consequences. This is a perfect example of obiter dicta, which is not binding precedent.

The paragraph concludes with a return to the purely procedural requirement of discretion in sentencing and taking into account the mitigating factor of youth. By the way, all of the defendants in this line of cases were adolescents at the time of the crime; not a single one was a child.

If there were any doubt that the holding of Miller only requires discretion, and does not categorically exempt any subset of juvenile murderers from LWOP, that doubt is eliminated beyond genuine dispute on page 483. In this part of the opinion, the majority is answering the charge of the dissent that it did not survey the laws of the various States to determine that the practice being banned is “unusual.” The Court had done so in its earlier precedents in Roper v. Simmons (2005), exempting juveniles from the death penalty, and Graham v. Florida (2010), exempting juveniles from LWOP for non-homicide crimes, as well as the cases carving out categorical exemptions from the death penalty. Those categorical exemption cases were different, the Miller majority said (emphasis added):

For starters, the cases here are different from the typical one in which we have tallied legislative enactments. Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.

The boldfaced language is crystal clear, and it anticipates and answers the question decided in Jones last week. For practical purposes, it also answers the question decided in Montgomery in 2016. So you would think that those cases would be straightforward. Guess again.

The Teague Rule

What’s the big deal over the distinction between a “categorical[] bar” and a requirement to “follow a certain process”? That distinction determines whether a new rule applies only to cases still pending on their initial appeal (not subsequent collateral reviews) at the time the rule is announced or whether it goes all the way back to wipe out convictions of any age for any defendant still in custody.

This is the rule of Teague v. Lane. I posted a primer on it last December. This is the Cliff’s Notes version.

When a new rule changes what acts can be made criminal, anybody in jail for the no-longer-criminal act is necessarily innocent, and the judgment against him is necessarily wrong. If a person is in jail for burning a flag at a protest, and the Supreme Court decides that flag-burning laws are unconstitutional, then that person is in jail even though he did not violate any valid statute. The new rule applies retroactively to let him out.

The same goes for categorical exemptions from punishment. If a person is sentenced to death for rape, and the Supreme Court decides that only murder can be punished by death (plus, maybe, certain national security crimes), then the rapist is necessarily sentenced to a greater punishment than the maximum for his crime. He must be resentenced to a prison term. (Hopefully a long one.)

But what about changes in procedure? Are there any new rules of constitutional criminal procedure so essential to a fair trial that we fear there were wholesale convictions of innocent people under the old procedure? Not for a very long time. The criminal procedure revolution of the Warren Court identified and banned the practices that produced wholesale miscarriages of justice, such as requiring indigent and sometimes illiterate defendants to represent themselves in felony cases, going up against a professional prosecutor. The rules created in the 1980s and later are “fine-tuning” by comparison and would change the result in relatively few cases. Going back and retrying every case that used a given procedure every time the high court tweaks the rules has a cost greater than the benefit. Since the Teague rule was created in 1989, the number of new procedural rules found by the Supreme Court to be so essential as to require retroactive application is exactly zero.

In practice, the “watershed rule exception,” as it is known, is dead. Retroactivity on collateral review turns on the substantive / procedural distinction.

So under the Teague rule, Miller would be retroactive to old cases if it “categorically bar[red] a penalty for a class of offenders” but it would not if it “mandates only that a sentencer follow a certain process.” Given that Miller classified its own holding as the latter and not the former in exactly those words, the result seemed obvious.

The Mendacity of Montgomery

After Miller was decided in 2012, Henry Montgomery sought relief from his LWOP sentence from the courts of Louisiana. He had murdered a police officer at a time when Montgomery was 17 and JFK was President. Under the standards of the day, the jury showed him mercy by sparing his life. Most people would have gotten the chair for that. Even so, Montgomery was a long-term resident of Louisiana’s prisons, to be sure.

The Louisiana courts correctly decided the straightforward retroactivity question. Miller created a procedural rule and not a categorical exemption, as it expressly said, so it is not retroactive under Teague.

The Montgomery opinion goes through an explanation of the Teague rule and then observes, “This leads to the question whether Miller’s prohibition on mandatory life without parole for juvenile offenders indeed did announce a new substantive rule that, under the Constitution, must be retroactive.” Right, but that is an easy question.

The Court discusses two precedents that held certain punishments were categorically disproportionate when applied to juveniles, even though they are not when applied to adults. These precedents, it says, were foundational to Miller‘s holding. True, but they were used only to established that the Eighth Amendment has different requirements for juveniles. The fact that they established categorical rules does not make every rule that relies on that principle categorical.

The Court then notes Miller‘s requirement that courts take youth into account before deciding on an LWOP sentence. Right, and that is a quintessentially procedural rule. After Miller, courts are still allowed to reach the same result if they follow the newly mandated procedure. The Montgomery opinion then notes Miller‘s observations, which follow its statement of its holding and are not part of it, about the rarity of cases where such a sentence will be appropriate. The opinion makes no effort to justify a conclusion that obvious dictum is actually holding.

Then comes this bombshell (577 U.S., at 208):

Miller, then, did more than require a sentencer to consider a juvenile offender’s 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.”

That is false. Here is the full sentence from Miller (emphasis added):

Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”

There is a big difference between “diminish” and “collapse.” If the penological justifications collapsed for juveniles, Miller would have banned LWOP for them altogether. It did not. It required the trial judge to take youth into account. That is procedure.

It gets worse.

Even if a court considers a child’s [sic] age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child [sic] whose crime reflects “‘unfortunate yet transient immaturity.’” [Miller], at 479 (quoting Roper, supra, at 573).

Attributing that holding to this passage of Miller is false. Miller was not stating an Eighth Amendment rule at that point. The full quote in context is earlier in this post under the Miller heading. Miller was quoting Roper for how difficult it is to distinguish “transient immaturity” from “irreparable corruption.” Neither case held that the Eighth Amendment draws a constitutional line at that imperceptible boundary. Quite the contrary, just two sentences earlier Miller said expressly that its (procedural) prohibition of mandatory sentencing laws was sufficient to decide the case and stopped there.

Having falsely stated what Miller held, it is then simple for Montgomery to evade the Teague rule. “As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive ….”

How does the Montgomery opinion deal with Miller‘s express and unequivocal statement that it was not creating a categorical exemption. You have to read it to believe this venerable court would actually say this:

In support of this argument, Louisiana points to Miller‘s statement that the decision “does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” Miller, supra, at 483. Miller, it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that reason, Miller is no less substantive than are Roper and Graham.

A child could see how evasive and dishonest this is—an actual child, not a Miller/Montgomery adolescent “child.”

The passage of Miller in question does not simply deny creating a particular categorical bar. Such a denial would be irrelevant to the dissent’s charge that the majority was refuting, i.e., that precedent required the court to follow the earlier categorical bar cases and survey the practices of the states to determine if the given punishment for the given crime and category of criminals was actually “unusual.” That charge could only be refuted by stating that the rule being created is not a categorical bar of any kind. And that is exactly what the Miller majority said in words that are clear beyond reasonable dispute. Yet the Montgomery majority brushes this aside by saying that Miller did not bar LWOP for all juvenile murderers and repeating the assertion that it barred LWOP for a subset of juvenile murderers despite Miller‘s unequivocally contrary statement.

There was one more hurdle for the Montgomery majority to clear. Miller did not require that courts make a finding of fact that the crime represented “irreparable corruption” rather than “transient immaturity.” It expressly required only that the sentencer “take into account how  [juveniles] are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” How could a decision says that a given sentence is constitutional if a given fact exists but unconstitutional if the contrary fact exists without requiring anyone to find the fact?

It can’t, obviously. The categorical bar on executing intellectually disabled people requires a finding of fact on whether the defendant really is intellectually disabled. The same is true for mental competence for execution. The same is true for the minimum age for execution, in the rare cases where age is in dispute. Undeterred, Montgomery charges forward (p. 211):

That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.

In other words, sentencing judges, you don’t have to find whether the “crime reflects transient immaturity” before you impose LWOP, but if you impose it and that “fact” is true, you have violated the Constitution.

Is this an opinion of the Supreme Court of the United States, or is it a passage from Alice in Wonderland? This is not how review of judgments works. A judgment is valid unless a reversible error was committed in reaching it. If the trial court finds every fact it needs to find to impose the judgment, and if there is no reversible procedural error in finding the facts, then the judgment is valid and not reversible.

What Went On Inside the Montgomery Court?

At some point, the papers of one of the Justices who participated in Montgomery will be released to public view, and hopefully we will find out then what on earth was going on to explain this bizarre decision. Until then we can only speculate.

This is my best hypothesis, which admittedly is speculation pending actual facts. In the latter years of his tenure, Justice Kennedy saw sweeping sentencing changes, especially for juveniles, as a key element of his legacy. He was gung ho for Miller and very much wanted to see it applied retroactively. At the same time, though, he was one of the key architects of the Teague rule. He did not write Teague itself, but he wrote many of the decisions that put flesh on the bones. He did not want to dismantle one part of his legacy to reinforce another part.

Justice Kennedy cannot actually believe that Montgomery is an honest interpretation of Miller. He is much too intelligent for that. I can only surmise that he wanted the twin results enough to dissemble on a precedent in order to achieve them. The other four Justices from the Miller majority would just as soon give Teague the heave-ho, or at least exhume the “watershed rule” exception from its judicial grave, but they needed Justice Kennedy and Chief Justice Roberts for their majority, so they were willing to go along.

How can we explain Chief Justice Roberts joining an opinion that expands an opinion he believed was so wrong that it was not even a plausible interpretation of the Constitution (see Miller, 567 U.S., at 493) and did so in a dishonest way that stains the pages of the United States Reports? He also is much too sharp to actually believe the blather that he concurred in. Perhaps he was willing to go along and save the opinion from “bare majority” status in return for the damage control of not changing the Teague rule. Perhaps Justice Kennedy wanted that reinforcement, and that gave him an additional reason not to damage Teague.

We don’t know any of that, of course, and we don’t know when we will know.

On to Jones v. Mississippi

That was a long trip through the past for a post that is supposed to be about a new decision, but it was necessary to understand what really happened last week.

One-third of the Court has changed since Montgomery. Justice Gorsuch succeeded Justice Scalia. No major change there on this issue, apparently.

Justice Kavanaugh succeeded Justice Kennedy. While he generally falls the “moderate” side of the “conservative” Justices among the rankings that label-makers like to play with, he does not appear to have his predecessor’s crusading zeal to release large numbers of criminals into the streets.

The largest change, in all likelihood, is Justice Barrett succeeding Justice Ginsburg. We have not seen much from her on the Supreme Court yet, and she was not on the Court of Appeals long enough to establish a large track record there, but it is safe to assume that she will be less regularly pro-criminal than her predecessor.

Part II will examine the Jones opinions in light of the background presented here.

6 Responses

  1. Douglas Berman says:

    I have long thought that the “watershed rule” would have been the sounder way to make MIller retroactive — I do not think it would have been too hard to write a modest opinion stating that requiring at least some discretion in the imposition of LWOP on juveniles implicates “the fundamental fairness and accuracy” of this uniquely severe sentencing proceeding given that appropriate LWOP terms for juveniles are to be “uncommon.”

    I remain puzzled why the Court did not go this route, though I guess I could understand concerns about the watershed exception getting more play in the future. But that seems silly in light of its history. And the Court could have helped to keep the watershed exception in check by saying Miller’s foundation in the Eighth Amendment to guard against unconstitutionally severe punishments is why it gets watershed status.

    I suppose the jurisdictional question that got added by the Court when it took up Mongomery might be part of the backstory. But I have long shared your view that Montgomery is a mess: “Montgomery’s Messy Trifecta,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2764194

    • Given the history of the courts of appeals’ routine violation of §2254(d) despite repeated, stern rebukes by the Supreme Court, I cannot share your optimistic view that the Court could have kept the watershed exception in check. Unless they came up with an objective standard, and I can’t see one offhand, whatever standard they set in general terms would be routinely violated by the usual suspects.

      The idea that any rule intended “to guard against unconstitutionally severe punishments” would automatically get “watershed” status — thus allowing the federal courts of appeals to resume making such rules on habeas corpus and impose them on states — is nothing short of horrifying. Eighth Amendment cases are where the activist types are at their worst.

      • Douglas Berman says:

        I understand your worries, but (a) are there really any NEW Eighth Amendment procedural rules being developed in capital cases, and (b) are there any Eighth Amendment procedural rules outside the capital and juve LWOP settings? These are, of course, the areas in which “fundamental fairness and accuracy” seem most important because the stakes are so high, but I get your concern that a “watershed” inch could become a “watershed” mile in the hands of the right Ninth Circuit panel. Still, it is a sad notion that we ought not have sounder retroactivity law because it could be applied in an unsound way.

        • Addressing your last point first, I do not share your premise that the Teague rule in its present form is “unsound.” The second exception was already obsolete the day Teague was decided, and the only change needed is to officially pronounce it dead.

          There certainly would be a lot of new Eighth Amendment rules being created by federal court of appeals panels if they had carte blanche to do so, and it would not just be in the Ninth Circuit. You live in the Sixth, so surely you are aware of how deeply (and sometimes bitterly) that court is divided.

          The problem is no longer limited even to the “circuits divisible by three” that I have long derided. President Obama ruined the Fourth Circuit much as President Carter ruined the Ninth. It was formerly a bastion of good sense, but no longer.

          I get the impression that you are beginning with the premise that Miller must be retroactive and the task is to figure out a way to achieve that result. I do not share that premise either. Miller is a fabrication with no basis in the text or history of the Eighth Amendment.

          I have no problem with the basic rule (without the Montgomery extension) as a matter of policy, but judges have no legitimate authority to impose it over contrary statutes. Is anything wrong with limiting an illegitimate rule to prospective-only application? I do not see any. If Henry Montgomery deserves mercy at this point, he can apply for clemency. There is no injustice in leaving him in prison. Deputy Hurt is still in his grave.

  2. Bill Otis says:

    As is turning out to be the case with me more and more these days, I think an intelligent layman would do a better job with this stuff than all these lawyerly machinations. Here’s what the Jones opinion should have been: “Montgomery misstated the holding in Miller, and today we put aside that misstatement. The misstatement was erroneous because it was ungrounded in either the dispute we actually resolved in Miller or, more importantly, the language of the Eighth Amendment, which we have no authority to either shrink or expand. The language of the Eighth Amendment contains no “permanent incorrigibility” requirement of the sort we stretched to announce in Montgomery, and, given the only question we were asked to resolve in that case, was dictum regardless of how it may have been characterized then or subsequently. This Court is not required to follow dictum even if it thinks it to be legally correct, which the Montgomery dictum was and is not. The Constitution contains no “permanent incorrigibility” requirement for the sentencing of juveniles (or anyone else). As Justice Scalia once remarked, the Constitution says what it says and doesn’t say what it doesn’t say. The judgment below is affirmed.”