Dumping a Dishonest Precedent Less Than Honestly — Part II

In Jones v. Mississippi, decided April 22, the U.S. Supreme Court held that in cases where a juvenile is facing life without parole (LWOP) for murder, all that is needed to comply with its 2012 precedent in Miller v. Alabama is for the sentencing court to have discretion to choose a lower sentence and consider the defendant’s youth in making the choice.

That would have been fairly straightforward based on Miller itself. The complications arose from the 2016 decision in Montgomery v. Louisiana, making Miller retroactive so as to require resentencing for a 1963 murder. The problem, as explained at length in the previous post, is that Montgomery contradicted Miller in order to achieve that result, and Montgomery even contradicted itself, making statements that cannot be reconciled.

In Jones, the majority opinion joined by five Justices and the dissent joined by three have many sharp points of disagreement, but they agree on one thing. Both maintain the fiction that Montgomery is consistent with Miller. As a result, neither opinion’s analysis can possibly be completely correct, and neither is.

And then there was one. Justice Thomas agreed with the majority on the result but not the reasoning. He wrote a solo opinion “concurring in the judgment”:

The Court correctly holds that the Eighth Amendment does not require a finding that a minor be permanently incorrigible as a prerequisite to a sentence of life without parole. But in reaching that result, the majority adopts a strained reading of Montgomery v. Louisiana, 577 U. S. 190 (2016), instead of outright admitting that it is irreconcilable with Miller v. Alabama, 567 U. S. 460 (2012)—and the Constitution. The better approach is to be patently clear that Montgomery was a “demonstrably erroneous” decision worthy of outright rejection. [Citation.]

Indeed it is. But the better approach is the road not taken in this case, so let’s look at the road actually taken. Rough pavement ahead.

The majority opinion by Justice Kavanaugh begins correctly:

Under Miller v. Alabama, 567 U. S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.

That is a correct statement of Miller‘s narrow holding. Also, significantly, Justice Kavanaugh refers to the adolescent murderers in these cases as “individual[s] … under 18,” and not “children” as the Miller and Montgomery opinions did. See this post. Next the majority summarizes the defendant’s argument:

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller. Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.

The majority rejects this argument. In support, the opinion cites the statements in Miller noted in the previous post that it imposed only a process requirement and that it did not impose a categorical bar, as well as the statement in Montgomery that no finding of fact was required. All well and good. All true and on point. But how does the majority deal with the parts of Montgomery that contradict those statements? That’s where it gets dicey. The majority says:

In short, Miller followed the Court’s many death penalty cases and required that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence. Miller did not require the sentencer to make a separate finding of permanent incorrigibility before imposing such a sentence. And Montgomery did not purport to add to Miller’s requirements.

(Footnote omitted, but I will return to it.)

But Montgomery did add to Miller‘s requirements, even while denying it was doing so. Montgomery says at page 208 that Miller “rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’ ” despite Miller‘s own statements that it required only a process and did not impose a categorical bar. So which controls? Montgomery‘s disclaimer that it is not adding anything to Miller or Montgomery‘s addition to Miller by “interpreting” (in the loosest possible sense of the word) that decision to impose a requirement that it unequivocally said it was not imposing?

The majority tries to cover the contradiction, but it shows through like a stain on the wall through a thin coat of paint. The critical paragraph is on pages 11-12 of the slip opinion. Let’s take it piece by piece.

To break it down further: Miller required a discretionary sentencing procedure. The Court stated that a mandatory life-without-parole sentence for an offender under 18 “poses too great a risk of disproportionate punishment.” 567 U. S., at 479.

Again, a correct statement if Miller‘s narrow holding

Despite the procedural function of Miller’s rule, Montgomery held that the Miller rule was substantive for retroactivity purposes and therefore applied retroactively on collateral review. 577 U. S., at 206, 212. [Footnote 4, quoted and discussed below.]

“Despite.” With that word, Justice Kavanaugh reveals a serious doubt, at least, as to whether Montgomery was correctly decided. Perhaps this is something he knows but could not get a majority to agree to. Is this an inadvertent slip on his part, or is this hint the most he could get in while holding his majority? No matter; it’s there.

But in making the rule retroactive, the Montgomery Court unsurprisingly declined to impose new requirements not already imposed by Miller.

Again, the difference between what Montgomery said it was doing versus what it was actually doing is glossed over.

As Montgomery itself explained, the Court granted certiorari in that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide whether Miller’s “holding is retroactive to juvenile offenders whose convictions and sentences were final when Miller was decided.” 577 U. S., at 194.

But that question would have been answered “no” if Montgomery had admitted that Miller was the purely procedural rule that Miller itself said it was and that the Jones majority now says it was. Instead it was answered “yes.” The Jones majority does not resolve the contradiction.

On the question of what Miller required, Montgomery was clear: “A hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” Id., at 210 (internal quotation marks omitted). But a separate finding of permanent incorrigibility “is not required.” Id., at 211.

Yes, Montgomery does clearly say that, and it just as clearly says that permanent incorrigibility is a substantive requirement for a valid LWOP sentence for a juvenile, an irreconcilable requirement.

There is one more inconsistency in Montgomery. The opinion consistently refers to the sentencer (normally the trial judge) not the finder of fact on guilt (normally the jury) as the decision maker on this point. But if “permanent incorrigibility” were a required factor to be eligible for LWOP, rather than just a factor to be weighed in the balance, the rule of Ring v. Arizona would require that it be found by the jury. This was noted in CJLF’s brief, and it appears in footnote 3 of the opinion.

But if Miller is now back to a purely procedural rule and purely procedural rules are not retroactive under Teague, wouldn’t the Court have to either modify the Teague rule or overrule Montgomery? No. Why not? The Court’s answer, in essence, is “Pay no attention to that man behind the curtain.” Here is footnote 4 (emphasis added):

As the Court has stated in cases both before and after Montgomery, the Court determines whether a rule is substantive or procedural for retroactivity purposes “by considering the function of the rule” itself—not “by asking whether the constitutional right underlying the new rule is substantive or procedural.” Welch v. United States, 578 U. S. 120, 130–131 (2016). For purposes of Teague v. Lane, 489 U. S. 288 (1989), a rule is procedural if it regulates “ ‘only the manner of determining the defendant’s culpability.’ ” Welch, 578 U. S., at 129 (quoting Schriro v. Summerlin, 542 U. S. 348, 353 (2004); emphasis deleted). A rule is substantive and applies retroactively on collateral review, by contrast, if it “ ‘alters the range of conduct or the class of persons that the law punishes.’ ” Welch, 578 U. S., at 129 (quoting Summerlin, 542 U. S., at 353). As the Court’s post-Montgomery decision in Welch already indicates, to the extent that Montgomery’s application of the Teague standard is in tension with the Court’s retroactivity precedents that both pre-date and postdate Montgomery, those retroactivity precedents—and not Montgomery—must guide the determination of whether rules other than Miller are substantive. See Welch, 578 U. S. 120; Summerlin, 542 U. S. 348; Lambrix v. Singletary, 520 U. S. 518 (1997); Saffle v. Parks, 494 U. S. 484 (1990). To be clear, however, our decision today does not disturb Montgomery’s holding that Miller applies retroactively on collateral review. By now, most offenders who could seek collateral review as a result of Montgomery have done so and, if eligible, have received new discretionary sentences under Miller.

I suggested myself, in CJLF’s brief, that the Court could undercut Montgomery‘s reasoning without overruling its holding, and the holding would become moot after all the pre-Miller cases were resolved or defaulted. But I did not think that Montgomery‘s application of Teague was in any tension with the other Teague cases. Once Montgomery misstated Miller‘s holding as a substantive rule, the application of Teague became straightforward.

By not admitting that Montgomery misstated Miller‘s holding, the Court might raise the possibility that the not-overruled Montgomery might be used to sneak other procedural rules through the substantive door, and this footnote is intended to squelch that. The result is a good one. Teague is intact. But candor on the wrongness of Montgomery would have been a cleaner way to reach the result.

Justice Thomas concludes his separate opinion with this observation:

Today’s majority labors mightily to avoid confronting the tension between Miller and Montgomery. But though the Court purports to leave Montgomery’s holding intact, it recognizes that Montgomery’s analysis is untenable and not to be repeated. It would be simpler to reject Montgomery in both name and substance.

In a similar vein, CJLF’s brief quoted the great Justice Robert Jackson from 1950: “Of course it is embarrassing to confess a blunder; it may prove more embarrassing to adhere to it.” For now, the Court has chosen to pretend to adhere to its blunder by mischaracterizing it in order to avoid the embarrassment of confessing to it. Perhaps we will see the confession down the road, when the Court is sure that all, rather than “most,” pre-Miller juvenile LWOP sentences have been reconsidered or the time to challenge them has expired.