Murder by Minors

Tuesday, May 12, 2015
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Michael Coghlan

Juvenile crime is not a new phenomenon. The number of crimes committed by juveniles and the severity of those offenses increases and decreases over time for reasons that are not clear. Over one million juveniles are tried in state juvenile courts annually in the United States. State laws vary, but, in general, juvenile criminals are treated differently than adult offenders. For most crimes, youths are prosecuted in juvenile courts and, if warranted, sent to correctional facilities for the dual purpose of punishment and rehabilitation. Most are not detained beyond the age of 18 or 21.

State laws allow juveniles charged with serious felonies (e.g., murder) to be treated as adults and prosecuted in traditional criminal courts. Although this is an area of the law that many believe should be defined by the states, federal courts have played a significant role in shaping juvenile justice jurisprudence. In particular, the Supreme Court of the United States has actively engaged in deciding significant juvenile justice issues, using the federal Constitution as a vague roadmap to create policies. This is particularly true in cases concerning the death penalty and confinement to life in prison without the possibility of parole.

In Roper v. Simmons (2005), the Supreme Court ruled in a 5-4 decision that it violates the Constitution to impose the death penalty on those who commit murder before reaching the age of 18. The Court overruled its own recent decision in Stanford v. Kentucky (1989) that upheld the death penalty for offenders who are 16 or older. It is unclear why the Court changed the age from 16 to 18. There is, of course, nothing in the Constitution that says anything about the death penalty for juveniles.

The facts in Roper v. Simmons are startlingly brutal. Simmons, at the age of 17, conspired with two friends to commit a burglary and murder in Missouri. During the night, Simmons and one of his friends broke into the home of a woman who was sleeping. They tied her hands and placed duct tape over her eyes and mouth. They placed her in her car, drove it to a railroad bridge, and threw her into the river below where she drowned. Simmons thereafter bragged to others about his crime. He was arrested quickly and he made a voluntary confession. The evidence of guilt was overwhelming and he was convicted of murder. The judge instructed the jury to consider Simmons’ age as a mitigating factor. The jury recommended the death penalty, and the judge approved it.

While the Simmons case was moving through the appellate wickets, the Supreme Court decided Atkins v. Virginia (2002), holding that the death penalty could not be imposed on the mentally retarded because such punishment violates the Eighth Amendment’s prohibition of “cruel and unusual punishments.” In a 5-4 decision, the Court stated that the Eighth Amendment should be interpreted in light of “evolving standards of decency that mark the progress of a maturing society.” Those catchy quoted words were borrowed from a 1958 Supreme Court decision. The words have been used frequently by judges to justify the substitution of policy preferences for the law.

In the Atkins case, the Court determined that because a number of state legislatures had recently rejected the death penalty for the mentally retarded, there was a “national consensus” against it. The Court did not explain why a so-called “national consensus” is relevant to interpreting the Constitution. Nevertheless, the Court used the “evolving standards of decency” and  “national consensus” theories to interpret the Eighth Amendment. In his dissent, Justice Scalia accurately stated: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.”

Simmons sought state court relief and the Missouri Supreme Court granted it by setting aside his death sentence in favor of life imprisonment without eligibility for parole. The Missouri Court relied on the U. S. Supreme Court’s decision in Atkins v. Virginia and held that there is also a “national consensus” against executing those who were under the age of 18 when their crimes were committed. The Simmons case then moved to the U. S. Supreme Court.

As mentioned above, the U.S. Supreme Court ruled for Simmons. It found that the “evolving standards of decency” test made it “cruel and unusual” to execute a juvenile who was under the age of 18 when the murder was committed. It also found that there was a “national consensus” among the states not to execute those convicted of committing crimes before reaching the age of 18. Again, the Court did not explain what a “national consensus” had to do with interpreting the Constitution. The Constitution cannot be changed by polls or state legislatures. Having used the Court-created “evolving standards of decency” and “national consensus” tests in Atkins, it was easy to apply them again in Roper v. Simmons to interpret the Constitution.

It was only a matter of time before this line of cases led to the question of the lawfulness of sentencing juveniles to life in prison without the possibility of parole. That time came with Miller v. Alabama (2012). The facts are horrific. Miller, age 14, and another youth, drank and used drugs with a neighbor in his trailer. They robbed the neighbor and beat him senseless with a baseball bat. They left the scene, but returned to set the trailer on fire in an effort to cover up their crimes. The neighbor died of his injuries and smoke inhalation. Miller was convicted of murder. As mandated by Alabama law, Miller was sentenced to life in prison without the possibility of parole. The sentencing court had no discretion concerning the punishment.

In a 5-4 decision, the U. S. Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. In other words, trial courts had to hold an individualized sentencing hearing to determine whether factors related to the perpetrator’s age warranted less than a life sentence. This was a predictable result. The Court had previously ruled in Graham v. Florida (2010) that a juvenile could not be sentenced to life in prison without parole for a non-homicide offense. That decision, coupled with the logic of Roper v. Simmons, made it easy for the Court to expand favorable treatment for juvenile killers. The Court continued to amend and shape state criminal laws concerning juveniles, case by case, though the decision process.

It is important to note that Miller v. Alabama only applies to cases where a sentence to life without parole is mandated by state law. The ruling does not forbid life sentences without parole for juvenile killers. What it does do is require sentencing courts to consider a defendant’s youth, the nature of the crime, and any special mitigating factors.

This all leads to the case of Toca v. Louisiana. The U.S. Supreme Court granted review in this case in December 2014 and it was scheduled to be argued and decided by the end of June 2015. The principal issue was whether the rule announced in Miller v. Alabama is retroactive and thus applies to juvenile killers whose convictions are already final on appeal.

George Toca was convicted of shooting his friend during an attempted armed robbery in 1984 when he was 17 years of age. He was sentenced to life in prison without the possibility of parole. That sentence was mandated by Louisiana law. After the decision in Miller v. Alabama was announced, Toca sought relief in Louisiana courts. The Supreme Court of Louisiana ruled that the Miller decision did not apply retroactively. Other state and federal courts of appeal are divided on the issue of retroactivity.

Determining whether a Supreme Court decision is to be applied retroactively is a thorny issue. Laws enacted by legislative bodies generally do not apply retroactively unless the law specifically says it is to be applied retroactively. The general rule concerning retroactivity of Supreme Court decisions draws a distinction between decisions that are procedural and those that are substantive. Procedural rulings apply prospectively, but substantive rulings apply prospectively and retroactively.

Reasonable minds can differ on whether to categorize a ruling as procedural or substantive. There are no clearly defined rules. The Supreme Court was free to place the Miller ruling in either category. If it was substantive, it could operate to the benefit of the estimated 2,500 juveniles serving life without parole sentences in the United States and would undoubtedly create uncertainty and lengthy litigation in many cases. This was an opportunity for the Supreme Court to rule that Miller is procedural, not retroactive, and leave it to state legislatures and state executives to shape their laws and grant clemency in warranted cases.

But a funny thing happened as the case made its way to the High Court. After extended negotiations, the District Attorney of Orleans Parish, Louisiana, reached an agreement with George Toca in January 2015 that terminated the case. Toca accepted a plea agreement and his prior conviction and mandatory sentence to life without parole were vacated. He pled guilty to lesser offenses. He had served thirty-one years in prison. His new sentence was essentially “time served” and he was released. The Orleans Parish Criminal District Court approved the plea agreement on January 29, 2015.

Thereafter, the parties to the case asked the Supreme Court to dismiss the case because the case was terminated. The Constitution provides that federal courts can exercise judicial review only if there is a “case” or “controversy” in existence. Federal courts do not issue advisory opinions. Accordingly, the Supreme Court dismissed the case.

Thus, the serious question presented in Toca v. Louisiana was left unanswered. We do not know if Miller is to be applied retroactively. A large number of prisoners who were sentenced to life without parole as juveniles still await an answer. 

They will not have to wait for long. The Supreme Court recently granted review in another case, Montgomery v. Louisiana. The case will be argued during the term that begins next October. Henry Montgomery has been serving a mandatory life sentence for murder since 1963. He was seventeen years of age when he murdered a law enforcement officer. The Supreme Court of Louisiana denied him relief. In addition to the question of whether Miller v. Alabama is retroactive, the Court directed the parties to brief the arcane procedural question of whether the Court has jurisdiction to decide this issue of state law. The slow process of judicial deliberation is at work.