Last June, on the day the U.S. Supreme Court ruled on Miller v. Alabama, I spoke to a long-time advocate for the elimination of juvenile life without parole. Like a lot of people, I was pleased with the ruling, and saw it as a victory not only for activists but for science-based research into the juvenile brain. I jokingly asked him, “What are you going to do now that you’ve accomplished your task?” He laughed, but then he said, “It’s not really over.”
The ruling was far less clear than Roper v. Simmons, which eliminated juvenile death sentences in 2005, and 2010’s Graham v. Florida, which found juvenile life without parole for non-homicide offenses was unconstitutional. In both of these cases the court determined that a body of growing evidence demonstrated the fundamental differences in juvenile brains when compared to those of adults, with the result that juveniles are both less culpable for crimes and more capable of being rehabilitated.
Miller has offered no such clarity, and the consequences of such a soft decision continue to be played out across the country. A recent article in The Wall Street Journal describes the current situation. The Iowa Supreme Court has ruled that a man convicted as a teen in 1988 received an unconstitutional life without parole sentence, and thus should become eligible for parole. The decision found that Miller should be applied retroactively.
Other courts have reached exactly the opposite conclusion, though not always wholeheartedly. The 11th U.S. Circuit Court of Appeals found against Michael Morgan, yet Judge Wilson in his concurring opinion wrote, “The government has taken the unusual step of conceding, in a nearly identical application currently pending in the Eighth Circuit, that ‘Miller’s holding that juvenile defendants cannot be subjected to a mandatory life-without-parole sentence is properly regarded as a substantive rule.’”
Even though he concedes that in some instances Miller seems substantive, he goes on to wonder if it is “quasi substantive” or fits into a heretofore unseen type of procedural ruling. “Nonetheless, in the face of such uncertainty, I believe the wiser tack is to exercise restraint rather than to make the leap in one bound,” he writes in his final paragraph, and awaits further clarity from SCOTUS or an en banc meeting of the appeals court.
The confusion will continue it seems, as legislatures, governors and courts across the country try to decipher the unclear ruling. It will take another case perhaps, or a series of rulings in lower courts, to establish the change as retroactive. Additionally, Miller doesn’t expressly forbid juvenile life without parole, but only finds that it can’t be the only available option.
The goal of totally eliminating this sentence for kids is still a long way off. Until then my acquaintance's job, and those of his colleagues, remains unfortunately secure.