OP-ED: Pennsylvania’s Miller Ruling is Unfair

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John Lash

Kids are different. That, in many ways, is the bottom line of the U.S. Supreme Court’s ruling in Miller v. Alabama, which held that the mandatory imposition of life without parole on juvenile offenders constitutes cruel and unusual punishment, and is thus unconstitutional. The reason is that young people have a “diminished culpability and heightened capacity for change,” presumably different than that of adults.

The weakness of the Miller decision lies in its failure to clearly state whether or not the findings could be applied retroactively. This boils down to a question of whether the ruling is substantive or procedural, and the lack of clarity is an indication of how strongly divided the decision was. I wrote about this question last year, where I opined that despite the difficulties all of the affected prisoners should receive another sentencing hearing. (If you follow the link be sure to read the well argued comments at the bottom of the page.)

The latest battle in the ongoing argument over this question came before the Pennsylvania Supreme Court. The state has the greatest number of juvenile life without parole sentences in the nation, with nearly 500 affected prisoners. The 17-page majority opinion, released on Wednesday, found that juveniles who committed their crimes prior to the ruling were not eligible under Pennsylvania law to appeal their sentences based on Miller.

Advocates for broader application of the ruling are disappointed. Jody Kent Lavy, director of the Campaign for Fair Sentencing of Youth, said in an email statement, “According to yesterday’s ruling, no one who was sentenced before June 2012 to life in prison without the possibility of parole for a crime committed when they were younger than 18 is eligible for review and resentencing under Miller. It is profoundly unfair that a decision about whether someone sentenced as a child will die in prison is based on something as arbitrary as when they were sentenced.”

This unfairness was noted by the court as well. In a concurring opinion, the state Supreme Court’s Chief Justice Castille noted, “The resulting landscape in Pennsylvania is ironic: federal habeas corpus-based restrictions premised upon respect for state sovereignty and the finality of judgments result in a circumstance that is certainly unusual, if not arbitrary: the longer a juvenile murderer has been in prison, the less likely he is ever to have the prospect of an individualized assessment of whether LWOP was a comparatively appropriate punishment, given his age, other characteristics, and the specifics of his offense (including the degree of the murder) as required by Miller.”

In the dissent, Justice Baer quotes a case from a federal district court in Michigan, where the court “fervently admonished” the participants, saying, “if ever there was a legal rule that should –  as a matter of law and morality – be given retroactive effect, it is the rule announced in Miller. To hold otherwise would allow the state to impose unconstitutional punishment on some persons but not others, an intolerable miscarriage of justice.”

The fact that the fundamental lack of fairness noted in all of the Pennsylvania opinions will continue to arise wherever this question is heard, and that state courts around the nation will come to different conclusions concerning retroactivity, assures that another case will eventually reach the U.S. Supreme Court, where, it is hoped, the court can put this cruel and unusual punishment firmly in the past. There, alongside the death sentence for juveniles and the mentally handicapped and juvenile life imprisonment for non-homicide crimes, is where it belongs.

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