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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

An Unfinished Journey: Miller, Montgomery, and the Changing Face of Juvenile Sentencing Jurisprudence

More than 13 years ago, the United States Supreme Court began a monumental shift in its analysis of juvenile sentencing under the 8th Amendment. Beginning with Roper v. Simmons1 and culminating most recently in Montgomery v. Louisiana,2 the Court through a series of four cases has emphasized that children are constitutionally different from adults with regard to sentencing because of their diminished culpability and greater likelihood for reform. During the past six years, the Minnesota Supreme Court has been active in interpreting this line of juvenile sentencing jurisprudence, especially as it relates to juvenile homicide offenders. Although these United States and Minnesota Supreme Court cases clarify the currently applicable law and procedure for sentencing juvenile homicide offenders, ambiguity remains—and further analysis by the United State Supreme Court will soon be necessary.

Roper, Graham, Miller, and Montgomery

The revolution in juvenile sentencing jurisprudence began with Roper. In that case, the Court held that the 8th Amendment categorically prohibits the imposition of capital punishment on an offender who is being sentenced for a crime they committed before they turned 18.3 In reaching this conclusion, the Court emphasized three ways in which juvenile offenders differ from their adult counterparts. First, juveniles lack maturity, which results in impetuous actions; second, juveniles are more susceptible to outside influence, including environment/peer pressure; and third, a juvenile’s character is less fixed and therefore presents a greater likelihood of rehabilitation.4 

Based on this reasoning, the Court held five years later in Graham v. Florida that a juvenile could not be sentenced to life without parole for a nonhomicide offense.5 Just two years later in Miller v. Alabama, the Court extended Graham to include most, but not all, juvenile homicide offenders.6 Specifically, the Court held that the mandatory imposition of a life without release (LWOR) sentence on a juvenile offender was unconstitutional. Instead, before the imposition of a LWOR sentence on a juvenile, the sentencing judge must hold a hearing (commonly known as a Miller hearing) to consider those mitigating circumstances in a child’s life that would counsel against a LWOR sentence.7 Moreover, Miller indicated that because of a juvenile’s diminished culpability and heightened capacity for change, a LWOR sentence for a juvenile homicide offender should be “uncommon.”8 

Finally, two years ago the Supreme Court again addressed juvenile LWOR sentences in Montgomery v. Louisiana, issuing a new holding and clarifying an existing one.9 First, the Court held that Miller’s ban on mandatory LWOR sentences for juvenile homicide offenders is retroactive. In other words, even if a juvenile homicide offender’s mandatory LWOR sentence and conviction were final before Miller, nevertheless Miller applied and a state must either grant the offender the opportunity for parole, or resentence them after holding a Miller hearing.10 Second, the Court clarified and re-emphasized that, even after a Miller hearing, a LWOR sentence is only constitutional for the “rare” juvenile homicide offender whose crime reflects “permanent incorrigibility.”11

Minnesota developments

Minnesota’s sentencing scheme currently does not comport with the requirements of Miller/Montgomery. Specifically, a juvenile offender convicted of certain first-degree homicide offenses is subject to a mandatory LWOR prison sentence under Minnesota law.12 The Minnesota Legislature has not yet fixed these unconstitutional sentencing provisions,13 so the Minnesota Supreme Court has been required, in a series of cases, to analyze the rules announced in Miller/Montgomery, and judicially fashion remedies to the unconstitutional provisions. 

The Court’s first opportunity to directly review a juvenile LWOR sentence post-Miller came in Ali I.14 Ali was sentenced to two terms of life imprisonment with the possibility of release after 30 years, as well as one mandatory LWOR sentence as punishment for three murders he committed as a juvenile. After considering various options for remedying the unconstitutional mandatory LWOR sentence, the Court decided to vacate the sentence and remand to the district court for resentencing following a Miller hearing.15 Although no Minnesota statute or rule authorized a Miller hearing, the Court concluded that the district court has the inherent judicial authority to hold such a hearing.16 The Court further enumerated some of the non-exhaustive factors that the district court could consider at the Miller hearing, including the defendant’s age, family and home environment, and the circumstances surrounding the homicide offense.17

On remand, the county opted not to pursue a LWOR sentence, but instead asked the district court to sentence Ali to three consecutive sentences of life imprisonment with the possibility of release after 30 years on each sentence (i.e., 90 years total).18
Without holding a Miller hearing, the district court sentenced Ali to three consecutive life sentences with the possibility of release after 30 years on each sentence. The case again went to the Minnesota Supreme Court (Ali II), with the issue this time being whether Ali’s sentence of a minimum of 90 years imprisonment before the possibility of release was the “functional equivalent” of a LWOR sentence and thus violated Miller/Montgomery. The Court affirmed the sentence, basing its decision on two justifications. First, Miller/Montgomery only expressly applies to mandatory LWOR sentences; absent explicit direction from the United States Supreme Court, the Minnesota Supreme Court was not willing to expand the Miller/Montgomery holdings to include “functional equivalent” sentences.19 Second, Ali received consecutive sentences for multiple crimes, and the United States Supreme Court has not articulated how consecutive sentences are to be viewed under the 8th Amendment.20 The United States Supreme Court recently declined to grant certiorari in Ali II to decide the “functional equivalent” issue.21

Another issue the Minnesota Supreme Court has addressed is how to retroactively apply Miller/Montgomery to remedy unconstitutional mandatory LWOR sentences on collateral review. In these collateral-review cases, can a district court remedy the unconstitutional mandatory LWOR sentence by resentencing after a Miller hearing, as the Court held it could for direct review cases in Ali I? It turns out the answer is “no,” according to Jackson v. State.22 Because of the passage of time between the offender’s original sentence and the retroactive application of Miller/Montgomery, a fair and meaningful evaluation of a juvenile’s youthful characteristics at a Miller hearing is not possible for collateral-review cases.23 Instead, the appropriate remedy in cases involving the retroactive application of the Miller/Montgomery rule is as-applied severance of the unconstitutional provision, and revival of the most recent constitutional version of the relevant sentencing statute.24 

Notably, the divergence in holdings in Ali I and Jackson means that the Miller/Montgomery rule as applied in Minnesota is arguably more beneficial to juvenile homicide offenders whose sentences became final prior to Miller than those whose sentences were not yet final. This is so because under Ali I, a juvenile homicide offender whose sentence is not yet final may still receive a LWOR sentence after a Miller hearing, whereas under Jackson a postconviction petitioner receiving the benefit of the retroactive application of Miller will never receive a LWOR sentence. 

While Jackson precludes a district court from holding a Miller hearing in postconviction cases for purposes of determining whether a LWOR sentence is appropriate, the Minnesota Supreme Court recently concluded in Flowers v. State that a postconviction court can hold hearings to determine whether consecutive sentences are appropriate.25 Flowers had been convicted of murdering two people and originally received two consecutive mandatory LWOR sentences.26 After Miller/Montgomery, Flowers filed a postconviction petition, and the district court resentenced him to two concurrent terms of life imprisonment with possibility of release after 30 years, reasoning that Jackson precluded the court not only from holding a Miller hearing to determine whether a LWOR sentence was appropriate, but also precluded it from holding a subsequent resentencing hearing to determine whether to impose Flowers’ life sentences consecutively.27 On appeal, the Minnesota Supreme Court disagreed, distinguishing a Miller hearing, which serves the unique purpose of assessing how a defendant’s age and its hallmark features impact the juvenile’s culpability, from a hearing to determine whether to impose consecutive sentences, which involves considering an array of factors relative to the offender and the offense.28 Admittedly, the inquiries overlap, but the Court nevertheless concluded they are “fundamentally distinct.”29 

This post-Miller line of cases in Minnesota has created at least four major rules. First, unless and until the Minnesota Legislature says otherwise, a district court can still sentence a juvenile homicide offender to a LWOR sentence, but to do so it must first hold a Miller hearing to determine whether the offender is “permanently incorrigible” and thus deserving of a LWOR sentence. Second, even without holding a Miller hearing, a district court is permitted to sentence a juvenile homicide offender to consecutive life sentences for multiple convictions even if the resultant sentence would be the “functional equivalent” of a LWOR sentence. Third, in postconviction petition cases where a district court must retroactively apply Miller/Montgomery, the court cannot resentence the offender to a LWOR sentence because a fair and meaningful Miller hearing is not possible. And fourth, in postconviction petition cases where a district court must retroactively apply Miller/Montgomery, the court has discretion to sentence multiple convictions consecutively. 

The future of juvenile homicide sentencing

Since Miller was decided six years ago, the law regarding juvenile homicide sentencing has changed greatly. But more change is on the horizon. Specifically, the United States Supreme Court must eventually address three additional key issues. First, the Court must provide guidance regarding how a district court is to assess whether a juvenile homicide offender’s crime reflects “permanent incorrigibility.” What factors should a sentencing court use? What is the standard for appellate review? Who has the burden of proof: Must the prosecuting agency prove “permanent incorrigibility” in order for a sentencing court to punish a juvenile homicide offender to a LWOR sentence; or must an offender prove he is not permanently incorrigible to avoid such a sentence; or is it simply up to the sentencing court to make the determination after a hearing? Under Montgomery, the answers to these questions is unclear. However, what does seem clear is that it is increasingly unlikely that a juvenile homicide offender will ever again receive a LWOR sentence in our country.30 The standard of “permanent incorrigibility,” although amorphous, is likely too steep a standard to satisfy in a specific case.

Second, the Court must address whether consecutive sentences that are the “functional equivalent” of a LWOR sentence are constitutional absent a Miller hearing. The Court has once declined certiorari to decide this issue.31 But because of the growing split among both state and federal appellate courts around the “functional equivalent” issue, the Court must eventually address it.32 And when it does, it seems likely that it will continue the trajectory begun in Roper and conclude that before a judge sentences a juvenile homicide offender to a nonsurvivable prison sentence, it must first hold a Miller hearing to consider the offender’s youth, immaturity, and potential for rehabilitation. 

Third, the United States Supreme Court must one day address the maximum mandatory term-of-years sentence a juvenile homicide offender may receive. Montgomery made clear that a sentencing scheme could comport with Miller either by providing a Miller hearing prior to sentencing, or by permitting the offender to be considered for parole.33 The Minnesota legislation that was proposed this past term opted for the second choice, making the harshest sentence for a juvenile homicide offender life imprisonment with possibility of release after 30 years. However, Montgomery was silent regarding how long a state could imprison a juvenile homicide offender before making them eligible for release. Could a state do an end-run around Miller/Montgomery and create a sentencing scheme whereby a juvenile homicide offender is subject to a mandatory life sentence with the possibility of release after 100 years? Although such a scheme would technically comport with Miller/Montgomery, it would seem to violate the Court’s underlying justification for its holdings. 

But what is the constitutional outer boundary of a mandatory term-of-years sentence for a juvenile homicide offender—30 years? 50 years?34 Although the answer is unclear, what is clear beginning with Roper, and down through Graham, Miller, and Montgomery, is that the Court views juveniles as different from adults, and requires that those differences be taken into consideration when sentencing juveniles. Accordingly, it seems probable that the day will come when a district court must first hold a Miller-type hearing before sentencing a juvenile offender to any lengthy prison sentence. Until that day, Minnesota courts must continue to grapple with the parameters of Miller/Montgomery and the changing face of juvenile sentencing jurisprudence.

JEFFREY WALD is a juvenile delinquency prosecutor for the Ramsey County Attorney’s Office.

Notes

1 543 U.S. 551 (2005).

2 136 S.Ct. 718 (2016).

3 543 U.S. at 568-71.

4 Id.

5 560 U.S. 48, 75-75 (2010). 

6 567 U.S. 460, 479 (2012).

7 Id. at 489.

8 Id. at 479. 

9 136 S.Ct. 718 (2016). 

10 Id. at 736.

11 Id. at 734. 

12 See Minn. Stat. § 609.106, subds. 2(1)-(3) (2018) (this is part of the “heinous crimes” statute).

13 Minnesota House Rep. Rena Moran (DFL-St. Paul) introduced a bill on 3/8/2018 seeking to remedy the unconstitutional provisions of the “heinous crimes” statute as applied to juveniles. See H.R. 3435, 90th Sess. (Minn. 2018). The main provision of the bill provided that an offender who committed a crime under the age of 18 who would be subject to a mandatory LWOR sentence if an adult, would instead be sentenced to life with the possibility of release after 30 years. The bill thus would have eliminated mandatory LWOR sentences for juvenile offenders. The bill was referred to the Public Safety and Security Policy and Finance Committee, but never made it out of the committee for a floor vote. 

14 State v. Ali, 855 N.W.2d 235 (Minn. 2014) (hereinafter Ali I). 

15 Id. at 257.

16 Id. at 255-56.

17 Id. at 257.

18 State v. Ali, 895 N.W.2d 237, 240-41 (Minn. 2017) (hereinafter Ali II).

19 Id. at 246.

20 Id. In a lone dissent, Justice Margaret Chutich reasoned that the principles of Miller/Montgomery equally apply to Ali, and mandate that he receive either a Miller hearing before imposition of a minimum 90 years imprisonment, or imposition of concurrent sentences making Ali eligible for release after 30 years. Ali II, 895 N.W.2d at 248-254 (Chutich, J., dissenting).

21 Ali v. Minn., 138 S.Ct. 640 (2018).

22 883 N.W.2d 272, 280 (Minn. 2016).

23 Id.

24 Id. at 281-82. In Jackson’s case, this meant severance of the heinous-crimes statute as applied to him, and revival of the 2004 versions of the sentencing statutes, whereby he received a life sentence with possibility of release after 30 years. 

25 See Flowers v. State, 907 N.W.2d 901 (Minn. 2018).

26 Id. at 902. 

27 Id. at 902-04. 

28 Id. at 907. 

29 Id. Flowers filed a petition for certiorari with the United States Supreme Court on June 26, 2018, and the case is currently waiting to be docketed. 

30 See Montgomery, 136 S.Ct. at 744 (Scalia, J., dissenting) (“This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders”). 

31 See Ali, 138 S.Ct. 640.

32 See Ali II, 895 N.W.2d at 251-52 (Chutich, J., dissenting) (citing and discussing cases).

33 Montgomery, 136 S.Ct. at 736 (citing with approval a Wyoming statute that made juvenile homicide offenders eligible for parole after 25 years). 

34 Notably, the United States Supreme Court has a petition pending to review the imposition of an 80-year sentence on a juvenile homicide offender for a single offense. See Taylor v. Ind., 2018 WL 3520854 (7/16/2018).

 

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