Saturday, November 2, 2013

The Cautionary Instruction: PA Supreme Court rules Miller v. Alabama not retroactive

Matthew T. Mangino
Pittsburgh Post-Gazette/Ipso Facto
November 1, 2013

This week, the Pennsylvania Supreme Court decided Commonwealth v. Ian Cunningham. The 4-3 decision ruled that Miller v. Alabama, the U.S. Supreme Court decision striking down mandatory life in prison for juveniles, is not retroactive.

The deciding fourth vote was cast by Justice Correale F. Stevens who was not on the Court when Cunningham was argued.

Back on September 12, 2012, the Pennsylvania Supreme Court heard the Cunningham case. Cunningham was 17 when he shot and killed a man during a robbery in Philadelphia. He was found guilty of second-degree murder by a jury and received a mandatory sentence of life without parole in 2003.

The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of…” anything that might be unique or mitigating about a particular crime or offender. The sentence was mandatory and nothing else mattered but the conviction.

Majority opinion
Concurring opinion
Dissenting opinion
According to Cunningham, Miller only applies to cases that were pending on appeal at the time Miller was decided in June, 2012. The majority opinion in Cunningham, written by Justice Thomas G. Saylor, found nothing to convince the court that “the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement."

There have been a number of conflicting decisions among state and federal circuits with regard to Miller. Last month, the U.S. Third Circuit Court of Appeals ruled in In re Michael J. Pendleton, No. 12-3617; In re Franklin X. Baines, No. 12-3996; and In re Corey Grant, 13-1455, that three men, two from Pennsylvania and one from New Jersey, sentenced as juveniles to life in prison, will have a chance to argue that Miller is retroactive.

Cunningham had argued that the Miller decision was a substantive rule of law declared by the Supreme Court and therefore retroactive to cases that were not on direct appeal at the time Miller was decided. This would include the nation leading 450 offenders in Pennsylvania’s prisons serving life for offenses committed as juveniles.

The Pennsylvania Supreme Court found, applying Teague v. Lane, 489 U.S. 288 (1989), that the Miller holding “does not categorically bar a penalty for a class of offenders,” and is therefore procedural and not substantive.

If Miller set forth a procedural rule then retroactivity would apply if the ruling was considered a watershed decision.

According to the Court, a watershed decision is limited to “sweeping” changes on the order of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) the decision that all indigent defendants charged with felonies are entitled to counsel. The Court held “modifications of a less broadscale nature, while they may be very important, simply do not require retroactive application.”

With so much on the line for so many inmates in Pennsylvania, and across the country, the Supreme Court found Cunningham fell into the latter category.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino.

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