PLW: One More Shot for Those With Juvenile Life Sentences

Matthew T. Mangino
The Pennsylvania Law Weekly
January 12, 2015
In Pennsylvania, more than 400 inmates serving life without the possibility of parole for homicides committed as juveniles will get one more shot at the possibility of getting out of prison.
Last month, the U.S. Supreme Court agreed to hear arguments in Toca v. Louisiana, No. 14-6381. In 1984, George Toca was 17 when he accidently shot and killed a friend during an armed robbery. Toca was convicted of second-degree murder and automatically sentenced to life in prison without the possibility of parole, as required by Louisiana law.
In 2012, the U.S. Supreme Court ruled in Miller v. Alabama, 567 U.S.____ (2012), that mandatory life imprisonment without parole for juvenile murderers was unconstitutional. The Supreme Court said such mandatory life sentences for juvenile offenders violated the Eighth Amendment's ban against cruel and unusual punishment. The court did not say that life in prison for juveniles was excessive, only that mandatory life was unconstitutional. More importantly, the court did not say whether the decision was retroactive.
When Miller was decided, 28 states had mandatory life sentences for juveniles. Going forward a state could only impose a life sentence if the sentencing court considered a litany of factors set forth in the opinion. Justice Elena Kagan wrote in Miller that the constitution forbids "requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes."
Toca and juvenile lifers around the country likely thought the possibility of someday being released was now something more than a dream.
However, the high court's failure to address the issue of retroactivity has left appellate courts and state legislatures in disarray.
The Miller decision fell in line with two other Supreme Court decisions concerning harsh penalties imposed on juvenile offenders, both of which were applied retroactively.
In 2005, Roper v. Simmons, 543 U.S. 551 (2005), eliminated the juvenile death penalty. In 2010, Graham v. Florida, 560 U.S. 48 (2010), ruled that sentencing juvenile offenders to life without the possibility of parole was also unconstitutional, but only for crimes that did not involve killings.
The question in Toca is whether the Miller decision entitles Toca to a new sentencing hearing. The Louisiana Supreme Court said no, reasoning that retroactivity was not required because Miller "merely sets forth a new rule of criminal constitutional procedure."
Most courts have recognized Miller as a new substantive rule that, under the court's precedents, must be applied to those sentenced before the June 2012 decision.
Other courts, including Pennsylvania, called it a procedural rule, not available to those already sentenced. Those courts note that the Miller decision did not ban life imprisonment without parole but said such a sentence could not be mandatory. Judges must take other factors into account before imposing a life sentence upon a juvenile.
In urging the U.S. Supreme Court to hear the case, Toca's attorneys argued that the supreme courts of Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire and Texas have ruled in favor of retroactivity.
On the other hand, the brief continued, the supreme courts of Louisiana, Michigan, Minnesota and Pennsylvania have rejected retroactivity. Pennsylvania has more offenders serving life without parole for murders committed as juveniles than any other state.
The Pennsylvania Supreme Court decided against retroactivity in Commonwealth v. Cunningham, 38 EAP 2012. In 2002, Ian Cunningham, who was 17 at the time of the killing, was convicted of second-degree murder and robbery in Philadelphia. He is serving life without parole.
Cunningham's lawyers argued to the Pennsylvania Supreme Court in September 2012 that Miller should apply to juveniles already serving life terms.
Was the Miller decision a procedural change in the law or substantive change?
Attorneys for Cunningham argued that "once a new rule is applied to the defendant in the case announcing the rule, even-handed justice requires that it be applied retroactively to all who are similarly situated."
The Cunningham opinion, written by Justice Thomas G. Saylor, did not preclude life without parole for juveniles. Instead, it simply sets out a new sentencing procedure to determine if such a penalty is appropriate, the Pittsburgh Post-Gazette reported. Among the changes, a sentencing judge must consider a juvenile's age, level of maturity, family and home environment, the extent of participation in the crime, the impact of family and peer pressure and the possibility of rehabilitation before handing down punishment.
The Cunningham decision ruled that Miller was only procedural.
In a concurring opinion, then Chief Justice Ronald D. Castille took the U.S. Supreme Court to task for failing to address the issue of retroactivity in Miller.
Castille suggested that the Pennsylvania General Assembly should address the issue. The legislature acted quickly after Miller, enacting legislation permitting courts to impose a minimum of 35 years to life for offenders ages 15 to 17, and 25 to life for offenders 14 or younger. In cases of second-degree murder, courts will be required to impose mandatory minimum sentences of 30 years to life for 15- to 17-year-olds, and 20 years to life for those under 14.
"Presumably, the General Assembly has the power to revise the applicable statutory provisions related to parole, without affecting the underlying judicial judgments in these cases. Miller's concern was not with sentences of [life without parole] for juveniles per se, but rather with the absolute, mandatory unavailability of parole irrespective of individualized circumstances that the high court deemed relevant for juvenile offenders," Castille said.
According to the Sentencing Project, 15 of the 28 states affected have not passed compliance legislation. However, of the 13 including Pennsylvania that have passed new laws, 11 require young offenders to serve lengthy terms before parole review can be considered.
In June 2014, the U.S. Supreme Court let stand Pennsylvania's decision in Cunningham, and as recently as October the U.S. Supreme Court refused to hear a similar case out of Ohio. The about-face in Toca came as a surprise to many Supreme Court observers.
Toca's attorney, Emily Maw of the Innocence Project New Orleans, told the Washington Post the lesson of Miller is that "the harshest possible sentence should be the exception, while a sentence that provided a meaningful opportunity to obtain release would be the norm."
A decision is expected this summer. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," was released by McFarland & Co. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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