The U.S. Supreme Court over the last decade has grappled with the often gut-wrenching decision of how our criminal justice system should treat juveniles who commit serious violent offenses, including capital murder.
In 2005, the Supreme Court in Roper v. Simmons ruled that the death penalty could not be imposed on juveniles who committed their capital crimes when they were under the age of eighteen. At the time, there were 71 such condemned offenders on death rows in the 19 states which permitted execution of juvenile offenders—states which had sent 22 juvenile offenders to their death since 1976.
In 2010, the high court once again entered into the juvenile punishment foray by announcing in Graham v. Florida that juveniles who committed violent, non-homicide offenses could not be sentenced to life without parole. At the time, according to the Catholic News service, thirty-seven states, the District of Columbia, and the Federal government had life without parole sentences for non-homicide offenses. 129 juvenile offenders, including 77 in Florida alone, were serving such sentences in eleven states.
In 2012, the court in Miller v. Alabama extended the Graham ruling to juveniles who committed murder when they were under 18 years of age—that is, life without parole violates the Eighth Amendment prohibition on cruel and unusual punishment. Miller created a legal dilemma for many states, particularly Texas. The age of adulthood under Federal law and in most states is 18 years of age.
In Texas, however, it is 17 years of age. In 2009, some three years before Miller, the Texas Legislature eliminated life without parole for juveniles; in other words, for those who committed their crimes when they were 16 years of age or under. Miller thus applies in this state only to that category of offenders who committed murder when they were 17 and received life without parole.
There were two inherent problems with Miller. First, the Supreme Court did not offer any guidance to the states as to what is an appropriate life sentence with parole eligibility. The court held that any sentencing scheme for such juveniles must consider their chronological age, immaturity, impetuosity, and failure to appreciate risks and consequences. Put simply, the sentencing scheme must recognize the difference between children and adults. While the court did not completely foreclose the “life without parole” option for juvenile murderers, it said when the sentencing scheme distinguishes the differences between adults and juveniles, “this harshest possible penalty will be uncommon” because it would be exceedingly difficult to distinguish “between the juvenile offender whose crime reflects transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”
Second, the court did not say whether the Miller decision announced a “new substantive rule” of law and therefore should be applied retroactively. The Texas Court of Criminal Appeals recently explained what constitutes such a new rule: “New substantive rules ‘apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him’ because of his status or offense.”
In 2013, the Texas Legislature dealt with the first Miller problem by passing a law approved by the governor allowing juries and judges to sentence offenders who commit capital murder when they are 17 years of age to life with parole eligibility after 40 years.
On March 12, 2014, the Texas Court of Criminal Appeals dealt with the Miller retroactivity problem in Ex parte Terrell Maxwell. It did so by pointing out that “Federal and state courts across the country have struggled with the issue of whether Miller applies retroactively to post-conviction proceedings. For example, the Eleventh Circuit and the Louisiana, Pennsylvania, and Minnesota Supreme Courts, and some lower federal and state courts have all held that Miller is not retroactive.
However, the First, Second, Third, Fourth, and Eighth Circuits have held that habeas applicants successfully made out a prima facie case that Miller is retroactive, and they have granted motions to file successive habeas corpus petitions raising Miller claims. The Fifth Circuit has so far split the baby: One panel has found a prima facie showing that Miller satisfies the test for retroactivity; another has not. The Nebraska, Massachusetts, Iowa, and Mississippi courts, as well as several lower state and federal courts, have also held that Miller is retroactive.”
The Texas Court of Criminal Appeals elected to come down on the side of retroactive application, saying: “Courts are split on the retroactivity question because it is a close call, and it is one that ultimately must be resolved by the Supreme Court. But Miller is driven, first and foremost, by the conclusion that ‘children are constitutionally different from adults for purposes of sentencing. Looking into the crystal ball, we think that the Supreme Court will hold the Miller falls under the first Teague exception. We conclude that is a ‘new substantive rule’ that puts a juvenile’s mandatory ‘life without parole’ sentence outside the ambit of the State’s power.”
The Maxwell court vacated the life without parole sentence imposed in that case and remanded the case for “further sentencing proceedings to permit the factfinder to assess applicant’s sentence at (1) life with the possibility of parole (as both pre-2005 and post-2013 Texas law permits) or (2) life without parole after consideration of applicant’s individual conduct, circumstances, and character.
The Maxwell decision is not without its problem either. Terrell Maxwell’s offense occurred on December 15, 2007 during that 2005 to 2009 when capital murder committed by juveniles was punished with life without parole. Depending upon his “individual conduct, circumstances, and character,” Maxwell could again be sentenced to life without parole. However, if he fell under the 2009 life with parole sentence, his “individual conduct, circumstances, and character” would not make him eligible for life without parole. The end result of this conflict between the Miller rule and the 2009 life with parole sentence for juvenile murderers will be that a handful of juveniles in this state will end up serving life sentences without parole for offenses no more or less serious than those serving life with parole.
That’s a strange definition of justice and a peculiar sense of fairness.