Opposition Brief — Idaho, Petitioner v. Ethan Allen Windom
Supreme Court briefDec 21, 2017
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No. 17-560
IN THE
Supreme Court of the United States
————
STATE OF IDAHO,
Petitioner,
v.
ETHAN ALLEN WINDOM,
Respondent.
————
On Petition for Writ of Certiorari to the
Idaho Supreme Court
————
BRIEF IN OPPOSITION
————
ANDREW PARNES
LORI NAKAOKA
P.O. Box 5988
671 First Avenue North
Ketchum, ID 83340
JOHN R. MILLS
Counsel of Record
PHILLIPS BLACK PROJECT
836 Harrison Street
San Francisco, CA 94107
(888) 532-0897
j.mills@phillipsblack.org
Counsel for Respondent
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
QUESTION PRESENTED
Whether this Court should disturb the considered
judgment of the Idaho Supreme Court that the
evidence presented at Mr. Windom’s pre-Miller
juvenile sentencing failed to provide the sentencer
with an adequate basis to make a post-Montgomery
finding of irreparable corruption. See Montgomery
v. Louisiana, 136 S. Ct. 718 (2016); Miller v.
Alabama, 567 U.S. 460 (2012).
i
TABLE OF CONTENTS
QUESTION PRESENTED......................................... i
TABLE OF CONTENTS ........................................... ii
TABLE OF AUTHORITIES ..................................... iii
INTRODUCTION ...................................................... 1
STATEMENT OF THE CASE .................................. 3
REASONS FOR DENYING THE PETITION .......... 9
I. The Idaho Supreme Court Correctly Applied
Miller to Conclude that Insufficient Evidence of
the Mitigating Aspects of Youth Was Presented
and Considered. ................................................... 11
II. After Montgomery, States Are Clear That the
Eighth Amendment and Miller Apply to All
JLWOP Sentences. .............................................. 17
CONCLUSION ........................................................ 24
ii
TABLE OF AUTHORITIES
CASES:
Adamcik v. State, No. 44358 (Idaho) ...................... 12
Adams v. Alabama, 136 S. Ct. 1796 (2016) ............ 21
Aiken v. Byers, 765 S.E.2d 572, 576 (S.C. 2014),
cert. denied, 135 S. Ct. 2379 (U.S. June 1, 2015)
.................................................................. 12, 14, 21
Atkins v. Virginia, 536 U.S. 304 (2002) ............ 15, 23
Bobby v. Bies, 556 U.S. 825 (2009) ......................... 14
Brumfield v. Cain, 135 S. Ct. 2269 (2015) .............. 23
Charboneau v. State, 395 P.3d 379 (Idaho 2017) ..... 8
Draper v. State, No. CV-2017-4791-PC (Sixth Jud.
Dist. Idaho)........................................................... 12
Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 11
Ford v. Wainwright, 477 U.S. 399 (1986) ............... 15
Foster v. State, 754 S.E.2d 33 (Ga. 2014)............... 19
Garcia v. State, 2017 ND 263, 2017 N.D. LEXIS 269
(N.D. Nov. 16, 2017)....................................... 15, 21
Gideon v. Wainwright, 372 U.S. 335 (1963) ........... 22
Graham [v. Florida, 560 U.S. 48 (2010) ................... 9
iii
Hall v. Florida, 134 S. Ct. 1986 (2014) ................... 14
In re Kirchner, 2 Cal.5th 1040 (2017) .............. 14, 21
Jackson v. State, 883 N.W.2d 272 (Minn. 2016) .... 19
Johnson v. State, 395 P.3d 1246 (Idaho 2017), cert.
denied, No. 17-236 (U.S. Nov. 27, 2017) 1, 8, 12, 13
Johnson v. Texas, 509 U.S. 350 (1993) ............... 2, 10
Jones v. Commonwealth, 795 S.E.2d 705 (Va. 2017),
cert. denied, No. 16-1337 (U.S. Oct. 2, 2017) ...... 20
Kennedy v. Louisiana, 554 U.S. 407 (2008) ........... 21
Landrum v. State, 192 So.3d 459 (Fla. 2016) ... 14, 21
McKinley v. Butler, 809 F.3d 909 (7th Cir. 2016) .. 21
Miller v. Alabama, 567 U.S. 460 (2012) .......... passim
Miller v. Lampert, 125 P.3d 1260 (Or. 2006) ......... 22
Montgomery v. Louisiana, 136 S. Ct. 718 (2016)
....................................................................... passim
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)
.............................................................................. 16
Newton v. State, 83 N.E.3d 726, 740 (Ind. Ct. App.
2017) ..................................................................... 20
Panetti v. Quarterman, 551 U.S. 930 (2007).......... 23
iv
Penry v. Lynaugh, 492 U.S. 302 (1989) .................. 22
Ring v. Arizona, 536 U.S. 584 (2002) ...................... 10
Roper v. Simmons, 543 U.S. 551 (2005) ............... 2, 9
State v. Charboneua, 861 P.2d 67 (Idaho 1993) ....... 5
State v. James, 786 S.E.2d 73 (N.C. App. 2016),
review allowed, 797 S.E.2d 6 (N.C. 2017) ........... 15
State v. Long, 8 N.E.3d 890 (Ohio 2014) .......... 14, 21
State v. Luna, 387 P.3d 956 (Okla. Ct. Crim. App.
2016) ..................................................................... 14
State v. Stevens, 191 P.3d 217 (Idaho 2008) ............ 5
State v. Valencia, 386 P.3d 392 (Ariz. 2016), cert.
denied, No. 16-9424 (U.S. Oct. 2, 2017) .............. 15
State v. Windom, 253 P.3d 310 (Idaho 2011) . 5, 6, 16
Steilman v. Michael, No. OP 16-0328, 2017 Mont.
LEXIS 713 (Mont. Dec. 13, 2017) ........................ 20
Tatum v. Arizona, 137 S. Ct. 11 (2016) .................. 21
Teague v. Lane, 489 U.S. 288 (1989) ............ 3, 17, 22
Tison v. Arizona, 481 U.S. 137 (1987) ...................... 9
Veal v. State, 784 S.E.2d 403 (Ga. 2016) .......... 14, 19
v
Windom v. Blades, 1:12-cv-00468-EJL (D. Idaho
Sept. 12, 2012).................................................... 6, 7
Windom v. Blades, No. 14-35746, 667 Fed. Appx.
240 (9th Cir. June 22, 2016) (memorandum
decision) .................................................................. 6
STATUTES:
Idaho Code § 18-207 .................................................. 4
Idaho Code § 18-4004 ................................................ 3
Idaho Code § 19-4902(a) ............................................ 7
OTHER AUTHORITIES:
Juvenile Sentencing Project, Juvenile Life Without
Parole Sentences in the United States, November
2017 Snapshot, https://tinyurl.com/y7z9gkna .... 11
Lyle Denniston, Opinion Analysis: Further Limit on
Life Sentences for Youthful Criminals,
SCOTUSBlog (Jan. 25, 2016),
https://tinyurl.com/h7khdjo ................................. 18
Matt Henry, Spotlight on Juvenile Life Without
Parole, In Justice Today (Oct. 13, 2017),
https://tinyurl.com/y8qexwpu .............................. 21
vi
INTRODUCTION
Upon reviewing the paucity of relevant
evidence in Mr. Windom’s pre-Miller sentencing
proceedings, the Idaho Supreme Court found an
insufficient basis for deeming him irreparably
corrupt. Under Idaho’s sentencing practices, the
court therefore ordered the post-conviction court to
grant resentencing, allowing Mr. Windom to
supplement the record, so the sentencer could make
such an assessment in light of all of the evidence.
In contrast to Mr. Windom’s case, the Idaho
Supreme Court recently upheld another pre-Miller
sentence, concluding that sentencing proceeding
included sufficient evidence to retrospectively
uphold the sentence. Johnson v. State, 395 P.3d
1246 (Idaho 2017), cert. denied, No. 17-236 (U.S.
Nov. 27, 2017). Idaho’s approach, permitting
retrospective assessment of the record, provides the
least protection for juvenile defendants among the
rapidly shrinking number of states retaining life
without the possibility of parole sentences for
juvenile offenses (JLWOP).
Despite the fact that this case involves nothing
more than the Idaho Supreme Court implementing
this Court’s decisions in Miller and Montgomery in
this individual case, the State urges this Court to
accept review to answer effectively two questions
(1) whether discretionary sentences of life without
parole can only be imposed upon the “‘the rare
juvenile offender whose crime reflects irreparable
corruption,’” and (2) if so, what process is required
for making such an assessment and whether the
process here was inadequate.
1
Taking the questions in reverse: As the Idaho
Supreme Court found, the sentencing “transcript
does not show that any evidence was presented
regarding the distinctive attributes of [Mr.
Windom’s] youth” and was inherently inadequate
for making an assessment about Mr. Windom’s
culpability. Pet. App. 16. A proceeding lacking
“any” evidence relevant to the impact of youth on
culpability cannot comply with Miller.
Moreover, as a legal matter, despite having had
less than two years to sort out Miller’s retroactive
application via Montgomery, states almost
uniformly have held that, at a minimum, the
protections required by the Idaho Supreme Court
adhere. In light of the significant change in stakes
after Miller and Montgomery, states retaining
JLWOP require resentencing in all cases, where
the parties can present the wide range of evidence
relevant to “‘the mitigating qualities of youth.’”
Miller, 567 U.S. at 476 (quoting Johnson v. Texas,
509 U.S. 350, 367 (1993)). The remaining two, after
Montgomery, require presentation of some evidence
of those factors, either at a pre-Miller sentencing
hearing or in post-conviction, before concluding the
defendant is “‘the rare juvenile offender whose
crime reflects irreparable corruption.’” Id. at 479-80
(quoting Roper v. Simmons, 543 U.S. 551, 573
(2005)). The ruling below, at bottom, is a fact-bound
decision about the quantum of evidence required
before determining whether a juvenile is
irreparably corrupt.
On the first question, after Montgomery, there
is no meaningful split of authority: States are
overwhelmingly either holding that Miller applies
2
to mandatory and discretionary sentences alike or
abandoning JLWOP sentences all together.
Moreover, holding otherwise would upend this
Court’s retroactivity doctrine, which has reserved
retroactive application for only new substantive
constitutional rules and “watershed rules of
criminal procedure.” Teague v. Lane, 489 U.S. 288,
311 (1989). If Miller is not substantive (and does
not reach a category of defendants, regardless of
the process by which they were sentenced) then
Montgomery
reworked
sub
silentio
the
longstanding retroactivity doctrine. Yet that
position is precisely the holding the State urges
this Court to adopt.
STATEMENT OF THE CASE
1. Ethan Windom, at age seventeen, pleaded
guilty to second-degree murder. His public defender
advised him to do so despite having received no
assurance that the judge would impose a sentence
less than the maximum available: life without the
possibility of parole. With that plea, Mr. Windom
could have received a sentence of as little as ten
years and as much as life without the possibility of
parole. Idaho Code § 18-4004.
A year earlier, Mr. Windom had taken five-fold
the prescribed amount of his anti-anxiety
medication and murdered his mother, clubbing her
to death with weights attached to a dumbbell and
then stabbing her corpse’s throat, chest, abdomen,
and exposed brain with a knife. Pet. App. 28. A
month before the murder, he had expressed his
desire to be admitted to a psychiatric hospital. R.
3
000034-35.1 The offense occurred during a
psychotic episode, the product of his poorly
controlled, but well established, mental illness,
including early stage schizophrenia. At the time of
his arrest, Mr. Windom was “[a]cutely psychotic.”2
Pet. App. 30. He provided a statement at the time
of arrest, which was used by the State and the
sentencing court in aggravation. Pet. App. 29, 36;
R. 000058-60.
At Mr. Windom’s sentencing, the focus was on
Mr. Windom’s psychiatric disorders. Two doctors
provided reports that his prior “paranoid, psychotic
delusional
illness”
was
“evolving”
into
schizophrenia. They further noted that he had been
compliant with treatment during incarceration.
Pet. App. 29-30. Counsel for Mr. Windom presented
no other evidence and no witnesses. R. 000405 (“No
evidence, Your Honor.”).
The State presented testimony that Mr.
Windom had bullied his mother, that she feared
him, and that he been fascinated with both the
movie American Psycho and serial killers. Pet. App.
28. There was no evidence presented about how Mr.
Windom’s youth affected his behavior and prospects
for rehabilitation.3 The sentencing court imposed
“R. __” refers to the Clerk’s Record on Appeal before the
Idaho Supreme Court. Windom v. State, No. 44037 (Idaho).
2 Mr. Windom did not pursue an insanity defense, as Idaho has
abolished any defense based on mental illness. Idaho Code §
18-207 (“Mental condition shall not be a defense to any charge
of criminal conduct.”).
3 There was some evidence, although no testimony, about the
prospects for treatment of his mental illness. Pet. App. 29-30.
1
4
the maximum available sentence of JLWOP. Pet.
App. 33.
2. Mr. Windom appealed. Under Idaho law, the
propriety of a sentence is reviewed for a “clear
abuse of discretion.” State v. Stevens, 191 P.3d 217,
226 (Idaho 2008). For a defendant to prevail on
appeal in challenging a sentence, the sentence
must be “excessive under any reasonable view of
the facts.” State v. Charboneua, 861 P.2d 67, 69
(Idaho 1993) (internal quotation omitted).
On direct review, in a split decision, the Idaho
Supreme Court addressed the legality of Mr.
Windom’s sentence, holding that state law did not
prohibit imposing a JLWOP sentence “based solely
upon the nature and gravity of the offense.” State v.
Windom, 253 P.3d 310, 313 (Idaho 2011). It further
held that the sentencing court did not abuse its
discretion in not placing greater weight on the
evidence about Mr. Windom’s prospects of recovery
from his mental illness and related prospects for
rehabilitation. Id. at 318.
In dissent, Justice Warren E. Jones argued
that the sentencing court had violated Idaho law by
turning the burden of persuasion on its head and
failing to account for Mr. Windom’s youth. Id. He
explained that the sentencing court erred “by
requiring [Mr. Windom] to show a high degree of
certainty that he could be rehabilitated someday.”
Id. He argued that under Idaho law the burden is
on the “State to show a high degree of certainty
that [Mr. Windom] could not be rehabilitated
someday.” Id. Furthermore, he noted that the court
below “nowhere account[ed] for the fact that most
5
juveniles Ethan’s age have the cognitive ability to
comprehend their behavior, but lack the
neurological maturity and knowledge gained from
life experiences to control it.” Id. at 325.
Mr. Windom’s direct review proceedings
concluded when the Idaho Supreme Court denied
his petition for rehearing on June 21, 2011. Id.
3. On September 12, 2012, Mr. Windom filed a
pro se federal petition for writ of habeas corpus
raising the following as his first claim: “My
sentence is violating the 8th amendment claim
[sic]. (Miller v. Alabama/Jackson v. Hobbs).”
Petition, Windom v. Blades, 1:12-cv-00468-EJL (D.
Idaho Sept. 12, 2012), ECF No. 1.4 Mr. Windom
requested appointment of counsel. Mot. for App’t of
Counsel, ECF No. 6 (May 14, 2013). That request,
along with his petition, was denied in the same
order. Order at 22-23, ECF No. 16 (Jan. 7, 2014).
Mr. Windom remained unrepresented in his
state and federal post-conviction proceedings until
the Ninth Circuit ordered the District Court to
appoint counsel to represent him in the appeal from
the district court’s denial. Order Appointing CJA
Counsel, ECF No. 28 (Mar. 9, 2015). The Ninth
Circuit ultimately remanded Mr. Windom’s federal
case for reconsideration in light of Montgomery.
Windom v. Blades, No. 14-35746, 667 Fed. Appx.
240 (9th Cir. June 22, 2016) (memorandum
decision). And on remand, the district court stayed
Unless otherwise indicated, “ECF No. __” refers to the
litigation documents in the proceedings before the Federal
District Court for the District of Idaho. Windom, 1:12-cv00468-EJL.
4
6
proceedings to permit Mr. Windom to exhaust
potentially available state remedies. Order, ECF
No. 40 (Sept. 15, 2016).
4. On August 15, 2015, Mr. Windom,
represented by pro bono counsel, filed a state
petition for post-conviction relief. R. 000005.
Immediately after Montgomery, pro bono counsel5
moved to amend the state post-conviction petition
in light of the Court’s decision. R. 00287, 00351.
That motion was denied on February 23, 2016. R.
000387.
In the denial, the post-conviction judge, who
had previously presided at sentencing, did not
permit the presentation and consideration of any
information beyond what had been presented in the
original sentencing proceeding. R. 000378. Despite
the lack of any further fact-finding, the court
concluded “that Windom’s actions did not reflect
‘the transient immaturity of youth’ but in the words
of the United States Supreme Court, reflected those
actions of ‘the rarest of children’ whose crime
reflected ‘irreparable corruption’ deserving life
without [possibility of] parole.” R. 000385-386.
5. Mr. Windom appealed and in a unanimous
decision the Idaho Supreme Court reversed. Pet.
App. 20. That court held that the post-conviction
court abused its discretion by not permitting Mr.
Windom to amend his petition in light of
Montgomery. Id. Idaho Code section 19-4902(a) did
Pro bono counsel Lori Nakaoka and Andrew Parnes’s motion
for appointment was denied by the state district court which
found technical violations of the relevant state statutory
requirements. R. 00362.
5
7
not bar Mr. Windom’s claim because it was “filed
within a reasonable time after the petitioner has
notice of the issue(s) raised.” Pet. App. 10-11
(quoting Charboneau v. State, 395 P.3d 379, 389
(Idaho 2017)). Because, under state law, Mr.
Windom “did not have a claim under Miller until
Montgomery was issued,” his motion to amend was
timely. Pet. App. 15. The court then, relying on its
own precedent, concluded that Miller and
Montgomery together provided a substantive rule
reaching Idaho JLWOP sentences. Pet. App. 14-16
(citing Johnson, 395 P.3d at 1258-59).
The court below also held that the factual
record, unaltered since Mr. Windom’s sentencing,
lacked “any evidence . . . regarding the distinctive
attributes of youth mentioned by the Supreme
Court in Miller and Montgomery.” Pet. App. 16. For
that reason, the court held that even though the
sentencing court alluded to having “considered
Windom’s ‘relative youth’ as a mitigating factor,”
that court did not have before it “evidence . . .
regarding the factors required by Miller.” Pet. App.
17. Because “[t]hose factors must be individualized
for the juvenile being sentenced,” the sentencing
court held that the factual record before the
sentencing court was inadequate to assess whether
Mr. Windom was eligible for a JLWOP sentence.
Pet. App. 17-18.
As it had done previously, the Idaho court
permitted a “retrospective analysis” of whether
Miller and Montgomery permitted the sentence in
question. Pet. App. 18; see also Johnson, 395 P.3d
at 1259 (permitting the same and concluding that
the record in that case was adequate to the task).
8
Here, they concluded that analysis could not be
reliably completed because “the evidence of the
required characteristics and factors was not
presented during the sentencing proceeding.” Pet.
App. 18. The court reversed and remanded so that
Mr. Windom could present his evidence for
consideration at resentencing. Pet. App. 20.
The state petitioned for review.
REASONS FOR DENYING THE PETITION
The decision below is a case-specific application
by the Idaho of this Court’s juvenile sentencing
jurisprudence. Miller, 567 U.S. at 471 (“Roper and
Graham [v. Florida, 560 U.S. 48 (2010)] establish
that children are constitutionally different from
adults for purposes of sentencing.”). Looking at the
record evidence presented at Windom’s pre-Miller
sentencing hearing and Idaho’s pre-Miller
sentencing law and practice, the state court
determined that his JLWOP sentence was not
adequately informed by consideration of the
“distinctive attributes of youth.” Id. at 472.
“Miller . . . established that the penological
justifications for life without parole collapse in light
of
‘the
distinctive
attributes
of
youth.’”
Montgomery, 136 S. Ct. at 734 (quoting Miller, 567
U.S. at 472). Because children are less
blameworthy, “[t]he heart of the retribution
rationale” does not justify imposing the harshest
sentences on juvenile offenders in the same way it
might for adults. Graham, 560 U.S. at 71 (quoting
Tison v. Arizona, 481 U.S. 137, 149 (1987)). “Life
without
parole
‘forswears
altogether
the
rehabilitative ideal,’” Miller, 567 U.S. at 473
9
(quoting Graham, 560 U.S. at 74) making such a
sentence problematic for juveniles specifically
because “incorrigibility is inconsistent with youth.”
Id. Deterrence is ill served by JLWOP sentences
because “the same characteristics that render
juveniles less culpable than adults – their
immaturity, recklessness, and impetuosity – make
them less likely to consider potential punishment.
Id. at 472 (internal quotations omitted).6
Relying on Roper and Graham, “Miller required
that sentencing courts consider a child’s
‘diminished culpability and heightened capacity for
change’ before condemning him or her to die in
prison.” Montgomery, 136 S. Ct. at 726 (quoting
Miller, 567 U.S. at 471.). Before condemning a
juvenile to die in prison, sentencing courts must
determine whether the juvenile before them has
committed a crime that “reflect[s] transient
immaturity” or whether the juvenile is among
“those rare children whose crimes reflect
irreparable corruption.” Id. at 734. A sentencer
must consider the “mitigating qualities of youth.”
Miller, 567 U.S. at 476 (quoting Johnson, 509 U.S.
at 367).
Montgomery definitively established that
Miller provided a substantive protection and was
Incapacitation is also ill-served by JLWOP because simply
permitting juveniles “to be considered for parole ensures that
juveniles whose crimes reflected only transient immaturity –
and who have since matured – will not be forced to serve a
disproportionate sentence in violation of the Eighth
Amendment” without reducing the need for incapacitating the
unreformed. Montgomery, 136 S. Ct. at 736; see also Ring v.
Arizona, 536 U.S. 584, 615 (2002) (Breyer, J., concurring).
6
10
retroactively applicable to sentences that had
become final. Montgomery, 136 S. Ct. at 736.
I. The Idaho Supreme Court Correctly
Applied Miller to Conclude that Insufficient
Evidence of the Mitigating Aspects of Youth
Was Presented and Considered.
Although, the sentencing court necessarily had
before it Mr. Windom’s age, that court made only
brief reference to his youth in assessing the
appropriate sentence: In the 33-page sentencing
order there was a single, passing reference to his
“relative youth.” R. 00053, R. 100-132. However,
“youth is more than a chronological fact. It is a time
and condition of life when a person may be most
susceptible to influence and to psychological
damage.” Eddings v. Oklahoma, 455 U.S. 104, 115
(1982). Because the sentencing court lacked any
relevant information beyond Mr. Windom’s age,
Idaho sentencing law dictated Mr. Windom’s
entitlement – and among Idaho’s JLWOP
population, only Windom’s entitlement – to present
additional evidence. Pet. App. 20.
1. For the four inmates in Idaho serving
JLWOP sentences,7 the Idaho Supreme Court
permits a retrospective assessment of the evidence,
where necessary and appropriate, to determine
whether the juvenile offender is irreparably
corrupt. Two have not had their cases adjudicated
after Miller. Adamcik v. State, No. 44358 (Idaho)
(argued Nov. 9, 2017); Draper v. State, No. CVJuvenile Sentencing Project, Juvenile Life Without Parole
Sentences in the United States, November 2017 Snapshot
7
available at https://tinyurl.com/y7z9gkna.
11
2017-4791-PC (Sixth Jud. Dist. Idaho) (application
for post-conviction relief pending). For another, the
court upheld the sentence without a hearing
because the sentencing evidence was sufficient for a
retrospective assessment. Johnson, 395 P.3d at
1257-59.
It is only Mr. Windom who has received any
post-Miller relief from the Idaho Supreme Court.
And that relief was both very limited and directly
tied to the facts of his sentencing hearing. The
Idaho Supreme Court held that Mr. Windom was
entitled to present evidence related to the
mitigating aspects of his youth because such
evidence was wholly lacking before the sentencing
court. Pet. App. 20.
The court below did not order resentencing for
an entire class of inmates in one fell swoop as other
states have done. See Aiken v. Byers, 765 S.E.2d
572, 576 (S.C. 2014), cert. denied, 135 S. Ct. 2379
(U.S. June 1, 2015). The court did not even hold
that Mr. Windom himself was entitled to a sentence
less than JLWOP. Pet. App. 20. All he received was
an opportunity to present evidence in a
resentencing proceeding that will address the
impact of his youth on his culpability. That
opportunity was necessary because the sentencing
“transcript does not show that any evidence was
presented regarding the distinctive attributes of
youth[.]” Pet. App. 16. The court explained, “[a]
retrospective analysis does not comply with Miller
and Montgomery where the evidence of the
required characteristics and factors was not
presented during the sentencing hearing.” Pet.
App. 18.
12
In contrast, in Johnson v. State, the Idaho
Supreme Court held that the evidence was
sufficient to make a retrospective assessment.
Johnson, 395 P.3d at 1259. Against this backdrop,
two things become clear. First, the decision in Mr.
Windom’s case is best understood as the Idaho
Supreme Court, which is in the best position to
determine how to implement this Court’s juvenile
sentencing decisions in light of local law and
practice, fashioning remedies that are procedurally
and substantively congruent with Idaho state law.
Such issues are only loosely related to federal
questions at all, and are not worthy of this Court’s
review.
Second, the State’s construction of the question
presented is highly misleading. The State suggests
that the Idaho Supreme Court has “precluded the
sentencer’s
‘retrospective’
finding
regarding
transient immaturity.” PWC i. Such a claim only
makes sense with a significant qualification:
“where there is no evidence of the mitigating
aspects of youth having ever been presented and
considered.” Plainly the Idaho Supreme Court has
permitted
some
retrospective
findings
of
irreparable corruption. Johnson, 395 P.3d at 1259.
The limited holding of that court is that such
findings, prospective or retrospective, must be
supported by evidence that is absent from the
record in this case. Such an unremarkable holding
does not warrant review.
2. The better, majority view is to permit
presentation of evidence and consideration of the
entire record in a resentencing proceeding (in lieu
of retrospective only assessments), as the majority
13
of states have decided. This approach recognizes
the significance of the change in the inquiry
required in JLWOP sentencing proceedings.
As with intellectual disability, after this Court
created a categorical exemption absent a finding of
irreparable corruption, the “change in applicable
legal context” established the need to permit
additional evidence and to litigate for the first time
this newly extant “ultimate fact.” Bobby v. Bies,
556 U.S. 825, 834, 836-37 (2009). That need exists,
even if a factfinder, pre-Miller specifically found the
defendant “irreparably corrupt” because the
significance of that finding fundamentally changed
after Miller and Montgomery.
To avoid an “unacceptable risk” of erroneously
condemning a juvenile to die in prison, courts
permit presentation of additional evidence. Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014) (holding
intellectual disability assessment for purposes of
death-eligibility must account for standard error of
measure). This generally occurs at a resentencing
proceeding, where the factfinder can decide anew
whether the juvenile is among the rare homicide
offenders eligible to die in prison. In re Kirchner, 2
Cal.5th 1040, 1043 (2017); Landrum v. State, 192
So.3d 459, 470 (Fla. 2016); State v. Luna, 387 P.3d
956, 958 (Okla. Ct. Crim. App. 2016); Veal v. State,
784 S.E.2d 403, 405 (Ga. 2016); State v. Long, 8
N.E.3d 890, 899 (Ohio 2014); Aiken, 765 S.E.2d at
578; State v. James, 786 S.E.2d 73, 79-80 (N.C.
App. 2016), review allowed, 797 S.E.2d 6 (N.C.
2017). One state reviews new evidence before
determining whether resentencing is required as
opposed to ordering resentencing and then
14
considering the evidence. State v. Valencia, 386
P.3d 392 (Ariz. 2016), cert. denied, No. 16-9424,
2017 U.S. LEXIS 6914, 2017 WL 2424075 (U.S.
Oct. 2, 2017). Both approaches permit presentation
of additional evidence before affirming a JLWOP
sentence.
Idaho, along with North Dakota, is in the
second, much smaller category of jurisdictions that
require presentation of additional evidence only
where the extant record is insufficient to assess
whether the juvenile, in light of the mitigating
aspects of youth, is among those eligible for
JLWOP. Garcia v. State, 2017 ND 263, 2017 N.D.
LEXIS 269 (N.D. Nov. 16, 2017), reh’g denied, No.
20170030 (N.D. Dec. 7, 2017). These two states still
require presentation and consideration of evidence
regarding the mitigating aspects of youth before
imposing JLWOP, something that did not occur
here.
It is well within the province of states to
determine in the first instance “how to enforce the
constitutional restriction upon [imposing JLWOP]
sentences.” Atkins v. Virginia, 536 U.S. 304, 317
(2002) (quoting Ford v. Wainwright, 477 U.S. 399,
416-17 (1986)). These approaches reflect state
experimentation with the proper procedures for
enforcing this constitutional right and do not reflect
a substantial “split” of authority. All agree that
evidence of the Miller factors must be considered
before imposing a JLWOP sentence. In light of
Montgomery’s recent vintage and the approaches
undertaken by the states, this Court should allow
the states to continue to serve their role as
laboratories in our democracy. See New State Ice
15
Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
3. Moreover, the procedure mandated by the
Idaho Supreme Court here provides less protection
than the other approaches discussed supra, giving
particular credence to the state court’s finding that
the evidence at sentencing was inadequate to
assess whether Mr. Windom was irreparably
corrupt. That is, even under this forgiving
approach, the Idaho Supreme Court unanimously
found the record inadequate to make the required
assessment.
That conclusion should not have been
surprising. On direct review, prior to Miller, the
Idaho Supreme Court found it necessary to address
whether sentencing someone based “solely upon the
nature and gravity of the offense” was prohibited
by state law. Windom, 253 P.3d at 313. Plainly
such a sentence would not have been imposed in
light of the mitigating aspects of youth, violating
Miller.
To date, Mr. Windom has not had the
opportunity to present evidence in light of Miller
and Montgomery. Against this backdrop, this Court
should credit the Idaho Supreme Court’s conclusion
that the record did not permit what this Court has
required: taking “into account the differences
among offenders and crimes” to determine that Mr.
Windom is among the rare juvenile offenders who
is irreparably corrupt. Miller, 567 U.S. at 480 n.8.
In sum, the state court’s decision in Mr. Windom’s
case was a straightforward and faithful application
of this Court’s sentencing jurisprudence to the facts
16
of one case. It broke no new ground and, thus,
certiorari should be denied.
II. After Montgomery, States Are Clear That
the Eighth Amendment and Miller Apply to
All JLWOP Sentences.
At the time of Montgomery, there was a
substantial split over whether Miller merely
provided a procedural protection or whether it
created a substantive constitutional limitation on
the application of JLWOP. If it were the former, it
would not be retroactive. If it were the latter, then
it would be. See Teague, 489 U.S. at 311.
Montgomery answered that question: Miller
provided a substantive rule retroactively applicable
on collateral review. Montgomery, 136 S. Ct. at
734.
In light of this holding, it became clear that
Miller was about more than process. It limited
sentences, whether discretionary or mandatory,
according to Eighth Amendment principles.
Immediately after Montgomery, even popular
commentary was unequivocal: “Miller will now rule
out all life-without-parole sentences for juveniles
who commit crimes before age eighteen, unless
prosecutors can prove to a judge that a particular
youth is beyond saving as a reformed person.” Lyle
Denniston, Opinion Analysis: Further Limit on Life
Sentences for Youthful Criminals, SCOTUSBlog
(Jan. 25, 2016, 12:26 PM), available at
https://tinyurl.com/h7khdjo. Although prior to
Montgomery there was a split of authority on
Miller’s reach, Montgomery fully addressed the
broad question the State presents.
17
1. The Idaho Supreme Court was among those
surprised to learn that Miller provided a
substantive, rather than procedural, protection:
“There was nothing in the Miller decision that
indicated it would be applied retroactively.” Pet.
App. 10. This surprise notwithstanding, even before
Montgomery, there were ample states that reached
the opposite conclusion. See Montgomery, 136 S.
Ct. at 725 (collecting cases).
However, Montgomery definitively answered
the question of whether Miller provided a
categorical bar or was limited to its procedural
protections.
Miller provided a categorical
prohibition of life without parole for all but the
rarest of juvenile offenders: “Even if a court
considers a child’s age before sentencing him or her
to a lifetime in prison, the sentence still violates
the Eighth Amendment for a child whose crime
reflects unfortunate yet transient immaturity.” Id.
at 734. It was a categorical exclusion of a class of
offenders, regardless of the preceding process
(mandatory or discretionary), for imposing the
sentence. As such, it was a retroactively applicable
substantive rule of constitutional law.
2. The pre-Montgomery cases the State relies
upon to establish an imagined “split” simply reflect
the confusion that Montgomery resolved. After
Montgomery, states are not split on “what qualifies
as a ‘Miller violation.’” PWC 11. The states are
clear that it violates the Eighth Amendment to
impose JLWOP – using any process, mandatory or
discretionary – on all but the rare juvenile offender
who is irreparably corrupt.
18
Georgia’s treatment of the issue is illustrative.
In its Petition, the State cites Foster v. State, 754
S.E.2d 33 (Ga. 2014), which, before Montgomery,
held that a discretionary JLWOP sentence did not
violate the Eighth Amendment because Georgia’s
statute did not “mandate life without parole.” Id. at
37; PWC 12. The Foster court held that Miller only
reached “[m]andatory life without parole sentences
for juveniles.” Foster, 754 S.E.2d at 37. Georgia
was prototypical of the pre-Montgomery states on
one side of the “split.”
As the Georgia Supreme Court put it, “But
then came Montgomery.” Veal, 784 S.E.2d at 410.
After Montgomery, Georgia reversed course: “[A]n
LWOP sentenced imposed on a juvenile who is not
properly determined to be in the very small class of
juveniles for whom such a sentence may be deemed
constitutionally disproportionate ‘is . . . contrary to
law and, as a result, void.’” Id. at 411 (quoting
Montgomery, 136 S. Ct. at 731); see also Jackson v.
State, 883 N.W.2d 272, 277 (Minn. 2016)
(overruling in light of Montgomery prior decisions
holding Miller was a non-retroactive rule of
criminal procedure).
The only post-Montgomery case the State relies
upon for its “split” is an unpublished Indiana
intermediate appellate court opinion that by its
own terms is applicable only to the “narrow
circumstance” (inapplicable here) where a “juvenile
defendant voluntarily enters into a plea agreement
to serve JLWOP,” and knowingly forgoes the
opportunity to “present evidence of mitigating
factors at his sentencing.” Newton v. State, 83
N.E.3d 726, 740 (Ind. Ct. App. 2017). Outside of
19
this context, Indiana has not addressed the
applicability of Miller in light of Montgomery.
Although not cited in the Petition, apparently
only one other post-Montgomery case, Jones v.
Commonwealth,
distinguishes
between
discretionary and mandatory sentences, but it too
has salient features not present here. 795 S.E.2d
705, 714 (Va. 2017), cert. denied, No. 16-1337 (U.S.
Oct. 2, 2017). In Jones, the court upheld a guilty
plea to JLWOP that included a waiver of the
defendant’s right to all future appeals, rendering
the court’s discussion of Miller unnecessary to the
outcome. Id. The cases on the state’s side of the
split either pre-date Montgomery or involve
idiosyncrasies unrelated to the issues before the
Court.
On the other side of the ledger, state after
state, before and after Montgomery, has concluded
that the Eighth Amendment extends to
discretionary and mandatory JLWOP sentences
alike. Courts in Arizona, California, Connecticut,
Florida, Georgia, Idaho, Mississippi, Montana,
North Dakota, Ohio, Oklahoma, and South
Carolina, and all have held that Miller protections
apply to discretionary sentences. PWC 13 (listing
Arizona, Connecticut, Idaho, Mississippi, and
Oklahoma); Steilman v. Michael, No. OP 16-0328,
2017 Mont. LEXIS 713 (Mont. Dec. 13, 2017);
Garcia, 2017 ND 263, 2017 N.D. LEXIS 269 ; In re
Kirchner, 2 Cal.5th at 1042 ; Landrum, 192 So.3d
at 460; Veal, 784 S.E.2d at 410; State v. Long, 8
N.E.3d 890, 899 (Ohio 2014); Aiken, 765 S.E.2d at
576; see also Adams v. Alabama, 136 S. Ct. 1796,
1796-97 (2016) (granting, vacating, and remanding
20
discretionary sentence in light of Montgomery);
Tatum v. Arizona, 137 S. Ct. 11, 11 (2016) (same);
McKinley v. Butler, 809 F.3d 909, 911 (7th Cir.
2016) (Posner, J.).
Beyond the near uniformity with which states
retaining JLWOP are holding that the Eighth
Amendment
applies
to
discretionary
and
mandatory
sentences,
states
are
rapidly
abandoning or limiting JLWOP’s reach, accepting
this Court’s invitation to permit “juvenile homicide
offenders to be considered for parole.” Montgomery,
136 S. Ct. at 736. Since Miller, approximately three
jurisdictions per year have abandoned JLWOP with
twenty states and the District of Columbia now
prohibiting JLWOP sentences. Matt Henry,
Spotlight on Juvenile Life Without Parole, In
Justice Today (Oct. 13, 2017) available at
https://tinyurl.com/y8qexwpu. With such rapid
legislative treatment underway, this Court should
refrain from intervening and complicating or
chilling the policymaking underway. See Kennedy
v. Louisiana, 554 U.S. 407, 448 (2008) (Alito, J.,
dissenting) (noting Court intervention “stunted”
legislative
consideration
of
ongoing
legal
controversy).
3. Holding that Miller provided only a
procedural protection – i.e. does not extend to cases
where a sentence is imposed via a discretionary
process – would upend the Court’s retroactivity
doctrine. New constitutional rules are retroactively
applicable only if they fall into one of two
categories: watershed rules of criminal procedure
and substantive rules of constitutional law. See
Teague, 489 U.S. at 311. The former category may
21
consist only of Gideon v. Wainwright, 372 U.S. 335
(1963). See Miller v. Lampert, 125 P.3d 1260, 1265
(Or. 2006) (“Since Teague, the Court . . . has
pointed ‘only’ to the right to counsel recognized in
Gideon . . . as the kind of rule that would qualify
[as a watershed rule].”). The latter category
includes “rules forbidding criminal punishment of
certain primary conduct,” as well as “rules
prohibiting a certain category of punishment for a
class of defendants because of their status or
offense.” Penry v. Lynaugh, 492 U.S. 302, 330
(1989). Thus, to hold Miller merely places
procedural restrictions on the imposition of
JLWOP, making it a procedural rule, would be to
place it on equal footing with Gideon.
Of course Montgomery did no such thing.
Indeed, it definitively established that Eighth
Amendment protections for juveniles applied
uniformly to “‘a class of defendants because of their
status or offense.’” Montgomery, 136 S. Ct. at 728
(quoting Penry, 492 U.S. at 330). In doing so, the
Court was unambiguous: “Miller announced a
substantive rule of constitutional law.” Id. at 734.
It is true, as the State emphasizes, that there
are procedural protections enumerated in Miller.
Pet. 12-13. But the co-existence of procedural
protections with a substantive constitutional right
is neither novel nor relevant to the question here.
Other categorical exemptions from punishment also
include procedural protections. See, e.g., Brumfield
v. Cain, 135 S. Ct. 2269, 2296-97 (2015) (describing
procedural protections relevant to intellectual
disability and the death penalty); Panetti v.
Quarterman, 551 U.S. 930, 934-35 (2007)
22
(describing procedural protections relevant to
incompetence to be executed). The existence of
procedural protections is irrelevant because the
question is whether the defendant is in the
exempted class. If the juvenile is not among the
irreparably corrupt, then the sentence is
unconstitutional, no matter the process by which it
was
obtained.
Miller provided procedural
protections, but it also provided a categorical
exclusion.
Holding, as the State suggests, that Miller’s
protections are contingent on the process by which
they
obtained would upend the Court’s
jurisprudence on retroactivity.
4. In the end, the protections the court below
assured Mr. Windom are de minimis. Both by
confessing and by entering a guilty plea without
also obtaining any concession from the State or
assurance from
the court,
Mr.
Windom
demonstrated he may have what has been
recognized as a defining characteristic of youth:
being
“less
likely
to
consider
potential
punishment.” Miller, 567 U.S. at 477-78 (noting
youth’s impairment of ability to “deal with police
officers or prosecutors (including on a plea
agreement) . . . .”); see also Atkins, 536 U.S. at 320
(noting impairments associated with intellectual
disability impair defendants’ ability to protect their
interests in the criminal justice process, creating a
“special risk of wrongful execution.”). However, the
court below did not at any point foreclose the
possibility of a JLWOP sentence. Instead, it simply
required the sentencer to consider some evidence
about the mitigating aspects of youth before
23
concluding Mr. Windom is among the rare juvenile
offenders who are irreparably corrupt.
CONCLUSION
Mr. Windom respectfully requests that the
Court deny the Petition.
Respectfully submitted,
ANDREW PARNES
LORI NAKAOKA
P.O. Box 5988
671 First Avenue North
Ketchum, ID 83340
JOHN R. MILLS
Counsel of Record
Phillips Black Project
836 Harrison Street
San Francisco, CA 94107
(888) 532-0897
j.mills@phillipsblack.org
DECEMBER 21, 2017
24
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.