Amicus Curiae Brief — Montgomery v. Louisiana, 135 S. Ct. 1546 (2015) (No. 14-280)

- Supreme Court, US.

FILED

JUL 2.9 206

OFFICE OF THE CLERK

No. 14-280

IN THE

Supreme Court of the United States

HENRY MONTGOMERY,

Petitioner,

LOUISIANA,

Respondent.

On Writ Of Certiorari

To The Supreme Court Of Louisiana

BRIEF OF AMICUS CURIAE

PROFESSOR DOUGLAS A. BERMAN

IN SUPPORT OF PETITIONER

MATTHEW C. CORCORAN

Counsel of Record

CHAD A. READLER

JONES DAY

325 John H. McConnell

Boulevard, Suite 600

P.O. Box 165017

Columbus, OH 43215.2673

614-469-3939

mccorcoran@jonesday.com

Counsel for Amicus Curiae

AAT ED TESTE ATLL USERS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEG.................:.:cccccccceeeeseeees il

INTEREST OF THE AMICUS CURIAE................... 1

SUMMARY OF THE ARGUMENT ....................0:00008 1

EERE ERTS een eS ee Oe 4

I. BECAUSE IT IMPROVES

SENTENCING ACCURACY

AND EFFICACY, THE MILLER

RULE SHOULD APPLY

RETROACTIVELY ...000..0.........22cccceeeeeee 4

Il. MILLERIS A SUBSTANTIVE

RULE THAT APPLIES

RETROACTIVELY UNDER

IIIT sadiindeuudiiddbanaestdeddermenebecsttiiiaine 14

il

TABLE OF AUTHORITIES

Page(s)

CASES

Alleyne v. United States,

Sn, I a sddaaiinns 4, 15,16

Atkins v. Virginia,

EE RS SRE REESE ER anne Se 15

Barber v. Thomas,

I atillile 12

Bousley v. United States,

i eiailins 15

Bullington v. Missouri,

I a cneideiniiasidsiiine 7

California Dep't of Corr. v. Morales,

I a ciceialeeniini 16

Caspari v. Bohlen,

il 6

Davis v. United States,

a aicsnialmleenainlll 14

Engle v. Isaac,

I tall 11

Fay v. Noia,

SAREE SSMS BOEES st ee meee 5

Graham v. Florida,

I passim

Green v. United States,

I &

1

TABLE OF AUTHORITIES

(continued)

Page(s)

Harmelin v. Michigan,

I i aelaeltlinih 19

In re Morgan,

rp DA 8) Tohl Le Se 6

In re Pendleton,

ener 6

Jones v. State,

i lcd 8

Koon v. United States,

I ce niasaneoatalie 2,8

Lane v. Williams,

SEE Se a ee Se eS 11

Lindsey v. Washington,

TET ae A Se 16

Mackey v. United States,

gE See ee Se ae 9,14

Miller v. Alabama,

eee passim

Mistretta v. United States,

I cinerea 19

Pennsylvania ex rel. Sullivan v. Ashe,

gE a RTT oe Oe Seen 7

Penry v. Lynaugh,

| EES een 4, 14, 15, 18

Pepper v. United States,

|, EET Ene Reena 7, 8,9, 11

iV

TABLE OF AUTHORITIES

(continued)

Page(s)

Rummel v. Estelle,

a cendesstamameeetlel 17

Schriro v. Summerlin,

i aclinimeeneciiipunias 14

Solem v. Helm,

ETE RSE Pe me AO Ue 17

State v. Allen,

EN ETE ere eC 8

Stone v. Powell,

EEE ee RTT 5

Teague v. Lane,

I cn ccnconcccaunevesstneeniwosseccsni passim

Tyler v. Cain,

I imneniclile 15

United States v. Booker,

I te slate 1

United States v. Bryson,

ERR ee eee 7

United States v. DiFrancesco,

EE en rao 9

United States v. Douglas,

874 F.2d 1145 (7th Cir. 1989) abrogated on other

grounds by United States v. Durrive,

i EES 10

United States v. Grayson,

I cia 19

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Saro,

ee ee iis Ee BO ccicicesecccccncceaccsevecesces 10

United States v. Williams,

399 F.3d 450 (2d Cir. 2005) .............eecceeeeeeeee 9, 10

Williams v. New York,

Ns I a escaiiteeeciiaisaideasiniciiin 8, 9,19

OTHER AUTHORITIES

Paul M. Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners,

Ss iii, I I i ets 5

Douglas A. Berman, Sentencing Law & Policy,

http://www.sentencing.typepad/com/ .................... 1

Douglas A. Berman, Sentencing Law and Policy:

Cases, Statutes and Guidelines (Aspen)................ 1

Henry J. Friendly, Js Innocence Irrelevant?

Collateral Attack on Criminal Judgments,

Be eee 5

Andrew Chongseh Kim, Beyond Finality: How

Making Criminal Judgments Less Final Can

Further the “Interests of Finality”, 2013 Utah L.

REREAD Soren none Sey aR 10

Mandy Locke, After 36 Years, Joseph Sledge’s

Unfamiliar Feeling: Normal, Charlotte News &

I in sceuiiaiiaeneionbicinas 2

Gary T. Lowenthal, Mandatory Sentencing Laws:

Undermining the Effectiveness of Determinate

Sentencing Reform, 81 Cal. L. Rev. 61 (1993).....19

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Alan C. Michaels, Trial Rights at Sentencing,

RE ere 8

Paul J. Mishkin, Foreword: The High Court, the

Great Writ, and the Due Process of Time and Law,

79 Harv. L. Rev. 66 (1965) ................00cccccccccccceeeeees 5

Thomas Orsagh & Jong-Rong Chen, The Effect of

Time Served on Recidivism: An Interdisciplinary

Sarah French Russell, Reluctance to Resentence:

Courts, Congress, and Collateral Review,

2 RS eee 9,10

INTEREST OF THE AMICUS CURIAE)

Douglas A. Berman is a criminal law professor at

The Ohio State University Moritz College of Law.

His teaching and research focuses on criminal

sentencing. He has published over twenty articles

regarding criminal sentencing, and he is the

coauthor of Sentencing Law and Policy: Cases,

Statutes and Guidelines (Aspen Ist, 2d & 3d eds.).

His criminal sentencing blog—Sentencing Law &

Policy (http://sentencing.typepad.com/)—has been

cited in forty-eight judicial opinions. See, e.g., United

States v. Booker, 543 U.S. 220, 277 n.4(2005)

(Stevens, J., dissenting).

Professor Berman believes that applying Eighth

Amendment noncapital sentencing rules

retroactively on collateral review furthers the

traditional purposes of criminal sentencing and

retroactivity jurisprudence. Accordingly, he files this

brief in support of the petitioner.

SUMMARY OF THE ARGUMENT

In the criminal justice realm, the desire to

achieve finality in criminal proceedings has long

been balanced against the overarching goals of

accuracy and efficacy. For example, when an

imprisoned person is discovered to be indisputably

innocent, finality interests are overwhelmed by the

injustice of an inaccurate conviction and the

1 All parties have consented to the filing of this brief. As

required by Rule 37.6, amicus states that no counsel for a party

authored this brief in whole or in part, and no person other

than amicus, its members, and its counsel made any monetary

contribution intended to fund the preparation or submission of

this brief.

2

unfairness of continuing to punish the innocent

person. Indeed, when DNA evidence conclusively

proves a defendant was wrongfully convicted,

prosecutors are typically quick to seek to vacate the

inaccurate conviction and to advocate for the release

of the wrongly convicted prisoner. See, e.g., Mandy

Locke, After 36 Years, Joseph Sledge’s Unfamiliar

Feeling: Normal, Charlotte News & Observer, Jan.

23, 2015 (discussing cases in which, after

investigations by the North Carolina Innocence

Inquiry Commission, a local district attorney and a

panel of judges agreed that a wrongful conviction

should be overturned). Judges and executive officials

frequently play a critica] role in remedying prior

miscarriages of justice, no matter how long ago the

conviction was secured.

To the same end, the Court’s habeas corpus

jurisprudence has long provided that all new

substantive and watershed procedural rules apply

retroactively on both direct and collateral review.

That is so because finality concerns do not justify

preserving even long-ago criminal judgments that

are inaccurate due to substantive flaws or that were

the product of fundamentally inadequate procedures.

The paramount concern for accuracy and efficacy

in criminal proceedings requires that the Eighth

Amendment rule adopted in Miller v. Alabama be

applied retroactively. The Miller Rule, which

safeguards the “traditional exercise of discretion by a

sentencing court,” Koon v. United States, 518 U.S.

81, 98 (1996), ensures that juvenile offenders receive

more accurate and efficacious sentences. As the

Court has long recognized, and as it reaffirmed in

Miller, juveniles define a unique class of offenders.

3

Due to their immaturity and vulnerability to

negative influences, juveniles must have their

unique attributes considered by a _ sentencing

authority, to avoid the risk of an unconstitutionally

severe punishment. The Court’s Eighth Amendment

jurisprudence has also long recognized that

mandatory sentencing schemes, because they limit a

sentencer’s ability to consider many relevant factors,

can create an intolerable risk of unconstitutionally

inaccurate and unreliable sentencing outcomes.

Moreover, the passage of time usually does not

diminish the accuracy and efficacy of the sentencing

process. Rather, in many cases it reveals new

evidence about both the consequences of a crime and

the true character of an offender. This additional

information allows a sentencer to select a more

accurate and efficacious sentence. New information

is particularly informative in the juvenile sentencing

setting due both to a juvenile’s capacity for change

and his susceptibility to outside influences at the

time of the initial sentencing.

These concerns trump those for finality in

sentencing. A prompt but excessive sentence does

not necessarily further the effectiveness of criminal

laws. Even if prompt, an excessive sentence does not

enhance the deterrent effect of criminal laws or

increase the chance a _ defendant will be

rehabilitated. States, moreover, have no valid

interests in punishing or incapacitating someone

longer than is constitutionally permitted. That is

especially true for juveniles, who are less likely to be

deterred, less deserving of punishment, and less

likely to obtain leniency from _ prosecutors.

Accordingly, the Court should hold that the Miller

4

Rule applies retroactively on collateral review

regardless whether the rule satisfies Teague’s test

for retroactivity.

Should the Court decide to apply Teague in this

distinct sentencing setting, the Miller Rule is a

substantive rule that applies retroactively on

collateral review. See Teague v. Lane, 489 U.S. 288,

311-13 (1989). It is a “rule[] prohibiting a certain

category of punishment for a class of defendants

because of their status,” Penry v. Lynaugh, 492 U.S.

302, 330 (1989). Because a punishment is defined by

both its floor and its ceiling, see Alleyne v. United

States, 133 S. Ct. 2151, 2160 (2013), mandatory life

without parole is a distinct category of punishment.

After all, it is the only punishment with both a floor

and ceiling of life without parole. Treating

mandatory life without parole as a category of

punishment distinct from a punishment allowing,

but not requiring, life without parole comports with

the differing penological purposes for mandatory

sentencing, which emphasizes deterrence and

incapacitation, and discretionary sentencing, which

emphasizes rehabilitation.

ARGUMENT

I. BECAUSE IT IMPROVES SENTENCING

ACCURACY AND EFFICACY, THE MILLER

RULE SHOULD APPLY RETROACTIVELY.

A. When federal habeas corpus review first

expanded to reach otherwise unreviewable state

decisions involving fundamental rights, Members of

the Court and scholars worried about the practical

effects of broadened habeas review. A chief concern

were the difficulties that could arise from allowing

any state prisoner to collaterally attack in federal

5

court any aspect of his state criminal conviction. See

generally Fay v. Noia, 372 U.S. 391, 446-48 (1963)

(Clark, J., dissenting); Stone v. Powell, 428 U.S. 465,

491 n.31 (1976); Teague, 489 U.S. 288; Paul M.

Bator, Finality in Criminal Law and Federal Habeas

Corpus For State Prisoners, 76 Harv. L. Rev. 441,

444-53 (1963); Paul J. Mishkin, Foreword: The High

Court, the Great Writ, and the Due Process of Time

and Law, 79 Harv. L. Rev. 56, 79-80 (1965); Henry J.

Friendly, Js Innocence Irrelevant? Collateral Attack

on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-

51 (1970). At the same time, observers recognized

that finality concerns are linked to—and, in a sense,

always subservient to—concerns about criminal

justice accuracy and efficacy. See, e.g., Teague, 489

U.S. at 311-13 (stressing importance of procedures

critical to “accurate determination of innocence or

guilt” in defining reach of habeas review); Stone, 428

U.S. at 491-92, n.31 (suggesting habeas review is

most needed to “safeguard against compelling an

innocent man to suffer an unconstitutional loss of

liberty”); Bator, supra, at 453-60 (stressing need for

collateral review when there was a “failure of

process” making a prior determination unreliable).

Accordingly, the Court’s habeas jurisprudence has

always balanced finality interests against

overarching concerns for criminal justice accuracy

and efficacy. In Stone v. Powell, for example, the

Court removed Fourth Amendment claims from the

scope of federal habeas review principally because

such claims are not central to the accuracy of

verdicts reached at state criminal trials. Likewise, in

articulating retroactivity rules to be applied by

federal habeas courts when reviewing state criminal

judgments, Teague stressed “the relevance of the

6

likely accuracy of convictions in determining the

available scope of habeas review.” 489 U.S. at 313.

The concern for accuracy and efficacy is reflected

most directly in Teague’s recognition that new

substantive rules are applied retroactively to all final

cases, no matter how dated. See id. at 311. Finality

interests, Teague explains, are not sufficient to

prevent collateral review of a criminal judgment that

is inaccurate due to a substantive flaw. See id.

Accuracy concerns also are reflected in the Teague

exception for “watershed” procedural rules that

“undermine the fundamental fairness that must

underlie a conviction or seriously diminish the

likelihood of obtaining an accurate conviction.” Id. at

315. A state criminal judgment achieved in a

manner that was fundamentally unfair or through a

process that seriously diminished its likely accuracy

is subject to habeas review because it is likely not a

reliable or efficacious criminal judgment.

B. The Court has had no prior occasion to apply

Teague retroactivity principles to Eighth

Amendment noncapital sentencing rules.2 The lower

courts, however, have struggled in applying the

Court’s traditional retroactivity jurisprudence to the

Miller Rule. Compare, e.g., In re Morgan, 713 F.3d

1365, 1367-68 (11th Cir. 2013) (holding petitioner

failed to make prima facie showing that the Miller

Rule was retroactive), with In re Pendleton, 732 F.3d

2 Caspari v. Bohlen is the only case in which the Court

has applied Teague to a noncapital sentencing rule. 510 U.S.

383 (1994). The Court assumed, without deciding, that Teague

applied to a Fifth Amendment rule concerning noncapital

sentencing. Jd. at 390-97.

7

280, 282-83 (3d Cir. 2013) (per curiam) (holding

petitioner made such a showing). Those struggles in

part reflect the fact that Teague retroactivity

principles typically have been applied to rules

respecting convictions and capital sentences rather

than rules respecting noncapital sentences.

C. The States’ interest in preserving the finality

of convictions and capital punishments is less

prevalent in the noncapital sentencing setting. This

is especially true with respect to a mandatory

sentence, which results from a process that precludes

sentencing judges from considering the complete

circumstances of the crime and the full character of

the offender. See generally Pennsylvania ex rel.

Sullivan v. Ashe, 302 U.S. 51, 55 (1937) (“For the

determination of sentences, justice generally

requires consideration of more than the particular

acts by which the crime was committed and that

there be taken into account the circumstances of the

offense together with the character and propensities

of the offender.”).

1. While the passage of time may negatively

impact the accuracy and efficacy of trials, the same is

not true for sentencing proceedings. Rather,

sentencing determinations have long centered on a

discretionary decision-making process concluded on

the day of sentencing, whenever that day occurs,

taking into account all relevant circumstances of the

defendant on that day. Thus, “[a) court’s duty is

always to sentence the defendant as he stands before

the court on the day of sentencing.” Pepper v.

United States, 562 U.S. 476, 492 (2011) (quoting

United States v. Bryson, 229 F.3d 425, 426 (2d Cir.

2000)); see also Bullington v. Missouri, 451 U.S. 430,

8

451 (1981) (Powell, J., dissenting) (noting that in

resentencing “the second jury’s sentencing decision

is as “correct” as the first jury’s” (quoting Green v.

United States, 355 U.S. 184, 224 (1957)). The

sentencer must “consider every convicted person as

an individual and every case as a unique study in the

human failings that sometimes mitigate, sometimes

magnify, the crime and the punishment to ensue.”

Koon, 518 U.S. at 113. Thus, the sentencer, who “is

not confined to the narrow issue of guilt,”

traditionally looks beyond the facts of the offense to

garner “the fullest information possible concerning

the defendant’s life and _ characteristics” to

“guide _. in the intelligent imposition of sentences.”

Williams v. New York, 337 U.S. 241, 246-47 (1949).

In view of these considerations unique to the

sentencing phase of a criminal proceeding, the

passage of time can actually improve the accuracy

and efficacy of sentencing outcomes. At resentencing,

a sentencer can take into account information that

was not available at the previous sentencing. See

Pepper, 562 U.S. at 491-92 (noting “evidence of

[petitioner’s} rehabilitation since his initial

sentencing is clearly relevant to the selection of an

appropriate sentence” and “provides the most up-to-

date picture of [his] ‘history and characteristics”).

As a result, a resentencing court can efficiently

update the sentence, taking into account not only

what was known at the original sentencing, but also

any new relevant evidence about the consequences of

the crime and about the true character of the

offender. See, e.g., Pepper, 562 U.S. at 491-93; Jones

v. State, 414 Md. 686, 695 (2010) (noting that

resentencing should be conducted “as if the sentence

was occurring for the first time”); State v. Allen, 446

9

So. 2d 1200, 1202 (La. 1984) (noting the need to

consider post-offense conduct in resentencing).

Sentencing proceedings, moreover, are not

governed by strict trial rules. Rather, sentencers

benefit from the wealth of information available from

“out-of-court sources to guide their judgment toward

a more enlightened and just sentence.” Williams,

337 U.S. at 251; see also United States v.

DiFrancesco, 449 U.S. 117, 136-37 (1980) (noting a

sentencer can consider the original presentence

report and other pertinent information for the

original sentencing hearing); Sarah French Russell,

Reluctance to Resentence: Courts, Congress, and

Collateral Review, 91 N.C. L. Rev. 79, 152 (2012)

(same); Alan C. Michaels, Trial Rights at Sentencing,

81 N.C. L. Rev. 1771 (2003) (detailing the many

constitutional and statutory mghts generally afforded

at trial but not at sentencing).

Contrast a resentencing to a criminal retrial. A

trial aims to determine the truth of allegations about

historical events that occurred in the past. Because

a retrial takes place well after the first trial, fading

memories, unavailable witnesses, and other lost

evidence can prejudice the State’s case and lead to

wrongful acquittals. See Mackey v. United States,

401 U.S. 667, 691 (1971) (Harlan, J., concurring in

part and dissenting in part). Pepper, 562 U.S. at

491-93; Russell, supra at 152. Those interests in

preserving the accuracy of the initial] trial, however,

do not extend to the original sentencing.

2. The cost of a noncapital resentencing hearing

is less than that of a new trial. United States v.

Williams, 399 F.3d 450, 456 (2d Cir. 2005) (“{T}he

cost of correcting a sentencing error is far less than

10

the cost of a retrial.”); see also United States v. Saro,

24 F.3d 283, 288 (D.C. Cir. 1994) (“[A] resentencing

is nowhere near as costly or as chancy an event as a

trial.”); Andrew Chongseh Kim, Beyond Finality:

How Making Criminal Judgments Less Final Can

Further the “Interests of Finality”, 2013 Utah L. Rev.

561, 599 (2013) (estimating resentencing proceedings

on average costs only $1,222). “A resentencing is a

brief event, normally taking less than a day and

requiring the attendance of only the defendant,

counsel, and court personnel.” Williams, 399 F.3d at

456. The sentencer typically relies on the existing

record and brief arguments from the parties. Id.

The court may order a new presentencing report, but

the additional investigation required is generally no

more than a review of prison records. See Russell,

supra at 149. A retrial, on the other hand, gains few

efficiencies from the costs expended in the original

trial—it is essentially a repeat, demanding the time

and resources of judges, juries, prosecutors, and

corrections officials. See United States v. Douglas,

874 F.2d 1145, 1150 (7th Cir. 1989) abrogated on

other grounds by United States v. Durrive, 902 F.2d

1221 (7th Cir. 1990) (noting the many “duplicative

efforts” of retrial).

3. Ordering resentencing on collateral review

does not interfere with a State’s penological interests.

As an initial matter, collateral review of a sentence

does not allow a defendant to escape punishment

altogether, as does collateral review of a conviction.

Instead, a defendant merely seeks an appropriate

sentence based on the offense and the defendant's

particular circumstances. Nor does resentencing

interfere with a State’s interest in deterrence.

Unlike capital sentencing, where the State’s chosen

1]

punishment is delayed by habeas proceedings,

thereby potentially impacting the sentence’s

deterrent effect, the defendant who merely seeks

resentencing does not delay punishment. Rather,

the defendant continues to serve a term of years

sentence during collateral review. See Lane v.

Williams, 455 U.S. 624, 631 (1982) (dismissing as

moot habeas petitions attacking only sentences when

“those sentences expired during the course of these

proceedings”). Indeed, by ensuring a sentence is

appropriately calibrated to the crime and the

defendant, resentencing in fact maximizes

deterrence. Engle v. Isaac, 456 U.S. 107, 127 n.32

(1982) (“Deterrence depends upon the expectation

that ‘one violating the law will swiftly and certainly

become subject to punishment, just punishment.”)

(quoting Bator, supra, at 452).

Nor does resentencing undermine rehabilitation.

A defendant is not released until he has served out

his new sentence, which will take into account a

State’s rehabilitation interests. See Pepper, 562 U.S.

at 491-93. In contrast, requiring a defendant to

serve a sentence longer than necessary for

rehabilitation would seemingly undermine the goals

of rehabilitation. Thomas Orsagh & Jong-Rong Chen,

The Effect of Time Served on Recidivism: An

Interdisciplinary Theory, 4 J. Quantitative

Criminology 155, 162 (1988) (finding many prisoners

become more likely to recidivate when their

sentences exceed a certain point); accord Graham v.

Florida, 560 U.S. 48, 74 (2010) (“[Liife

imprisonment without parole forswears

altogether the rehabilitative ideal.”); see also Miller

v. Alabama, 132 S. Ct. 2455, 2468 (2012) (same).

12

The same is true for the State’s interests in

retribution and incapacitation. Those interests are

not furthered by requiring a defendant to serve an

inappropriately long sentence. See Barber v. Thomas,

560 U.S. 474, 504 (2010) (Kennedy, J., dissenting)

(‘To a prisoner, time behind bars is not some

theoretical or mathematical concept. It is something

real, even terrifying. Survival] itself may be at

stake.”).

4. Even where finality of sentences furthers the

State’s penological interests, the finality of juvenile

sentences would do far less to serve those interests.

As the Court has recognized, criminal laws are less

likely to deter juveniles from committing crimes.

“(T]he same characteristics that render juveniles

less culpable than adults—their immaturity,

recklessness, and impetuosity—make them less

likely to consider potential punishment.” Miller, 132

S. Ct. at 2465 (quoting Graham, 560 U.S. at 72).

Thus, affording great weight to the finality of

juvenile sentences in many ways undermines the

goal of deterrence.

Moreover, juveniles have “lessened culpability’

and greater ‘capacity for change.” Miller, 132 S. Ct.

at 2460 (quoting Graham, 560 U.S. at 50, 74). A

juvenile’s “lessened culpability” limits the State’s

interests in exacting retribution. A _ juvenile’s

“greater capacity for change” means an excessive

sentence likely will undermine a_ State's

rehabilitation goals more so than in the adult

sentencing context.

The same characteristics of youth—lessened

culpability and greater capacity for change—that

reduce a State’s interests in juvenile sentencing

13

finality support a broader retroactivity rule for

discretionary juvenile sentencing rules. New

discretionary rules allow the sentencer to take these

characteristics into account and ensure a juvenile

does not receive an excessively harsh sentence,

which reduces the opportunity for rehabilitation (and,

in the case of life without parole, eliminates it

altogether).

Given children’s lessened culpability, it is deeply

unfair to require them to serve excessive sentences.

And given their greater capacity for change, it is

equally unfair to deny children a meaningful

opportunity for rehabilitation (or eliminate it

altogether). Simply put, the consequences of an

improper life without parole sentence are “especially

harsh for a juvenile.” Graham, 560 U.S. at 70.

After all, a juvenile “will on average serve more

years and a greater percentage of his life in prison

than an adult offender.” Id.

D. Because the Miller Rule ensures that juvenile

offenders receive more accurate and efficacious

sentences, the Rule should <x applied retroactively to

all prior cases regardless whether the Rule is

ultimately considered substantive or procedural,

watershed or not. As detailed infra, the Miller Rule

should apply retroactively under traditional Teague

analysis. But in light cf the distinctly lessened

finality interests applicable to noncapital sentencing

proceedings and outcomes, the Court should hold

simply that the Miller Rule applies retroactively

because it improves sentencing accuracy and efficacy

without unduly impinging on the States’ finality

interests.

14

Il. MILLER IS A SUBSTANTIVE RULE THAT

APPLIES RETROACTIVELY UNDER

TEAGUE.

A. New rules of criminal procedure that prohibit

a certain category of punishment are “substantive

rules” that apply retroactively on collateral review.

See Schriro v. Summerlin, 542 U.S. 348, 352 (2004).

In Teague, a plurality of the Court held that new

rules placing “certain kinds of primary, private

individual conduct beyond the power of the criminal

law-making authority to oproscribe” apply

retroactivity on collateral review. Teague, 489 U.S.

at 311 (quoting Mackey, 401 U.S. at 692 (Harlan, J.,

concurring in judgments in part and dissenting in

part)). Shortly thereafter, the Court explained the

substantive exception extends to “rules prohibiting a

certain category of punishment for a class of

defendants because of their status or offense.”

Penry, 492 U.S. at 330. “Such rules apply

retroactively because they necessarily carry a

significant risk that a defendant faces a

punishment that the law cannot impose upon him.”

Summerlin, 542 U.S. at 352 (citations and internal

quotation marks omitted) (quoting Davis v. United

States, 417 U.S. 333, 346 (1974)).

To date, the Court has held two rules fall within

Teague’s substantive exception: a rule prohibiting

intellectually disabled persons from being sentenced

to death, Penry, 492 U.S. at 330, and a rule altering

the elements of a statutory crime, Bousley v. United

States, 523 U.S. 614, 619-20 (1998). Significant here

is Penry, which addressed the punishment category

of substantive rules. There, the petitioner argued

that the Eighth Amendment prevents. the

15

government from executing an intellectually disabled

person. 492 U.S. at 328. Because Penry was before

the Court on collateral review, the Court addressed

“the retroactivity issue” of such a rule as a threshold

matter. Id. at 329. The Court held that the proposed

rule would “fall under the first exception to the

general rule of nonretroactivity” because it would

prohibit a certain category of punishment (the death

penalty) for a class of defendants because of their

status (intellectually disabled). Jd. at 330. While the

Court ultimately declined to adopt the rule in Penry,

id. at 340, it later recognized the rule in Atkins v.

Virginia, 536 U.S. 304 (2002). Cf. Tyler v. Cain, 533

U.S. 656, 666 (2001) (“[T]his Court can make a rule

retroactive over the course of two cases.”).

B. A “category of punishment,” Penry, 492 U.S.

at 330, is defined by both its floor and its ceiling. See

Alleyne, 133 S. Ct. at 2160. In Alleyne, the Court

held that the Sixth Amendment requires a State to

prove to a jury beyond a reasonable doubt any fact

increasing the minimum punishment for a crime.

133 S. Ct. at 2155. Because “[m]Jandatory minimum

sentences increase the penalty for a crime,” the

Court explained, “any fact that increases the

mandatory minimum must be submitted to the

jury.” Jd. In reaching this conclusion, the Court

found it immaterial that a lower floor would not have

prevented Alleyne from receiving the same sentence.

Id. at 2162 (“It is no answer to say that the

defendant could have received the same sentence

with or without that fact.”). That was so because the

“legally prescribed range is the penalty affixed to the

crime [and] increasing either end of the range

produces a new penalty.” Id. at 2160 (second

emphasis added).

16

Similarly, in Lindsey v. Washington, the Court

held that the ex post facto clause prohibits a state

from sentencing a defendant under a subsequently

adopted statute increasing the minimum sentence.

301 U.S. 397, 399 (1937). Washington adopted a new

statute months after the defendant committed

larceny, “[t]he effect of [which was] to make

mandatory what was before only the maximum

sentence.” Jd. at 400. The fact that the 15-year

sentence imposed was permissible under the prior

statute was immaterial:

[T]he ex post facto clause looks to the

standard of punishment prescribed by a

statute, rather than to the sentence

actually imposed. The Constitution

forbids the application of any new

punitive measure to a crime already

consummated regardless of the

length of the sentence imposed, since

the measure of punishment prescribed

by the later statute is more severe than

that of the earlier.”

Id.; see also California Dep’t of Corr. v. Morales, 514

U.S. 499, 505-06 & n.3 (1995) (clarifying Lindsey

Rule).

Penalties with different floors are different

“categories of punishment”—even when they result

in identical sentencing outcomes. Thus, a

punishment is not defined by the sentencing outcome

in a particular case, but by the authorized sentencing

range applicable in all cases.

C. Mandatory life without parole is a distinct

category of punishment from life with the

17

opportunity for parole. Life without parole is

“qualitatively different” and “far more severe” than

life with the opportunity for parole. Solem v. Helm,

463 U.S. 277, 297 (1983). Solem held that a life

without parole sentence was grossly disproportionate

when imposed under a recidivist statute for a

seventh nonviolent offense. Jd. at 303. Solem

distinguished an earlier case holding that a life

sentence imposed under a recidivist statute for a

third nonviolent offenses did not violate the Eighth

Amendment. See Rummel v. Estelle, 445 U.S. 263

(1980). The opportunity for parole in Rummel, and

the corresponding lack of opportunity in Solem, was

decisive. Solem, 463 U.S. at 297, 300-03.

Similarly, in striking down life without parole

sentences for juvenile nonhomicide offenders in

Graham, the Court expressly did not extend its

holding to life sentences with the opportunity for

parole. “The Eighth Amendment does not foreclose

the possibility that persons convicted of nonhomicide

crimes committed before adulthood will remain

behind bars for life. It does forbid States from

making the judgment at the outset that those

offenders never will be fit to reenter society.”

Graham, 560 U.S. at 75. That is so because life

without parole is qualitatively different than all

other sentences. “The State does not execute the

offender sentenced to life without parole, but the

sentence alters the offender’s life by a forfeiture that

is irrevocable. It deprives the convict of the most

basic liberties without giving hope of restoration.” Id.

at 69-70 (emphasis added).

D. The Miller Rule is substantive because it

forecloses mandatory life without parole for

18

juveniles. As Miller recognized, the Constitution

requires that a sentencer have the option of

sentencing a juvenile homicide offender to something

less than life without parole. 132 S. Ct. at 2469.

While Miller did not decide what lower sentencing

options must be available, the lower sentence can be

no more severe than life with the opportunity for

parole. See id.

Because Miller requires at a minimum that the

low end of the sentence range be life with the

opportunity for parole, it prohibits a distinct category

of punishment—mandatory life without parole.

Indeed, “[t]he premise of the [Miller Rule] is that

mandatory sentences are categorically different from

discretionary ones.” Miller, 132 S. Ct. at 2479 n.2

(Roberts, C.J., dissenting). The Miller Rule is

therefore substantive and applies retroactively on

collateral review. See Penry, 492 U.S. at 330.

E. Treating mandatory life without parole as a

distinct category of punishment comports with the

differing penological purposes for mandatory and

discretionary sentences. Mandatory sentencing

schemes prioritize deterrence and incapacitation,

whereas discretionary sentencing schemes prioritize

rehabilitation and proportionality.

“[(Clompeting theories of mandatory and

discretionary sentencing have been in varying

degrees of ascendancy or decline since the beginning

of the Republic.” Harmelin v. Michigan, 501 U.S.

957, 999 (1991) (Kennedy, J., concurring in part and

concurring in the judgment). Discretionary,

“indeterminate sentencing and parole were based on

concepts of the offender’s possible, indeed probable,

rehabilitation.” Mistretta v. United States, 488 U.S.

19

361, 363 (1989); see also United States v. Grayson,

438 U.S. 41, 46 (1978). By adjusting a defendant’s

release to his rehabilitation, discretionary sentencing

and parole seek to ensure “that the punishment

should fit the offender and not merely the crime.”

Williams, 337 U.S. at 247.

Rationales for mandatory sentencing laws, by

comparison, are principally utilitarian:

Long prison sentences for recidivists,

drug traffickers, and those who commit

violent crimes isolate them from the

general community and thereby prevent

them from committing further crimes

outside prison walls. Mandatory

sentencing provisions are also designed

to deter, sending the message to

potential offenders that harsh

consequences follow from their criminal

conduct.

Gary T. Lowenthal, Mandatory Sentencing Laws:

Undermining the Effectiveness of Determinate

Sentencing Reform, 81 Cal. L. Rev. 61, 67 (1993).

While not all mandatory prison sentences are flatly

at odds with rehabilitation, “life imprisonment

without parole forswears altogether the

rehabilitative ideal.” Graham, 560 U.S. at 74. And

in the juvenile sentencing context, “this mandatory

punishment disregards the _ possibility of

rehabilitation even when the circumstances most

suggest it.” Miller, 132 S. Ct. at 2468.

These competing theories of punishment further

confirm why mandatory life without parole should be

treated as a distinct category of punishment for

20

retroactivity purposes. It is unlike any discretionary

sentencing regime, and is largely untethered to

notions of rehabilitation and proportionality.

CONCLUSION

The Court should reverse the Louisiana Supreme

Court’s judgment below.

Respectfully submitted,

MATTHEW C. CORCORAN

Counsel of Record

CHAD A. READLER

JONES DAY

325 John H. McConnell

Boulevard, Suite 600

P.O. Box 165017

Columbus, OH 43215.2673

614-469-3939

mecorcoran@jonesday.com

JULY 29, 2015