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

Supreme Court, US.

FILED

AUS 3 1 2015

OFFICE OF THE CLERK

No. 14-280

IN THE

Supreme Court of the United States

HENRY MONTGOMERY,

Petitioner,

vs.

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari

to the Louisiana Supreme Court

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Did Miller v. Alabama, 132 S. Ct. 2455 (2012)

adopt a new substantive rule that applies retroactively

to cases on collateral review?

2. Does this Court have jurisdiction to decide

whether the Supreme Court of Louisiana correctly

refused to give retroactive effect in this case to this

Court’s decision in Miller v. Alabama?

This brief amicus curiae will address only Question 1.

(i)

~

—

q | 7

“_ cles

ee a

TABLE OF CONTENTS

Questions presented i

Table of authorities iv

Interest of amicus curiae 1

Summary of facts and case 2

Summary of argument . - a 3

Argument .. 4

I. Murder is final; the sentence forit shouldbe 4

Il. The first Teague exception, properly understood,

is limited to rules that make the defendant

“actually innocent” within the meaning of

Sawyer v. Smith 9

A. Actual innocence in modern habeas corpus

law les bya “ = 9

B. Retroactivity .. 14

C. The first exception and sentencing 18

III. Teague should not be watered down to extend the

reach of a sharply divided decision Sc a

IV. Teague applies fully to noncapital sentencing and

should continue to 27

V_ Calling 17-year-old murderers “children” is

deeply offensive to many families of the victims

killed by them és 29

(ili)

iv

VI. To the extent Montgomery seeks mercy rather

than justice, his request should be

addressed to the clemency authority,

not the courts 31

Conclusion .. 32

TABLE OF AUTHORITIES

Cases

Beard v. Banks, 542 U.S. 406, 159 L. Ed. 2d 494,

124 S. Ct. 2504 (2004) 20, 21

Bell v. Thompson, 545 U.S. 794, 125 S. Ct. 2825,

162 L. Ed. 2d 693 (2005) ‘a 13, 14

Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440,

107 S. Ct. 2529 (1987) io 28

Brecht v. Abrahamson, 507 U. S. 619,

123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993) 6

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

73 S. Ct. 397 (1953) 9

Brumfield v. Cain, 576 U.S. _, 1385 S. Ct. 2269, 192

L. Ed. 2d 356 (2015) ci 5

Calderon v. Thompson, 523 U. S. 538, 118 S. Ct. 1489,

140 L. Ed. 2d 728 (1998) = 12,13

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

11458. Ct. 948 (1994) 27

Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,

97 S. Ct. 2861 (1977) < 25

Coleman v. Thompson, 501 U. S. 722,

115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) 6, 7

Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30,

110 S. Ct. 2715 (1990) 26

Desist v. United States, 394 U.S. 244,

22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969) 14, 15

Dugger v. Adams, 489 U.S. 401, 109 S. Ct. 1211,

103 L. Ed. 2d 435 (1989) ey

Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1,

102 S. Ct. 869 (1982) .. 21

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

102 S. Ct. 1558 (1982) 11

Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346,

92 S. Ct. 2726 (1972) 7

Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799,

83 S. Ct. 792 (1963) 16

Graham v. Collins, 506 U. S. 461, 113 S. Ct. 892,

122 L. Ed. 2d 260 (1993) ea

Graham v. Florida, 560 U. S. 48, 130 S. Ct. 2011,

176 L. Ed. 2d 825 (2010) 30

Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649,

107 S. Ct. 708 (1987) 6, 16, 22

Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678,

14 L. Ed. 2d 510 (1965) 15

Kaufman v. United States, 394 U.S. 217,

89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969) 10

Kennedy v. Louisiana, 554 U. S. 407, 128 S. Ct. 2641,

171 L. Ed. 2d 525 (2008) a §

Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616,

91 L. Ed. 2d 364 (1986) 10

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

98 S. Ct. 2954 (1978) 21

Mackey v. United States, 401 U. S. 667,

28 L. Ed. 2d 404, 91 S. Ct. 1160

(1971) eo 15, 16, 22, 24

Martinez v. Ryan, 566 U.S. __, 132 S. Ct. 1309, 182

L. Ed. 2d 272 (2012) “e 7

McCleskey v. Zant, 499 U. S. 467, 111 S. Ct. 1454,

113 L. Ed. 2d 517 (1991) ie 7 28

McQuiggin v. Perkins, 569 U.S. _, 133 S. Ct. 1924,

185 L. Ed. 2d 1019 (2013) PP 2

Miller v. Alabama, 567 U.S. _, 132 S. Ct. 2455,

183 L. Ed. 2d 407 (2012) 7 .. 24,29

Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, -

106 S. Ct. 2639 (1986) ee 11

Ohio Adult Parole Authority v. Woodard,

523 U.S. 272, 118 S. Ct. 1244, 140 L. Ed. 2d 387

(1998) 26

Palko v. Connecticut, 302 U.S. 319, 82 L. Ed. 288,

58 S. Ct. 149 (1937) 16

Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720,

111 S. Ct. 2597 (1991) 28

Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256,

109 S. Ct. 2934 (1989) 16, 18, 19, 20

Penry v. State, 178 S. W. 3d 782

(Tex. Crim. App. 2005) ¥ 19

People v. Edelbacher, 47 Cal. 3d 983,

254 Cal. Rptr. 586, 766 P. 2d 1 (1989) 28

viii

Roper v. Simmons, 543 U. S. 551, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005) 6

Saffle v. Parks, 494 U.S. 484, 108 L. Ed. 2d 415,

110 S. Ct. 1257 (1990) 20, 23

Santos v. Brown, 238 Cal. App. 4th 398,

189 Cal. Rptr. 3d 234 (2015) 26

Sawyer v. Whitley, 505 U. S. 333, 120 L. Ed. 2d 269,

112 S. Ct. 2514 (1992) “ 12

Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519,

159 L. Ed. 2d 442 (2004) 23

Smith v. Murray, 477 U. S. 527, 106 S. Ct. 2661,

91 L. Ed. 2d 434 (1986) 11

State ex rel. Montgomery v. State, 783 So. 2d 381

(La. 2001) 3

State v. Montgomery, 248 La. 713, 181 So. 2d 756

(1966) 2

State v. Montgomery, 257 La. 461, 242 So. 2d 818

(1970) 2,3

State v. Tate, 130 So. 3d 829 (La. 2013) 3

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

96 S. Ct. 3037 (1976) 6,9, 10

Summerlin v. Stewart, 341 F. 3d 1082

(CA9 2003) Ss 22

Sumner v. Shuman, 483 U. S. 66, 97 L. Ed. 2d 56,

107 S. Ct. 2716 (1987) 21

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

109 S. Ct. 1060 (1989) . 3, 6, 7, 16, 17, 22

Thigpen v. Thigpen, 926 F. 2d 1003

(CA11 1991) 21

Thompson v. Oklahoma, 487 U. S. 815,

101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988) 25

Toca v. Louisiana, U.S. __, 1355S. Ct. 1197,

191 L. Ed. 2d 149 (2015) 26

Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745,

9 L. Ed. 2d 770 (1963) ne 9

Tyler v. Cain, 533 U.S. 656, 150 L. Ed. 2d 632,

121 S. Ct. 2478 (2001) ms 17

Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594,

97 S. Ct. 2497 (1977) Ma - 6

Withrow v. Williams, 507 U. S. 680, 113 S. Ct. 1745,

123 L. Ed. 2d 407 (1993) - a 11

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) 21

United States Constitution

U.S. Const., Art. II, $2 25

United States Statutes

28 U.S. C. §2244 11

28 U.S.C.§2255 _.... 11

Rule of Court

Fed. Rule Evid. 801(d)(2) 17

State Constitutions

Cal. Const., Art. I, § 28 5, 23

La. Const., Art. IV, § 5(E) - 32

State Statute

Cal. Evid. Code § 1220 17

Secondary Sources

American Heritage Dictionary (3d ed. 1992) 29

Beloof, D., Cassell, P., & Twist, S., Victims in

Criminal Procedure (2d ed. 2006) 5, 28

Cartwright, G., Free to Kill, Texas Monthly

(Aug. 1992), http://www.texasmonthly.com/articles/

free-to-kill-2/ . . ae 7

Center on Media, Crime and Justice, D.C. Murders

Rise, Many Involving Recently Released Prisoners

(Aug. 14, 2015), http://www.thecrimereport.org/

news/crime-and-justice-news/2015-08-dc-murders

-released-felons 8

Douglas, A Suggested Minor Refinement of Miller v.

Alabama, 46 McGeorge L. Rev. 907 (2014) 25

Friendly, H., Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev.

142 (1970) 9, 10

Garner, Dictionary of Legal Usage (3ded.2011) 30

Human Rights Watch, The Rest of Their Lives: Life

Without Parole for Child Offenders in the United

States (2005) 30

xi

McEntee, Victims’ Kin Found Relief in Witnessing

Execution, Los Angeles Daily News (Jan. 15, 1996),

http://www.thefreelibrary.com/ ee

aspx?id =83900464

Pendergrass, A Victim’s Perspective: Justice for

Byron, [ACJ J. 79 (Summer 2008),

http://iacj.org/PDF/IACJJournallssue2.pdf

Simerman, J., George Toca, La. Inmate at Center

of Debate on Juvenile Life Sentences, to Go Free,

New Orleans Advocate (Jan. 30, 2015),

http://www.theneworleansadvocate.com/

news/1 a -louisiana-

inmate-at :

The Federalist No. 74 (C. Rossiter ed. 2003)

(A. Hamilton) Ke

Dept. of Justice, Office of Juvenile Justice and

Delinquency Prevention, Juvenile Arrests

(Dec. 2013)

Webster’s II New Collegiate Dictionary

(3d ed. 2005) is

5

26

32

30

29

IN THE

Supreme Court of the United States

HENRY MONTGOMERY,

Petitioner,

US.

STATE OF LOUISIANA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

non-profit California corporation organized to partici-

pate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

This case involves an attempt to expand the previ-

ously narrow and well understood “first exception” to

1. The parties have filed blanket consents to amicus briefs.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

the anti-retroactivity rule of Teague v. Lane. Such an

expansion would open up criminal judgments to reex-

amination long after the victims of crime had justifiably

believed that those judgments were final and that they

could close the book on a painful chapter of their lives.

It would do so in cases where there is no question of

innocence at all, neither innocence of the crime nor

“innocence of the penalty” as that term has been used

in this Court’s jurisprudence.

Such a result would be severely detrimental to the

interests of victims of crime that CJLF was formed to

protect.

SUMMARY OF FACTS AND CASE

On November 13, 1963, petitioner Henry Montgom-

ery, then age 17, murdered East Baton Rouge Deputy

Sheriff Charles Hurt in the performance of his duty.

See Brief for Petitioner 3, 6. The initial trial was

indeed conducted at a time of high local passion, as

petitioner says, but the Louisiana Supreme Court

completely cured that problem, reversing the initial

conviction and death sentence on that ground. See

State v. Montgomery, 248 La. 713, 728-729, 181 So. 2d

756, 762 (1966).

The retrial which produced the judgment being

attacked in this case was held over five years after the

crime, long after those passions had time to cool. State

v. Montgomery, 257 La. 461, 462, 242 So. 2d 818, 818

(1970). “(T]he jury returned a verdict of guilty without

capital punishment; and the defendant was given a life

sentence in the state penitentiary.”

Petitioner asserts that he “had no opportunity to

present any evidence—and certainly no evidence

regarding his age and relevant attributes—in mitigation

of his sentence.” Brief for Petitioner 3-4. His age

would have been obvious to the jury. Two pages later

petitioner describes testimony that was, in fact, given

on relevant attributes. Brief for Petitioner 6. Regard-

less of how they may have been instructed to limit the

use of this evidence, see ibid., it is obvious that the

second jury did consider it in mitigation, as they spared

him from the death penalty. A verdict of manslaughter

was also available if they believed that he “ ‘shot in

panic’” and “‘demonstrate[d] an “inability to plan

ahead.”’” See Brief for Petitioner 5-6.

The Louisiana Supreme Court affirmed on the

second appeal. State v. Montgomery, 257 La., at 468,

242 So. 2d, at 820. The same court summarily denied

a writ petition in 2001. From the citations given, it

appears to be a jury discrimination claim. See State ex

rel. Montgomery v. State, 783 So. 2d 381 (2001).

Following this Court’s decision in Miller v. Alabama,

Montgomery filed a new motion. The trial court denied

it on retroactivity grounds, and the Louisiana Supreme

Court affirmed, having resolved the issue earlier in

State v. Tate, 130 So. 3d 829 (2013), a decision applying

this Court’s precedents in Teague v. Lane, 489 U.S. 288

(1989), and its progeny.

SUMMARY OF ARGUMENT

Murder is a unique crime in its “severity and

irrevocability,” this Court recognized in Kennedy v.

Louisiana. The sentence for it should reach a point of

true finality as well. Absent a strong showing of actual

innocence, a judgment that has been affirmed through

the usual review process should not be reopened.

Innocence may be stretched to include “innocence of

the penalty,” meaning that the defendant was sen-

tenced to a penalty greater than the law allows given

the crime and his individual characteristics, but it

should be stretched no further.

The “first exception” to the anti-retroactivity rule of

Teague v. Lane is an “actual innocence” rule. It has, to

date, been reserved for rules that render the defendant

innocent of the crime or “innocent of the penalty.” It

has never been applied to a claim that the defendant

merely received a sentence within the legal range which

the sentencer might or might not have chosen if a

subsequently adopted rule had been in effect at the

time. Rules of this type have been regularly barred

from retroactive application by Teague, and they should

continue to be.

A proposal by an amicus that the niche of noncapital

Eighth Amendment sentencing claims should be

exempted from the rule of Teague should be rejected.

The compelling interests of victims of crime in the

finality of the sentences of the perpetrators—an inter-

est completely ignored by the amicus making the

proposal—calls for rejection of it.

Montgomery received a just sentence for the crime

he committed. He has had life and the opportunity to

find meaning in it; Deputy Hurt has not. What he

seeks is mercy, not justice. Mercy may very well be

appropriate in this case, but the request should be

addressed to the Governor and the Board of Pardons,

not to this Court.

ARGUMENT

I. Murder is final;

the sentence for it should be.

Victims are far too often forgotten in the weighing

of interests in criminal cases. “[C]rime victims have

legitimate interests in the outcomes of criminal cases as

well. Yet they will frequently run up against a

system that pays virtually no attention to their

concerns.” D. Beloof, P Cassell, & S. Twist, Victims in

Criminal Procedure 3 (2d ed. 2006).

That is certainly true of the “top side” briefs in this

case. Between the briefs submitted by petitioner and

supporting amici, there is much discussion of the

interests in finality, yet the interests of victims are

barely mentioned.

For the direct victim, murder is the ultimate final-

ity. Deputy Charles Hurt never breathed the air of

freedom again after November 13, 1963, because Henry

Montgomery chose to take his life. The families of

homicide victims are also victims of the crime, see, e.z.,

Cal. Const., Art. I, § 28(e), and for them also the crime

is completely final. Victims’ families are permanently

deprived of husbands, wives, fathers, mothers, brothers,

and sisters. See Brumfield v. Cain, 576 U.S. __, 135

S. Ct. 2269, 2287, n. 4, 192 L. Ed. 2d 356, 374, n. 4

(2015) (Thomas, J., dissenting) (letter from victim’s

daughter). Parents are permanently deprived of their

children and often of the grandchildren that will never

be born. Amid all the discussion about “second

chances,” we must never forget that for the victims

there will never be a second chance. “Victims and their

families have no such feeling [of hope] for we have no

hope of seeing, touching, talking, or sharing a moment

with our loved one again.” Pendergrass, A Victim’s

Perspective: Justice for Byron, [ACJ J. 79, 86 (Summer

2008), http://iacj.org/PDF/1ACJJournallssue2.pdf (all

Internet materials as visited August 27, 2015).

One comfort that our criminal justice system can

offer is finality. Nothing can bring back the deceased

victim, but the knowledge that the perpetrator of the

atrocity will not escape just punishment does provide a

sense of relief. See, e.g., McEntee, Victims’ Kin Found

Relief in Witnessing Execution, Los Angeles Daily News

(Jan. 15, 1996), http://www.thefreelibrary.com/_/print/

PrintArticle.aspx?id =83900464. Perfect certainty is

achievable only with an executed death sentence, but a

sentence of life without parole is as close as we can

come now with under-18 murderers, and when this

Court barred the death penalty in such cases it implic-

itly promised that this finality would be available. See

Roper v. Simmons, 543 U.S. 551, 572 (2005).

Once the trial is over and the sentence is imposed,

our system should assure the victims that the sentence

will be carried out absent the most compelling reasons.

Although our concern for justice for the defendant has

prompted us to make multiple reviews of the conviction

and sentence available, the bar for a reason to be

deemed sufficiently compelling to set aside the sentence

should be raised substantially higher at each review.

Establishing those higher standards for subsequent

reviews has been a major part of this Court’s jurispru-

dence from the mid-1970s to the present. The claim

with the least relation to the justice of the individual

case was banished from relitigation on habeas corpus in

Stone v. Powell, 428 U.S. 465, 494-495 (1976). Differ-

ent standards of retroactivity were established for

direct review and habeas corpus in Griffith v. Kentucky,

479 U.S. 314, 322-323 (1987), and Teague v. Lane, 489

U. S. 288, 310 (1989) (plurality opinion). A less strin-

gent standard for harmless error for constitutional

claims on habeas corpus was established in Brecht v.

Abrahamson, 507 U. S. 619, 638 (1993). The practice

of using later rounds of review to bring up claims that

could have been raised earlier was curtailed in Wain-

wright v. Sykes, 433 U. S. 72, 87 (1977), Coleman v.

Thompson, 501 U. S. 722, 750 (1991),” and McCleskey

v. Zant, 499 U.S. 467, 493 (1991).

These changes in collateral review were often based

on the recognition that earlier cases allowing a com-

plete “do over” on habeas corpus or even on a succes-

sive habeas petition had failed to give proper weight to

the interest in finality. See Teague, 489 U. S., at 305-

310; Coleman, 501 U. S., at 750; see also McCleskey,

499 U. S., at 495 (acknowledging difference from prior

standard).

This structure, so carefully crafted over so many

years, is now in danger. The promise of finality that

this Court made to the families of victims of juvenile

murderers in Roper is now in danger. Victims’ families

who endured the trial, appeal, state collateral review,

and federal habeas and who believed with good reason

that it was finally, completely over are now faced with

the possibility of receiving a life sentence of their own,

repeatedly needing to go back to oppose parole and thus

relive the old, painful memories.

Even worse, they may see the perpetrator released

after an inadequate time in prison, and for many

murders, including many by 17-year-olds, anything less

than true life is inadequate. In some cases the killer

may kill again. The retroactivity of Furman v. Georgia,

408 U.S. 238 (1972) did, in fact, kill innocent people.

See, e.g., G. Cartwright, Free to Kill, Texas Monthly

(Aug. 1992), http://www.texasmonthly.com/articles/

free-to-kill-2/ (Kenneth McDuff). Notwithstanding the

unsupported claims that resentencing will be more

“accurate,” see Brief for Douglas Berman as Amicus

2. An exception to the Coleman rule was created in Martinez v.

Ryan, 566 U.S. _ 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012).

Curiae 3,° there is no reason for confidence that the

authorities are getting better at deciding whom to

release. See, e.g., Center on Media, Crime and Justice,

D.C. Murders Rise, Many Involving Recently Released

Prisoners (Aug. 14, 2015), http://www.thecrime

report.org/news/crime-and-justice-news/2015-08-dc-

murders-released-felons.

Murder is unique in its “ ‘severity and irrevocabili-

ty.’” Kennedy v. Louisiana, 554 U. S. 407, 438 (2008).

Murder—at least if we put to one side accomplice

liability and the felony-murder rule—is a special crime

in that no punishment we have is disproportionate to

the crime. Even death by lethal injection, i.e., under

sedation, is far less than the excruciatingly painful

deaths that nearly all murderers have inflicted on their

victims. When we choose a lesser punishment, that is

mercy, not justice. Mercy is often the right thing to do,

but our system of justice cannot impose an unjust

punishment on a person who intentionally and unlaw-

fully kills another with malice aforethought. The worst

we have is no more than he deserves.

Given the unique severity and permanence of the

crime of murder, and given that the maximum punish-

ment is much less than the perpetrator inflicted on the

victim, finality should have special weight in murder

cases. Only exceptionally compelling circumstances

justify reopening a judgment for murder. No such

circumstances are present in this case.

3. In addition, because the single most important factor in the

punishment a criminal deserves is the specifics of the crime he

chose to commit, the unavailability of witnesses to old cases is

just as much a problem in resentencing as it is in retrial.

Il. The first Teague exception,

properly understood, is limited to rules that

make the defendant “actually innocent” within

the meaning of Sawyer v. Smith.

A. Actual Innocence in Modern Habeas Corpus Law.

Teague v. Lane was not decided in a vacuum. It was

part of a body of jurisprudence that recognized that

prior cases had gone too far in reopening final criminal

cases to successive attacks and had placed too little

value on finality. See supra, at 6. An argument could

be made that in the “massive resistance” era of the

1950s and 1960s, intrusive federal court reexamination

of state criminal cases was necessary, especially in cases

such as Brown v. Allen, 344 U.S. 443 (1953), involving

claims of racial discrimination. But by the mid-1970s

that era was behind us, and it was time to retake the

lost ground of finality. See Stone v. Powell, 428 U. S.

465, 493, n. 35 (1976).

The bugle call for this cavalry charge was Judge

Henry Friendly’s famous article with its equally famous

rhetorical question, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142

(1970). The answer at the time was that, legally,

innocence was indeed irrelevant. For example, newly

discovered evidence of a federal procedural claim was a

reason for a federal court to reopen a case fully adjudi-

cated by the state court—with no requirement that it

cast any doubt at all on the petitioner’s guilt—but new

evidence that “merely” showed that the defendant was

an innocent man wrongly convicted was not. See

Townsend v. Sain, 372 U. S. 293, 317 (1963).*

4. The latter point rarely came up, though, because in nearly all

cases there was no doubt of the petitioner’s guilt. See Friendly,

supra, at 145.

10

Although that was the law’s answer at the time, it

was the wrong answer. Actual innocence should not

only matter, it should be central. Judge Friendly

proposed filtering petitions for collateral review of

criminal judgments with an additional requirement:

“(T]he petitioner for collateral attack must show a

fair probability that, in light of all the evidence,

including that alleged to have been illegally admit-

ted (but with due regard to any unreliability of it)

and evidence tenably claimed to have been wrongly

excluded or to have become available only after the

trial, the trier of the facts would have entertained a

reasonable doubt of his guilt.” Friendly, supra, at

160; see also Kaufman v. United States, 394 U. S.

217, 235 (1969) (Black, J., dissenting).

The Friendly Filter never became law as a blanket

requirement for all collateral attacks, although a

plurality of this Court did adopt it for successive

petitions in Kuhlmann v. Wilson, 477 U. S. 436, 454

(1986). However, the thesis that innocence is not just

relevant but important shows through in the rules and

exceptions to them that have been adopted. As the

Court sought to enhance finality with strengthened

limits on the misuse of habeas corpus as just another

appeal, it also sought to keep the writ available to

correct actual injustice. The Teague rule and its

exceptions are consistent with the developments in

other areas of the law of habeas corpus. A summary of

these developments is in order before returning to

retroactivity.

Fourth Amendment exclusionary rule claims were

excluded from federal habeas corpus cases altogether

because they virtually never raise a doubt of guilt. See

Stone v. Powell, 428 U.S., at 490. A proposal to extend

Stone to Miranda claims was narrowly rejected, in part

because the majority believed such claims can be

1]

relevant to actual innocence. See Withrow v. Williams,

507 U.S. 680, 692 (1993).

The procedural default rule with its cause-and-

prejudice exception was crafted in the belief that

“victims of a fundamental miscarriage of justice will

meet the cause-and-prejudice standard.” Engle v.

Isaac, 456 U. S. 107, 135 (1982). Yet to cover the

possibility that a rare case might slip through the

cracks, the Court established a separate exception for

probable innocence alone. See Murray v. Carrier, 477

U. S. 478, 496 (1986). When the Court adopted the

cause-and-prejudice rule for abuse-of-the-writ cases, it

extended the actual innocence exception as well. See

McCleskey v. Zant, 499 U. S. 467, 494-495 (1991).

Congress also kept actual innocence, albeit modified in

scope, as an element of the statutory abusive petition

rule in Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA). See 28 U. S. C. §2244(b)(2)(B)(ii).°

On the same day that the Court established actual

innocence as an independent exception to the proce-

dural default rule in Murray v. Carrier, it also wrestled

with the application of that exception to a sentencing

claim in Smith v. Murray, 477 U.S. 527, 537 (1986).

“We acknowledge that the concept of ‘actual,’ as

distinct from ‘legal,’ innocence does not translate easily

into the context of an alleged error at the sentencing

phase of a trial on a capital offense.” The Court did not

5. The statutory definition is limited to innocence “of the

underlying offense.” This paragraph is for claims previously

designated “abusive,” i.e., those not presented in a prior habeas

petition. Congress took a tougher stand with repeated

presentation of a previously rejected claim, previously

designated “successive.” For state prisoners, it supplanted

Kuhlmann, supra, with a flat prohibition. See § 2244(b)(1).

For federal prisoners, though, actual innocence remains

relevant for both kinds of claims. See § 2255(h)(1).

12

establish a clear definition of “innocence of the penalty”

in Smith or in Dugger v. Adams, 489 U.S. 401 (1989),

a decision handed down in the same session as Teague.

The Court in that case did, though, squarely reject a

“miscarriage of justice” argument very similar to those

being made in the present case.

“Demonstrating that an error is by its nature the

kind of error that might have affected the accuracy

of a death sentence is far from demonstrating that

an individual defendant probably is ‘actually inno-

cent’ of the sentence he or she received. The ap-

proach taken by the dissent would turn the case in

which an error results in a fundamental miscarriage

of justice, the “extraordinary case,’ Carrier, supra, at

496, into an all too ordinary one.” I/d., at 412, n. 6.

The clear definition of “actually innocent,” or,

equivalently, of “miscarriage of justice,” came in

Sawyer v. Whitley, 505 U. S. 333 (1992). The Court

noted that there were three options for defining actual

innocence. See id., at 343. It might be limited to guilt

of the offense only, it might include eligibility for the

punishment as well, or it might encompass a wide-

ranging consideration of the aggravating and mitigating

factors in the case. The Court, by a solid majority,

chose the middle ground, holding “that the ‘actual

innocence’ requirement must focus on those elements

that render a defendant eligible for the death penalty,

and not on additional mitigating evidence that was

prevented from being introduced as a result of a claim-

ed constitutional violation.” Id., at 347.

In the years since, the Court has looked to the

question of whether a petition claimed a miscarriage of

justice in other contexts outside the procedural default

and successive petition rules. In Calderon v. Thomp-

son, 523 U.S. 538 (1998), the Court was presented with

the novel question of whether it was an abuse of

13

discretion for a Court of Appeals to recall its mandate

in order to reconsider its decision after this Court had

denied certiorari. The Court rejected an argument that

AEDPA controlled the case. See id., at 554. However,

this new issue had to be decided in accordance with the

principles of the finality-enhancing cases discussed

above, see id., at 554-556, and in accordance with the

spirit of AEDPA, even if the letter did not govern the

situation. Based on this analysis, the mandate could

only be recalled “to avoid a miscarriage of justice as

defined by our habeas jurisprudence.” Id., at 558

(emphasis added). “The miscarriage of justice standard

is altogether consistent with AEDPA’s central

concern that the merits of concluded criminal proceed-

ings not be revisited in the absence of a strong showing

of actual innocence.” Ibid. (emphasis added). This,

says the Calderon Court, is an overall principle broadly

applicable to habeas corpus, not narrowly confined to a

few particular rules.* This Court further broadened the

miscarriage of justice principle and emphasized its

importance in balancing finality with the interests of

justice in McQuiggin v. Perkins, 569U.S. _, 1338S. Ct.

1924, 1931-1932, 185 L. Ed. 2d 1019, 1030-1032 (2013).

Bell v. Thompson, 545 U. S. 794, 809 (2005), like

Calderon, involved an “extraordinary departure from

standard appellate procedures,” and again the absence

of any substantial claim of a “miscarriage of justice” as

defined in Sawyer and Calderon was dispositive. As in

Calderon, the Court of Appeals had reopened the case

long after this Court’s disposition would normally have

meant the case was final. See id., at 800-801.

6. The present case is, of course, not a federal habeas corpus

proceeding and AEDPA could not directly apply. However, it

is a federal review of a long-concluded criminal case, and the

concerns underlying AEPDA apply here, as they did in

Calderon, though the statute itself does not.

14

“The dissent suggests that failing to take account of

the [psychiatric] evidence would result in a ‘miscar-

riage of justice,’ post, at 814-815, 828, but the

dissent uses that phrase in a way that is inconsis-

tent with our precedents. In Sawyer v. Whitley, 505

U. S., at 345-347, this Court held that additional

mitigating evidence could not meet the miscarriage

of justice standard. Only evidence that affects a

defendant’s eligibility for the death penalty—which

the [psychiatric] evidence is not—can support a

miscarriage of *ustice claim in the capital sentencing

context. Jd., at 347; Calderon, 523 U. S., at

559-560.” Id., at 812.

Aconsistent theme runs through Sawyer, Calderon,

and Bell. The possibility that a sentence might have

been “inaccurate” in the sense that the sentencer might

have chosen a penalty less than the maximum for the

crime was not a miscarriage of justice sufficient to make

an exception and reopen an otherwise completed case.

Any sentence within the legal range for the crime the

defendant chose to commit is per se on a lower order of

concern than the conviction of an innocent person or

the imposition of a sentence greater than the maximum

allowed by law.

B. Retroactivity.

With this “big picture” in mind, we return to the

evolution of the current doctrine of retroactivity. In his

dissent in Desist v. United States, 394 U. S. 244, 258

(1969), Justice Harlan proposed that all new rules apply

retroactively on direct review. For habeas corpus, this

first draft of his proposal said,

“First, [habeas corpus] seeks to assure that no man

has been incarcerated under a procedure which

creates an impermissibly large risk that the inno-

cent will be convicted. It follows from this that all

15

‘new’ constitutional rules which significantly im-

prove the pre-existing fact-finding procedures are to

be retroactively applied on habeas. In [other]

cases, the habeas court need only apply the constitu-

tional standards that prevailed at the time the

original proceedings took place.” Jd., at 262-263.

Two years later, Justice Harlan refined his position

in his concurring and dissenting opinion in Mackey v.

United States, 401 U. S. 667 (1971). He noted that the

Fourteenth Amendment has always required essential

fairness and that the correctness of new rules is often

merely a matter of opinion. See id., at 689-690 (quoting

Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J.,

concurring in the judgment)). Implicit in this discus-

sion is a recognition that the further along we go in the

development of constitutional criminal law, the less

fundamental and the less essential the rules remaining

to be made become. If a rule were truly essential to

fundamental! fairness and justice, it would have been

discovered before 1971 and certainly long before 2012.

Most importantly for this case, Justice Harlan

revised his proposed exceptions. The first exception

would be for “rules that place, as a matter of

constitutional interpretation, certain kinds of primary,

private individual conduct beyond the power of the

criminal law-making authority to proscribe. ” /d.,

at 692. He was particularly thinking of the “substan-

tive due process” cases. See ibid. This is an innocence-

protection exception. If a married couple were actually

in jail for violating an “uncommonly silly law” against

using contraceptives, see Griswold v. Connecticut, 381

U. S. 479, 527 (1965) (Stewart, J., dissenting), the

unconstitutionality of that law, see id., at 485 (opinion

of the Court) would render them actually innocent of

any crime.

16

For the second exception, Justice Harlan reconsid-

ered his earlier proposal and proposed instead that a

new rule of procedure be retroactive only if it met the

standard of Palko v. Connecticut, 302 U.S. 319, 325

(1937), “implicit in the concept of ordered liberty.”

Mackey, 401 U. S., at 693. This was the standard for

whether a rule was required in state proceedings by the

Due Process Clause of the Fourteenth Amendment

before that clause was thought to incorporate the bulk

of the provisions of the first eight amendments. See

Palko, supra, at 324-327. Again, this strongly implies

that few, if any, qualifying new rules remained to be

made in 1971. Justice Harlan could only identify one

qualifying rule anywhere close to recent, made eight

years earlier. He believed that the rule of Gideon v.

Wainwright, 372 U. S. 335 (1963) could have and

should have been created under the Palko test rather

than incorporating the Sixth Amendment. See Gideon,

supra, at 352 (concurrence); Mackey, supra, at 694. By

going back to Palko, though, Justice Harlan was, in

part, letting go of the focus on innocence. See Mackey,

supra, at 694.

The first half of Justice Harlan’s thesis was adopted

by this Court in Griffith v. Kentucky, 479 U. S. 314,

321-323 (1987), and a four-Justice plurality adopted the

second half in Teague v. Lane, 489 U. S. 288, 310

(1989), with modifications. Justice White, the fifth vote

for a majority for the rest of Justice O’Connor’s opin-

ion, wrote a grumbling concurrence in the result saying

that the plurality opinion was “an acceptable applica-

tion in collateral review” of a line of cases he did not

agree with but had “insufficient reason to continue to

object to.” See id., at 317. Four months later, he joined

in the holding that Teague applied in a majority opinion

in Penry v. Lynaugh, 492 U.S. 302, 313-314 (1989), and

17

the Teague plurality has been treated as the definitive

word ever since.’

The present case involves only the exceptions to the

Teague rule, as no one doubts that Miller v. Alabama is

a new rule. Teague simply restated the first exception

by quoting Justice Harlan in Mackey. No discussion

was required, as Teague’s claim obviously did not

qualify by any definition of this exception.®

For the second exception, Teague returned to the

“actual innocence” focus that Justice Harlan had

advanced in Desist but retreated from at least partially

in Mackey. “(Since Mackey was decided, our cases have

moved in the direction of reaffirming the relevance of

the likely accuracy of convictions in determining the

available scope of habeas review.” Teague, 489 U.S., at

313 (citing Kuhlmann, Murray v. Carrier, and Stone).

To qualify under this exception, a new rule would have

to be both fundamental and one “without which the

likelihood of an accurate conviction is seriously dimin-

ished.” Ibid. In 1989, it was “unlikely that many such

components of basic due process have yet to emerge.”

Ibid. (emphasis added). As time went on, “many”

would change to “any.” See Tyler v. Cain, 533 U. S.

656, 667, n. 7 (2001).

Both exceptions, then, are “actual innocence”

exceptions. The first one, from the beginning, operated

in cases where the new rule by its own force renders the

7. All further cites to Teague in this brief are to the plurality

opinion.

8. Whether this is an exception to the rule or a limit on the scope

of the rule is purely academic, as we get to the same result

either way. It is reminiscent of the old debate over whether a

statement of a party opponent is an exception to the hearsay

rule or not hearsay. Compare Fed. Rule Evid. 801(d)(2), with

Cal. Evid. Code § 1220.

18

petitioner innocent. See supra, at 15. The second

provides relief from procedures so deeply, fundamen-

tally flawed that wholesale convictions of innocent

people are likely. At least it would in theory, if any

such procedure had somehow escaped the intense

constitutional scrutiny of criminal procedure that had

already been going on for nearly three decades when

Teague was decided a quarter century ago.

C. The First Exception and Sentencing.

In Part IV-A of Penry v. Lynaugh, a unanimous

Court addressed the question of whether, if a categori-

cal rule against “execution of mentally retarded per-

sons”” were to be created, it would be subject to the

Teague rule. As proposed in Mackey and adopted in

Teague, the exception was for rules that rendered

conduct innocent, i.e., “‘“beyond the power of the

criminal! law-making authority to proscribe.”’” Penry,

492 U. S., at 329 (quoting Teague, quoting Mackey).

That certainly did not apply to Penry’s conduct—rape

and murder aggravated by two prior rapes. To extend

the exception to exempt mentally retarded persons

would require an extension of the exception.

The Court had no difficulty making the required

extension, though. It is the only holding in the case

that was not the subject of a sharp division. The

possibility that a sentence could be a fundamental

miscarriage of justice had already been recognized in

Smith and Dugger, and though the precise definition

had not been spelled out yet, it had been established

that a mere possibility of an “inaccurate” sentence was

not sufficient. See supra, at 12. The Court noted that

9. “Mentally retarded” was the preferred term at the time,

endorsed by advocates for the retarded and used by the Penry

Court.

19

“Justice Harlan did speak in terms of substantive

constitutional guarantees accorded by the Constitution,

regardless of the procedure followed.” Penry, 492 U.S.,

at 329 (emphasis added). “In our view, a new rule

placing a certain class of individuals beyond the State’s

power to punish by death is analogous to a new rule

placing certain conduct beyond the State’s power to

punish at all.” /d., at 330. (emphasis added).

These passages suggest a straightforward test for

whether a rule comes within the exception. Given the

facts as found, undisputed, or assumed for the purpose

of the appeal,”° is it beyond the power of the state to

impose this penalty on this defendant for this crime,

“regardless of the procedure followed”? Otherwise, if

this penalty can be imposed if proper procedures are

followed, then the rule does not qualify for the excep-

tion.

This point is reinforced by another quote from

Mackey, “ “There is little societal interest in permitting

the criminal process to rest at a point where it ought

properly never to repose.’” Penry, 492 U. S., at 330.

The criminal process comes to rest at the final judg-

ment of the court—the conviction of a crime and the

sentence imposed for it. The location of that point is

clearly and cleanly distinguishable from the path taken

to reach that point. If the new rule makes resting at

that point illegal per se on the facts of the case without

regard to how that point was reached, it is a first-

exception new rule.

Other aspects of the Teague rule have been the

subject of sharp disagreement within this Court, but

the scope of the first exception has not. The unanimity

10. Penry was not mentally retarded, a jury eventually found. See

Penry v. State, 178 S. W. 3d 782, 785 (Tex. Crim. App. 2005).

20

of Part IV-A of Penry has continued to the present on

this aspect of rule as clearly and crisply defined in that

Case.

A number of post-Teague cases, including Penry,

have involved claims like the present one in which the

claimed error involved the inability of the sentencer to

choose a lesser sentence based on mitigating circum-

stances. In Penry itself, while retardation as a categori-

cal exemption would have been a first-exception rule,

retardation as a mitigating circumstance that the

sentencer must be allowed to consider was not. The

majority held that the Texas system was inadequate in

this regard and further held that this rule could be

applied to Penry on the theory that it was not new. 492

U.S., at 318-319. The latter was a dubious conclusion.

See id., at 352-353 (Scalia, J., dissenting, joined by

Rehnquist, C. J. and White and Kennedy, JJ.). No

member of the Court expressed a view that the rule

came within the first exception.

Fortunately, the report that Teague had been

“gutted,” see id., at 353, proved to be exaggerated.

Thereafter, the Court repeatedly applied Teague to

preclude arguments that the sentencer had been unable

to grant a lesser sentence based on some arguably

precluded consideration, dismissing out of hand any

possibility that the first exception applied. While these

decisions were often divided on other grounds, not once

did a single Justice assert the first exception as a reason

for disagreement. See Saffle v. Parks, 494 U. S. 484,

486, 494-495 (1990) (sympathy); id., at 507 (Brennan,

J., dissenting) (second exception); Graham v. Collins,

506 U.S. 461, 463, 477 (1993) (Texas special issues and

background mitigation, first exception plainly inapplica-

ble); id., at 511-512 (Souter, J., dissenting) (not new,

not distinguishable from Penry); Beard v. Banks, 542

U. S. 406, 408, 417 (2004) (mitigating circumstance

21

found by less than all jurors, “no argument”); id., at

422 (Stevens, J., dissenting) (not new).

Lockett v. Ohio, 438 U. S. 586, 597-605 (1978)

(plurality opinion) was built on the foundation of

Woodson v. North Carolina, 428 U. S. 280 (1976), and

its prohibition of mandatory sentencing in capital cases.

The Ohio statute was effectively mandatory as to

Lockett because it did not allow consideration of her

substantial mitigating circumstances of “her character,

prior record, age, lack of specific intent to cause death,

and her relatively minor part in the crime.” Lockett,

supra, at 597. The rules and proposed rules in Penry

(jury instruction part), Saffle, Graham, and Beard are

all derived from Lockett and therefore belong to the

branch of capital jurisprudence begun with Woodson.

Yet it has been clear beyond dispute the entire time

that these rules are not exempt from Teague’s prohibi-

tion of retroactivity under the first exception, or, stated

differently, that they are rules of criminal procedure

within the scope of Teague and not rules of substantive

law outside its scope. See Beard, 542 U.S., at 411, n. 3.

Petitioner notes that the early cases in this line,

Woodson, Lockett, and Eddings v. Oklahoma, 455 U. S.

104 (1982), were applied retroactively in a number of

Court of Appeals decisions, all of which predate Teague.

Brief for Petitioner 26-27, and n. 12. He then asserts

baldly, “The rationale for holding these cases retroac-

tive is similarly applicable here.” Obviously not. The

rule governing retroactivity at the time of these cases

was the one Teague overruled and replaced, having

found it inadequate.

Petitioner cites Thigpen v. Thigpen, 926 F. 2d 1003,

1005 (CA11 1991), a case that postdates Teague, as

applying Sumner v. Shuman, 483 U. S. 66 (1987),

retroactively. It does not. In that case the District

Court granted penalty relief on Skuman grounds but

22

upheld the conviction. Petitioner appealed, but the

state did not cross-appeal. Shuman and its retroactiv-

ity were not at issue.

Under the jurisprudence of Teague as understood to

date, Miller v. Alabama is subject to the Teague bar

against retroactivity on habeas corpus.

Ill. Teague should not be watered down to

extend the reach of a sharply divided decision.

Part II of this brief refutes the argument that the

“first exception” or the substantive/procedural distinc-

tion as understood to date supports applying Miller v.

Alabama retroactively to cases already final at the time

it was decided. The Solicitor General as amicus sug-

gests that the existing exception be widened in order to

do what current law forbids. This suggestion should be

rejected.

Teague v. Lane, 489 U.S. 288 (1989), and Griffith v.

Kentucky, 479 U. S. 314 (1987), together formed a

landmark reworking of retroactivity law, replacing a

prior doctrine that had become “almost as difficult to

follow as the tracks made by a beast of prey in search of

its intended victim.” Mackey v. United States, 401 U.S.

667, 676 (1971) (Harlan, J., concurring and dissenting).

In place of the rule-by-rule adjudication based on vague

factors, Griffith/Teague established a more principled

system in which new rules would apply retroactively on

direct review in all cases and would not apply retroac-

tively in habeas corpus in nearly all cases.

The primary exception to the Teague bar (or exclu-

sion from its scope) was crisply defined and has pre-

sented little difficulty to date. Other than the Ninth

Circuit’s strange decision in Summerlin v. Stewart, 341

F. 3d 1082 (2003) (en banc), which this Court reversed

23

without dissent on the “first exception” point in

Schriro v. Summerlin, 542 U. S. 348 (2004), the rule

has been easily and correctly applied to those cases and

only those cases where the new rule renders the defen-

dant innocent of the crime or innocent of the penalty.

The second exception is dead and awaiting only its

official burial. It is for cases with the “primacy and

centrality of the rule adopted in Gideon.” Saffle, 494

U. S., at 495. This Court has not found a single such

rule since Teague and has acknowledged it is not likely

to ever find one. See supra, at 17.

There is no need to weaken this structure by widen-

ing existing exceptions or creating new ones. This

Court has repeatedly recognized that a sentence within

the allowable range for the crime the defendant actually

committed is not a miscarriage of justice warranting a

departure from the regular rules that have been created

to protect the interest in finality. The interest in

finality is not limited to the state, as every one of the

“top side” briefs to address the issue assumes, but it is

also a powerful interest of the victims of crime, includ-

ing the families of homicide victims. The people of

California have elevated this interest to a constitutional

right:

“Victims of crime are entitled to finality in their

criminal cases. Lengthy appeals and other post-

judgment proceedings that challenge criminal

convictions, frequent and difficult parole hearings

that threaten to release criminal offenders, and the

ongoing threat that the sentences of criminal wrong-

doers will be reduced, prolong the suffering of crime

victims for many years after the crimes themselves

have been perpetrated. This prolonged suffering of

crime victims and their families must come to an

end.” Cal. Const., Art. I, §28(a)(6) (emphasis

added).

24

Retroactive application of Miller would inflict upon

the families of the victims in every case of murder

committed by a 17-year-old or younger—regardless of

how heinous the crime and regardless of how close to

the magic 18th birthday the perpetrator was—the pain

of reopening old wounds and the possibility that the

murderer may receive a reduced sentence and subse-

quently be released because the authorities are no

longer willing to spend the resources to mount an

effective opposition.

One reason for not giving a decision a disruptive,

retroactive reach is simply the judicial humility of

understanding that the rules created in the decisions of

a court are frequently matters on which reasonable

people may differ. “ ‘| RJeversal by a higher court is not

proof that justice is thereby better done. There is no

doubt that if there were a super-Supreme Court, a

substantial proportion of our reversals of state courts

would also be reversed. We are not final because we are

infallible, but we are infallible only because we are

final.’” Mackey v. United States, 401 U. S. 667, 690

(1971) (opinion of Harlan, J.) (quoting Brown v. Allen,

344 U. S. 443, 540 (1953) (Jackson, J., concurring)).

This is particularly true when this Court is sharply

divided, and the decision could have easily gone the

other way if it had come before the Court at a time

when its composition differed only slightly. The more

divided the Court is, the less likely the resulting rule is

to be a fundamental one that warrants reopening

decades-old judgments.

For the cases that seem to be the strongest ones for

reexamination, there may be other remedies available.

Justice Breyer’s concurrence in Miller v. Alabama, 567

U.S. _, 132 S. Ct. 2455, 2476-2477, 183 L.Ed.2d 407,

431-432 (2012), would hold that the limitations on

sentencing of adult felony-murder accomplices to death

25

also apply to sentencing juveniles to life without parole.

Such a limitation, if adopted, would be a substantive

one applying retroactively. A substantive cutoff for

very young defendants is also a possibility to be consid-

ered. See Thompson v. Oklahoma, 487 U. S. 815, 838

(1988) (plurality opinion) (setting a cutoff of 16 in

capital cases)."*

If we put the felony-murder cases to one side, none

of the remaining cases present the kind of miscarriage

of justice that calls for reopening closed cases. As

discussed in Part I, supra, murder is unique in that a

murderer cannot receive a sentence that is dispropor-

tionate to the harm he inflicted. For juvenile murder-

ers exempt from the death penalty, they must necessar-

ily receive a penalty that is less than proportionate.

This is Coker v. Georgia, 433 U. S. 584, 598 (1977)

(plurality opinion), in reverse. Just as death was

necessarily more than a proportionate punishment for

a rapist who does not kill, so life in prison is necessarily

less than proportionate for a murderer who does kill.

“Life is over for the victim of the murderer; for the [life-

sentenced murderer], life may not be nearly so happy as

it was, but it is not over and normally is not beyond

repair.” A life-sentenced murderer, though confined in

prison with no eligibility for parole, may yet find a

meaningful life. A murder victim cannot.

A call to forgive and relent for a person convicted of

murder at 17 or younger is a call for mercy, not justice.

The United States Constitution does provide for an

unlimited power to dispense mercy, but it is vested in

the executive branch, not the judiciary, see U.S. Const.,

11. A strong argument har been made that 16 would have been a

better place to draw the line in Miller itself. See Douglas, A

Suggested Minor Refinement of Miller v. Alabama, 46

McGeorge L. Rev. 907 (2014).

26

Art. II, §2, and that is generally true throughout the

country. See, Ohio Adult Parole Authority v. Woodard,

523 U.S. 272, 284-285 (1998) (plurality opinion).

Executive action is a genuine avenue for relief and

not an empty one as it is so often portrayed. Sentences

can be commuted, and prosecutors can stipulate

to relief. The Teague bar can be waived. See Collins

v. Youngblood, 497 U.S. 37, 41 (1990). A case present-

ing the same question as the present case, taken up by

this Court in the previous term, presented a substantial

case for mercy, but it was mooted when the prosecutor

agreed to relief. See Toca v. Louisiana, U.S. _, 1365

S. Ct. 1197, 191 L. Ed. 2d 149 (2015); J. Simerman,

George Toca, La. Inmate at Center of Debate on Juve-

nile Life Sentences, to Go Free, The New Orleans

Advocate (Jan. 30, 2015), http://www.

theneworleansadvocate.com/news/11462053-123/george-

toca-louisiana-inmate-at. While executive authority in

this area can sometimes be abused, see Santos v.

Brown, 238 Cal. App. 4th 398, 404 (2015), the actions of

executive officers answerable to the people through

contested elections are, on the whole, less of a threat to

the interests of victims than the wholesale reopening of

cases for judicial reconsideration.

The Solicitor General proposes to distort the previ-

ously straightforward law of the first Teague exception

by expanding it to include new rules of law that extend

the sentencer’s options downward. There is no differ-

ence, in terms of the existence of a “fundamental

miscarriage of justice” between a lower sentence being

out of reach because of statutory floor and that same

sentence being out of reach because the sentencer was

unable to consider the circumstances that would

warrant it. Either way, the habeas petitioner is claim-

ing that the end point of the process is a sentence that

is allowed by law for the crime he committed yet higher

27

than the one he might (or might not) have received if

the new rule had been in effect at the time of his trial.

Claims of the second type have repeatedly been held to

be obviously not within the scope of either exception

throughout the history of the Teague rule. See supra,

at 21. Claims of the first type have no greater claim to

be miscarriages of justice of the kind that motivated the

creation of that exception.

The Solicitor General’s proposal to expand the first

Teague exception should be rejected. The exception, or

the exclusion from the scope of the Teague rule, should

be retained as it was stated in Penry v. Lynaugh and

expanded no further.

IV. Teague applies fully to

noncapital sentencing and should continue to.

Most of the amici supporting petitioner assert that

Miller v. Alabama should qualify for an exemption from

the rule of Teague v. Lane, but amicus Professor

Douglas Berman makes the astonishing proposal of

exempting noncapital Eighth Amendment sentencing

claims from the Teague rule altogether, substituting a

test so loose that retroactivity would be the norm

rather than the exception. See Brief of Professor

Douglas A. Berman as Amicus Curiae 6-13 (Berman

Brief).

Professor Berman asserts that Caspari v. Bohlen,

510 U. S. 383 (1994), “assumed, without deciding, that

Teague applied to a Fifth Amendment rule concerning

noncapital sentencing.” Berman Brief 6, n. 2. Caspari

deserves more weight than that. The case involved a

noncapital sentencing issue, and this Court stated the

Teague rule and proceeded to apply it. The Court refers

to a “conviction and sentence becom{[ing} final for

purposes of retroactivity analysis,” Caspari, at 390,

28

indicating an understanding that conviction and

sentence were governed by the same analysis.

Together with the application of Teague to Eighth

Amendment claims in numerous capital sentencing

cases, this leaves Professor Berman arguing that even

though Teague applies to Eighth Amendment capital

sentencing cases and even though it applies to noncapi-

tal sentencing cases under other provisions of the Bill

of Rights, Teague should not apply to the niche of

Eighth Amendment noncapital sentencing cases. The

lynchpin of this argument is a supposed reduced inter-

est in finality. See Berman Brief 7.

Professor Berman has submitted a brief to this

Court on the interests of finality in criminal cases, and

the word “victim” cannot be found a single time in the

entire brief. This giant blind spot is regrettably com-

mon in American law schools. See Beloof, Cassell, and

Twist, supra, at 3. One example will suffice to show

how this blind spot distorts the analysis.

Rape victims go through hell not only in the crime

itself but also in the aftermath. Among the nightmares

of the aftermath is the fear that the perpetrator will get

out and come after the victim, seeking revenge for her

report and testimony. The fear is well founded. See,

e.g., People v. Edelbacher, 47 Cal. 3d 983, 1027, 766

P.2d 1, 27 (1989).

If a new procedural Eighth Amendment rule were

made affecting sentencing in rape cases, could anyone

seriously say that a rape victim had no substantial

interest in avoiding its retroactive application? Sup-

pose, God forbid, that this Court were to bring back the

Eighth Amendment rule of Booth v. Maryland, 482

U. S. 496 (1987), overruled in Payne v. Tennessee, 501

U. S. 808, 830 (1991), and apply it to noncapital cases so

as to invalidate rape sentences where the victims

29

testified to the impact of the crime on them and their

lives.’ The rule would apply to all cases then on direct

review, but certainly victims of rape would have a

powerful interest in not seeing it apply to final cases.

Victims of crime have powerful interest in the

continued vigor of the Teague rule. It was primarily for

the benefit of victims that amicus CJLF advocated the

rule in the first place. See Brief for Criminal Justice

Legal Foundation as Amicus Curiae in Teague v. Lane,

No. 87-5259, p. 2. That interest extends to sentencing

as much as it does to guilt, and there is nothing about

Eighth Amendment claims as distinct from others that

diminishes this interest one iota. The proposal to carve

out one niche of claims from the scope of the Teague

rule should be rejected.

V. Calling 17-year-old murderers “children”

is deeply offensive to many families of

the victims killed by them.

In light of the unfortunate terminology used by this

Court in Miller v. Alabama, 567 U.S. _, 132 S. Ct.

2455, 2470, 183 L. Ed. 2d 407, 425 (2012), amicus

believes that a note on choice of words is in order. The

holdings of courts are most important, of course, but

the way those holdings are expressed also matters.

The word “child,” in contemporary American usage,

usually refers to a person younger than adolescence.

See American Heritage Dictionary 332 (3d ed. 1992);

Webster’s II New Collegiate Dictionary 198 (3d ed.

2005). Few people today ever refer to teenagers as

“children.”

12. It would, of course, be appalling for this Court to actually make

such a rule, but Booth itself was appalling, and it was the law

for four years.

30

It is precisely because the word “child” evokes an

image of an elementary school youngster that the

advocates of lenient sentencing have adopted that word

in referring to juvenile offenders. See, e.g., Human

Rights Watch, The Rest of Their Lives: Life Without

Parole for Child Offenders in the United States (2005).

The mental image that term evokes strikes an emo-

tional chord, but it is a false image. Life without parole

for juveniles is only for murder after Graham v. Flori-

da, 560 U. S. 48 (2010), and the vast majority of homi-

cides by juveniles are committed by older teenagers.

For example, among juveniles arrested for homicide in

2011, only 11% were under 15. See Dept. of Justice,

Office of Juvenile Justice and Delinquency Prevention,

Juvenile Arrests 2011, p. 3 (Dec. 2013).

In legal usage, as well as common usage, the terms

“juvenile” or “minor” are generally the words for

referring to the entire class of persons under 18.

“Child” is typically reserved for pre-teens. See Garner,

Dictionary of Legal Usage 153 (3d ed. 2011). This

Court used the term “juvenile” in the cases prior to

Miller, see, e.g., Graham, 560 U. S., at 52, and amicus

respectfully requests that it do so again.

Use of the term “children” to refer to 17-year-old

thugs who commit crimes of great violence is pro-

foundly offensive to those who have suffered at their

hands. Henry Montgomery was not a “child” when he

killed Deputy Hurt. Falsely calling him one clouds

rather than clarifies the issue in this case, and it is a

slap in the face to those who have suffered from this

crime.

31

VI. To the extent Montgomery seeks mercy

rather than justice, his request should be

addressed to the clemency authority,

not the courts.

Montgomery received a just sentence for the crime

he committed. He has had life and the opportunity to

find meaning in it; Deputy Hurt has not.

According to his attorneys, Montgomery has indeed

found a meaningful life within prison.

“Evidence also indicates that Mr. Montgomery

has indeed been rehabilitated. As an immature

youth entering the notoriously oppressive, corrupt

and violent adult Louisiana farm-labor punishment

system, Mr. Montgomery originally struggled with

his adjustment to prison. In his more than fifty

years in that system, Mr. Montgomery, now 69 years

old, has grown and matured. JA. 19-20. Even

without hope of release, he has served as a coach

and trainer for a boxing team he helped establish,

has worked in the prison’s silkscreen department,

and strives to be a positive role model and counselor

for other inmates. J.A. 20.” Brief for Petitioner 7.

That is all good, if true and if not counterbalanced

by other facts counsel] chose not to tell. None of it has

any bearing on whether the judgment originally im-

posed was a just one. By the standards of the day, the

sentence was not merely just but lenient. By today’s

standards, it is both within the allowable range and less

than proportionate to the crime committed.

What Montgomery seeks is mercy, not justice.

Mercy may very well be appropriate in this case. If he

has genuinely been rehabilitated, perhaps the retribu-

tion interest has been satisfied and he presents no

public danger. But that call is not this Court’s to make.

32

The people of Louisiana have seen fit to vest the

power to dispense mercy in the Governor of the State,

upon recommendation of a Board of Pardons appointed

by the Governor. See La. Const., Art. IV, §5(E). The

executive has long been considered the appropriate

branch for this power. See The Federalist No. 74, pp.

446-448 (C. Rossiter ed. 2003) (A. Hamilton). That is

where the request to reduce Montgomery’s sentence

should be addressed.

CONCLUSION

The decision of the Louisiana Supreme Court should

be affirmed.

August, 2015

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation