If something is so wrong today that it violates the Constitution, how could it not be that wrong yesterday? And yet, as the New York Times editorial points out, the Supreme Court of the United States once again left us hanging when it comes to the retroactivity of Miller v. Alabama.
In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”
Each ruling, relying on the Eighth Amendment’s ban on cruel and unusual punishment, has found that young people are “constitutionally different” from adults, and, therefore, must be punished differently.
Cool. So that’s the end of kids being put to death and given life without parole, right? Well, kinda, though the Supremes left a bunch of loose threads hanging. Kids can still be given 100 years with parole (ha! didn’t see that coming, did you?), or without. Or 89 years, which the judge concluded was the length needed but no longer. How anyone concludes 89 years is the right number can’t be explained, but I digress.
In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.
While there is plenty of blame to go around, such as state legislators who have bought into, or rode to electoral victory, the child predator myth that enables them to sleep comfortably knowing that the juvenile, despite his immaturity and still-developing brain, is so evil that his presence in society must be eradicated.
But here’s the rub. If it’s unconstitutional today to categorically impose life on a child because it is cruel and unusual punishment, is there any basis to contend that it wasn’t cruel and unusual for the kid sentenced before the Miller decision? A day before? A year before? Twenty years before? because that juvenile sentenced way back when may be an adult now, but he was a child when the gavel fell. And he’s still there, sitting in his life-imprisonment cell, as he has been since he barely had peach fuzz on his cheeks.
Logic dictates that the decision be retroactive, but logic isn’t a driving force in law. The Supreme Court left the question hanging, because they aren’t paid enough to provide fully formed opinions that deal with an issue sufficiently to provide finality. Some argue that this is only proper, as the court should decide cases modestly, dealing only with the precise issue before the Court and leaving all the loose ends for another day when they are properly prepped, briefed and teed up for decision.
That day could be next year or 50 years from now. The juveniles sitting in prison, of course, aren’t getting any younger waiting for the Supremes to fully address the issue, and changes in personnel, politics and perspective could well mean that the next decision, even if it’s 50 years away, could still leave too many loose ends. The Supreme Court exists to answer questions. It doesn’t do a very good job of it.
The irony is the countervailing argument, the one that gets in the way of sound reason being applied to make such opinions retroactive, is finality. Yes, the same finality that the Supremes use to justify their half-assed decision-making. Reopening every life sentence imposed on a juvenile would expose final judgments to question. What’s the point of having final judgments if they’re going to be subject to reopening every time the Supreme Court goes and holds something unconstitutional? Nothing would ever be finally resolved.
Except we could nip this finality fear in the bud if the Supremes would give fully-formed decisions in the first place, saving society from revisiting them over and over. And in this instance, concerns that floodgates would open, evil grown-up former child predators would go wilding on the streets of our nation, mother raping and father raping through our bedrooms, don’t fly. They aren’t getting out tomorrow, and it’s estimated that it involves maybe 2000 prisoners. We have the capability of individually addressing the appropriateness of their sentences. It won’t overwhelm the legal system any more than a busy week In Manhattan.
But the most important reason is that it’s wrong. The Supreme Court said it’s wrong, that it violates the United States Constitution. So mistakes were made when all those juveniles were sentenced to life without parole. Institutional concerns, even if they are real, are never more important than abiding the Constitution, and something that’s wrong today was just as wrong yesterday. So fix it.