How Can Wrong Not Be Retroactive?

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.

10 comments on “How Can Wrong Not Be Retroactive?

  1. Marc R

    I’m dealing with Miller v Alabama not being retroactive and the solution now seems to be a statutory rivival of old 1st degree laws that allow for parole at, say, 25 years rather than LWOP or death. The problem is that SCOTUS spends 76 pages discussing sociological studies and not one sentence on whether it should be retroactive.

    At a recent Miller hearing, the state argued to the judge that it will open the floodgates and burden the courts. We don’t have that many juvenile LWOP cases to flood anything. And if we did, the absurdity of flooding the system being a greater concern than juveniles spending over a decade more in prison on average than an adult LWOP convict is sickening.

    Of course I’ll take the old Florida statute offering a parole possibility at 25 years, but to say a Miller hearing is merely a procedural and not a substantive legal safeguard, flying in the face of Teague, is a convenient lie.

      1. Ultraviolet admin

        As far as I can tell, it seems to be an overreaction to the war on drugs, especially crack. The influx of prisoners destroyed the ability of prisons to actually rehabilitate criminals. At the same time, the moral panic lashed on to harsh sentencing, and was a fertile ground to take on liberal judge as weak on crime. Bird, Reynoso and Grodin were voted off the California Supreme Court in a series of elections in part because of striking down mandatory sentences, as well as their frequent findings of irregularities in death penalty cases. (Being pre-ramparts California, there were many and the number of cases struck for irregularities ends up being the same, but now they happen several years later during Habeas since the those elections).

        The problem is it takes years for the bad effects of mandatory sentences and shift against rehabilitation to be clearly seen. The massive problem of the California Penal System has only be truly felt by the public in the last few years. Maybe realignment will help. I do know the rehabilitation focused drug courts have worked pretty well. The Santa Clara Jail, one of the biggest in the nation, used to be always over capacity, but now is renting beds to the rest of the bay area due to the drug court system and has the re-offense rate significantly down.

          1. Ultraviolet admin

            I’m attempting to answer how 25 years became easy time due to the death of rehabilitation as a priority and moral panic over the drug war leading to harsher sentencing.

  2. AH

    This is a fine example of Baader-Meinhof. I hadn’t seen the NYT editorial but was just telling my husband the sad story of Stacey Torrance last night, a child (now a man) sentenced to life without parole when he was 14, who just happens to be the same age as my husband. I couldn’t recall his name, so thought googling “14 years old life without parole” would easily return the answer. How naive of me. I couldn’t believe how many return results I got.

    The comments on the editorial are just depressing. Very few appear to be able to muster the smallest shred of empathy or compassion for people who did a bad thing, admittedly, but were likely already victimized and most importantly were CHILDREN. Some of whom (apparently eight 13- and 14-year olds according to the Equal Justice Initiative) have been sentenced to life in prison for non-homicide crimes. I have never understood the argument that the fact that righting a wrong would overwhelm the legal system is a reason not to do it, which I know you are not advancing. If righting a wrong would overwhelm the legal system, doesn’t that mean the injustice is overwhelming? And if so, doesn’t that provide more of a reason to act rather than less?

    1. SHG Post author

      And if so, doesn’t that provide more of a reason to act rather than less?

      Yes. It does. But it ruins our ability to believe that the system is good enough so that we can congratulate ourselves for being so exceptional.

  3. Ultraviolet admin

    I was just thinking of this subject the other day. Kip Kinkel, a school shooter in Oregon who killed 4 and wounded 25 at age 15 just had an appeal denied based on these cases in state court. The court, from what I’ve read, seemed to find a distinction between concurrent sentences (he was sentenced to 25 years concurrently for the 4 murders), and the consecutive sentences (he was sentence to 25 counts of attempted murder, each for 40 months consecutively for a total of ~86 years on top of the 25 years for murder). They also took a distinction between actual and effective LWOP, and also mandatory versus discretionary sentences. Oh, and the court also noted the anti-retroactive principles in these cases to defend it.

    Kinkel has appeals still going to the Oregon Supreme Court and a federal appeal that’s stayed while the state court action is going. It will be interesting to see what happens. I honestly thing the best thing is for the State of Oregon to make a deal with him placing him in psychiatric care until and unless he’s no longer considered dangerous (which may be 6 months or 60 years). But that’s asking about what’s best for both the convict and the state, which is a question that isn’t asked often enough in criminal justice by the prosecution.

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