One of the key aspects to getting older is that you remember stuff. You were there before it happened, when it happened, and since. For a criminal defense lawyer, one such memory is how Supreme Court’s decisions affect what happens in the trenches.
My usual example is the Federal Sentencing Guidelines, when the Mistretta decision made them mandatory after every other court held them unconstitutional. That was 1989. Then the Supremes announced they were only kidding in Booker. That was 2005. A whole lot of defendants got sentenced in between. Funny joke, right?
Not that the Supremes have failed us because they’re a bunch of slackers. It’s just that they’re modest. They turn away cases that are clearly erroneous, not because the decisions are dead wrong, but because it’s not their job to correct every mistake made by lower courts. These are very important people deciding very important issues. They have no time to worry about such minor details.
And then there’s the problem of addressing the penumbras and emanations of their rulings. They address a highly specific, deeply limited issue for which cert is granted, but then leave the 20 questions their new ruling raises on the table for some later date. When that later date comes, if at all, is unknown.
But my example of Mistretta to Booker is one that is likely more meaningful for criminal defense lawyers. Liliana Segura provides a far more striking demonstration of the point at The Intercept.
In Pennsylvania, home to some 500 juvenile lifers – the highest in the country — a woman named Trina Garnett remains imprisoned for a crime committed in 1976. Garnett was just 14 when she was arrested for setting fire to a neighbor’s home in an impoverished neighborhood in Chester, PA, killing two kids. Her sentencing judge called her case “one of the saddest I’ve ever seen” — Garnett was a victim of severe abuse and neglect from a young age; she exhibited profound mental disabilities and was in and out of homelessness. Yet Pennsylvania’s mandatory sentencing statute meant the judge was unable to exercise mercy or even consider her youth, traumatic upbringing, or her potential later in life. She was sent to adult prison at 15, where she was raped and impregnated by a guard.
But wait, you say? That can’t be, because the Supreme Court held in Graham v. Florida that life without parole for juveniles was unconstitutional. Well, not quite. That only applied to non-homicide crimes, and in Garnett’s case, two children died. It’s not that the Supreme Court has decided that life without parole is a perfectly fine sentence for juveniles in cases where death occurred, but that they have yet to reach the issue. It wasn’t decided by Graham v. Florida, and so the question remains unanswered. But that was 2010.
In their 2012 ruling in Miller v. Alabama, the justices invalidated sentencing schemes like the one that condemned Montgomery to die behind bars, concluding that mandatory life without parole violates the 8th Amendment ban on cruel and unusual punishment when imposed on juvenile defendants. As Justice Elena Kagan wrote for the 5-4 majority, “children are constitutionally different from adults for purposes of sentencing” — their brains have not developed as fully, making them less culpable for their crimes, and they have more potential for rehabilitation.
But that didn’t end the imposition of life without parole for kids, and only concluded that the method by which it was imposed had to allow for the opportunity to present evidence that children were not beyond redemption. Another piece of the puzzle, but still just a piece. So it was now clear that, going forward, a hearing was required. But what of those who had already spent 52 years in prison?
The Supreme Court heard oral argument in Henry Montgomery’s case, convicted for a murder in 1963 as a 17-year-old and still sleeping on a bunk in Angola prison.
Yet the Court on Tuesday felt far removed from the lives hanging in the balance. Most of the morning was spent, not on the merits of Montgomery’s case, but on the question of whether the justices even have jurisdiction to rule on Miller’s retroactivity at all.
As an institution, it doesn’t mean much to the Supremes whether they address the merits or jurisdiction. Indeed, jurisdiction is always an issue to a modest court. After all, any procedural defect seems critical to note, as it reflects the Court’s integrity to issue a substantive decision. Justices get hung up on such matters, as our system of laws means that all the i’s get dotted and the t’s get crossed. This isn’t a snarky statement, but one that lawyers appreciate as it tends to cut both ways. We understand the value of adhering to procedures.
Yet, Segurra’s point is that kids grow up. Each year, they’re a year older. Each year, one more year of their life is lost. Henry Montgomery, now 69 years old, isn’t getting any younger.
What good does it do for the 500 then-juveniles still held in custody under life without parole terms in Pennsylvania if they grow old and die before the Supreme Court figures out whether their sentence was unconstitutional? What good does it do to proclaim they may deserve a hearing, where they could offer evidence that they weren’t irredeemable, but just stupid kids who did something horrible because kids’ brains aren’t yet sufficiently developed to think grown-up thoughts. Especially brains that never had the capacity to think smart thoughts on their best days? But not whether they do deserve a hearing.
But the Supreme Court has opened the door to the potential that the law forbids what they’ve endured. Just not enough to answer all the questions that were obviously raised but left unanswered. If the Justices wait long enough, are sufficiently circumspect in the handful of cases for which cert is granted, ponder the jurisdictional issues and, should they pass muster, address the extremely limited, highly specific, issue presented in the case before them, they could take long enough to reach the question that there may not be anyone left to save.
Abated by reason of death? It won’t be the first time that happened.