Stuck behind bars?

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A Question of What's Law and What's Right

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Giving juveniles mandatory life sentences without the opportunity for parole is an unjust punishment, and the U.S. Supreme Court has ruled it unconstitutional. But that's not enough to get young offenders already sentenced to mandatory life resentenced or released. For the court’s 2011 decision to apply retroactively, the justices would have to deem it a new substantive rule of law. On Tuesday, the justices heard arguments on that question. If they follow the technical logic of their retroactivity rule, things don’t look good for the people incarcerated under a principle that the court now says is cruel and unusual.

If the whole inquiry sounds absurd, you're not alone: I think the court’s restrictive doctrine of retroactivity is constitutionally indefensible. But that's not up for grabs in this case. Instead, the court will apply its existing doctrine -- so it's worth understanding how it works, even if you don't like it.

In the 1989 case of Teague v. Lane, a plurality of the court in an opinion by Justice Sandra Day O'Connor said that a defendant whose case is in progress or being reviewed on appeal by the courts can benefit from a new constitutional rule when the Supreme Court announces it. Otherwise, the court's decisions only apply retroactively if one of two exceptions applies.

The exception most relevant for Tuesday's case, Montgomery v. Louisiana, is the first. It says that a new substantive rule of law applies retroactively so that criminals convicted under the now overturned law get released. The classic example is when the court says a criminal statute is entirely unconstitutional -- like when the court declared it beyond the power of the state to outlaw sex between consenting adults in 2003's Lawrence v. Texas. If you had been convicted of sodomy and were serving time after that landmark case was decided, you would go free, even if you had exhausted your appeals.

The theory behind this principle is that you shouldn't be imprisoned for an act that the law no longer considers criminal. In contrast, the court suggested, if your sentence would be shortened by a new rule, it’s not as if you wouldn't have gone to prison at all. Your confinement in excess of what the law now allows therefore isn't unconstitutional; it’s just bad luck.

The official rationale for keeping you in prison even after the Supreme Court has said that a sentence like yours is unconstitutional is usually said to be the government interest in finality. We -- which means the courts -- don’t want to do the heavy lifting of sorting through every earlier judicial decision and asking whether it fits into a newly announced rule that doesn't count as substantive. Once you're sentenced, goes the theory, and you've completed your appeals, your sentence is fixed and you have to serve it.

Applying this analysis to mandatory life without parole would seem to yield a pretty obvious result. There’s nothing especially substantive about saying juveniles can't get the mandatory life sentence anymore. To the contrary, the court’s cruel and unusual punishment ruling was about the type and length of punishment, not about the nature of the underlying crime.

But there is a credible legal argument to the contrary. In the 1989 case Penry v. Lynaugh, Justice O'Connor, the same person who wrote the controlling Teague opinion, wrote for the court that “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.” O’Connor was describing earlier cases in which the court had said that an insane person couldn’t be executed and that someone guilty of rape couldn’t get the death penalty.

She concluded that “the first exception set forth in Teague should be understood to cover … rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” The idea was, roughly, that if someone is outside the category of relevant punishment, then punishing them would be like punishing someone for a nonexistent crime.

Mandatory life without parole could be considered an example of a category of punishment deemed unlawful for a group -- namely juveniles -- because of their status. After all, mandatory life without parole is still allowed, just not for juveniles.

But, even after the court's decision, young offenders can still get life without parole if the court considers relevant factors and finds that it is the correct sentence. Juveniles just can’t get life without parole as an automatic, mandatory sentence that isn’t prone to reconsideration.

When the court banned mandatory life without parole for juveniles, its decision hinted that it wasn’t going to apply its decision retroactively. It said the decision “does not categorically bar a penalty for a class of offenders or type of crime.”

That signal hints that Justice Anthony Kennedy, probably the swing voter here as he was in the original life without parole case, may not be ready to press the limits of O’Connor’s logic and apply the rule retroactively. If he does, it won't be the result of applying retroactivity doctrine. It'll be a gut decision about how bad mandatory life without parole for juveniles really is. And on that issue, there really should be no doubt.

  1. Assuming it finds that it has jurisdiction to consider the issue -- a highly technical question the court also considered but with which I won't bore you.

  2. The second Teague exception is for procedural rules, which only apply retroactively if they're considered to be watershed rules of criminal procedure necessary to ensure a fair trial.  The mandatory life without parole sentence is almost certainly not a procedural rule.

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